UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY The Complete Law and Practice IN THE Probate Courts of Ohio INCLUDING THE Administration and Settlement of Estates of Deceased Persons — Including the Inheritance Tax and Administration of Estates by Trust Companies — The Guardianship of Infants, Imbeciles and Drunkards — The Assignments for Benefit of Creditors — The Law Relating to the Execution, Construction and Probate of Wills — The Statutes of Descent and Distribution — Dower — Trustees — Appropriation of Property — Adoption of Child- ren — Juvenile Court Proceedings — Mothers' Pensions — Road and Ditch Appeals — Appeals in Condemnation of Road Material — Appeals in Allowance of Sheep Claims — Franchises — Proceed- ings in Aid >f Execution Habeas Corpus — Contempt and other Miscellaneous Matters (other than Criminal) Within the Jurisdiction of the Probate Court. WITH COMPLETE AND PRACTICAL FORMS BY WILLIAM M. ROCKEL, (of the Springfield Bar; late Probate Judge of Clark County); former Judge of Circuit Court, Second Judicial District THIRD EDITION VOLUME I. CINCINNATI, THE W. H. ANDERSON CO., 1922 '-> / ') 117. 1902 COPYETCHT RY THE W. TT. AXDERSON" CO. 1911 Copyright by THE W. ir. AXDERSOX CO. 1912 CoPYKICiUT BY THE W. H. ANDERSON CO. 1922 Copyright by THE W. II. AXDERSOX CO. f PREFACE TO THIRD EDITION The author has gone over the second edition carefully. The errors that appeared were mostly those relating to statutory mat- ter caused by legislative change. Errors discovered are corrected, new paragraphs added and statutory changes inserted ; some of minor character, others of much importance. Equally, and perhaps of greater importance is the large amount of new- matter, taken, from recent Ohio decisions, added in the notes. Some of the chapters in the former edition, principally re- lating to appellate procedure, having become obsolete by reason of statutory changes, are omitted and new ones added, resulting in eight entirely new chapters, i. e. : Administration of Estates by Trust Companies, Road Appeals, Ditch Appeals, Appeal in Con- demnation of Road Material, Appeal in Allowance cf Sheep Claims and Orders of Fire IMarshal, Inheritance Tax, Juvenile Court and Mother's Pension. The chapters on Inheritane Tax and Juvenile Court, while limited, contain all of the Ohio law and much that is not readily accessible elsewhere. The author would be devoid of gratitvide did he not feel grate- ful for the expressions of commendation made by the Bench and Bar in reference to former editions, and he sincerely hopes this will merit the same meed of commendation. WILLIAM M. ROCKEL. Springfield, Ohio, January 1, 1922. PREFACE TO SECOND EDITION The renumbering of the various sections of the statute law of our state, is, of itself, we deem, a sufficient reason for a new edition of this work. In addition, we have had since the first edition came from the press, a very large number of Ohio decis- ions upon questions kindred to those therein discussed. These have been carefully scanned and cited in the notes, or woven in- to the text. Scarcely a page of the first edition has escaped with- out some change being made. It is gratifying to know that the views of the author, have in a number of instances, been approved by the courts and that his work has generally been looked upon with favor by the Bar of Ohio, and we trust that it will not only have, but merit, the con- tinued favor of those having occasion to use it. WILLIAM M. ROCKEL, Springfield, Ohio, March 1, 1912. PREFACE From the fact that causes in the Probate Court are usually submitted to the Judge without the intervention of a Jury, generally in a pro forma manner, lawyer and layman alike, ofttimes fail to realize the very many important matters coming before it for decision. Recently, resulting perhaps from the decisions of our Supreme Court, recognizing its capacity and powers conferred, a truer conception of its just position in our judicial system, is being entertained. In youth and old age, protecting our person and preserving our property, after we have departed, guarding our loved ones and enforcing our desires, this Court has charged to its keeping, our dearest and most cherished rights. In addition to its jurisdiction, over matters of a fiduciary character, many others of very great importance have been conferred upon it, all of which, except those of a criminal nature, are discussed in these volumes. The plan adopted, is that which the author's experience suggested as the most convenient and useful, to the active practitioner. Recognizing its many imperfections, but cognizant of an honest effort, ho submits the result of his labor, trusting that, in some degree, it may aid in the just and righteous administration of the laws coming within the province of the Probate Court. WM. M. ROCKEL. Springfield, Ohio, January 1. 1903. CONTENTS CHAPTEE 1. ORGANIZATIUX OF ( OURT, JUDGE, ETC. SECTION. PAGE. 1. Introductory 1 2. Organization, etc 2 2a. Combined witli common pleas 3 2b. Legislature to create combined court; petition, etc. (§ 1604-1) .. 3 2c. How petition shall be signed; verilleation (§1604-2) 3a 2d. Conduct of election ; form of ballot ( § IUU4-3 ) 3a 2e. Establishment of probate division (§ 1004-4) 3b 2f. Petition for re-establishment ( § 1004-5 ) 3b 2g. Re-establishment on increase of population (§1604-6) 3c 3. Rank of Court 3c 4. Where Court iield 4 5. Term of Court 5 6. Who may be judge 6 7. No Probate Judge or his deputy to practice law, etc 8 7a. Need not be indicted 8 7b. Exceptions 8 8. Can not act when interested ." 8 9. Administration, etc., when the Probate Judge is interested.... ]0 9a. Proceedings in Common Pleas Court 11 10. Procedure whore Judge is interested 11 10a. When Common Pleas Judge may perform duties of Proliate .Judge 13 11. Custody of files, etc 14 12. Deputy clerks, etc 14 13. Probate Judges may administer oaths, take acknowledgments and depositions 16 14. Bond of Probate Judge, etc 16 15. Judge shall make rules of practice and submit thorn to the Supreme Court 17 16. Miscellaneous matters 17 17. Power to punish contempt 17 17a. Authentication of records, etc 18 CHAPTER 2. JURISDICTION, 18. Constitutional provision 19 19. Status under the constitution 20 20. Equity jurisdiction 21 21. Power to hear common law actions and impanel juries 22 22. Limited jurisdiction 23 23. In actions for sale of real estate, can determine title to land.. .. 23 24. Growth of the jurisdiction of the Probate Court 24 25. Power to grant injunctions 25 26. Power to appoint receivers 26 27. Exclusive jurisdiction 27 28. Concurrent jurisdiction 29 29. Jurisdiction exclusive of that of any other Probate Court 30 V VI CONTENTS. SECTION. PAGE. 30. Appellate jurisdiction 31 31. Junsdictiou to review iiiierior Courts 3i 32. JShall have same powers, and observe rules of Conanon Pleas so far as applicable 31 33. Action in Common Pleas asking direction of Court respect- ing estate. Who may bring 32 33a. When suit by creditor 32 34. Comments , , . . ^ 33 CHAPTER 3. GENERM. PROVISIONS UF PRACTICE. APPEAL, ETC. 35. Probate judge to determine all questions, except, etc 35 36. Code of civil procedure governs when 36 37. Notice of proceedings in Probate Court, how given 37 , 38^ Depositions 3a 39. \\ hen appeals may be taken from Probate Court to Court of Common Pleas 39 40. What may be appealed 40 41. Who may prosecute appeal 41 42. Trial on appeal 42 43. Bond on appeal, when not required 43 43a. Amount of bond 43 43b. Rule as to party appealing in fiduciary capacity in any case. ... 43 44. When bond need not be given 43 4."). When must be filed. Written notice of appeal 44 AC). To whom bond should be made payable 45 47. Amount of penalty of bond 46 45. Form of appeal bond 47 40. Transcript. \Mien to be filed 48 50. Party interested must file transcript 48 51. Proceedings in Common Pleas. Certifying same back 49 52. Proceedings- in error 19 53. Entries, nunc pro tunc, power, etc 51 CHAPTER 4. ADMINISTRATION, ETC. 54. Administration, devolution of property 53 55. Necessity for 54 56. Where there ought to be no administration 55 57. Where there may be no administration 56 58. Form of bond of residuary legatee 57 59. Liability upon the bond 58 60. Discharge of lien on property 59 61. Officiating without appointment 59 62. Acts done by rightful executor or administrator before quali- fying *0 CONTENTS Vn SECTION. PAGE. 63. Letters relate back to time of cicath 01 64. Time within which letters of administration will be granted, lil 65w A])plicatiO|n (12 66. Notice, etc 63 67. Hearinj^ 63 CHAPTER 5. LETTERS TESTAMENTARY. 68. Definition, etc ()•') 69. Distinction between administrator and executor ij'i 70. Power of the executor prior to letters (i'} 71. When application can be made 67 72. In wliat court application should be made (iS 73. Will must be duly probated 6'J 74. Inhabitant or resident 69 75. The estate to be administered 71 76. Application for appointmegit 72 77. Oath to ai)plioation 7.'{ 78. Form of application for letters testamentary 73 79. Who are capable of receiving appointment 74 80. Named in the will 74 81. Legally competent 7-") 82. Residence of the executor 76 83. Bond of executor and its condition 77 83a. When bond not required 77 84. Form of executor's bond 7.S 85. When bond need not be given 7'.i 86. Separate bonds 7!l 87. Form of executor's letters 80 88. The order of appointment SI 89. Form of entry 81 90. Effect of order 82 91. How the order may be attacked 83 92. Renunciation 83 93. Administration during the minority of an executor 83 94. An executor of an executor cannot administer the trust of first testator 84 95. The power of executors and administrators during the con- test of a will bo 96. Contest of will. jMay borrow money, etc 86 97. Application to repair buildings and borrow money 87 98. Form of entry 87 CHAPTER 6. ADMINISTRATOR WITH THE WILL ANNEXED. 99. Definition 88 100. If executor renounces, etc., administration to be granted 88 Viii CONTENTS SECTION. PAGE. 101. Citation of executor 89 102. Entry ordering issue of citation 89 103. Form of citation to take or renounce administration 90 104. If executor does not qualify. Application, etc 90 105. Bond of administrator with the will annexed 91 106. Powers and duties. Personal trust 91 107. Estate directed or devised to be sold by executor, etc., failure of executors to act, who may sell 92 CHAPTER 7. LETTERS OF ADMINISTRATION. 108. Definition, etc 94 109. Death of party 95 110. Who is an intestate 96 111. \Mien and where application should be made 97 112. Application, etc 98 113. Form of application for letters of administration 98 114. To whom letters of administration shall be granted 99 115. ^Mio are capable of being appointed 100 116. Residence of administrator 101 117. Order of priority among those entitled 102 118. When entitled in the same degree 102 119. Renunciation, waiver, etc 104 120. Husband and widow 105 121. The next of kin 106 122. The creditor 106 123. To such person as the Court may see fit 107 124. Must give bond, etc 107 125. Form of administrator's bond 108 126. Granting letters 109 127. Form of administrators letters , 110 CHAPTER 8. SPECIAL ADMINISTRATION. 128. Definition HI 129. When to be appointed 112 130. Delay warranting appointment 112 131. Application, jurisdiction, etc 113 132. Who may be appointed 114 133. Must give bond 115 134. Form of special administrators bond 115 135. Form of entry appointing special administrator 116 136. Form of special administrator's letters 116 137. Powers, duties and compensation of special administrator. . . 117 CONTENTS IX SECTION. PAGE. 138. Power to collect, suit, etc 117 139. Power to sell 118 140. Power to pay debts, fees, etc 118 141. When the powers cease 119 142. How special administrator may be proceeded against by the executor, etc 119 143. Application tor citation, etc 119 144. Form of aonlicati'^n • 120 145. Form of entry ordering citation 120 146. Form of citation 120 147. Journal entry ordering writ of attachment 121 148. Form of writ of attachment 121 149. Entry committing to jail t 121 150. Special administrator not liable to creditors. Limitation of action against executor, etc 122 CHxVPTER 9. ADMINISTRATOR DE BONIS NON. 151. Definition, etc 123 152. When to be granted 123 153. Must be some estate to administer 124 154. Time within which appointment must be made 126 155. To whom granted and where 127 156. Application, etc 127 157. Proceedings by administrator or executor against former ad- ministrator or executor 128 158. Recovery of assets, etc 128 159. Sales, etc., of former executor or administrator valid 130 160. Notice, bond, inventory 131 CHAPTER 10. ADMINISTRATOR DE BONIS NON WITH THE WILL ANNEXED. 161. Definition, etc 132 162. Appointment, etc 132 162a. Power to appoint strancrer to sprve with executor 133 163. If, after administration granted, as of an intestate, a will be proved, the same shall be revoked, unless, etc 133 164. Power of executor or administrator in such cases 134 CHAPTER 11. ANCILLARY ADMINISTRATION. 165. Definition, etc 135 166. Not favored and limited to necessity of appointment 136 167. Difl"erence between ancillary and principal administration.... 137 X CONTENTS SECTION. PACK. 168. When appointment may be generally made 138 169. Powers of executor and administrator under will made out of this State 138 170. Adnlinistration and proceeding when decedent was not a res- ident of the State, but engaged in business therein, etc. . 139 171. Where appointment shall be made 139 172. To whom and in what time granted 140 173. Application, etc 141 174. Application for administration 142 175. Form of application for administration under § 10604 142 176. Notice. Proof, etc., required 143 177. Entry, etc 144 178. Form of entry ordering administration 144 179. Form of application for letters of administration 144 180. Form of administrator V bond 145 181. Form of entry 146 182. Form of administrator's letters 146 183. Powers, duties, etc 147 184. Payment of debts and distribution 148 185. Several administrations for one estate, situate in different States 149 CHAPTER 12. FOREIGN AD]\nNISTRATION. 180. Definition, etc 151 187. Foreign executors and administrators may be sued here.... 152 188. Law governing local administrators applies to foreign 154 I88a. Jurisdiction of courts 154 189. Same, continued 154 190. Procedure of heir, etc., against foreign administrator 155 191. Suit against foreign administrator by heir or legatee 155 193- Form of refunding bonds 157 193. May be required to secure distributees and indemnify sureties 157 193a. Other remedies 158 194. Form of bond to secure distributee or surety from foreign executor 158 195. May prosecvitc suits in this State 159 19(). Validity of voluntary payment to foreign administrators.... 159 197. Foreign executor or administrator may be authorized to sell real estate 160 198. Law applicable to such sales 161 199. Foreign executor or administrator to give bond unless al- ready bound 162 200. Foreign executor, etc., to give further bond to account" for sur- plus when he sells more than is necessary to pay debts, etc. 163 CONTENTS XI CHArTEK 13. JOINT OR CO-ADMINISTRATION. SECTION. PAGE. 201. Definition, etc 1^^ 202. Separate or joint bonds 165 203. Power of one to hind the other in the co-administration of the estate 166 204. Liability for act of co-administrator 167 205. Situs of property. Taxation 170 206. Remedies against each other "• 171 207. Division of commissions 1'- CIlAPTEJt 14. REVOCATION OF LETTERS. RESIGNATION AND REMOVAL. 208. Power of court. Nature proceedings, etc 17:1 209. Jurisdiction to revoke letters 174 210. Resignation, etc 175 211. Revocation v/here wrongfully made 176 212. Form of I'Psignation and entrv. ptf 177 213. Removal of executor for cause, etc 178 213a. Proceedings after removal 178 214. Who mubt tile application, etc 178 215. Application 179 216. Form of application 180 217. Form of entry for hearing, etc 181 218. Notice, etc 181 219. Form of notice 182 220. Causes. Habitual drunkenness 182 221. Gross neglect of duty 183 222. Incompetency 184 223. Fraudulent conduct 185 224. Removal from the State 186 225. Unsettled demands 186 226. Any other causes 187 227. Other statutory causes 189 228. Hearing and entry 189 229. Effect of order of removal 190 230. Acts after his removal, etc 191 231. Termination of authority by completion of trust 192 232. Appeal and error 193 CHAPTEE 15. BONDS, EXECUTION, FORM, ETC. 233. Requirement of bond 195 2S4. To whom made payable 196 Xll CONTENTS SECTION. PAGE. 235. Good signed in blank 197 236. Sufficient condition 198 237. Execution, form, etc 200 238. Approval and custody 201 239. Liability of judge in accepting bond, etc 202 240. Amount of penalty 203 241. Sureties. Qualification and number 204 242. Examination of sureties 206 CHxiPTER 16. NEW BONDS. SURETIES, ETC. 243. Application for release of surety, etc 207 243-1. Application bv executor, etc. ( § 10861-1 ) 207 243a. Removal on failure to give new bond ( § 10862) 208 243b. Costs 208 244. Application and cause 208 245. Form of application 209 246. Entry ordering notice, etc 209 947. Notice, form of notice, hearijig, etc 20!) 248. When order takes effect 210 249. When new bond may be required by interested party 211 250. Liamlity of prior suielies 211 251. Liability of sureties on new bonds 212 252. If bond not given, may be removed from trust 213 253. Wlien executor or administrator to give bond of indemnity to surety 213 254. Application, procedure, etc 214 2.35. Suflieient cause for making order 214 256. Form of indemnity bond 214 257. Construction placed upon such bond 215 258. Additional bonds 215 259. General liabilities of sureties 216 259a. Reduction of bond 218 CHAPTER 17. SUIT ON BONDS. 260. Procedure. Remedy, etc 219 261. Jurisdiction 221 262. Suit by creditor on liquidated demands 222 263. Kind and nature of creditor's claim 222 264. When suit could be brought by creditors 223 265. Suit by legatee or distributee on liquidated demand 223 266. When right accrues to legatee, etc 223 267., At what time action may be brought 225 268. Suit on unliquidated demand 226 269. When Probate Court may authorize suit to be brought 226 270. Application for leave, etc 227 271. Form of application 228 CONTENTS XiU SECTION. PAGE. 272. Entry ordering hearing and notice, etc 228 273. Notice, etc 228 274. Hearing, etc 229 275. Form of entry granting leave to bring suit 229 276. Defense in suit on administration bond for not filing ac- count. Costs 230 277. In suit on bond, claim allowed to be prima facie evidence only of its justice. How such claim contested 230 278. Suit by succeeding administrator or executor on bond 230 279. Time within wliich suit may be brought 231 CHAPTER 18. INVENTORY 280. Definition. Importance of 232 281. Within what time to make inventory 233 282. Wlien may be omitted 234 283. Procedure where statement is filed in lieu of the appraise- ment. Form, etc 235 284. Appraiser, how appointed 237 285. If appraisers fail to act justice may appoint 238 286. Form of appointment of appraisers by justice 238 287. Inventory to be made and by wliom 238 288. How and when notice to be given 239 289. Service and form of notice 239 290. Appraisers' oath ; by whom administered 240 291. Form of oath, etc 241 292. In whose presence and in what manner the articles shall be appraised 241 293. Detailed statement required 241 294. Value to be given articles 243 295. How bonds and other securities to be inventoried and appraised 244 296. How other debts shall be inventoried and appraised 244 297. How inventory of money and bank bills to be stated 244 298. What it shall include 244 299. When real estate should be included . . 246 300. Signing and filing inventory 247 300a. Monthly statement of Probate Court to county auditor 247 300b. Taxes and penalty 247 300c. Beginning of each succeeding tax year 247 300d. Compensation of Probate Judge 247 300e. No allowance of tax inquisitors 248 301. Appraisers' fees 248 302. Inventory to be sworn to by the executor or administrator. Form of oath, etc 248 303. Compulsory return of inventory 249 304. Application for citation, etc. ^9 305. Entry and writ of citation 250 XIV CONTENTS SECTION. PAGE. 306. Removal for failure, etc., and granting of new letters 251 307. Excuse for failure to return an inventory 251 308. Entry, form, etc 252 309. Eflfect of such revocation 252 :J10. Prosecution of former bond by administrator de bonis non 252 311. New assets after return of first inventory 253 312. Exceptions to inventory and proceedings thereon. Appeal to Common Pleas 253 312a. Appeal on exceptions to inventory 254 313. Form of exceptions, etc / . . 254 314. Form of entry ordering notice 254 315. Notice, etc ■. 255 316. Hearing and order 255 317. Appeal 256 318. Effect of inventory as evidence 256 CHAPTER 19. WIDOW'S AND CHILDREN'S ALLOWANCE. 310. Introductory 258 320. What shall not be deemed assets, etc 259 32Ca. Assets not to be administered on in certain cases 260 321. Comments. Wearing apparel, etc 260 322. Disposition of such property 262 323. Riglit to under § 10654, O. C 262 324. Year's allowance 263 325. Money to bo set off if necessary 263 326. Persons entitled to, etc 263 327. Right barred by will or contract 266 328. Nature of the claim 268 329. Wiien appraisers fail to make allowance 269 330. Apportionment between widow and children 270 331. Amount of, etc 270 332. Wlien and to whom payable 273 333. Allowance may be increased or dimiiiislied by tiio court 275 334. Petition for, etc 276 335. Who may file petition 277 336. Form of petition to increase or decrease allowance 277 337. Form of entry, etc *. 278 338. Notice, etc 279 339. Entry on hearing to increase or decrease 279 340. Error and appeal, etc 280 341. Widow's and widower's (juarantiiie 2S0 CHAPTER 20. ADMINISTRATION BY TRUST COMPANIES. 342. Trust companies acting as executor, etc 282 343. Trust companies may accept business when (§ 710-150) 284 CONTENTS XV SECTION. PAGE. 344. Foreign trust company may do business when (§ 710-151).... 285 345. File certificate of compliance with tax commission (§ 710-152) 286 346. Examination of trust company— Expense (§ 710-153) 286 347. Compliance with law before qualifying as executor, etc., (§710- 154) 286 Retirement from State, must give notice (S 710-155) 287 From whom moneys may be received (§ 710-156) 288 Court may order money deposited with company (§ 710-157).. 288 Empowered to act as agent (§ 710-158) 288 Management of trusts (§ 710-15!)) , 28!) May accept trusts of executorship, etc. (§ 710-160) 28!) Capital and deposits with state treasurer held as security (§ 710-161) 200 Court may order investigation of company (§ 710-162) 290 Who may sign papers in court (§ 710-163) 2!)1 Investment of money, etc., held in trust (§ 710-164) 2!)1 Mingling of securities prohibited (§ 710-165) 292 Investment of trust funds (§ 710-166) 292 Reserve fund required (§ 710-167) 292 CHAPTER 21. ASSETS GENERALLY. 363. Definition 293 364. Personal property, definition 294 365. Fixture 295 366. Trees, wood, etc , 298 367. Manure 300 368. Emblements, definition 300 369. When emblements shall be assets 302 370. Power to cultivate and gather crops 302 371. Rent of farm land 302 372. Rents gejnerally 305 373. Leases or chattels real 308 374. Annuities. Dividends 311 375. Copyrights and patents 312 376. Pension rnoney 313 377. Trust property 314 378. Money on deposit 315 379. Fire insurance money 316 380. Life insurance money 316 381. Mutual benefit insurance 318 382. Good-will of business 320 383. Property conveyed by decedent to defraud creditors 320 384. Proceeds of real estate 320 385. Choses in action, etc 321 386. Mortgaged premises to be considered personal assets. Executor, etc., may take possession 323 XVI CONTENTS SECTION. PAGE. 387. Executor or administrator may discharge mortgage. Posses- sion before redemption 323 388. How executor or administrator to foreclose mortgage 323 389. Naming a person as executor not to discharge a debt 324 390. Debt of an executor or administrator becomes assets 325 391. Discharge of debt in a will against an executor, etc., how con- strued 327 392. A debt due from an heir or legatee is assets 327 393. Assets not possessed by deceased 329 CHAPTER 22. ASSETS CONCEALED OR EMBEZZLED. 394. Nature of proceedings 330 395. Proceedings when property of estate concealed or embezzled. . 332 395a. When Probate may reserve case to Common Pleas 332 396. Kind and scope of proceeding 332 397. Jurisdiction of court, etc 333 398. Complaint, etc 334 399. Parties 335 400. Form of complaint 336 401. Entry ordering citation, etc 336 402. Imprisonment for disobeying citation 337 403. Party failing to appear or refusing to answer 338 404. Form of commitment to jail 338 405. E.xamination to be in writing 338 406. Examination of witncoscs to be in writing, etc 338 407. Comments. Form of examination 339 408. Judgment of court thereon. Lien 340 409. Trial. Jury 341 410. Trial issues 343 411. Verdict, etc 344 412. Judgment 344 413. Transcript to be filed in Common Pleas and execution issued. 346 414. If jiulgment in favor of the State, when prosecuting attorney to attend to it 346 415. Conveyance to evade these proceedings void....- 346 CHAPTER 23. PARTNERSHIP ASSETS. 416. Right at common law 347 417. Duties of surviving partners 348 417a. Foreign executor or administrator 34fl 417b. When surviving partners may make application 349 418. Where and by whom application to be made 349 419. Application 3.^0 420. Entry ordering notice, etc 351 CONTENTS XVll SEX:nON. PAGE. 421. Form of notice of hearing application for appointment of ap- l)raisers 351 422. Form of entry ordering appraisement 352 423. Form of inventory unci appraisement 352 424. Entry coiitirming a])praisement, etc 355 425. Oatli. Inventory, liovv made, etc 355 426. When executor to have appraisement made 357 427. When survivor may purchase partnership property 357 427a. Bond of surviving partner 357 4271). When survivor refuses to purchase 358 427c. Will may define, manner of settlement 358 428. Application of surviving partner to take at an appraisement. . 358 42!). Form of bond of surviving partner 359 43(1. Entry of court approving election, etc 35!) 430a. When bond to be filed 360 430b. Evidence of notice , 360 430c. Presentment of claims 360 430d. Account of surviving partner 360 430e. Discliarge of surviving partner and sureties 360a 430f. Where surviving partner elects to take after giving bond... 360a 431. When partner fails to take 3()0b 432. When statute does not ajjply 360b 433. Right of surviving partner 361 434. Where e.xecutor is surviving partner 362 435. Executor continuing the business 363 436. Administrator carrying on business 365 437. How partnership real estate to be conveyed 366 438. What constitutes partnership real estate 366 439. Form of executor's deed 369 CHAPTER 24. COLLECTION OF ASSETS. 440. General duty of administrator or executor to collect 371 441. Duty to bring suits, etc 372 442. Diligence required 373 443. Negligence in collecting 375 444. Statute of Limitations 377 445. When more than twelve months allowed to collect assets 378 446. Affidavit in such case 378 447. When and how application for extension made, etc 378 448. When further time not allowed 379 448a. What further time will be allowed 379 449. Office of executor, etc., not to cease 379 CHAPTER 25. ASSETS. COMPOL^^DING CLAIMS. 450. How executor, etc., may compound with debtor 381 451. Authority to compound 381 452. Application for 383 453. Hearing, etc 384 454. Order of compromise 385 455. Arbitration 385 CHAPTER 26. ASSETS. SALE OF DESPERATE CLAIMS. 456. Disposition of desperate claims 388 457. Jurisdiction 389 XVI 11 CONTENTS SECTION. PAGE. 458. Application 389 459. Wlien notice of application to Court for their sale necessary. Publication of notice 390 460. Entry ordering notice 390 461. Form of notice, etc 391 462. Required proof 391 463. Public or private sales, terms of compounding to be fixed in order .^ 391 464. Entry of public sale 392 465. Form of notice and return of sale 392 466. Form of private sale, etc 393 467. Return of private sale 393 468. Effect of order 394 CIIAPTEK 27. ASSETS. SALE OF PERSONAL PROPERTY. 469. Regulated by statute 395 470. What personal property the executor or administrator may sell, and when appraisement, etc., not required 396 470a. Household goods 307 471. Promissory notes, etc 398 472. Property taken bv the widow, etc 399 473. Property specifically bequeathed 399 474. How property may be delivered to legatee 400 475. Form of redelivery bond 401 476. Emblements 401 477. Request not to be sold in will 402 478. When sale to be made r 403 479. How to be sold 403 480. Notice, etc 404 481. Conduct of sale 405 482. What credit to be given 406 483. Security to be taken 406 484. Sufficient surety, etc 406 485. When executor or administrator not liable for loss........ 407 486. Payment, etc 408 487. Executor or administrator to make out lists of articles liable to sale. Duty of clerk of such sale 409 488. Construction of preceding section 409 489. Sale bill to be signed by clerk, sworn to by the executor or administrator and filed. Returns of private sale 410 490. Form of sale bill, etc 410 491. How return of sale bill enforced 411 492. Purchase by administrator or executor 411 493. Warranty of title 412 404. Property imsold' 413 CONTKNTK XIX CUAPTEK 28. PRIVATE SALE OF PERSONAL PROPERTY. SECTION. PAGE. 495. Statutory provision 415 496. Application. Essentials 4L5 497. Form of application for less than appraised value 416 498. Entries, etc 417 499. When property is not sold within six months 417 500. Return of private sale 418 501. Confirmation of sale 419 502. How notes, claims, stocks, etc., may be sold 419 503. 1' uriii oL application and entry 419 504. Sale without order, etc 420 505. Sale of perishable property 422 CHAPTEK 29. ASSETS. CARE AND MANAGEMENT. Preservation of property 423 Notes, etc., given by administrator 426 Employment of attorney 427 \^^lat counsel all-ivicd 4.30 Amount of counsel fees allowed 434 Taxation 437 Custody of funds 438 Failure of bank where deposited 439 How executor, etc., guardian and trustee may invest funds. . 440 When investment to be made 441 Application to invest, etc 443 Insurance 444 Carrying on bttsiness of the deceased 444 Carrying otit contracts of deceased 448 Contract not binding, etc 450 Duty as to mortgages, etc 452 Stocks 453 Action by executor, etc., to complete contract for sale of land 453 Nature of proceedings 454 Parties 454 Petition 455 Notice, etc .' 456 When Court may order conveyance. Deed 456 Hearing, etc 457 Entry 457 Form of deed 457 Heirs of deceased ptirchaser may enforce specific performance 458 XX CONTENTS CHAPTER 30. ACTION FOR INJURY BY ^VRONGFUL DEATH. SECTION. PAGE. 533. Did not exist at common law, etc 459 534. Right of action for causing death 460 535. Right by statute of other State, territory or coimtry, enforced 460 536. Such actions shall benefit whom 461 537. Settlement, etc 462 538. Application 463 539. Entry allowing 463 540. Report of settlement 463 541. Apportionment 464 542. Entry of apportionment 465 CHAPTER 31. NOTICE OF APPOINTMENT 543. Object and purpose of notice of appointment 466 544. AMien and how given 468 545. Notice 469 546. Affidavit as evidence of notice 469 547. Proof of publication 470 548. Cases where notice of appointment is not given within the proper time, or evidence not perpetuated 470 549. Form of petition, etc 470 550. Entry 471 551. Liability for omission to give notice 471 CHAPTER 32. PRESENTATION ANT) REJECTION OF CLAIMS. 552. Object and purpose 472 553. What must be presented 474 554. Wliat need not be presented 474 555. Sufficient presentation 476 556. ^^^len waived 478 557. Authentication of proof 479 557a. Satisfactory voucher, etc 479a 558. When not required 480 559. Allowance of a claim 481 560. Rejection of a claim 483 561. AMien claim shall be rejected at instance of heir or creditor.. 487 561a. Action against administrator or executor 487 561b. Notice 487 562. Comments 488 563. Requisition to reject a claim 489 564. Bond, etc 489 565. Entry ordering notice 490 566. Form of notice, etc 490 CONTENTS XXI SECTION. PAGE. 567. Action on real estate stayed 491 568. How action brouglit 491 (^^HArTEK 33. PRESENTATION OF CLAIMS NOT DUE. 569. Contingent claims 493 570. Debts not due paid by administrator, etc 494 571. When claims allowed by Court 494 572. What claims included 495 573. Presentation of claim, etc 496 574. Notice, etc .* 497 575. Order of the Court 497 576. Ordering claim paid 498 577. Ordering fsset? to be retained 498 578. Ordering the giving of bond 499 579. Form of bond 499 580. Allowance of court not conclusive, etc 500 581. Action to be brought against executor or administrator; against heir if he has given bond 500 582. Pleading when action brought on bond 501 583. Appeal and error 501 CHAPTER 34. CLAIMS UNPAID AT SETTLEMENT. 584. Claim due must be presented, etc 502 585. Estate of deceased in the hands of heir, etc.; liable for certain debts 503 586. Jurisdiction, etc 504 587. Heirs, etc., to contribute to pay claims after settlement of estate and how 504 587a. Limitation 505 588. Comments 505 589. Estate of any heir, etc., liable after his death 506 590. Where two or more liable, creditor may proceed against all in one action 506 591. Insolvency, etc., of heir or devisee not to elfect liability of others 506 592. Amendments allowed to bring in other parties 506 593. Heirs, etc., liable to contribution. How recoverable 506 CHAPTER 35. AEBITRATION OF CLAIMS 594. Doubtful claims against an estate to be referred to arbitra- tion 508 595. Construction of statute 508 596. Agreement to refer 510 597. How proceeded on if claim is less than one hundred dollars.. 511 598. Duties of the justice of the peace 511 XXll CONTENTS SECTION. PAGE. 599. If it exceed one hundred dollars .512 600. Duties of probate judge, etc .oTi 601. Notice and oath to referees 513 602. Referees to report to court. Proceedings, powers and com- pensation of referees; costs 514 603. Hearing, etc 514 604. Witnesses how procured, and, etc 515 605. Filing of an award 517 606. Form of confirmation of award 517 CHAPTER 36. LIMITATION OF ACTIONS BY CREDITORS AGAINST ADMIN^STRATQR. 607. Generally 518 608. Claim barred by general statute 520 600. When claim barred if not sued within six months after re- jection. What deemed a rejection 524 609a. Rejection of a claim .525 610. Suit on rejected claim 525 611. Time witliin which action can not be brought .527 612. Construction of the above section ,527 613. Limitation of action by creditors 520 614. Construction of statute .530 615. Assets received after eighteen months 532 616. What constitutes new assets .533 617. Action of creditors against iieirs, etc., not barred .533 618. Limitations of actions against administrators de bonis non.. 534 618a. Not required to answer to .suit brouglit after two years .534 619. Administrator de bonis non liable ftr two years after giving bond .534 620. When liable for actions for two years 534 621. An administrator de bonis non to give notice of liis ajjpoint- ment 534 622. Barred claims not revived .534 623. To be further liable if new assets received .535 CHAPTER 37. EXECUTION. COSTS. JOINT DEBTOR. 624. How estate of deceased joint debtor liable 536 625. Preceding section not to allect rights of surety, etc .537 626. How and when execution may issue against executor 537 627. Revivor of actions and judgments .538 628. Executions against executor or administrator 5^0 628a. Action upon suggestion of waste 540 629. Costs in actions against an estate, wlien not recoverable 541 630. WHien costs allowed and by whom 541 CHAPTER 38. CLAIMS OF EXECUTOR OR ADMINISTRATOR 631. Debts due to executor, etc 546 632. General law applicable 547 CONTENTS XXIU SKCTION. I'AOE. (i33. Procedure on presentation of executor's or administrators claim to Probate Court •')41) 034. Claim under fifty dollars 550 635. Where the claim exceeds lifty dollars 550 636. Presentation of claims 551 637. Entry and notice 552 638. Entry and notice for non-residents 552 039. Character of jtroof reciuired 553 640. Allowance or (lisallowance of claim 554 641,. Hearinj^. Exceptions. Appeal 555 641a. Appeal on claims by executor or administrator for debt 555 641b. On appeals from Probate to Common Pleas Court .5,55 641c. Bond 555 642. Error, etc 555 643. Appeal 556 644. Form of appeal bond 556 645. Debts due for services rendered to the estate by others 557 CHAPTER 39. ORDER AND TIME OF PAYMENT OF DEBTS AND ADMINISTRATOR'S COMPENSATION. 646. Generally •'^BO 647. In what order debts to be paid 561 648. Can not be paid in other order 562 649. Funeral expenses 564 64!)a. Funeral expenses, etc. Husband and wife 568 650. Amount to be allowed as funeral expenses 568b 651. Tombstone 570 652. Last sickness 571 653. p]xpenses of administration 573 054. Compensation allowed executors or administrator. Further al- lowance. Effect of compensation provided by will 573 654a. Further allowance 574 655. When entitled to 574 656. How calculated . . . .^:. 577 657. Compensation fixed oy will 577 658. Compensation of joint administrators 579 059. Extra compensation 580 660. Employment of • agent. Office rent, etc 583 661. Allowance made to the widow and children 585 662. Debts due the United States 585 663. Taxes, etc 586 664. Wages 588 665. Debts due general creditors 589 060. Previous section (10715) not to affect lien 590 667. W^hen executor or administrator may proceed to pay debts without being liable for deficiency of assets 591 668. Notice of demands, etc 591 669. And if whole estate to be paid and afterwards other claims presented, he shall not be liable therefor 592 670. If so paid away as to leave insufficient assets to satisfy subsequent claims. How far liable 593 670a. May prove estate insolvent 593 671. If assets are exhausted in paying preferred claims. Executor or administrator not liable for payment of subsequent claims. 593 XXIV CONTENTS SECTION. PAGE. 672. Interest on claims 594 673. Payment to heirs, etc., before final settlement 595 CHAPTER 40. PAYMENT OF LEGACIES. 674. Introductory 597 675. Specific legacy 598 676. General legacy 600 677. Demonstrative legacies 601 678. Gift of stock, etc., general or special 602 679. Vested and contingent legacies 604 680. Absolute and conditional legacies 605 681. Cumulative, repeated and substituted legacies 607 682. Stated amount and residuary legacies 608 683. Lapsed legacies 610 684. Void legacies 612 685. Adeemed legacies 614 686. Satisfied legacies 616 687. Legacies, in lieu of dower 617 688 . Legacies to creditors 619 689. Legacy to a debtor 620 690. Legacies charged on land 621 691. Legacy for life 622 692. Legacies in the nature of incomes and annuities 624 693. Abatement of legacies 626 694. General rules as to payment 627 fi'^'i. When legacies should be paid 628 696. If any legatee require legacy to be paid within eighteen months, court may require him to give bond 620 697. Application for order requiring payment 630 698. Form of application 630 699. Hearing, etc 630 700. Form of bond 631 701. Form of entry, approving bond and ordering payment 631 CHAPTER 41. ADMINISTRATOR'S AND EXECUTOR'S ACCOUNTING. 702. Duty to account 633 703. Executor or administrator to render an account, etc 634 703d. When to make oath as to itemized account 634 704. Where to bo filed 635 705 Time extended 636 706. Time allowed to collect assets not to operate as allowance of further time to file account 636 707. Administrator, etc., of deceased or insane administrator, etc.. to file account 637 708. Successive administration 637 CONTENTS XXV SECTION. PAGE. 709. Joint executor, etc 638 710. With what executor or administrator shall be charged 639 711. Amount of sale bill 640 712. Goods and chattels not included, etc 640 713. Rights and credits of the decedent 641 714. Proceeds of real estate sold 642 715. Interest, etc 642 716. Profit and income. Rents, etc 645 717. How chargeable with property consumed by him 645 718. Increase or decrease of estate not to affect executor or admin- istrator 646 Executor or administrator not responsible for bad debts. . . . 646 Entitled to what credits 646 Vouchers to be produced for all debts paid 647 Voucher, what is proper 647 What items may be allowed without vouchers 648 Comments. Affidavit, etc 648 Preparation of account 649 Oath to account 651 Form of administrator's or executor's account 652 Filing and entry 653 Notice of filing accounts to be published 654 Form of notice, etc 654 Entry and record of publication 654 Importance of notice 655 Examination of accountants under oath 656 Hearing when no exceptions are filed 656 Entry where no exceptions are filed 657 Exceptions 657 Form of exceptions 659 Court may refer account to special commissioner 660 Trial, etc 660 Evidence 661 How compelled to render account 663 Who may compel, etc , 663 When and how account may be opened after settlement 664 Mistakes or errors 664 Distribution after settlement 664 Absence of party 604 To correct errors and mistakes 665 Opening account after eight months, etc 667 Error and appeal 670 Statement in lieu of account 671 Ancillary account 671 CHAPTER 42. DISTRIBUTION IX KIND. Methods of distribution 673 Executor or administrator may distribute certain assets in kind ' 674 Partial distribution 674 Return of assets wlieii necessarj' 674 XXVI CONTENTS SECTION, PAGE. 752. Application for, etc 675 753. Hearing and order 675 754. Form of indemnity bond 676 754a. Application to distribute in kind, and order to transfer stock. . 676a CHAPTER 43. DISTRIBUTION OF ASSETS CONVERTED INTO IMONEY. 755. Definition, etc 677 756. Kinds and when made 678 757. Real and personal estate 680 758. Law of domicile controls 680 759. Creditors of heir 681 760. Set-off against heirs • 682 761. How payment of distribution enforced. Petition therefor... 68.3 761a. Citation 684 762. Nature of proceedings, etc 684 763. Parties 686 764. Petition 687 765. Form of petition 688 766. Citation 68S 767. Entry ordering citation 68!) 768. Form of citation 68!t 76!). Service of citation 68!) 770. Service, when executor or administrator non-resident 6110 771. Order for ])ublication 69(i 772. Form of notice 601 773. Proof of service 6!ll 774. Hearing and judgment. Execution 602 774a. Lien 692 775. Trial, proofs, etc 692 776. Entry, finding. .ludgment 694 777. Probate Court may bring in all necessary parties and deter- mine all questions 6!i4 778. Comments 6!)5 77!). I'robate Court sluill on motion 0. DESCENT AND DISTRIBUTION. 907. Introductoi-y 827 908. Ancestor 828 909. Descent and devise 829 910. Deed of gift 830 911. By purcha.se 831 912. Legal representative 832 913. Next of kin 8.32 914. Relict of deceased husband or wife 834 915. Order of descent of real estate where title came by descent or de- vise or deed of gift 835 916. Comments 836 917. Order of descent where estate came by purchase, etc 837 918. When real estate to pass to husband or wife; when to next of kin of intestate 837 919. When real estate to pass to children of former liusband or wife. etc 838 920. Descent of estate which came from former husband or wife 838 921. Distribution of personal estate ,Sj9 921a. When personal |)ioperty to escheat 839 922. Comments ". 840 923. When estate to descend to children of intestate and how 840 924. Descent when all descendants of eqmil degric of consan;.i:uinity . . 840 925. When there are living both cliildicii and heirs of deceased chil- dren of intestate 841 926. Extent of application of last section ,S41 927. I^revious sections apply to real and personal propertv S41 928. Advancements by intestate to be considered as part of estate.. 842 929. Definition, etc 842 930. What constitutes an advancement 843 931. How proven 845 932. When advancement is greater or less than heirs' share 846 C33. When advancement is wholly real or personal estate 847 934. When value of advancement expressed in deed, etc 847 935. Heirs of aliens may inherit; aliens may hold lands 848 936. Capability of bastards as to inheritance 848 937. When illegitimate children deemed legitimate, etc 848 938. Amount of personal estate to which a widow or widower is enti- tled upon distribution 849 939. Comments 849 CONTENTS XXXl SECTION. PAGE. 940. Construction of words, " living" and " died " 851 941. Posthumous child of intestate to inherit 8.51 942. Permanent leaseholds to descend same as estates in fee 851 CHAPTER 51. DOWER. 943. Mature. Definition, etc 852 944. Of what estate a widow or widower endowed 8.55 944a. Mansion liousc, ctp S-IS 945. Widow or widower 855 946. Relinquished 857 947. How barred 859 »48. Death of a consort 861 949. To what property the right attaches 861 950. Value and rights when lands are sold 86.3 951. Conveyance in lieu of dower 866 952. Effect of defective conveyance in lieu of dower 867 95.3. Effect of eviction from premises conveyed in lieu of dower 867 954. When person dwelling in adultery is barred of dower 868 955. Where lands aie given up by fraud 868 956. Dower is forfeited by waste 869 057. Assignment of 869 958. Application 870 CHAPTER 52. INSOLVENT ESTATES WHEN SETTLED BY ADMINISTRATOR, ETC. 959. When estate need not be declared insolvent 873 960. When an estate should be declared insolvent 874 961. Application for insolvency 876 962. Form of application 877 963. When commissioners not appointed, executor or administrator to act as such 878 964. Entry and order declaring the estate insolvent 878 965. Executor or administrator shall give notice of insolvency of estate to creditors 878 966. Form of notice 879 967. Time allowed in such case for creditors' to present claims. List of claims to be filed 879 968. Comments 879 969. Claim disallowed may be submitted to referees 880 970. Presentation and proof of claims 880 971. If not referred, creditors to commence suit. Limitation 882 972. Court or referee to award costs 883 973. How judgment to be rendered on disallowed claims 883 974. Preparation of report 883 XXXU CONTENTS iSECTION. page:. 975. Report of claims presented in insolvency 884 976. When court to make order of distribution on return of list of debts 885 977. Hearing and order of distribution 885 978. Report of payment of dividends 887 979. Confirmation of distribution 888 980. When court to make further order of distribution 888 981. Exceptions 888 982. Provisions for contingent debts 889 983. When contingent debt becomes absolute 890 984. Dividends thereon, disposition of residue 890 985. Action against executor or administrator of insolvent estates. . 890 985a. Estate declared insolvent while action against it pending 890 986. Comments 891 987. Claims not presented as required, barred, unless, etc 891 988. If surplus remains after paying debts allowed, other creditors may claim it 892 989. How divided between two or more such creditors 892 990. Executor or administrator liable only for assets in his hands.. 892 991. Creditors may sue after three years in case, etc 892 992. When and how executor or administrator may be compelled to render liis account to court 892 CHAPTER 53. SETTLiEMENT OF INSOLVENT ESTATES BY COMMISSIONER, ETC. 993. Wlien estate insolvent, court to appoint commissioners to audit claims 894 994. Comments 895 995. Duties of administrator, .etc., when commissioners appointed.. 896 996. Commissioners to give notice of their appointment, etc 896 997. Form of notice, etc 897 998. Time allowed creditors to present and prove claims. Commis- sioners to report to court 897 999. Presentation of claims 898 1000. Commissioners examine claimants on oath 899 1001. Any one of commissioners to administer oath 899 1002. Hearing and action on claim 899 1003. Report of the commissioners 900 1004. Appeal from decision of commissioners, how perfected. Hearing and costs 900 1005. Procedure and appeal 901 1006. Form of bond, and notice of appeal 901 1007. Duty of commissioners when bond or notice is filed 902 1008. How persons should proceed who have omitted to appeal 903 1009. Comments 903 1010. AUow'ance of appeal not to disturb distribution previously made 904 1011. Distribution among creditors after commissionor's return.... 904 1012. Compensation of commissioners 904 CONTENTS XXXm CHAPTER 54. WILLS. GENERALLY. SECTION. PAGE. 101 3. Definition, etc 905 1014. Distinguishing characteristics 1)07 1015. Confusion between wills and other instruments in writing 909 lOlG. Law governing will 911 1017. Right to make 912 1018. Who may make a will 913 1019. Any person 913 1020. Full age 913 1021. Sound mind and memory 914 1022. Idiots, imbeciles and lunatics 915 1023. Blind, deaf and dumb persons 917 1024. Person under a guardianship 918 1025. Not under any restraint 919 1026. Having property 922 1027. May give any person 923 1028. Bequest or devise to charitable purpose, when void 924 1029. Corporation and charitable uses 924 1030. Entailed estates pass to issue of first donee 929 1031. Rule against perpetuities 929 1032. Contract to make a will 931 1033. Statutory meaning of certain words as applied to wills 932 CHAPTER 55. WILLS. EXECUTION. 1034. How will made 933 1035. In writing 933 1036. Will being on several pieces of paper 934 1037. Signed at the end 935 1038. By party making the same 937 1039. Signed by other person 938 1040. Attestation 939 1041. Subscription 941 1042. In presence of testator 942 1043. Two or more competent witnesses 945 1044. Effect of a person being a devisee or legatee 945 1045. Who saw testator subscribe or heard him acknowledge 946 1046. Suggestions for drawing wills 947 1047. Form of will 949 CHAPTER 56. REVOCATION OF WILLS. 1048. General principles 951 1049. How will expressly revoked or cancelled 953 ^^^^IV CONTENTS SECTION. p^^^ 1050 Tearing, etc 9-3 1051. Interlineation ,.-. 1052. By some other will or codicil 955 1053. Destruction of second will not to revive first, unless, etc 0.^6 1054. Revocation of later will, etc 956 1055. By other instrument in writing 957 1056. Revocation by sales, or conveyance of property, etc 958 1057. Property sold by bond, sale or agreement not a revocation 958 1058. Charge or incumbrance not deemed a revocation 959 1059. Conveyance, etc., altering but not divesting estate, not a revo- cation, unless, etc 959 lOCO. "When provisions of instrument are inconsistent with terms of will. Effect 9,59 1061. Marriage will not revoke the will 959 1062. Revocation by birth of child 960 1063. Having child and making provision, etc 960 1064. Child absent, reported dead, or born after will made to have portion of estate. How portion raised. 962 1064a. How contribution apportioned 963 1065. Advancements to be taken into account in such settlement.... 963 CHAPTER 57. CUSTODY. 1066. Generally 964 1067. May be deposited with probate judge. Notice of probate 965 1067a. Notice of probate 965 1068. How such will enclosed, etc 965 1069. To whom it may be delivered 966 1070. When to be opened 966 1071. Comments 967 1072. Who may enforce the production of a will and how 967 1073. Application for citation, etc 968 1074. Form of entry and order of citation 968 1075. Attachment or warrant 969 1070. Into what counties such process may issue 970 1077. Liability of officer serving same 070 1078. Hearing, etc 970 1079. Punishment and liability of person refusing to produce will. ... 971 1080. Form of entry and warrant, etc 971 CHAPTEE 58. WILLS. PROBATE. 1081. Definition. Nature of proceedings, etc 972 1082. What may be admitted to probate 974 1083. When should be presented 976 1084. Effect of devisee withholding will from probate for three years 977 CONTENTS XXXV SECTION. PAGE. 108.5. Who should present will for probate 977 1086. In what court wills should be probated !)7H lOSCa. Persons interested in probate of will may contest jurisdiction of court to entertain application; ajjpeal from decision.... 981 1086b. Contest 081 1087. Application for probate 981 1088. Form of application for ]>iobate of will 98.3 1089. Time of hearing 98.3 1090. Entry fixing time, etc 984 1091. To whom notice should be given 984 1092. Service of notice 98.5 1093. Form of notice 980 1094. Essentials to be proven in probate of will 986 1095. Examination of witnesses to will 987 1096. What witnesses may be heard., etc 987 1097. Form of testimony ." 988 1098. How will proved, if witnesses unknown or incomj)etent, etc.... 989 1099. Sufficient testimony wiiere witness is dead or absent 989 1100. Form of testimony of subscribing witnesses 991 1101. When court may issue commission to take their testimony 991 1102. Order to take testimony of absent witness 992 1103. Form of commission ^r^.'.-V.' .-. . . 992- 1104. Return of commissioner 993 1105. Admission of will to probate 9!I3 1106. Sufficient proof, etc 993 1107. Entry ordering probate 996 1108. Effect of order 997 1109. Record of title by will 999 1109a. Certificate of probate judge wiien will devises real estate 999 1109b. By county recorder 999 1109c. Fees 999 1110. Certified copy of will, etc., evidence 999 1111. Recorded in each county where real estate is situate 999 1111a. Record of title by descent 999c 1112. Uncontested probate after one year binding 1000 1112a. Contests, etc 1001 1112b. Set aside by agreement lOOla 1113. Duty of judge on notice of contest 1001b 1114. Error, etc 1002 1115. Repropounding a will .1003 1115a. Probating second will 1003 1116. Appeal from refusal to admit will to probate 1004a 1117. How appeal perfected and proceedings in Common Pleas 1004a CHAPTER 59. FOREIGN AVILLS 1118. Introductory, defintition, etc 1005 1119. Will executed in other states admitted to record here and its effect. Foreign wills 1007 1119a. Record of foreign will 1007 1120. Method and effect of such admission 1008 1121. Application, etc 1009 1122. Form of entry 1009 1123. Appeal, error, etc 1009 1124. Probate, etc., of will made out of the United States 1010 1125. Proceedings to admit a will to record wliich has been ^)robated without the state 1010 • XXXVl CONTENTS SECTION. PAGE. 1126. Application or motion to admit a copy of will, etc 1011 1127. Entry ordering notice, etc. . 1011 1128. Form of not.ce 1012 1129. Admission of such will to probate 1012 1130. Admission and effect of admission to record 1013 1131. Entry ordering admission of will made in foreign countries to probate 1013 1131a. Probate of foreign will of later date than one already admitted to probate in this state 101-1 1131b. Effect of admitting later will to probate 1014 1131c. Contests 1014 1132. Powers of executor or administrator under the will made out of this state 1014 1133. Eights of purchaser witiiout knowledge of foreign will. No contest of foreign will. Effect, if set aside in foreign state. 1015 1133a. Foreign will can not be contested here 1015 CHAPTER 60. SPOLIATED WILLS. 1134. Definition, etc 1016 1135. Wills when lost or destroyed may be admitted to probate. .. .1017 1136. There must have been a will 1017 1137. Duly executed 1018 1138. Not revoked at death of testator 1010 1130. Lost, spoliated or destroyed 1010 1140. Lost, etc., subsequent to death of testator 1020 1141. After testator is incapable, etc 1021 1142. Application 1021 1143. Form of application 1023 1144. Notice of application 1023 1145. Order of notice, etc 1024 1146. Examination of witnesses 1025 1147. Nature of proceedings 1025 1148. On what proofs will established. IIuw lost or spoliated will may be probated 1026 1148a. Notice 1026 1140. Degree of proof 1027 1150. Proof of contents 1028 1151. Order establishing will 1020 1152. Effect of will so established 1030 1153. Error and appeal, etc 1030 1154. When record of will destroyed, authenticated copy of the will and probate tliereof may be admitted to record 1030 1155. An original will may again be admitted to probate 1031 1156. Or an authenticated copy of the will alone may be admitted to record 1031 1156a. Limitation as to contests 1031 1157. Notice that copy has been admitted to record to be published, contest of same, and effect if not set aside 1031 1157a. Appeal from order supplying record of will to the common pleas '. 1031 CHAPTER 61. NUNCUPATIVE WILLS. 1158. Definition 1033 ^1150. Nuncupative will, how made and proved 1034 CONTENTS XXXVll BECTION. PAGE. 1 160. Last sickness 1034 1161. Personal estate 1035 1162. Reduced to writing 1036 1163. Subscribed by competent witnesses 1036 1164. Called upon person present 1037 1165. Testamentary words 1038 1166. Must be admitted to probate within six months 1039 1167. Matter pertaining to probate 1039 1168. Proof required, etc 1039 1169. F<)rm of will 1040 CHAPTER 62. JOINT AND MUTUAL WILLS. 1170. Definition and classification 1041 1171. Ohio decisions 1042 1172. When admissible to probate 1044 1173. Revocability of joint and mutual wills 1045 CHAPTER 63. CODICILS. 1174. Definition 1047 1175. Execution. Revocation, etc 1048 1176. Construction of will and codicil 1048 1177. Republication of will by a codicil 1049 1178. Probate of codicil 1049 1179. Form of codicil 1050 CHAPTER 64. CONSTRUCTION OF WILLS. 1180. Definition, etc 1051 1181. General rules of construction 1053 1 182. Rules as to intention 1056 1183. Rules as to repugnancy 1058 1184. Rules for supplying words 1059 1185. When extrinsic evidence admissible 1060 1 186. Parol evidence 1062 1187. Declarations of the testator 1064 1188. Devise for life, remainder to heir in fee 1066 1189. Rule in Shelley's case 1066 1190. Vesting of estates 1067 1191. Property acquired subsequent to making of will passes 1069 1192. When whole estate of devisor in land to pass by the devise. . . . 1070 XXXVlll CONTENTS SKCTIOX. PAGE. 1193. Life estate with power of disposal ■ 1072 1194. Devise or bequest not to lapse by the death of devisee or legatee.1075 1 195. Lapsed bequest 1075 119G. '"Heirs.' how construed 1077 1197. 'Issue" construed 1079 1198. "Children" construed 1080 1199. "Xext of kin" construed 1081 1200. "Relation" construed 1082 1201. "Descendants" construed 1082 1202. Disinheriting heirs 1083 1203. Provisions against contesting 1085 1204. Restraints of alienation 1086 1205. Restraint of marriage 1088 1206. Wlien real estate undevised shall be applied to pay debts in- stead of personalty 1089 1207. Contribution when devised or bequeathed property taken to pay debts 1089 120S. Except when will otherwise provides 1089 1209. But whole estate liable for debts 1090 1210. Portion of child born after execution of will or supposed to be dead, or of witness subject to contribution 1090 1211. If iiny liable to contribute are insolvent, etc., how others to make uji deficiency 1090 1212. How contribution enforced. 1091 1213. Order to sell land to pay debts. Not alTected, etc 1091 CHAPTER 65. ELECTION OF WIDOW OR WIDOWER UNDER THE ^^TLL. 1214. Inti oductoy 1092 1215. Citation to widow or widower to make election 10.93 121.'3a. Construction 1093 1215b. Election time extended 1094 121.")C. Dower and gift 1094 1216. When citation should isb ue 1094 1217. To whom issued 1095 1218. Form of citation and return to widow. To make election. ... 1095 1219. Time within which election may be made 1096 1220. When entitled to both dower and the provisions made in the will 1096 1221. Election or non-election, effect 1097 1221a. Election to be noted 1097 1221b. Election to take under will 1097 1222. Election made in person 1098 1223. Judoe to explain wills, etc 1099 1224. Election to be made— Record 1100 1225. Election. Entry, etc 1101 1226. Election made by acts of parties 1102 1227. Effect of election to take 1103 1228. Effect of election not to take 1 1(»5 122i). How election set aside 1 105 1230. Rights of devisee. How affected 1106 CONTENTS XXXIX SECTION. PAGE. 1231. If person unable to appear or non-resident of county, how- election taken 1108 1232. Application for commission, etc 1108 1233. Commission to take such election 1109 1234. Form of entrj', etc 1110 1235. How election made for insane or imbecile widow, etc 1111 1235a. Entry 1111 1236. Application, etc 1111 1237. Form of commission as to insane or imbecile widow's elec- tion 1112 1238. Duty of commissioner 1112 1239. Duty of the Court 1113 CHAPTEH 66. GIFTS CAUSA MORTIS. 1240. Definition, etc 11 14 1241. What kind of property may be given 1115 1242. Requisites of gift 1116 1243. In view of death 1116 1244. Death of donor 1117 1245. Delivery of subject to gift 1117 1246. Gift should be absolute 1119 1247. Revocation of gift 1119 1248. Evidence of gift 1 120 1249. Rights of creditors and family 1120 CHAPTEK 67. TESTAMENTARY TRUSTEES. 1250. Definition, etc 1 122 1251. Distinction between executor and testamentary trustee 1123 1252. Who may be a trustee 1126 1253. Jurisdiction of Probate Court, etc 1128 1254. Application, etc 1129 1255. Form of application for appointment of trustee 1130 1256. Trustees appointed by will to give bond, unless, etc 1130 1257. Comments 1131 1258. Removed on failure to give bond 1132 1259. Form of trustee's bond 1132 1260. Appointment of trustee 1132 1261. Entry for appointment of trustee 1133 1262. Form of letters of trusteeship 1134 1263. Inventory of estate 1134 1264. Separate bond from each trustee or joint bond 1135 1265. Surviving trustee may execute trust 1135 1266. When Probate Judge may appoint person to execute a trust. . . . 1135 xl CONTENTS SECTION. PAGE. 1267. Trusts created by foreign will 1135 1268. Id. Trustee named in foreign will to give bond 1136 1269. How trustee appointed by foreign Court may execute a trust. . . 1136 1270. Comments 1 136 1271. Probate Court may appoint a trustee under a foreign will 1137 1272. Comments 1137 CHAPTER 68. TRUSTEE FOR NON-RESIDENT. 1273. Introductory 1138 1274. How trustees are appointed for non-residents 1139 1275. When appointment to be made 1139 1276. Jurisdiction 1140 1277. Bond and duties 1140 1278. Trustees may lease or sell real estate as guardian of minor. . . .1140 1279. How long trustee to hold office 1140 1280. When and to whom trustee shall pay over money 1141 1281. Comments 1141 1282. How foreign guardian, etc., may collect money 1142 1283. Petition, etc 1142 1284. Entry and notice 1143 1285. Hearing, etc 1 143 1286. Trustee may loan money in certain cases 1144 CHAPTER G9. TRUSTEE. DUTIES. ACCOUNTING, ETC. 1287. Duties of trustee 1145 1288. Principal and income 1147 1289. Dividends 1 149 1290. Gain and loss 1150 1291. Alterations and repairs 1151 1292. Expenses. Taxes. Insurance 1 152 1293. Trustees must render biennial account 1153 1294. Citations and notices 1 154 1295. Probate Court to determine as to execution of trust 1154 1296. Comments 1 154 1297. Appeal from determination of Probate Court 1155 1298. Force and effect of aetermination 1155 1299. Allowance of compensation 1155 1300. When Court may accept resignation of trustee or remove him. .1156 1300a. When trustee under a will may be removed 1156 1300b. Trustee to be removed when guardian appointed 1156 1301. Removal of trustee, etc 1 156 1302. Causes for removal 1 158 1303. Distribution of fund 1 159 1304. Termination of trust 1160 CONTENTS Xli CHAPTER 70. GUARDIANS. KINDS, ETC. SECTION. PAGE. 1305. Definition 1162' 1306. Natural guardians 1163 1.307. Testamentary cuardini) 1 1«4 1308. How testamentary guardian to be designated 1165 13U9. lestauieiuaiy guaruiun to have preference. His duties, powers and liabilities 1166 1310. When testamentary guardian shall give bond 1167 1311. Guardian of the person and the estate .1167 1312. Guardian of the person 1108 1313. Duties of guardian of the person, etc 1108 1 3 14. Bond of guardian of person 1 1G2 1315. Guardian of the estate 1169 1310. Duties of guardian of estate only 1 170 1317. Other kinds of guardians 1170 1318. Ancillary guardians 1171 CHAPTER 71. GUARDIAN. APPOINTMENT AND BOND. 1319. Court having jurisdiction 1173 1320. When necessary 1 174 1321. Minors .-^rr;". 1175 1322. Resident of county 1176 1323. Statement of ward's estate to be filed and bond given. Mort- gage in lieu of freehold surety. Oath 1180 1323a. 'Surety in lieu of freehold 1180 1323b. Oath 1180 1324. Application for appointment 1181 1325. Form of application for appointment of guardian 1181 1326. Notice to parties 1182 1327. When minor may choose guardian; or Court may appoint 1183 1328. How made, etc 1 183 1329. Parents' choice 1185 1330. Court's choice 1186 1331. Who ineligible by law 1187 1332. Who should not be appointed 1 188 1333. Must give bond 1189 1334. Form of guardian's bond 1190 1335. Mortgage in lieu of freehold sureties 1191 1336. Oath 1191 1337. Bond not void on account of informality 1193 1338. One bond for two or more wards, etc., fees 1193 1339. Order of appointment 1193 1340. Form of entry 1194 1341. Letters of guardianship 1194 1342. Appeal and error 1 196 Xlll CONTENTS CHAPTEE 72. BOND. NEW. ADDITIONAL. SURETY. SECTION. PAGE. • 1343. Additional bonds 1197 1344. Who may file exceptions, etc 1198 1345. Entry ordering notice, etc 1198 1346. Notice and form • 1199 1347. Entry ordering additional bond 1199 1348. New bond. Release of surety 1200 1349. Application, etc 1201 1350. Notice, etc 1201 1351. Entry ordering release 1202 1352. When action may be brought 1202 1353. Liabilities of sureties, etc 1203 CHAPTER 73. DURATION OF GUARDIANSHIP. REMOVAL, ETC. 1354. How long powers of guardian to continue. His settlement. . . .1206 1355. Termination of trust 1206 1356. Marriage of ward 1208 1357. Resignation 1208 1358. Removal of guardian by the Court 1209 1.359. Jurisdiction and procedure 1209 1360. Causes, etc 1210 1 360a. Appeal and error 1212 CHAPTER 74. POWERS AND DUTIES OF GUARDIANS GENERALLY. 1361. Guardian's relation to his trust 1213 1362. Guardian's duties enforced 1215 1363. Power of Court over guardians in the execution of their trust. .1216 1364. Procedure when Court directs tlie manner of execution of the trust 1218 1365. Application of guardian for direction as- to tlie management of his trust 121S 1366. Powers of guardian of person and estate. Rights of parents. . 1220 1367. Duties prescribed by statute 1--1 1368. Inventory 1223 1369. Duties as to custody of ward 1224 1370. Wards may be bound out upon approval of Probate Court. . . .1225 1371. Form of indenture to bind out a ward 1226 1372. Rights to services of his ward 1227 1373. Duties as to maintenance 1228 1374. When parent may receive compensation for maintenance and education 1230 OONTKJMTS xliii SECTION. PAGE. 1375. Duties as to education 1231 1376. Religious instruction 1232 1377. Fixed allowance made by tlie Court for ward's maintenance, etc. 1233 CHAPTER 75. POWERS AND DUTIES IN RELATION TO ESTATE. 1378. Management of estate 1234 1379. Carrying on business of the ward 1236 1380. Must pay debts of the ward 1237 1381. Collection of debts, etc 1238 1382. Arbitration and compromise of claims 1239 1383. Actions for the ward 1240 1384. Actions against the ward 1241 1385. Investment of funds 1243 1386. Investment of funds in land 1245 1387. Form of application, entry, etc 1246 1388. Interest on funds 1247 1389. Deposit of funds 1249 1390. Personalty received from administrator, etc., in kind 1249 1391. Sale of personal estate 1250 1392. Management of real estate, etc 1251 1393. Rents 1252 1394. Repairs 1253 1395. Release of ward's tax title by guardian, effect of tender of deed. 1254 1390. Partition and dower 1254 1397. Easement. Appropriation 1255 1398. Completion of real estate contract. Additional bond 1255 1399. Contracts between ward and guardian 1255 1400. Ward's right of action against the guardian 1256 1401. Guardian's right of action against the ward 1256 1402. Employment of attorneys, agents, etc 1257 1403. Guardian cannot purchase property of the ward, etc 1257 1403a. Discovery of assets belonging to estate of vrard 1258 1403b. Imprisonment for disobeying citation 1258 1403c. Examination reduced to writing 1258 1403d. Costs, etc 1258 CHAPTER 76. GUARDIAN'S SALE OF REAIL ESTATE. 1404. Nature of action, etc 1259 1405. Sale of personal and real estate of minors. One application for sale of real estate of two or more wards. Two or more guardians may join 1260 1406. In what Court action to be brought 1261 1407. When action may be brought 1262 1408. Parties to action 1263 1409. What may be sold 1264 1410. Petition for sale of real estate 1265 1411. Essentials of petition 1266 Xliv CONTENTS SECTION. PAGE. 1412. Form of petition 1267 1413. Notice of filing petition, etc 1268 1414. Ordering notice, etc 1268 1415. Service of notice 1269 1416. Form of notice, publication, etc 1270 1417. Guardian ad litem 1270 1418. Hearing of petition. Appraisers. Survey into tovsrn lots 1272 1419. When order anuuld be granted i272 i420. Order to appraise 1273 1421. Oath of appraisers 1273 1422. Guardian to execute additional bond before sale 1274 1423. Form of guardian's bond 1274 1424. Requirements of bond, sureties, etc 1275 1425. Order of sale of real estate, private sale when, laying out in town lots 1275 1426. Entry ordering sale 1276 1427. Public sale 1277 1428. Private sale 1277 1429. Report of sale, fonfirmation and deed 1278 1430. Form of guardian's deed 1278 14.31. Appeal ana error ii;sO CHAPTEE 77. LEASE OF WARD'S REAL ESTATE. 1432. Power to lease 1281 1433. Power to lease for fifteen years 1282 1434. Petition for lease 1282 1435. Application for lease, etc 1283 1436. Form of petition to lease and improve real estate 1283 1437. Notice. Entry, etc 1284 1438. Who may unite in application and proceedings thereon 1285 1439. Appointment of appraisers. Entiy, etc 1285 1440. Order to view, etc 1286 1441. Hearing and orders thereon 1287 1442. Order authorizing lease, etc 1287 1443. How improvements may be made 1287 1444. Report of guardian, etc 128? 1445. When lease extending beyond minority determines 1288 1445a. Lien of tenant for improvements 1288 CHAPTER 78. POWER TO LEASE REAL ESTATE FOR PETROLEUM, GAS AND MINING PURPOSES. 1446. Lease for petroleum or natural gas purposes 1289 1447. Power to lease real estate for petroleum oil or natural gas purposes 1290 CONTENTS Xlv SECTION, PAGE. 1448. Petition therefor 1290 1449. Notice of hearing 1290 1450. Court to prescribe terms, etc 1290 1451. Lease for mining purposes 1291 1452. Power to lease real estate for ten year3 for mining purposes. . . . 1291 1453. Petition ; time for hearing 1291 1454. Land to be viewed by disinterested freeholders 1292 1455. Probate Court to order lease 1292 1456. Royalty; report of by guardian; bond to recover 1292 1457. Change in terms of leasing 1292 1458. Lands owned in common by minors 1293 CHAPTER 79. MORTGAGE OF WARD'S LANDS. 1459. Statute must be followed, etc 1294 1460. Where action to be brought 1295 1461. Guardian may mortgage real estate of ward in certain cases . . 1295 1462. For whom action may be brought 1296 1463. When application may be filed 1297 1464. Petition therefor; what to contain 1297 1464a. Investigation and repoi t 1298 1465. Essentials of petition 1298 1466. Form of petition 1299 1467. Proceedings upon filing of petition 1299 1468. Viewers, when to be appointed 1300 1469. Amount to be borrowed, etc 1300 1470. Entry ordering guardian to report. What rate loan to be made 1300 1471. Order and report of guardian 1301 1472. Acceptance and confirmation of report and terms 1301 1473. Entry confirming report and making distribution 1302 1474. Report of execution of mortgage, etc 1302 1474a. Form of guardian's mortgage 1302 CHAPTER 80. FOREIGN GUARDIANS. 1475. Rights, duties, etc 1304 1476. Effect of removal of ward from state, and appointment of for- eign guardian 1305 1477. When and under what circumstances the guardian here may be removed 1305 1477a. Foreign state must have similar laws 1305 1478. Comments 1305 1479. What to be done if guardian here removed 1306 1480. When foreign guardian of foreign ward may demand or receive property of his ward in this State 1306 1481. Foreign guardian of minors may sue and be sued in this State and sell real estate 1306 1481a. Sale of their lands 1307 xlvi COA'TENTS SECTION. PAGE. 1482. Comments 1307 1483. Foreign guardian of foreign idiot, imbecile or lunatic may dis- pose of property belonging to his ward 130V CHAPTER 81. GUARDIAN'S ACCOUNTING. 1484. Duty to account 1309 1485. When and where to be filed 1310 1486. When barred by lapse of time 1311 1487. What it should contain 1311 1488. With what guardian should be charged 1312 1489. Entitled to what credits 1313 1490. Guardian's compensation 1314 1491. Preparation of the account, etc 1316 1492. Notice, hearing, exception, etc 1310 1493. Eifect of his settlement with Court, review of such settlement. .1317 1494. When account may be opened up 131S 1495. Appeal and error 1319 1496. Settlement with succeeding guardian 1319 1497. Settlement with ward 1321 140S. How finding of Probate Court enforced 1323 1499. Settlement by executors, administrators, etc., of guardian.-^. How enforced 1 323 1500. Comments 1324 CHAPTER 82. GUARDIAN OF LUNATIC, IMBECILE AND IDIOT. 1501. Guardian of idiot, imbecile and lunatic. Who is an imbecile. . 1325 l.'jOla. (iuardian tor persons confined in state institutions 1326 15(!2. Court having jurisdiction 1326 1503. For whom appointment made 1328 1503a. Guardians for incompetents and persons confined in state in- stitutions 1329a 1504. Application for appointment 1329b 1505. Form of application 1330 1506. Notice, entry, etc 1330 1507. Form of notice and service 1332 15 8. Hearing, etc 1332 1509. \\'lien order should be made 13.33 1510. i'^ntry, finding person incapacitated 1335 1510a. Costs, etc 1.3.35 1511. Efi'ect of finding of disability 1336 1512. Who may or .should be appointed 1336 lo'lr}; ■ -When guardianship to terminate 1.337 1514. Procedure for rt'moval, etc 1337 1515. Apjioal and errcn- 1338 1516. Laws ap])licable to guardians of lunatics, idiots, imbeciles and tlieir children 1338 15ina. Settlement of such guardian 13,39 1517. E.\cei)tion as to voucher and opening account 1339 CONTENT^ xlvii SECTION. PAGE. 1518. Duties of guardian as to welfare of ward 1340 1.51!). ])uty of guardian as to existing contracts l.'Ml ir)2U. Insolvency of lunatics l;}4;i 1521. (Suit by guardian of idiot, imbecile or lunatic, and revivor of same 134.3 1522. Sale of real estate by guardian of idiot, imbecile or lunatic. Petition. Private sale. Parties defendant 1344 1522a. Petition ; what to contain 1344 1522b. Husband or wife to be made defendant 1344 1523. Dower of insane, idiotic or imbecile person; Jiow assigned or sold 1345 1524. Procedure in assignment of dower 1345 1524a. Application to sell and release dower right .134*) 1524b. Entry authorizing and ordering release of dower rigiit, etc. . . . 13452 1540. When guardianship shall terminate 1353 1541. Procedure to terminate 1353 CHAPTER 84. ASSIGNMENT. JURISDICTION. APPOINTMENT. 1542. Definition, etc 1.3,54 1543. Effect of act of bankruptcy, etc 1355 1544. Jurisdiction of Probate Court 1358 1545. Jurisdiction of Court of Common Pleas 1300 1546. Assignee must give bond in Probate Court 1361 1546a. Assignment ; when to take elfect 13()1 1547. Who may make 1362 1548. Who may be assignee 13(53 1549. What property may be assigned 13(54 1550. How made 13(55 1551. Filing in Probate Court, etc 1366 1552. Filing deed in recorders office 1366 1.553. Qualification of assignee 13(57 1.554. Bond, etc 13(58 Xlviii CONTENTS SECTION. PAGE. 1555. Order of appointment 1.369 1556. Effect of order and issue of letters 1369 1557. Notice of appointment 1370 CHAPTER 85. RESIGXATION. REMOVAL OF ASSIGNEE, ETC. 1558. Introductory 1371 1559. On failure to file assignment or give bond, court to appoint a trustee 1372 1560. Comments. Removal of assignee 1372 1561. Resignation of assignee. Appointment of trustee. Filling va- cancy. Additional trustees 1372 1562. Removal of assignee, etc., by the court. Effect of new bond.. 1373 1562a. Application for release of surety, etc 1373 1562b. Application by trustee for release of surety 1373 1562c. Removal for failure to give new bond 1373 1563. Procedure, etc 1373 1564. Election of trustee or trustees by creditors 1374 1564a. Proceedings 1374 1565. Application for election of trustee ...1375 1566. Form of petition for election of trustee 1375 1567. Entry ordering citation, etc 1376 1568. Form of citation, service, etc 1376 1569. Hearing, etc 1376 1570. Election by creditors, etc 1377 1571. Entry. Form, etc 1378 1572. Trustee appointed, to give bond. His rights on giving bond. .1378 1573. Settlement on resignation, removal or death. How enforced. .1379 1574. Appointment and qualification of trustee to operate as a con- vej-ance 1380 1575. Appeal and error 1380 1576. Unsettled assignments heretofoore made. Citation of assignee to give bail 1380 1577. Raising an assignment 1381 CHAPTER 86. DUTY OF ASSIGNEE AS TO CARE AND MANAGEMENT OF PROPERTY. 1578. Introductory 1383 1579. When transfer or assignment void 13S4 1579a. To whom act applies 13S4 1579aa.\Vhen purchaser or assignee becomes trustee 1384 1570b. Receiver ; appointment of 1385 1579c. Knowledge of fraudulent intent material; mortgage, provisions as to 1385 1580. How suit brought 1386 1580a. When creditor may bring suit 1386 1581. For what cause action may be brought 1386 1582. When sale conclusively presumed to be fraudulent 1388 1583. ^^Tio may bring the action 1389 1584. Jurisdiction 1389 1585. Examination of assignor, etc. Orders to prevent fraudulent transfer 1389 15S5a. Order to prevent fraudulent transfer 1300 1586. Procedure, etc 1390 1587. Court, on application of three-fourths of creditors, may order business of assignor carried on bv assignee 1390 CONTENTS. xlix SECTION. PAGE. 1588. Liability of assignee 1391 1589. Application 1391 1590. Form of application, etc 1392 1591. Assignee may complete sales of real estate, etc 1392 1592. Property taken possession of by another under lien or exe- cution 1393 CHAPTER 87. APPRAISEMENT, EXEMPTION, ETC. 1593. Introductory 1394 1594. Appointment of appraisers 1394 1594a. Real estate without the state 1395 1595. Appraisers, etc 1395 1596. What must be appraised 1396 1597. Return of inventory and schedule 1396 1598. Exempt property excepted unless expressly waived, and wife's property. Homestead to be set off 1396 1598a. Homestead 1398 1599. Who entitled to exemption - 1398 1600. Dower 1399 1601. When court may order property sold 1400 1601a. Five hundred dollars in lieu of exemption 1401 CHAPTER 88. COLLECTION OF ASSETS AND SALE OF PERSONAL PROPERTY. 1602. Shall convert assets into money 1403 1603. Diligence required, etc 1403 1604. When and what to be sold ttt: : 1404 1605. How to be sold 1405 1606. Terms of sale 1405 1607. Form of application for sale of personal property 1406 1608. Chattel mortgage claim, etc \ 1407 1609. Public sale of personal property 1408 1610. Court may order property disposed of at private sale 1409 1611. Property to be sold at auction if not disposed of privately. . . .1409 1611a. Compromise or sale of claims 1409 1612. Order, etc., where property not sold 1409 1613. Return and confirmation of sales. Order as to deed, acceptance of cash, sale of notes, etc 1410 1614. Report of sale 1410 1615. Compromise of sale of desperate claims 1411 1616. Title conveyed 1412 CHAPTER 89. ASSIGNEE'S SALE OF REAL ESTATE. 1617. Introductory 1413 1618. Payment of liens, etc 1413 1618a. Question of title 1414 1618b. Sale of premises 1414 1618c. Disposition of proceeds of sale 1414 1618d. Application of preceding sections 1414 1618e. Homestead exemptions 1414 1618f. Jurisdiction of court in action to foreclose mortgage, quiet title, etc 1414 1 CONTENTS. SECTION. . PAGE. 1619. Nature of action 1415 1620. Where action brought 141.> 1621. Parties defendant 1416 1622. Form of petition 1416 1623. Procedure, etc 1417 1624. Proceedings to lay out land into town lots 1417 1625. Notice, sale of real estate 1418 1626. Return of sale, confirmation, etc 1419 1627. Form of deed of assignee or trustee. Public or private sale. . .1419 CHAPTER 90. PRESENTATION OF CLAIMS. 1628. Presentation of claims, their allowance or rejection 1421 1628a. Report of claims 1421 1629. When to be presented 1422 1630. What to be presented 1422 1631. Claims secured by mortgage 1423 1632. How presented. Affidavit, etc 1425 1633. Form of affidavit, etc 1426 1634. How to be allowed or rejected 1426 1635. When claim shall be disallowed on application of assignor or creditor and proceedings in such case 1426 1G3G. Procedure under § 11136 General Code 1427 1637. When suit must be entered on rejected claim 1427 1638. In what court action to be brought 142S 1639. Report of claims filed 142!i CHAPTER 91. PAYlilENT OF PREFERRED CLAIMS. 1640. Introductory 1430 1641. Costs of administration 1430 1642. Commission of assignee. Further allowance. Counsel fees, etc.1432 1642a. Further allowance; counsel fees 1432 1043. Ordinary services 1433 1644. Ivxtraordinary services. Attorney fees 1433 1645. Itemized bill. Affidavit, etc 1435 1G46. Lien existing at time of assignment 1436 1647. Claims preferred by statute 1437 1647a. Lien iind sccvirities 1437 1648. Taxes 1437 1649. Labor claims under § 11138, (ieneral Code 1438 1650. Liens under § 8339, General Code 1440 1651. Miscellaneous matters, relating to labor claims 1440 CHAPTER 92. ASSIGNEE, ACCOUNT AND DISTRIBUTION. 1652. Introductory 1442 1653. Reports and settlements of assignee. The declaring and pay- ment of dividends 1443 1653a. Dividends 1443 1653b. Dividends reserved 1443 CONTENTS. li SECTION. PAGE. 1054. When it must be filed 1444 1055. What it should contain 1444 1 656. Assignee's account 1445 1657. Filing and entry ordering notice 1446 1658. Hearing account 1447 1059. Exceptions 1447 1600. Notice to creditors of dividends 1448 1001. Report of payment 1449 CHAPTER 93. APPROPRIATION OF PRIVATE PROPERTY. 1062. Introductory 1451 1063. Power of eminent domain 1452 1664. Constitutional provisions 1453 1665. Who may exercise power 1455 1606. How grant to exercise, construed 1455 1007. When may be exercised 1457 1668. What and how much may be taken ......... .1 145S 1609. Taking property without right 1400a 1670. Additional servitudes 1400b 1671. Compensation 1462 1072. Benefits 1463 1073. Evidence, etc 1405 CHAPTER 94. CONDEMNATION PROCEEDINGS BY PRIVATE CORPORATIONS. 1074. To what chapter apjjlies 1470 1075. To w^hat does not apply 1471 1676. When appropriations can be made 1471 1077. Appropriation of property of minor, idiot, imbecile, or insane person 1472 1077a. Notice to ward 1472 1078. Proceedings under § 11040, General Code 1472 1679. Petition for appropriation filed in Probate Court 1475 lOSO. W' liere to be filed 1475 1681. Petition may include one or more parcels. In what county to be filed 1470 1682. Wlien Probate Judge interested, proceedings to be commenced in Common Pleas. Special term of 1476 1682a. Procedure in Common Pleas Court 1476 1682b. When corporation entitled to possession 1477 1083. Nature of proceedings 1477 1084. Amendments allowed 1477 1085. Time of trials. Adjournments, discharge of juries 1477 1080. Essentials of petition 147S 1087. Parties, etc 1480 1088. Form of petition 1481 1089. Filing the petition, entry, etc 1482 1690. Summons, its command and service thereof. Alias summons. .1483 lii CONTENTS SECTION. PAGE. 1691. Notice 1483 1692. Service by publication, how proved 14S4 1693. Affidavit and form of notice 184.5 1694. Court to appoint attorney for party absent or under disability. 14S5 1695. Jurisdictional questions. When to be heard and determined. Burden of proof 1485 1696. When to be heard 1486 1697. Existence of corporation 1487 1698. Right to make appropriation 1487 1699. Inability to agree 14S8 1700. Necessity for appropriation 1488 1701. Jurors to be drawn from box and venire issued 1489 1702. Finding and order to draw jury 1489 1703. How panel to be filled; jurors to be interrogated by court .... 1490 1704. Challenge to jurors and how vacancies filled 1491 1705. Cliallenge of jury 1491 1706. Oath to be administered to jury 1492 1707. View of premises 1492 1708. Judge must deliver to sheriff description of property. May ap- point persons to be present at view, etc 1493 1709. Entry impaneling a jury 1494 1710. Is the view evidence 1494 1711. Separate owners entitled to separate trial. They hold the affirmative on trial 1497 1712. Motion for separate trial, entry, etc 1498 1713. Witnesses may be examined before jury 1498 1714. Trial, etc 1498a 1714a. Burden of proof 149Sa 1715. When a structure is partly on land sought to be appropriated. 1499 1715a. Veidict. Motioa for new trial. Confirmation of verdict 1499 1716. Form of entry and verdict, etc 1499 1717. Motion for new trial, etc 1.500 1718. New trial. Proceedings tliereon. Costs 1501 1719. Entry confirming verdict, etc 1501 1720. Petition in error may be tiled by either party in Common Pleas, when. Bill of exceptions 1502 1720a. Petition in error 1502 1720b. Corporation may pay judgment and enter on property 1502 1721. When error may be prosecuted \ 1503 1722. Proceedings in Common Pleas on error. Costs 1503 1723. When corporation may have possession 1504 1724. Entry when deposit 'm"de 1506 1725. When and how corporation may abandon proceedings 1506 1726. What is an abandonment '. 150l)a 1726a. Wlien action may be brought for costs and expenses 1506b 1727. Entry of distribution where there are no conflicting claims. .. .150fib 1728. When Probate Court can not order distribution 1507 1729. Conflicting claims adjudicated in Common Pleas. Petition therefor. Disposition of fund 1508 1729a. Custody of the funds 1508 1730. ."^uch proceeding a civil action 150S 1731. When unfinished roadbed of railway company may be con- demned .* 1.508 1731a. Construction of terms 1509 1732. Judgment and costs in such case. When jury to determine amount of compensation 1509 1733. In what courts such proceedings may be commenced and how conducted 1509 CONTENTS liii SECTION. PAGE. 1733a. Error X510 1733b. ytatement of intention 1510 1733c. Failure to occupy roadbed for one year lolO 1733d. Interpretation of word "roadbed" 1,510 1734. When land owner may compel appropriation 1510 1735. When land owners or school officers may notify corporation to institute proceedings; petition on failure of corporation to act 1511 1735a. Demand of written statement describing the land occupied without appropriation 1511 1736. Who may bring action 1512 1737. When and where action brought 1512 1738. Notice to corporation 1513 1739. Demand of description of property 1513 1740. Essentials of petition 1514 1741. Form of petition 1514 1742. Summons in such case 1515 1742a. Summons in such case 1515 1743. Procedure, etc 1515 1744. When corporation may be enjoined from occupying the land.. 1516 1745. Motion for injunction, etc 1516 1746. Tender made by corporation 1517 1747. School lands, how appropriated 1518 CHAPTER 95. CONDEMNATION BY MUNICIPAL CORPORATIONS. 1748. Introductory 1519 1749. When action can be brought 1520 1750. Application to court, etc 1524 1751. Essentials of application 1524 1752. Form of petition or application 1525 1753. Filing of application or petition 1526 1754. Service of notice to owners of property, etc 1526 1755. Notice, etc 1527 1756. Wlien to be heard 1527 1757. Jurisdictional questions, preliminary hearing 1528 1758. Court to fix time for assessment of compensation by jury.... 1529 1759. Entry finding on preliminary questions and ordering jury 1530 1760. How jurors drawn in Probate Court 1530 1761. Empaneling jury, etc 1531 1762. View of premises may be required 1531 1763. How jury to return assessment. Open and close of case, etc. .1531 1763a. Guardian ad litem 1531 1763b. Deposit of money 1532 1763c. How assessment signed 1532 1763d. When appropriation includes part of building 1532 1764. Trial, etc 1532 1765. Verdict in whole or in part 15.33 1766. Form and return of verdict 1533 1767. Orders as to payment or deposit of assessment 1534 1767a. Effect of payment or deposit 1534 1767b. Reappropriation to perfect title 1534 1768. Distribution of funds 1534 1770. Costs, how paid 1535 1771. No delay from doubt of ownership 1.535 1772. Interested parties may give bond, etc 1535 liv CONTENTS SECTION. PAGE. 1773. Review of proceedings 1536 1773a. Appeal to Court of Common Pleas 1536 1774. Motion and proceedings on new trial 1536 1775. Entry confirming verdict, etc 1537 1776. Proceedings in error. How execution of order suspended 1538 1777. Appeal to Court of Common Pleas 153S 1778. Notice of intention to appeal 1538 1779. Appeal by guardian, executor, etc., and married woman 1530 1780. Probate Court shall furnish transcript 1540 1781. Original papers may be used 1540 1782. Corporation not to appeal, or prosecute error except on leave.. 1540 1783. Efi'ect of failure to pay for or take possession of land within six months 1540 CHAPTER 96. ROAD APPEALS. 1784. Appeals in road matters 1542 1785. When order to open road shall be executed 1544 1786. When may appeal 1544 1787. Matters upon which appeal may be taken 1544 1788. Matters upon which appeals lie 1544 1789. Questions for the jury and the court 1545 1790. Wlio may appeal 1546 1791. Notice of appeal and specifications shall be in writing 1547 1792. Notice of intention to appeal — When to be given 1547 1793. Form of notice of intention to appeal 1548 1794. Bond 1548 1705. Form of appeal bond 1548 1796. Date when notice of appeal must be given 1549 1797. Appeal by minors 1549 1798. Commissioners shall transmit papers to court 1549 1799. Transcript 1550 1800. Entry in Probate Court 1550 1801. Hearing of preliminary questions and motions 1.550 1802. Power of court to dismiss action 1551 1803. Hearing on questions 1553 1804. Granting appeal 1,554 1805. Trial by jury — Drawing, etc 15.55 1806. Entry — Preliminary hearing, etc 1555 1807. When cases shall be consolidated 1556 1808. Challenge of jurors 1556 1S09. Oath of jurors — Form 1557 1810. Right to view premises, etc 1557 1811. View, etc 1558 1812. Trial 1.558 1813. Verdict of jury ; what it shall contain 1559 1814. Verdict — Form, etc I.V>'.) CONTENTS Iv SECTION. PAGE. 1815. Journal entry confirming verdict, etc 15G0 1816. Record of proceedings in Probate Court 15GI 1817. Taxing costs 1")G1 1818. Enforcement of judgment 1 '>(j- 1819. Transcript and papers certified, etc \')(]^^ 1820. When orders for payment of compensation and damages shall be issued 15G3 1821. Additional compensation — IIow 15G3 1822. Order as to payment of damages 1 ")G3 1823. Entry— Form I.IG 4 1824. Procedure when proceedings for appropriation of land abandon- ed , 1564 1825. Abandonment 1565 1826. Fees and compensation of officers 1565 1827. Procedure after judgment establisliing improvement 1565 1828. Reversal of order dismissing proceedings 15GG 1829. Appeal — Limitation 15GG 1830. Review of judgment of Probate Court 15G6 1831. Proceedings after trial 1567 1832. Entry— Form 1567 CHAPTER 97. CONDEMNATION OF MATERIAILS FOR ROAD BUILDING. 1833. Power to purchase materials and appropriate land; application to court (§7214) 1568 1834. Condemnation of road material 1568 1835. What may be condemned 1569 1836. Resolution to appropriate 1569 1837. Application to probate judge 1570 1838. Notice to land owner; how served; contents ( § 7215) 1570 1839. Proceedings in probate court 1570 1840. Notice to land owner 1571 1841. Appointment of appraisers; assessment of value and damage (§ 7216) 1571 1842. Entry appointing appraisers 1571 1843. Report of award 1572 1844. Copies of award to commissioners and owners; summoning jury ( § 7217 ) 1572 1845. Entry of return of award 1573 1S46. Form of appeal bond 1573 1847. Costs and expenses 1574 184S. Bond when jury trial requested ( § 7218) 1574 1849. Date and conduct of trial ( § 7219) 1574 CHAPTER 98. APPEAL IN CONSTRUCTION OF DITCHES, SINIiHOLES, LEVIES, ETC. 1850. Ditch construction and appeal 1575 1851. What deemed final order (§ 6473) 1576 Ivi CONTENTS SECTION. PAGE. 1852. Final order 1576 1853. Who may appeal (§6474) 1577 1854. Persons that may appeal 157S 1855. Notice of appeal 1578 1856. Form of notice of appeal .' 1579 1857. Perfection of appeal (§6475) 1579 1858. Bond 1579 1851). Statement to be filed in court of Common Pleas, etc 1580 1860. Form of statement 1580 1861. Auditor to file transcript ( § 6476) 1580 1862. Filing of transcript 1581 1863. Issue — how determined 1581 1864. Trial governed by rule in civil cases (§6477) 1582 1865. Trial by the court 1582 1866. Trial by jury 1582 1807. View of location by jury (§ 6478) 1583 1868. Verdict by jury ( § 6479 ) 1583 1869. Matters pertaining to verdict.' 1584 1870. Judgment; motion for new trial ( § 6480) 1585 1871. New trial, etc , 1585 1872. Transcript after judgment ( § 6481 ) 15S6 1873. Proceedings in error ( § 6482 ) 1586 1874. Proceedings shall not suspend construction ( § 6483 ) 1587 1874a. 'Stay of proceedings 1587 lS74b. When owner may recover tax paid, etc. (§6484) 1587 1874c. Claims from owner not having notice 1587 1874d. Evidence in action to recover taxes, etc. ( § 6485) 1588 1874e. Action in proceedings to enjoin 1589 1874f. Not enjoined for error — when ( § 6486) 1590 1874g. When injunction will not lie 1590 CHAPTER 99. PRESCRIBING MODE OF USE OF STREET BY TELEPHONE AND TELEGRAPH COMPANIES. 1875. Introductory 1591 1876. How right to use public ground acquired 1592 1876a. Compensation only for damages 1592 1877. Petition. Form, etc 1592 1878. Hearing and decree 1593 CHAPTER 100. PARTITION. 1879. Introductory 1595 1880. Certificate from Probate Court when proceedings for partition commenced and deficiency of assets found 1597 1881. Application. Form 1597 1882. Hearing and order of Court 1598 CONTENTS Ivii SECTION, PAGE. 1883. Form of certificate 1.599 1884. Court shall order so much proceeds to be paid to him, pro- vided, etc 1599 1885. Proceedings in Court of Common I'leas. 1600 1886. Form of motion and entry ordering money paid 1600 CHAPTER 101. ADOPTION AND DESIGNATING HEIR. COMMITTING VAGRANT CHILD. 1887. Introductory. Definition, etc 1601 1888. How a child may be adopted 1603 1889. Who may adopt 1603 1889a. Court shall fix time for hearing 1004 1889b. Duties of next friend, etc 1605 1890. Adoption by stepfather or stepmother 1G05 1890a. Consents required 1G06 1891. Who may be adopted 1G07 1892. Application and form 1607 1893. How consent of wife ascertained 1609 1894. Consents of parents, child or next friend, etc 1609 1895. The order of the court 1610 1896. Hearing 1611 1897. Entry of adoption 1611 1898. Recording and efi"ect of the order 1612 1899. Extra-territorial effect 1612 1900. Rights of inheritance 1613 1901. Power to revoke order of adoption 1614 1901a. Child must have resided with petitioner six months 1615 1901b. Wlaen child develops certain conditions — Order may be revoked. 1615 1902. Heir-at-law, how designated, etc 1615 1903. Nature of proceedings 1616 1904. Form of designation 1616a* 1905. Entry designating person as heir 1616a 1906. Parent of vagrant or incorrigible child may be summoned to appear before Probate Court 1616a 1907. Proceedings under § 8031 G. C 1616b 1908. Entry, on filing of affidavit 1617 1909. Entry ordering child committed 1617 CHAPTER 102. PROCEEDINGS IN AID OF EXECUTION. 1910. Nature of proceedings 1618 1911. Examination of debtor after return of execution 1620 1912. When and where can be brought 1621 1913. Who can bring 1622 1914. Application 1622 1915. Motion 1622 1916. Hearing for order of examination 1623 Iviii CONTENTS - SECTION. PAGE. 1917. Order iJli 1918. Notice 1624 1919. Examination of party 1<>2.> 1920. Examination of debtor before return of execution 1626 1921. Proceedings under § 11769 G. C 1626 1922. Wlien order of arrest may issue, and proceedings thereon 1627 1922a. Examination of debtor and bond 1627 1923. Proceedings under § 11770 G. C 1627 1924. Warrant to arrest 1628 1025. Proceedings for arrest 1629 1926. Examination of debtor of judgment debtor, etc 1629 1926a. When the order may issue, notice 1630 1927. Proceedings under § 11772 G. C 1630 1928. Notice to judgment debtor 1631 1929. Existence of fraud not to excuse examination 1631 1030. Reference by judge 1631 1931. Proceedings may be continued 1632 1932. How attendance of parties and witnesses compelled 1632 1933. Examination before referee to be certified. Oath of witness. . 1632 1934. How disobedience of order punislied 1632 1935. Power to enforce by contempt proceedings 1632 1936. Debtor may pay execution against creditor 1633 1937. Judge may order property to be applied on execution 1633 1938. Order to apply property or money on judgment 16.34 1939. Property that may be reached 1634 1940. Property that can not be reached 1635 1941. Order to apply property or money, on judgment 1636 1942. Judge may appoint receiver, and prohibit transfer, etc., of property 1636 1943. Appointment of receiver 1637 1!)44. Injunction 1637 1945. Liability of sheriff on official bond; undertaking by receiver. . .1638 1946. Proceedings when indebtedness denied, or another claims the property 1638 1947. Proceedings under § 11784 G. C 1638 1948. Pleadings to be reduced to writing, and filed with clerk 1639 1949. Dismissal and second proceedings 1639 1950. Appeal and review 1640 CHAPTER 103. HABEAS CORPUS 1951. Definition, etc 1641 1952. Jurisdiction of Probate Court 1642 1953. Who entitled to writ 1644 1954. Who maj- make application KU.i 1955. Requisites of application tlicrefor 1646 1956. Form of application 1646 1957. When the writ will not be allowed 1647 CONTENTS. lix SECTION. PAGE. ID.'jS. Wlicn the writ must be t^rante.l 1048 l!»r)'J. Entry ordering writ 1 tils 11)60. Who to issue the writ, and when lOi!) I'JGl. How prisoner may be designated 104'J 1962. Requisites of the writ in certain case 1649 1963. Form of writ when prisoner not in custody of an oliicer 1649 1964. Form of writ when defendant is an officer 1600 1965. How and wliere writ may be served 1650 1966. How executed and returned 1650 1967. What shall be stated in tlie return of the writ 1650 1968. Form of return, ote 1651 1969. Adjournment of cause 1652 1970. When prisoner shall be dischur^'cd on habeas corpus 1652 1971. Hearing, etc 1653 1972. Form of entry, discliarging jierson 1654 1973. Form of entry, I'cnianding prisoner 1654 1974. Second application 1655 1975. Appeal and error 1655 CHAPTER 104. coxTE:\irT. 1976. Jurisdiction of Pro1)ate (oiirt 1657 1977. Kinds of contempt, etc 1658 1978. Proceedings for contempt in presence of jiulge, etc 1659 1979. Contempts not committed in presence of judge 1660 1980. Contempt 1660 1981. Written charges, etc 1661 1982. Entry appointing attorney to bring action. 1662 1983. Form of charge 1662 1984. Entry ordering summons 1663 1985. Form of summons and attachment 1663 1986. Right of accused to bail 1664 1986a. Bail bond to be given to satisfaction of clerk 1664 1987. Trial by the Court 1664 1988. Punishment if found guilty 1665 1989. Imprisonment till order obeyed 1665 1990. Form of commitment for contempt 1665 1991. Proceedings when party released on !)ail fails to appear 1666 1992. Right of Court who committed prisoner to release him 1666 1993. Judgment final 1667 1994. Appeal and error 1667 1995. When the provisions of this chapter apply 1667 CHAPTER 105. APPEALS FROM ALLOW^ANCE ON SHEEP CLAi:\IS AND ORDERS OF STATE FIRE MARSHAL. 1996. Claims for animals killed by dogs 1669 1997. Owner may appeal to probate court 1689 Ix CONTENTS SECTION. PAGE. 1998. Perfecting appeal 1670 1999. Essentials of petition 1670 2000. Petition— Form 1670 2001. Journal entry 1671 2002. Number of witnesses allowed 1671 2003. Hearing 1671 2004. Entry finding, etc 1672 2005. Limit of amoiint allowed 1672 2006. Orders of state fire marshal 1072 2007. When and how owner may have hearing 1673 2008. Notice to state fire marshal for hearing 1674 2009. Right of appeal to Probate Court 1674 2010. Perfection of appeal 1675 2011. Journal entry approving bond and fixing time of hearing 1675 2012. Hearing and finding, etc 1C75 CHAPTER 106. INHERITANCE TAX 2013. Origin 1679 2014. Ohio State Historical 1679 2015. Constitutionality 1680 2016. Not a tax on property, but right to receive IGSO 2017. Object and purpose 1681 2018. When law takes effect 1681 2019. Subsequent increase 16S2 2020. Definition of terms ( § 5331 ) 1683 2021. Property on wliich tax levied (§5332) 1683 2022. Conditions of transfer which create liability for tax 1685 2023. Resident of state 1685 2024. Non-resident 1686 2025. Widow's years allowance ( § 5332-1 ) 1686 2026. When subject to tax in another state (§ 5333) 1686 2027. Property in foreign jurisdiction 1687 2028. Deduction for tax paid under U. S. Law 1687 2029. General deductions 1687 2030. Situs of property 1688 2031. Property not subject to tax (§ 5334) 1600 2032. Exemption: public charities, etc 1690 2033. Institutions within the state 1695 2034. Exemptions — Personal 1696 2035. Rates of tax on property (§ 5335) 1697 2036. Schedule of rates and exemptions 1698 2037. Taxes when due and payable (§ 5336) 1699 2038. Time of payment of ta.x 1700 2039. Personal liability of executor 1700 2040. Personal liability of beneficiaries 1701 2041. Tax on legacy retained (§ 5337) 1701 2042. When property is charged with payment of legacy, etc 1701 CONTENTS Ixi SECTION. PAGE. 2043. Tax, to whom paid. Discount, etc. (§5338) 1702 2044. Time limit for payment of tax 1702 2045. Petition to remit interest — Form 1703 2046. Notice of motion on application to remit interest — Form 1704 2047. Order remitting interest from 8 to 5 per cent. — Form 1704 2048. When legatee entitled to refunder (§5339) 1704 2049. Refunder of tax 1705 2050. Powers and duties of Probate Court (§ 5340) 1705 2051. Jurisdiction of Probate Court 1706 2052. Essentials of application 1707 2053. Filing and notice 1708 2054. Application for determination of tax — Form 1708 2055. Application, etc., where no administration — Form 1712 2056. Application, etc., non-resident — Form 1713 2057. Application, etc., small estate — Form 1714 2058. Appraisement by county auditor (§ 5341) 1715 2059. Appraisal by auditor 1716 20G0. Entry — Ordering auditor to appraise — Form 1717 20G1. Writ to auditor to appraise — Form 1717 20G2. Duties of auditor 1718 2063. Notice of hearing before auditor — Form 1719 2064. Fixing value of real estate 1720 2065. Appraisal of personal property 1720 2066. Value of future or limited estate determined (§5342) 1721 2067. Fixing value of future or contingent interest 1722 2068. Application to superintendent of insurance — Form 1722 2069. Inheritance taxation table 1723 2070. Computation, etc 1724 2071. Taxation of estate dependent upon contingencies (§5343) 1724 2072. When contingencies exist — Higher rate 1725 2073. Estates held in abeyance or expectancy (§ 5344) 1725 2074. When tax has not been paid, etc 1725 2075. Report of auditor— Form 1726 2076. Findings of Probate Court (§5345) 1727 2077. Proceedings of court on report of auditor 1728 2078. Journal entry — Determining tax after auditor's appraisal — Form 1729 2079. • Contents of notice and how served 1730 2080. Form of notice fixing tax 1731 2081. Form order exempting from tax 1731 2082. Who may file exceptions ( § 5346) 1731 2083. Filing exceptions 1732 2084. Form of exceptions 1732 2085. Order for hearing exceptions — Form 1733 2086. Notice of hearing exceptions — Form . . . . • 1733 2087. Entry on hearing — Form 1733 2088. When certified to auditor (§5347) 1733 2089. Certifying finding to auditor 1734 2000. Motion to modify findings, etc 1734 2001. Appeal from final order (§ 5348) 1735 2092. Appeal — How perfected 1735 Ixii CONTENTS SECTIOX. PAGE. 2093. \Vho may prosecute appeal 1736 20:;4. Tax receipt, etc. ( § 5348-1 ) 1736 2095. Transfer of securities ( § 5348-2) 1736 2096. Notice of transfer to auditor and tax commission — Form 1737 2097. Transfer without knowledge ( S 534S--2a i 1738 2098. Transfer of stocks of corporation, etc 1738 2099. Application to transfer stock, etc. — Form 1739 2100. Delivery of custody of securities, deposits, etc 17.39 2101. Application for consent to transfer — Form 1740 2102. Application for release when no administration — Form 1740 2103. Collection of tax after eighteen months (§5348-3) 1741 2104. Prosecuting attorney to represent county (§ 5348-4) 1742 21C5. County auditor appoints deputies (§ 5348-5) 1742 210G. Tax commission may designate examiners (§5.348-6) 1742 2107. Records to be made by Probate Judge (§5348-7) 1742 2108. Monthly reports to state auditor (§ .5348-8) 1743 2109. Reports by recorder (§ 534S-8a) 1743 2110. Accounts kept by county treasurer (§5348-9) 1744 2111. Fees, etc. (§5348-10) 1744 2111a. Probate Judge's fees (§ 5348-lOa) 1744 2112. Division of tax (§5348-11) 1744 2113. Distribution of tax (§5348-12) 17-15 2114. Wliere tax deemed to originate on property in State (§ 5348-13) 1745 2115. Where tax deemed to originate on property not in State (§ 5348-14) • 1746 CHAPTER 107. inSCELLANEOUS. 2116. Introductory 2117. Marriage license 2118. Inquests of lunacy 2119. Removal of drifts 2120. Railroad drains 2121. Proceedings to oust municipal officer 2122. Same proceedings 2123. Same. Trial 2124. Removal of county auditor 2125. Examination of charges; removal; successor 2126. Amercement 2127. Attendance of witness 2128. Justices of the peace 212Sa. Miscellaneous 2129. Change of name, definition, etc 2130. Proceeding to change name of person 2131. Re-issuing of certificates of stock lost or destroyed 2132. Parties and notice 2133. Finding and order of court 2134. Rights and liabilities under new certific;ite 2135. Proceedings may be had by administrators and executors. CONTENTS. Ixiii CHAPTER 108. DOWER, ANNUITY, AND TRESEKT VALUE TABLES. SECTION. PAGE. 2136. Introrhictory 1773 2137. Mortality tables 1774 213S. lalculation for consummated dower, and life annuity 1776 2139. Dower and life annuity table based upon the Carlisle table... 1777 2140. Dower and life annuity table based upon American table 1779 2141. Calculation of contingent dower 1781 2142. Contingent dower table 1783 2143. Expectation of life table 1786 2144. Table for ascertaining present value of certain annuity 1788 2145. Table for ascertaining present value of a sum certain due and payable at end of a stated number of years 1793 CHAPTER 109. JUVENILE COURT. 2147. Nature of court 1707 2148. Historical 1798 2149. Object and purpose 1799 2150. Judge of court 1800 2151. What courts have jurisdiction ( § 1639) 1801 2152. Designation of judge 1802 2153. Juvenile Court defined ( § 1639-1 ) 1803 2154. Seal of court— what court ( § 1640) 1803 2155. Appearance docket and journal ( § 1641 ) 1803 2156. Jurisdiction of subject matter (§1642) 1804 2157. Jurisdiction, comments 1804 2158. Continuing jurisdiction 1805 2159. When jurisdiction terminates ( § 1643) 1806 2160. Delinquent child defined (§ 1644) 1806 2161. Who is delinquent child 1807 2162. Dependent child defined (§1645) 1808 2163. Who is dependent child 1808 2164. Proper parental care defined (§ 1646) 1808 2165. What is not proper parental care 1809 2166. Who may file complaint (§1647) 1809 2167. Procedure — Filing complaint, etc 1809 2168. Complaint — A delinquent, etc., child. Form complaint for child. 1813 2169. Citation, warrants, etc. (§ 1648) 1814 2170. Citation or warrant 1815 2171. Journal entry, entry for hearing, etc 1815 2172. Citation to child and custodian 1816 2173. Form notice to parents 1816 2174. Service of citation, etc., personally 1816 2175. Service of notice by publication 1817 2170. Form of affidavit. for 1S18 2177. Journal entry order for publication 1818 Ixiv CONTENTS SECTION, PAGE. 2178. Notice for publication and sending by mail, when parent, etc., out of state, etc 1818 2179. Form warrant to arrest minors 1819 2180. Form complaint delinquency 1819 2181. Warrants to arrest, etc 1820 2182. Journal entry order for warrant to arrest 1820 2183. Form — Warrant to arrest on complaint 1821 2184. Provisions to avoid incarceration ( § 1648-1 ) 1821 2185. Special juvenile court room ( § 1649) 1821 2186. Hearing ( § 1650) 1821 2187. Trial of juvenile 1822 2188. Trial of adult 1823 2189. Jury trial; costs (§1651) 1823 2190. Right to jury trial 1824 2191. Commitment of child (§1652) 1824 2192. Commitment of minors etc 1825 2193. Examination of pliysicians ( § 1652-1 ) 1825 2194. Commitment to institution or suitable person (§ 1653) 1825 2195. Commitment of dependent or neglected children 1826 2196. Journal entry — Placing child, etc 1827 2197. Journal entry — Finding, judgment and order of the court 1827 2198. Age limitations ( § 1653-1 ) 1828 2199. Penalty for abuse or aiding and abetting delinquency (§1654). 1828 2200. Commitment for causing delinquency 1828 2201. Journal entry — On arraignment, plea of guilty 1829 2202. Journal entry— Judgment 1S30 2202a. Entry— Verdict of jury 1830 2202b. Entry— Judgment— Trial by jury 1830 2203. Failure or neglect, etc. ( § 1655) 1831 2204. Form complaint charging abandonment, etc 1831 2205. Commitment for non-support 1832 2206. Journal entry — Non-support, etc 1832 2207. Form— Bond to support 1833 2208. Sentenced to jail or workhouse 1S34 2209. Journal entry — Sentence to workliouse 1834 2210. Provisions in case of workhouse sentence (§ 1656) 1835 2211. Commitment on continuance to county jail, etc. (§ 1657) 1835 2212. Citation, etc., on hearing ( § 1658) 1835 2213. Journal entry — Order for arrest — On hearing 1836 2214. Form warrant to arrest 1836 2215. Transfer of case to Juvenile Court (§ 1659) 1836 2216. Child arrested on warrant from Justice of Peace or Police Court, etc 1836 2217. Writs to whom issued ( § 1660) 1837 2218. E.xpense— How paid (§1661) 1837 2219. Probation officer— Appointment (§1662) 1837 2220. Appointment — Probation officer 1838 COMPLETE LAW AND PRACTICE IN THE PEOBATE COUETS OF OHIO. CHAPTER 1. ORGANIZATION OF COURT— JUDGE, ETC. § 1 Introductory. § 8 Can not act when interested. § 2 Organization, etc. § 9 Administration, etc., when the § 2a Combined with court of com- probate judge is interested. mon pleas. § Oa Proceedings in common pleaa § 2b Legislature to create com- court. bined court; petition, etc. § 10 Procedure where judge is in- § 2c How petition signed; verifica- terested. tion. § 10a When common pleas judge § 2d Conduct of election. Form of may perform duties of pro- ballot, bate judge. § 2e Establishment of probate di- § 11 Custody of files, ex officio vision. clerk, etc. § 2f Petition to re-establish. § 12 Deputy clerk, etc. § 2g Re-establishment by increase § 13 Probate judges may admin- of poi)ulation. ister oaths, take acknowl- § 3 Rank of court. edgements and depositions. § 4 Where court held. § 14 Bond of probate judge, etc. § 5 Terms of court. § 15 Judge shall make rules of § 6 Who may be judge. practice and submit them § 7 No probate judge or his dep- to the Supreme Court. uty to practice law, etc. § 16 Miscellaneous matters, etc. § 7a Need"^ not be indicted. § 17 Power to punish contempt. § 7b Exceptions. § 17a Authentication of record. § 1. Introductory. As the laws regulating the devolution of property are as old as jurisprudence itself, they must of necessity at all times have been enforced by some court. In England some part of such jurisdiction was exercised by the ecclesiastical courts. But the powers of ecclesiastical courts prior to the independence of our country were restricted to the judicial cognizance of cases aris- ing out of the probate of wills, the granting of administration, and the payment of legacies.^ Other powers now exercised by the Probate Court, were then exercised by the courts of chancery and in some matters the com- mon law courts.^ Jurisdiction in probate matters was therefore iWoerner on Admin. 317. 2 Woerner discusses this matter fully, §§ 137-141. § 2 ORGANIZATION^ ETC. 3 found in various English, tribunals until the act of 1854, when the same was placed under the jurisdiction of one court, desig- nated Court of Probate. Courts by this name, in this country, were first established in 1784 by the act of the Massachusetts General Court, and exist in some form in every State of the Union. ^ These courts enter- taining probate jurisdiction are variously designated. Thus in New York they are known as Surrogate Courts, in Pennsylva- nia as Orphan Courts, in Ohio and a number of other States they are designated Probate Courts. In some of the States pro- bate jurisdiction is entertained by courts of general jurisdic- tion,* and in some other States * they have what is called a County Court, which entertains probate jurisdiction with other jurisdiction conferred by statute. But whether probate juris- diction is exercised alone by a court created for that purpose or by a court exercising general jurisdiction, the law relating thereto is a distinct part of our jurisprudence." § 2. Organization, etc. By the constitution of 1802 ^ the Court of Common Pleas in each county had jurisdiction of all probate and testamentary matters, the granting of administration, the appointment of guardians and such other cases as were prescribed by law. Thus until the constitution of 1851, all matters relating to probate law were enforced by our Common Pleas Court. Under that consti- tution the Common Pleas Court was presided over by one judge and two associate justices. The presiding judge was a member » Wale vs. Willard, 2 Mass. 120. and changed their forms and mode * Ind. and others. of proceeding. Hubbell, J., in 5 Neb. and others. Bronson vs. Burnett, 2 Pinney « Probate Courts are only in a (Wis.) 189; 1 Chand. 136. qualified sense the mere creatures of Our probate law relating to wills, the Statute. Ther are as truly, as appointment of administrators, etc., any other judicial tribunals, the off- was taken from the Massachusetts spring of the common law. They ex- la%r, while that relating to inven- isted in substance in England be- tory and presentation of claims fore the usurpation of the ecclesias- was taken from the New York tics snatched from the crown this Statute, rightful portion of its authority, ^ § 5. 3 COMBINED WITH COMMON PLEAS § 2a of the bar, and versed in legal knowledge. The associate mem- bers were laymen ; matters relating to probate jurisdiction came more directly under the personal supervision of these associate justices, and the clerk of the court by virtue of his office. When our judiciary system was reorganized by the constitution of 1851, matters relating to probate jurisdiction were conferred upon a new court, which was called a Probate Court. The con- stitutional provision relating to its organization is asi follows: ** There shall be established in each county, a Probate Court, which shall be a court of record, open at all times, and holden by one judge, elected by the voters of the county, who shall hold his office for the term of three years, and shall receive such com- pensation, payable out of the county treasury, or by fees, or both as shall be provided by law." [Const. Art-. IV., § 7.] § 2a. Combined with common pleas. The constitutional convention of 1912 presented an amendment permitting a com- bination of the Courts of Common Pleas in all counties of 60,000 population. Under this provision the following counties, Henry, Adams and Wyandotte, the courts have been combined. The constitutional provision is as follows: There shall be established in each county, a Probate Court, which shall be a court of record, open at all times, and holden by one judge, elected by the electors of the county, who shall hold his office for the term of four years, and shall receive such compensation, payable out of the county treasury, as .shall be provided by law. Whenever ten per centum of the number of the electors voting for governor at the next preceding election in any county having less than sixty thousand population as determined by the next preceding federal census, shall petition the judge of the Court of Common Pleas of any such county not less than ninety days before any general election for county officers, the judge of the Court of Common Pleas shall submit to the electors of such county the question of combining the Probate Court with the Court of Common Pleas, and such courts shall be combined and .shall be known as the Court of Common Pleas in case a majority of the electors voting upon such question vote in favor of such combination. Notice of such election shall be given in the same manner as for the election of county officers. Elections may be had in the same manner for the separation of such courts, when once combined. [Adopted Sept. 3, 1912, § 7, Art. 4.] §2b. Legislature to create combined court — ^petition, etc. § 1604-1. Whenever ten per centum of the number of electors voting for governor at the next preceding election in any county § 2c HOW PETITION SHALL BE SIGNED 3a having less than sixty thousand population, as determined by the next preceding federal census, shall petition a judge of the Court of Common Pleas of any such county not less than ninety days before any general election for county officers, for the sujjmission to the electors of such county the question of com- bining the Probate Court with the Court of Common Pleas of such county, such judge shall place upon the journal of said court an order requii'ing the sheriff to make proclamation that at the next ensuing general election there shall be submitted to the electors of such county the question of combining the Probate Court with the Court of Common Pleas of such county. The clerk of courts shall, thereupon, make and deliver a certified copy of such order to the sheriff, and the sheriff shall include notice of the submission of such question in his proclamation, of election for the next ensuing general election. 1 103 v. 960.] § 2c. How petition shall be signed ; verification. § 1604-2. Each elector joining in a petition for the submission of said question shall sign the same in his own handwriting (unless he can not write and his signature is made by mark) and shall add thereto the township, precinct or ward of which he is resident. Such petition need not consist of but one paper, but may consist of as many parts as may be found convenient. One of the signers to each separate paper shall swear before some officer qualified to administer the oath that the petition is bona fide to the best of his knowledge and belief, and such oath shall be a part of or attached to such paper. The judge upon receipt of such petition shall deposit the same with the clerk of courts. Objections. No signature shall be taken from or added to such petition after the same has been filed with the judge. Wlien so deposited, such petition shall be preserved and be open under proper regulations to public inspection, and if it is in conformity with law, it shall be deemed to be valid, unless objection thereto is duly made in writing by an elector of the county within five days after the filing thereof. Such objections, or any other questions ari.sing in the course of the submission of the ques- tion of combining said courts, shall be considered and detenuined by the judge of the Court of Common Pleas, and his decision shall be final. [103 v. 960.] §2d. Conduct of election; form of ballot. §1604-3. The election upon the question of combining said courts shall be conducted in all respects as provided by law for the election of county officers, so far as said law may be applieable. The board of deputy state supervisors of elections shall pro- vide separate ballots, ballot boxes, tally sheets, blanks, stationery, and all such other supplies as may be necessary in the conduct of such election. 3b ESTABLISHMENT OP PROBATE DIVISION § 2e Such ballots shall be printed with the aflfirmative and negative statement thereon, to-wit : The Probate Court and the Court of Common Pleas shall be combined. The Probate Court and the Court of Common Pleas shall net be combined. Returns and canvass. Returns of said election shall be made and said returns shall be canvassed at the same time and in the same manner as an election for county officers, and the board of said deputy state supervisors of elections shall certify the result of said election to the secretary of state, to the probate judge of said county and to the judge of the Court of Common Pleas, and the same shall be spread upon the journal of the Probate Court and of the Court of Common Pleas. If a majority of the votes cast at such election shall be in favor of combining said courts, such courts shall stand com- bined and consolidated at the expiration of the term for which the probate judge has been elected in the county wherein such election has been held. [103 v. 960.] § 2e. Establishment of probate division. § 1604-4. When the Probate Court and the Court of Common Pleas have been combined, there .shall be established in the Court of Common Pleas a probate division, and all matters whereof the Probate Court has jurisdiction by law shall be filed in and separately docketed in said probate division, and the resident judge of the Court of Common Pleas, shall appoint the necessary deputies, clerks and assistants to have charge and perform the \rork incident to the probate division. The salaries of such deputies, clerks and assistants to be regulated by section 2980-1 of the General Code. Error and appeals. Error may be prosecuted or appeals taken from said probate division to the Court of Appeals in all cases where the same lie to the Court of Common Pleas in coun- ties where such courts have not been combined. [103 v. 960.] § 2f . Petition for re-establishment. § 1604-5. At any time after three years from the date of an election held under the provisions of this act, but not before, another election may be petitioned for and shall be ordered by the judge of the Court of Common Pleas as provided for in this act, either to perfect § 2g RANK OF COURT 3c a combination of said court, or to dissolve said combination and to re-establish the Probate Court. [103 v. 960.] § 2g. Re-establishment on increase of population. § 1604-6. "Whenever in any county where such courts have been combined a decennial federal census shows that such county has a popula- tion of 60,000 or more, and such fact is certified by the secretary of state to said Court of Common Pleas and entered upon its journal, the Probate Court shall be re-established in such county, and a probate judge shall be elected for the regular term at the next ensuing election in an even numbered year, and the records of the probate division of the Court of Common Pleas shall be delivered to such re-established Probate Court upon the entry into office of an elected probate judge. [103 v. 960.] § 3. Rank of court.'^^ From the fact that in many matters within the jurisdiction of the Probate Court proceedings in error or appeal may be prosecuted to the Court of Common Pleas, and also perhaps from the fact that under the former constitution probate matters were largely passed upon by the associate justices of the Court of Common Pleas, arose the idea that the Probate Court was an inferior court, and as such its judgments and decisions might be reviewed or attacked in a collateral proceeding. Soon after the organization of the Probate Court, in speaking of its rank and power, the following language is used: *'The tribunal in which these proceedings were had was a court of record, of gen- eral common law and chancery jurisdiction ; and while it is true that in the exercise of this particular authority it may be re- garded as a tribunal of special and limited powers prescribed by statute, it is still to be remembered that it was the tribunal cre- ated by the constitution, ^vith exclusive jurisdiction over probate and testamentary matters, and had no one single characteristic of those inferior courts and commissions, to which the rule in- sisted upon has been applied by the English and American courts. All its proceedings are recorded and constitute records in the highest sense of the term, importing absolute verity, not 7a Cited, Piider vs. Agler, 242 Fed. 95; 62 Bull. 410. 3d ORGANIZATION, ETC. § 3 to be impugned by averment or proof to tbe contrary, and con- clusively binding the parties, and all who stand in privity with them. The distinction is not between courts of general and those of limited jurisdiction, but between courts of record, that are so constituted as to be competent to decide on their own ju- risdiction, and to exercise it to a final judgment without setting forth the facts and evidence on which it is rendered, and whose records, when made, import absolute verity ; and those of an in- ferior grade, whose decisions are not of tliomselves evidence, and whose judgments can be looked tlirough for the facts and evi- dence which are necessary to sustain them. Orphans' Courts and Courts of Probate, when constituted courts of record, have uniformly been held of the former description." * Logically following from the doctrine above was a holding of the court in a future decisioUj that the Probate Court was a court of record in its fullest sense, and that its records imported absolute verity, and that as such a court it was competent to de- cide on its own jurisdiction and to exercise it to final judgment without setting forth the facts and evidence upon which it was rendered.® While it may be a court of limited jurisdiction, it is not an inferior court. Within tlie jurisdiction conferred upon it, it is as much a branch of the judiciary of our State as any court or judicial tribunal,^" its powers to punish for contempt are the same as the Court of Common Pleas,^^ and it may compel obe- dience to its orders and decrees. It therefore follows that its judgiuents and decrees are as conclusive upon the parties to the record until reversed or annulled on appeal, writ of error or direct proceedings in chancery for fraud, as are the decrees of a chancery court or the judgment of a court of common law. I^ot only in respect to the binding force of its decrees and judgments s Sheldon vs. Newton, 3 0. S. 494. lo City of Toledo vs. Preston, 56 0. 9 Schroyer vs. Richmond, 16 0. S. S. 361. 455; Wheeler vs. State, 34 0. S. 394; n § 10500 G. C, § 1916. Lindemann vs. Ingham, 36 O. S. Orders made in proceedings to sell 1-15; Wehrle vs. Wehrle, 39 0. S. real estate can not be attacked in 366; Arrowsmith vs. Harmoning, 42 exceptions to the account of the ad- O. S. 254; Slagle vs. Entrekin, 44 0. ministrator. In re Hess, 33 C. C. S. 637; 10 M. E. Rep. 675; Railroad 449. Co. vs. Village of Belle Center, 48 O. S. 291. See § 90. § 4 WHERE COURT HELD 4 is it equal to the Court of Common Pleas, but from the vast in- terests which may be affected or controlled bv its decisions, it stands equally important in the maintenance of the rights of our people.^' § 4. Where court held. T]ie place at which the court shall be held is regulated by the following section of the General Code. "A probate court is established in each county which shall be held at the county seat. Such court shall be held in an office furnished by the county commissioners, in which the books, records and papers pertainiiig to the court shall be de- posited and safely kept by the judge thereof. The commis- sioners shall provide suitable cases for the safe keeping and preservation of the books and papers of the court, and fur- nish such blank books, blanks and stationery as the probate judge requires in the discharge of official duties. [R. S. §523.] '^ In all matters where the judge acts in his judicial capacity, such action must be done at his office in the county seat as pre- scribed by law, otherwise they are null and void. But when the proceedings are not what might be termed a judicial pro- ceeding, that is, proceedings where the court renders a judgment which is a final determination of the rights of the parties, the court might perform an act which would be valid, although not done at the place designated by law. Thus it has been held that under our law Avhich provides for the method of designating one person as an heir of another, that the judge might take the declaration of the person designating the heir, although such matter was not held at the office of the probate judge.^* In matters which are not strictly judicial in their character the judge may legally act anywhere witliin the county. Fol- lowing this decision, the probate judge might take the election of the widow to accept or reject under the will at some other place than at his office.^" i2Woerner on Admin. 326. son, 3 N. P. (X.S.) 549; 16 Dec. 13 l;iS3 G. C. 4SG. 14 Bird vs. Young, 56 0. S. 210. And where a court appointed a 15 See § 1551. as to filing deed of trustee who, under the law. had no assignment etc. power to act, this question could The proceedings can not be ques- not be raised in a collateral action, tioned in a collateral action. Thus I'nion S. B. & T. Co. Excr. vs. Tele- whcro an administrator filed his pe- graph Co.. 79 O. S. S9. Reversing tition to sell real estate, his ap- 7 N. P. (X.S.) 609; 30 O. C. C. 3S0; pointment could not be questioned in 19 Dec. 537 that action: and that facts not He is not obliged to keep a book jurisdictional do not need to appear of daily entries, etc. Commission- on tlie record. Ferguson vs Fergu- ers vs. Willard, 4 X. P. 53 ; 4 Dec. 419. 5 OGGANIZATION, ETC. §5 § 5. Terms of court. It will be observed by the section of the constitution, quoted in previous section two, that the Probate Court shall be " open at all times." Considerable difficulty has been encountered upon the question whether the Probate Court has any " terms," and if so, when do they begin and when do they end ? This matter only becomes important in proceedings in error or where the Court might wish to correct its own records, etc. Section 11631 of the General Code gives certain reasons which will allow the Court of Common Pleas or the Circuit Court to vacate or modify its own judgment or order after the term at which the same was made ; and section 11648 G. C. provides that the provi- sions of section 11631 shall apply to the Probate Court so far as the same may be applicable to its judgments or final orders ; and in estimating time, the Probate Court shall for this purpose hold in each year three " terms " for four months each, the first com- mencing on the first of January of each year. It has been held that the power to vacate or modify its own judgments did not exist in the Probate Court in reference to proceedings for the settlement of the estate of deceased persons.^*' Where an adversary proceeding is adjudicated by the court, and the finding and decree is once entered in one of the terms of the court, such decree cannot be set aside and changed at suc- ceeding terms at the mere motion of one of the parties, but only by regular proceedings under section 11578 G. C.^^ This deci- sion applies the section of the General Code ^^ fixing the terms of court to other than the proceedings brought under the chapter of which that section is a part; and it may therefore be said that in all matters relating to practice in adversary proceedings in the Probate Court that such court has three terms in each year, and from the fact of the court being in session all the time, the first term begins at the beginning of the first day of January and ends at the ending of the last day in April ; and the second 16 Kinsella vs. DeCamp, 15 C. C. corpus proceedings to take a child 494; 8 C. L). 352. from tlie children's home, it having 1'' Bid. & Loan Co. vs. Speagle, 12 been regularly conmiitted, a motion C. C. 761; 1 C. D. 512. was made for a rehearing. On the re- is § 11(543 G. C. hearing, the court vacated its former The Probate court has no terms order; this tlie Common Pleas Court except for purposes specified in held was not within the power of § 11643, G. C., and except where so the Probate Court. In re Jane specified can not on motion vacate Blake, 14 Dec. 89, or modify its orders. in hahias The only way the court could va- § 6 WHO MAY BE JUDGE 6 term begins at the beginning of the first day of May and ends at the ending of the last day of August ; and the third term be- gins at the beginning of the first of September and ends at the ending of the last day of December of each year. This appli- cation of the use of " term " of court has been held to apply to an application for setting aside an order of sale made in the Probate Court/^ In a case in the Supreme Court it was said " that the provi- sions of both these subdivisions " to- wit (11631 G. C, etc.) apply only to judgment and orders in adversary actions or proceedings inter partes and not the settlement of accounts of an executor in the Probate Court. ^^ In a subsequent case in the opinion, it is said, that the reason given for the above conclusion is that said section relates not to ex parte proceedings, but to adversary ac tions and proceedings wherein there is a plaintiff and a defend- ant^^ It seems therefore that as that part of the Probate Court's proceedings where the nature of the action is not ad- versary that the court has no " terms." ^^ 6. Who may be judge. The Probate Court is presided over by one judge, who is elected by the voters of the county, and holds his office for the term of four years. There are no particular qualifications pre- scribed by statute as to the person who may be elected to this important office. It therefore follows that any person who is eligible to an elective office may become judge of the Probate Court. The question of determining whether or not the person selected is competent or not is left to the decision of the voters of the county. From the fact that many of the duties pertain- ing to the office of the Probate Judge are largely clerical, and cate its former order after term, 21 Rtavner's Case, 33 0. S. 4S1. f.-iSGo R. S. (§11643 G. C). 22 See' §1901, power to revoke Sec. 11643 G. C, does not confer adoption, upon the Probate Court power to For criminal business Probate hold three regular terms each in Courts have monthly terms com- each year for all purposes, but only moncing on first ^londay of each for purposes mentioned in chapter month, unless commissioners fix 6. of title 4, division 4. G. C. Mans- lonsrer terms, § 134.')7 G. C. field vs. Cole, 16 N. P. (N.S.) 209; Judjre Bigger, of Franklin Com- 25 Dec. 231. mon Pleas, in a hahrat corpii.i pro- 10 Potter vs. Jennman, 4 N. P. 78; ceeding. where a minor had been 4 Dec. 444. committed to a children's home, held 20 Johnson vs. Johnson, 26 O. S. that the Probate Court could not 363. modify its judgn>ent, except as pro- 7 ORGANIZATION, ETC. § 6 irom the further fact that under the organization of the former court having jurisdiction of probate matters, and possibly from the fact that the business of the Probate Court in many coun- ties did not encourage men of legal knowledge to aspire to the position of Probate Judge, this office has been filled in many counties in this State by persons of no legal acquirement what- ever. As the jurisdiction of this court has in recent years been /greatly enlarged, and tlie business of the counties increased, thereby increasing emoluments pertaining to the office, men of judicial and legal ability have been elected to fill this position in many of the leading counties. Considering the vast interests to be adjudicated upon by this court, -and tlie very great con- fidence and trust placed in the person occupying the position of Probate Judge, by persons interested in the administration of estates and like affairs of a trust character, the position ought to be occupied not only by a man of good legal training, but of a very high moral character.^^ While there are no qualifications prescribed by statute, there are some disqualifications provided, thus : "No person shall hold at the same time by appointment or election more than one of the following offices : sheriff, county auditor, county treasurer, clerk of the court of common pleas, county recorder, prosecuting attorney, probate judge, and justice of the peace." [R. S. § 18.]-* vided under §§11631-11643, G. C, in the country, and its duties should in such proceedings. 49 Bull 25. be strictly and faithfully performed. Since tliere is no statutory au- Titles must necessarily be dependent thority for keeping a court calender in part on proceedings of courts of in the Probate Courts a memoran- probate; for which reason it is the dum on the court calender is not duty and business of this court in evidence to establish the right to all cases to require a strict and legal enter a nunc pro tunc entry. Stark proceeding in that court. We can vs. Stark, 17 C. C. (X.S.) 398; 34 not overlook errors that affect the C. C. 135; aff., 88 0. S. 586. rights and property of persons, but The court having no terms, it is must reverse them." Miller, J., in doubtful as to application of the Humes vs. Cox, 1 Pinney (Wis.) 551 rule as to Common Picas Courts (1845). "Judges of probate are se- having control over the docket dur- lected not only with reference to ing the term applies. Mansfield vs. their legal qualifications, but to Cole, 16 N. P. (X.S.) 209; 25 Dec. their sound discretion also." Rice, 231. J., in Lunt vs. Auburs, 39 Me. 392, 23 "The office of judge of probate 397. is one of the most important offices 24 § H G. C. § 7 JUDGE CAN NOT ACT, ETC. 8 § 7. No probate judge or his deputy to practice law, etc. "Whoever, being the judge of a probate court or his deputy clerk or engaged in the business of such court as clerk thereof, practices law or is associated with another as partner in the practice of law, in a court or tribunal of this state, or prepares a petition or answer or makes out an account required for the settlement of an estate committed to the care or management of an executor, administrator, guardian or other person, or appears as counsel or attorney before a justice of the peace, court or judicial tribunal, shall be fined not more than fifty dollars and removed from office." [R. S. § 534.]-^ § 7a. Need not be indicted. The prosecuting attorney shall file his information against such judge or deputy clerk in the court of common pleas, and proceed as upon indictment. [R. S. §534.P=* § 7b. Exceptions. Section twelve thousand eight hundred and fifty-four shall not prevent a probate judge or deputy clerk from finishing business commenced by him prior to his election or appointment provided it is not connected with his official duty. [R. S. §534.]-^t § 8. Cannot act when interested. It is an elementary principle as old as the law itself that no man can faithfully serve two masters whose interests are in con- 25 § 12854 G. C. bate judges not only make out ac- See § 1706 G. C. counts, but prepare other papers The Probate Judge may only fin- in the nature of answers, petitions ish business not connected with his and cross-petitions for actions in office commenced before his election. tlioir own court. This certainly is Atty. Gen'l, Op. 1913, p. 1142. positively forbidden by the Statute, 25* § 128.5.5 G. C. and judfres should certainly not 25t § 12856 G. C. violate the law themselves. A judge Probate judges have great diffi- should hold himself free from sus- culty in complying with some parts picion in all of his actions or deal- of the above section of the G. C, ings. The penalty is very severe especially that part which forbids and was certainly made thus in them from making out any account order to absolutely prevent the of an executor or guardian especially judge from acting in any forbidden when the accovint is small. I am capacity. reliably informed that some pro- 9 ORGANIZATION, ETC. § 8 flict,-" and that no one, taking into consideration the character- istics of human nature, can act justly and impartially where he is an interested party. By a subsequent section of the Gen- eral Code -^ it is specifically provided that a Probate Judge shall not be granted letters testamentary or guardianship and that he shall not act in any matter in which he is interested as heir, legatee or devisee ; and that in all other matters and pro- ceedings pending in the Probate Court w^hich would properly be disposed of or decided therein in which the judge tliereof is in- terested in any manner whatever, the jiidge shall be incompetent to sit in judgment thereon. Just what wall constitute such in- terest in tlie judge where the same is not specifically declared by the statute must rest very often in the moral sense of the ' judge himself. No judge ought to let himself open to the asper- sion that he is willing to sit in judgment on a case involving his own aifairs in any respect whatever; and I am very glad to say tliat there are very few judges who are willing to decide any case in which they are remotely interested, either financially or othei'^vise. Generally sucli interest is either by reason of rela- tionship or finance. The statute directly forbids him accepting tlie appointment himself, but does not say anything about acting or giving appointments to his relatives. In one case it was held that it was a manifest violation of judicial delicacy and pro- priety for a judge to appoint his son, but that the action was not void, merely voidable,"^ and in another State it was held that the appointment of a brother of the judge's wife w^as void.^® The disqualification of the judge has often been said to be that of a juror ; and the latter is incompetent generally within the ninth civil law decree. ^'^ If he has formerly been counsel in the case he ought not to act. Generally it may be said interest of the judge in the estate will disqualify him so he cannot act. If he have a claim against the estate it would seem that he cannot 26 story on Agency, 210. Hine vs. Hussey, 45 Ala. 496; 27 § 11600 G. C. Hayes ts. Collier, 47 Ala. 726. 28 Plowman vs. Henderson, 59 . 29 Hall vs. Thayer, 105 Mass. Ala. 559; Roger vs. Franklin, 79 219, and cases cited on cognate Ala. 505. So of a son-in-law; principles. 30 12 A. & E. Ency. of law, 54. § 9 WHEN JUDGE INTERESTED 10 act.^^ He, if he have an interest in the estate, cannot grant let- ters of administration ; and the same would be true of the clerk.^^ But the fact that his aunt by marriage is a legatee under a will does not disqualify him (in Maine). ^^ Xor does the fact that one of the creditors of the estate is his father-in- law disqualify him from admitting a will to probate,^* In the absence of statute it is said any interest is enough to disqualify.^^ In an appropriation proceeding where the Pro- bate Judge was a treasurer of the company but not interested otherAvise, it was stated by the reviewing judge that it was the duty of the Probate Judge to certify the cause to the Court of Common Pleas.^® In another case, where the Probate Judge was a stoclvliolder in the corporation, it was held that although he did not remember at the time the case was heard that he was a stockholder, yet the judgment ought to be arrested.^" It was likewise held that the judge of the Court of Common Pleas could not sit in a case where it was sought to recover on a bond given to such court, as no one can be both judge and party.^* The next section provides for procedure in cases where the judge is interested. § 9. Administration, etc., when the probate judge is interested. "Letters, testamentary, of administration, or of guardianship, shall not be issued to a person after his election to the office of probate judge and before the expiration of his term. If a pro- bate judge is interested, as heir, legatee, devisee, or other manner 31 Thornton vs. Moore, 61 Ala. in a court of which he was the sole 347. jiidtre, and could sit alone to hear 32 Sigourney vs. Sibley, 22 Pick, and decide it. Folger, J., in Mat- 507. ter of Ryers, 72 N. Y. 1. 33 Marston's Appeal, 79 Me. 25. 3g Giesy vs. C. W. & Z. R. R. Co., s4Aldrich's Appeal, 110 Mass. 4 O. S. 308. 189; 19 A. & E. Ency. of law. title, 37 c. W. & Z. R. R. Co. vs. Gill, Probate and Letters of Administra- 10 W. L. J. 213. tion. 38 Court of Common Pleas V6. 35 For one, I should be loath to Sergeant, Wright 482. hold that, by force of a legislative This does not apply to a judge act, one could bring an action, in elect who has not begun his term. uhich liis interests were involved, State v. Hidy, Gl 0. S. 549. 11 ORGANIZATION, ETC. § 9a in an estate which would otherwise be settled in the probate court of the county where he resides, such estate, and all the accounts of guardians in which the probate judge is interested, shall be settled by the court of common pleas of the county. In such matters and cases in which the probate judge is interested, the original papers shall be by him forthwith certified to the court of common pleas. In other matters and proceedings in a probate court, which would projierly be disposed of or decided therein, but in which the judge thereof is interested as attorney or otherwise, or in which he is required to be a witness to a will, such judge shall, upon the motion of a party interested in the proceedings, or upon his own motion, certify the matters and proceedings to the court of common pleas and forthwith file with the clerk thereof all original papers connected therewith." [R. S. §535.]^^ § 9a. Proceedings in common pleas court. ' ' When a matter or proceeding is so certified, the court of common pleas, at chambers, by a judge thereof, or in open court, shall hear and determine it as though it had original jurisdiction of the subject matter. Upon final decision of the questions involved in such proceedings, the final settlement of the estate in which the judge is interested as executor, administrator or guardian, or when his interest therein ceases, the clerk shall deliver to the probate court from which they came the original papers and make and file therein an authenticated transcript of the orders, judgments and proceedings of the common pleas court. Thereupon the probate judge shall cause record thereof to be made in the proper records of similar business." [R. S. §535.] 39* § 10. Procedure where judge is interested. Although a party about to bring a proceeding may be satis- fied that the judge is disqualified, yet if the action is one within the jurisdiction of the Probate Court it must be brought in that court ; and then a motion should be addressed to the Court, setting out the facts and asking that the action be certified to the Court of Common Pleas. This may be done to any part of the proceedings in the Probate Court. Thus, if an action were 39§1589G. C. Ullman, 12 C. C. (N.S) 340; 31 39* § 1590 G. C. 0. C. C. 370. See §§11068, 11069, 11070 G. C. It is not unconstitutional for Com- in appropriation proceedings. mon Pleas to act. State vs. Archi- Duty to certify, when. In re bald, 52 0. S. 5. § 10 WHEN JUDGE INTERESTED 12 brought in the Probate Court to sell real estate, and the Probate Judge should become a purchaser of the land, the proceeding up to that point might very properly have been passed upon bj the Probate Judge; and the only matter that would need to be certi- ^fied to the Court of Common Pleas would be the report of sale, and confiraiation should be made by the Common Pleas Court. So in the probate of a will where the Probate Judge is a witness it should be certified up to the Common Pleas Court to have the testimony of the witnesses taken, and the order admitting to pro- bate made, and then returned to the Probate Court for record and further proceedings. The motion may be in the following form: (Title.) Now comes A. D., administrator (heir at law, or legatee, etc.,) of C. D., deceased, and moves the court, that a report of sale of said real estate of deceased (or that the probate of the last will and testament of said C. D. ) made on the day of , be certified to the Court of Common Pleas of County for an examination and con- firmation (or in case of probate of will, for admission of said will to probate) for the reason that the Probate Judge of the county in which said action is pending is a purchaser of said premises (or is a witness to said will). If the Court is satisfied that it is disqualified to act, an entry should be made, which may l>e in the following form: (Title.) EXTRY. This day this cause came on to be heard upon the motion of A. D. to certify the report of sale (or prooate of will) this day made by said administrator to the Court of Common Pleas of this county. Upon con- sideration whereof, said motion is found to be well taken, and that the judge of this court is interested therein and should not act and the same is hereby granted. Wherefore it is ordered that said matter be certified to the Court of Common Pleas of this county, and that all original papers connected with said proceedings be filed with the clerk of this county, as required by law. After the same is certified to the Court of Common Pleas it is then an action pending in that court, and the judge has power to make all necessai7 orders and may set aside an order made, just the same as if it was an original action brought in the Court of Common Pleas.^" After the matter has been passed upon a 40 Barr vs. Clostenpan. 7 C. C. 373; 4 C. D. 637; § 1590 G. C 13 ORGANIZATION, ETC. § 10a certified copy of the journal entry of the Court of Comraou Pleas and the original papers should be returned to the Pro- bate Court, and the matter disposed of and recorded in said court, the same as if the action had not been certified to the Court of Common Pleas.^^ § 10a. When common pleas judge may perform duties of probate judge. "When it is made to appear to the satisfaction of a couimon pleas judge within a county that the probate judge thereof is absent therefrom, he may perform the duties conferred upon him by law for the admission of patients to a hospital for the insane of the state, or when it is made to appear that the probate judge is incapacitated on account of illness, or is absent from his county in obedience to an order issued by the governor of the state directing him to perform military service, he may perform all the duties conferred by law upon such probate judge. The record of such cases shall be made and preserved in the proper records of the probate court by the deputy clerk thereof." [103 v. 257.] "* Prior to the enactment of the above section (1904), there was no other provision whereby the duties of a probate judge, in case of his absence or sickness could be performed by any one. The previous section merely applied to cases in which the probate judge was interested. It was often a matter of very great inconvenience in case of absence or sickness, that matters could not be heard in the probate court. The practice arose in such cases where they could not be delayed until the pro- bate judge was present, for the deputy to act for the judge and permit the entries to remain open until approved or signed by the judge. This was a questionable practice, but perhaps the best that could be done under the circumstances. It will be observed that the above section of the General Code does not permit the common pleas judge to act in the absence of the probate judge, except in lunacy cases. In case of sickness, it permits the common pleas judge to act for the probate judge in all matters in this court. When the common pleas judge so acts it migKt be advisable to let the journal entries show the reason why the common pleas judge acts and that the reason be such as is authorized by the statute. In matters that are within the exclusive original jurisdiction of the probate court, as fixed by the constitution (see §18), the suggestion occurs w^hether the common pleas judge can con- 41 See § 1682, when certified, etc. objection to its constitutional va- As the Common Pleas Judjies are lidity loses much of its force. now elected by the county, under *i* § 1592 G. C. State vs. Sheriff, 52 0. S. 5, one § 11 DEPUTY CLERKS 14 stitutionally act in and for the judge who has been duly elected for the probate court. The constitution fixes (see § 2) who shall hold or occupy the position of judge of the probate court and stipulates that it shall be a person elected by the voters of the county. The question has not been passed on to our knowledge, by our supreme court and until so declared, it will be considered as constitutional. However, the power conferred by the statute should be strictly construed and only should the common pleas judge act when it is clear that the necessity has arisen for whicli the statute makes provision.'*^* § 11. Custody of files. Judge may act as clerk or appoint a deputy. Oath of deputy. His powers and bond. "Each probate judge shall have the care and custody of the files, papers, books, and records belonging to the probate office. He is authorized to perform the duties of clerk of his own court. He may appoint a deputy clerk or clerks, each of whom shall take an oath of office before entering upon the duties of his appointment, and when so qualified, may perform the duties appertaining to the office of clerk of the court. Each deputy clerk may administer oaths in all cases when necessary, in the discharge of his duties. Each probate judge may take a bond with such surety from his deputy as he deems necessary to secure the faithful performance of the duties of his appoint- ment." [R.S. §533.] *2 By virtue of the above section of the General Code the judge, in the exercise of his official duty, occupies the position that is ordinarily filled in a court of justice by two persons. That is, he is judge of the court and he is clerk of the court. As to all matters coming before him, where the act required to be done is one which the statute specifically declares to be personal to the judge, or where it belongs to that class of actions Avhich are known as judicial acts, the judge acts strictly in his capac- ity as judge of the Probate Court. "Where the act to be per- formed is not personal to the judge and is such an act as is usually performed by a clerk of a court of justice, never being more than a ministerial act, then the judge acts in his capacity of clerk. The powers of his deputy will be considered in the next section. § 12. Deputy clerks, etc. By virtue of the provisions of section 1584, G. C, set forth in the previous section, it will be observed that the Probate Judge may appoint a deputy clerk, etc., and that sueli deputy clerk shall, before entering upon the duties of his appointment, take 42 § 1,584 G. C. S. .'->: Knisht vs. Johnson. 13 Dec. 41a See State vs. Archibold, 52 O. 715. 15 ORGANIZATION, ETC. § 12 an oath of office, and when so qualified, such deputy may per- form any or all the duties appertaining to the office of clerk of the court ; and such deputy is authorized to administer oaths in all cases in which it is necessary in the discharge of his duties as such deputy clerk. These are all the provisions defining the duties of a deputy clerk. Like the Probate Judge, he is not permitted to practice law, etc.^^ The deputy clerk can perform no act of a judicial character.*^* The constitution provides there shall be but one judge and all acts of a judicial character can never be performed by a deputy. As a general rule, judicial officers cannot appoint deputies ; and the deputy appointed by the Probate Judge is not a deputy to the judge in his judicial capacity, but is a deputy to him in his clerical capacity. What- ever act therefore, by virtue of any statute, the Probate Judge is directed to do, which is to be done in his clerical capacity, can always be performed by his deputy. A deputy is defined as one, who, by appointment, exercises an office in another's right, having no interest therein, but doing all things in his principal's name, and for whose misconduct the principal is answerable.** And therefore whatever official act is done by a deputy should be done in the name of his principal, and not in the name of the deputy.*^ The authority given by law to a ministerial officer is given to the inccumbent of the office and not to the deputy. The position of deputy clerk is not an office within the meaning of the consti- tution, and therefore a female is eligible to that position.*® The statute requires that the deputy be sworn, and while he might do some valid act without having the oath administered, yet where a person was acting who had not taken an oath it was held a person could not be convicted of perjury for falsely mak- ing an oath before such person.*^ In order that there may be 43 §§ 128.54-5-6 G. C. In this case it was said, "The 43* A deputy cannot tike the elec- acts of the deputy are in law the tion of a widow to take under the acts of the principal, and he is will. Mellinger vs. IMellinger, 5 C. responsible for them. The deputy C. (N.S.) 435; 26 C. C. 683. Af- is appointed by the principal, can firmed, 73 0. S. 221. be appointed by no one else, and is 44 4 A. & E. P^ncy. of Law, sub- removable at his pleasure. The ap- ject. Deputy. pointment of deputy clerk in the 45 A deputy of an office, hath no Proltate Court r -ed not be approved interest therein, but doth all things by any other person or court; he in his master's name. Jacobs, Law is entitled to no salary or compen- Dic, Deputies. sation, except what may be allowed See Gibbens vs. Pickett, 31 Fla. him by his principal; and he can 147; 19 L. R. A. 177, for full and lawfully do no act against the will extended note upon this question. of his principal." 46 Warwick vs. The State, 25 0. S. 47 Straight vs. Tlie State, 39 O. S. 21. 496. § 13 PROBATE JUDGES 16 sufficient proof of this oath being administered, the judge should, when making the appointment, immediately make an en- try of such fact on the journal and recite therein that the oath was duly administered. For wrongful acts of this deputy clerk the Probate Judge is responsible, providing such acts are done in the performance of an act pertaining to his office ; and in or- der to protect the judge the statute directs that he may require the deputy to give him bond. § 13. Probate judge;:! may administer oaths, take acknowl- edgments and depositions. "A probate judge may administer oaths authorized by law, take acknow^ledgment of deeds, mort- gages, and other instruments of writing required by law to be acknowledged, and take depositions in a case where authorized by law." [R. S. §526]^^ Unless the act to be performed is one which is required in some proceeding in the Probate Court, the deputy could not act in any of the cases above authorized by law. Such acts are personal to the judge. § 14. Bond of probate judge. Condition. Deposited with county treasurer. "Before cnU'ring upon the discharge of his dvities, t'he probate judge shall give a bond to tlie state in a sum not less than five thousand dollars, with sufficient surety, approved by the board of county commissioners or by the auditor and recorder, in the absence from the county of two of the commissioners, and iconditioned that he will faithfully pay over all moneys received by him in his official capacity, enter and record the orders, judgments and proceedings of the court, and faithfully and impartially perform all the duties of his office. Such l)ond, with the O'ath of office indorsed thereon, shall be deposited with the county trea.surer and kept in his office. From time to time, as the state of business in his offifce renders necessary, the county commissioners may require the probate judge to give additional l)oud." [R. S. §529.]^^ This bond could only be made to cover or hold the judge responsible for a wrongful performance of a ministerial act. For judicial acts he is not liable personally, and therefore would not be liable on his bond.'" 48 § 15S2 G. C. An action against a Probate Judge 4a § 1581 G. C. and his successors in oiiice to recover 50 See IngersoU vs. Smith, 36 certain public funds received by him Bull. 3U2, wUere a judge was held in his oUicial capacity, is subject to not liable for accepting a forged tae ten-year limitation prescribed by bond. §§ -238-241, L)l)0. § 112(j() G. C, even though his bonds- The Probate Judge might be men are not joined in the action. liable on his bond if he fails to ^tate vs. Ferris, 23 Dec. 328; 12 X. require an inventory to be tiled. In S. (N.P.) 171. !See this case when re Pickard's Est., 5 N, P. 493; 7 successor held liable. Dec. 476. 17 ORGANIZATION, ETC. § 15 § 15. Judges shall make rules of practicce and submit them to the Supreme Court, "The several judges of the probate court shall make rules, not inconsistent with the laws of the state, for regulating the j)ra;ctice and conducting the business of the court, wliich they shall submit to the supreme court. The supreme court may alter and amend such rules, and make other and further rules, from time to time as they deem neces- sary for regulating the proceedings in all the probate courts of the state in order to maintain regularity and uniformity in their proceedings." [R. 8. § 536.]^^ § 16. Miscellaneous matters. The judge is required to perform numerous other duties. He is to be furnished certain books which shall be kept in his office.'"'- And where there are destroyed records the statute pro- vides how they may be restored. °^ If his predecessor has failed to properly enter upon the business pertaining to the office it may be done by the judge and proper charges made.^* He is likewise required to return to the auditor the fees collected in his office on the first day of September in each year.^^ §17. Power to punish contempt, "The probate judge has power to keep order in his court, and punish any contempt of his authority, in like manner as such contempt might be pun- isihed in the icourt of common pleas." [R. S. § 538.]"® Following the above section of the General Code, provision is made by a subsequent section, § 10501 G. C, that the Probate Judge may issue warrants, attachments and other process, and all notices, commission, rules and orders, not contrary to law, that are necessary and proper to carry into effect the powers granted to him ; and the sheriff, deputy sheriff, cor- oners and constables shall attend his court."' And that such officer is liable to fine and amercement as provided in the next section.®^ Another section provides how the person guilty of contempt may be punished."^ Procedure in contempt cases will be made the subject of a future chapter.^** 51 § l.-)91 G. C. Generally Pro- «*§§ 1586, 1587, 1583 G. C. bate Courts have no fixed rules of "•"' § 1600 G. C. practice. I know of none except ^6 § 10500 G. C. Hamilton County; these will be st § 1506 G. C. found in tlie first part of Goebel's ^s § 1597 G. C; §2010. Probate Reports no 1^ 1508 G. c. 52 §U594 and 1595 G. C. 6° Cli. 107, §1976. 53 §§ 12345, 12346, 12347, 12348 Attendance of witnesses, § 2011. G. C. § 17a AUTHENTIFICATION OF RECORDS 18 § 17a. Authentication of records, etc. The Probate Court is frequently called upon for copies of its records or proceed- ings. If the copy is for use only in the state, a copy certified to by the judge under the seal of his court would be sufficient, and it might be that if done under his name, this act might be performed by a deputy, as such certification is a duty pertain- ing to the office of clerk, not judicial in its character, and it would be valid if done in the name of the judge by the deputy. It would be the safer plan, however, to have it signed by the judge himself. However, when the act is to be performed by the judge, the certificate must be signed by him personally. It is a generally recognized rule that a person w^ho is officially in charge of cer- tain documents, may certify that certain papers purporting to be copies, are true and correct copies of the originals in his possession or under his control. If, however, the papers are to be used outside of the state, then, to be competent evidence, they must be authenticated as provided in the following United States statutes : Records of Judicial Proceedings, etc.: *'The acts of the legislature of any state or territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such state, terri- tory, or country affixed thereto. The records and judicial pro- ceedings of the courts of any state or territory, or of anj' such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certifi- cate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, sliall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from which they are taken. "^^ Under the above United States statute it has been held that a certificate of the same person, as judge and ex-officio clerk is a substantial compliance with the act.®- But it must be signed by the person, once as clerk, and again as judge, etc.,'"'^ and the attestation must be by the person himself and not b}^ a deputy.^* The probate judge, being both judge and clerk of the Probate 61 Compiled U. S. Stat. Xo. 1519, Baxter, 94 Pac. 155, 574: Eoop vs. §2478, G. C. Clark, 4 Greene (Iowa) 294. 62 Catlin vs. Underhill, Fed. Cas. «3 Millins vs. Houston, 41 Miss. Xo. 2523; Keith Bros. vs. Stiles. 92 59. Wis. 15; Welder vs. ^McCombz. 10 64 See Kansas Pac. By. vs. Cutter. Tex. Civ. App, 85; State vs. Hinch- 19 Kans. 8.3; Willock vs. Wilson. 178 man, 27 Pa. St. 479; Brown vs. IMass. 68; Morris vs. Palthin, 24 X. Y. 394: 82 Am. Dec. 311. 18a AUTHENTIPICATION OF RECORDS § 17a Court in Ohio, he would sign both certificates. The first in attested by him as clerk and the second he certifies that the attestation is in due form, as the presiding judge of the court. The seal must always be attached. The following may be used as a general form, etc. : CERTIFICATE TO COPIES. The State of Ohio^ County, ss. Pkobate Coukt. I> , Judge and ex-ofRcio Clerk of the Probate Court, within and for said County, having the custody of the Files, Journals and Records of said Court, do hereby certify that the fore- going is a true copy of \ as the same appear., upon the records of said Court; and I further certify, that I have carefully compared tlie foregoing copy with the original record, and that the same is a full and correct transcript thereof. In Witness Whereof, I have hereunto set my liand and affixed the seal of said Court, at , Ohio, this day of , A. D. 19 . . . Probate Judge and ex-officio Clerk of said Court. The State of Ohio, County, ss. I, , sole Judge of the Probate Court, within and for said County and State, the same being a Court of law and of record do hereby certify that , whose genuine signature is attached to the foregoing certificate, is, and was at the time of signing the same, ex-officio Clerk of said Probate Court, and as such, full faith and credit are due his acts, and that the above certificate and attestation are in due form of law, and made by the proper officer. In Witness Whereof, I have hereunto set my hand and affixed the seal of said Court, at Ohio, this day of , A. D. 19 . . . Judge as aforesaid An examination of the United States statute before quoted will disclose that it only applies to the jiidicial proceedings; the next section of the United States statute applies to "all records and exemplifications of books which may be kept in any public office, etc." "shall be proved, * * * by the attestation of the keeper of the said records * * * and the seal of his office annexed, * * * together with a certificate 6f the presiding justice, * * * that the said attestation is in due form, * * * " § 17a AUTHENTIFICATION OF RECORDS 18b This section further provides that "if the said certificate is given by the presiding justice" then "it shall further be authenticated by the clerk * * * of said court who shall certify, under his hand * * * that said pre- siding judge is duly commissioned and qualified." So if it were held that the judge signs the first certificate as judge, the second would have to be signed as clerk, and this would require a certificate somewhat different in wording from that given in the previous form. But it seems that where he signs the first as judge and ex-officio clerk, mentioning that he has custody of the records, etc., that then the presumption is that he signs in the capacity of keeper of said records, etc., and the form heretofore given may be used in the authentification of all the records or proceedings in the Probate Court. Section 1584, G. C, § 11, gives to the judge the care and cus- tody of the records in the probate judge's office, as well as authorizing him to act as clerk. Another section of the United States statutes provides that when it is desired to have the record of a country outside of the United States certified, so as to entitle it to record, etc., on appli- cation to the head of departments, etc., when certified by the American Consul, it may be admitted to record in this country.^^ 65 See §§ 15330, 15331 and 15332, thentication of depositions, and Page's Revised Edition of General § 11500 G. C, how records in state Code. offices may be certified, etc. Sec. 11541 G. C. applies to au- 19 JUEISDICTION §18 CHAPTER II. JURISDICTION. § 18 § 19 §20 §21 §22 §23 §24 §25 §26 §27 Constitutional provision. Status under the Constitution. Equity jurisdiction. Power to hear common law ac- tions and empanel juries. Limited jurisdiction. In actions for sale ot real es- tate, can determine title to land. Growth of the jurisdiction of the Probate Court. Power to grant injunctions. Power to appoint receivers. Exclusive jurisdiction. § 28 Concurrent jurisdiction. § 29 Jurisdiction exclusive of that of any other Probate Court. § 30 Appellate jurisdiction. § 31 Jvuisdiction to review inferior courts. § 32 Shall have same powers, and observe rules of common pleas so far as applicable. § 33 Action in common pleas asking direction of Court respecting estate, who may bring. § 33aA\nien suit by creditor, § 34 Comments.i § 18. Constitutional provision. " Tlie Probate Court shall have jurisdiction in probate and testamentary matters, the ap- pointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators, and guardians, and such other jurisdiction, in auy county or counties, as may be provided by law." [Const. Art. IV., § 8.]^ Plenary power is conferred by this section as to granting letters, settling accounts, etc. Truuipler vs. Roger, 95 0. S. 194. See State vs. Archibold, 52 0. S. 5; Knight vs. Jolmson, 17 Dec. 517. 1 As to assignments see §§ 1542 to 1552. 2 The debates of the Constitutional Convention of 1851 show v/hat a narrow escape the Probate Court had of being one of exceedingly lim- ited jurisdiction in Ohio. The last clause of the above section to-wit: "and such other jurisdiction as may be provided by law" was the bone of contention ; and certainly without this clause, the greater part of the jurisdiction now ex- ercised by the Probate Court would have been kept from it, and the court would in the truest sense of the term, liave been one of special and limited jurisdiction. This last clause has permitted the legisla- ture to confer jurisdiction in mat- ters connected with the jurisdiction specified in the constitution wiiich would not otherwise have been per- mitted; and the very large jiiris- diction of assignments, of appro- priation, of road appeals, of ditch appeals, and numerous other mat- ters would never have found their § 19 JURISDICTION 20 § 19. status under the constitution. ^^ An idea seems to prevail among a large portion, especially of the older members of the bar of Ohio, which sometimes extends to the judiciary, that by virtue of some principle of organic law the Probate Court is an inferior and limited court. This idea, by virtue of recent decisions of our Supreme Court., I am satis- fied, is not as firmly rooted as it fonnerly was. The reason for its prevalence I am not fully able to understand. Perhaps it resulted from some unfortunate expression of the Supreme Court ; and the idea may have been encouraged by the fact that the statutes immediately passed after tlie adoption of the consti- tution gave to the Common Pleas Court general powers, while in many instances the powers granted to the Probate Court were specified. But the fact remains that under the constitution the capacity to receive jurisdiction is just as great in the Probate Court as it is in the Court of Common Pleas. If either court is favored by the constitution it is the Probate Court, for the Probate Court has jurisdiction conferred upon it by the consti- tution in the matters mentioned in the section above quoted, while the Court of Common Pleas has no jurisdiction except such as may be conferred upon it by law.^ A careful reading of the decisions of our Supreme Court where jurisdiction of the Probate Court is denied, in a matter because it is one of limited and inferior jurisdiction, will show that it is not because the constitution does not permit such juris diction, but because the statute does not grant such power. So in determining whether the Probate Court has jurisdiction or not the sole question to be considered is, does the statute any- where authorize the Probate Court to act in the matter ? If it way into the forum of the Probate See § 1338 in Guardians; § 1544 Court. Some of the best law^-ers in Assignment. of that convention seemed to be of 2a Cited Puder vs. A"ler 292 the opinion, that the Probate Court Yed. 95; 62 Bull. 411. should be confined to such inferior 3 Const. 1851, art. 4, §4; Steph- jurisdiction. But finally, the men ens vs. State, 3 0. S. 543. who seemed to be more prophetic The Probate Court in Ohio has as to the need of the future, led common-law jurisdiction. State vs. by that very able and distinguished Metzger, 10 X. P. (X.S.) 97: 21 judge, R. P. Ranney, prevailed, and Dec. 72. the clause was finally inserted. 21 EQUITY JURISDICTION § 20 does, and places no limitation on its power, then its jurisdiction in such a matter is as complete as that of the Court of Common Pleas. These matters will be further considered in a subse- quent section. § 20. Equity jurisdiction. It has frequently been asserted that the Probate Court has no equity power ; and for a long time it was insisted, especially in assignment cases, that the Court could not exercise such power,* and likewise was denied in the sale of real estate by executors. But now tliese matters have been settled in the affirmative by the Supreme Court.^ If the Probate Court has no equity jurisdiction it is because the legislature has conferred no such jurisdiction upon it. It does not result from a.ny inherent incapacity in the court itself? In a recent decision of our Supreme Court it is well said : " That if, for the sake of argument, we assume that the lan- guage of that section does not in terms expressly confer the ju- risdiction, does it follow that such power is wanting? Al- though the Probate Court is of limited and statutory jurisdic- tion, it is, we think, a mistake to suppose that it has no equity powers unless the same are expressly conferred. A power given to make a particular order implies authority to hear and dispose of all questions which it is necessary to have settled before the making of such final order, unless the needed authority is dis- tinctly denied." ® Upon this matter Woerner says:'^ "Unless a warrant for the exercise of jurisdiction in a particular case can be found in the statute, given either expressly or by implication, the whole proceedings is void ; but where jurisdiction is conferred over 4 Keifer vs. Spence, 5 N. P. 522 ; the executor to distribute the estate, 5 Dec. 609; Sayler vs. Simpson, 45 12 U. L. R. 561; 14 C. C. (N.S.) O. S. 141; Uvvyer vs. Garlough, 31 218; 34 C. C. 201. O. S. 158. 7 \\ oerner on Admin., § 142, cited 5 Doan vs. Bitely, 49 O. S. 588. in Jones vs. Green, 21 C. C. 98; 11 6 Clapp vs. Banking Co., 50 O. S. C. D. 548. See Fisher vs. Fisher, where it is Has chancery power. Spink vs. held the Probate Court may con- Spink, 7 C. C. (N.S.) 89; 28 0. CO. strue a will so far as necessary for 94. Affirmed, 78 0. S. 390. § 21 POWEK TO HEAE LAW ACTIOXS^ ETC. 22 any subject matter, and it becomes necessary in the adjudication thereof to decide collateral matters over which no jurisdiction has been conferred the court must of necessity decide such col- lateral issues." It may therefore be said that when a power is conferred upou the Probate Court by statute unlimited in its method of execu- tion that the Probate Court has full power to hear and adjudi- cate all matters relating thereto and pass upon them notwith- standing the fact that in doing so it may exercise the powers of a court of chanceiy or one of common law or only such power as is strictly confined to probate jurisdiction. By virtue of the general equity power conferred upon the Court of Common Pleas by law, where the remedy afforded by the Probate Court is inadequate, in order that there may not be a failure of justice, the Conmion Pleas \W11 entertain jurisdiction.* § 21. Power to hear common law actions and impanel juries. Following out the principles enunciated in the previous sec- tions, the Probate Court cannot only hear matters coming strictly within its probate jurisdiction, but may also hear and decide matters which require the exercise of the powers of a judge presiding over a court of common law; and therefore where a matter properly comes before the Probate Judge, whicli is by law triable by jury, he may empanel a jury for that pur- pose.^ In this case it is said: " So that under the constitu- tion the Probate Court has capacity for receiving jurisdiction quite as gi'eat as that of the Court of Common Pleas. It is not a court of general jurisdiction ; but tliat is because such powers have not been conferred on it by statute as have been conferred on the Common Pleas. So that the question here is, not what capacity has been given the Probate Courts of the State by the 8 Rote vs. Stratton, 2 X. P. 27 ; A court of equity only can en- 3 Dec. 156. force a trust. Guion vs. Guion. 4 See § 267, Surety, Legatee. Ree. 479. In an equity case it was said ^ Ry. vs. O'Harra, 48 O. S. 343. that the decree of a Probate Court See Wiler vs. Logan ;^^utual Gas in Ohio, involving the exercise of Co.. 6 C. C. (X.S.) 206; 27 0. C. C. the general jurisdiction of a court R- -o7. Reversing 1 X. P. (X^'.S.) ot equity, must be considered as 277: 14 Dec. 104. Affirmed, 72 O. S. coram non judice and void. Gillil- 628. land vs. Sellars, 2 0. S. 223. 23 LIMITED JURISDICTIOJSr § 22 constitution, but what jurisdiction has been conferred on them in the several counties of the State by the legislature." ^° And it was further held that the laws relating to struck juries and special juries might be called into exercise by the Court in em- panelling a jury," § 22. Limited jurisdiction. The Probate Court is frequently spoken of as a court of lim- ited jurisdiction. This is true simply from the fact that it has conferred upon it by law no general jurisdiction. As was well idid by Justice Shauck in a recent opinion,^^ " While the Pro- bate Court is of limited jurisdiction, the limitation chiefly re- lates to subject matters." Therefore if a subject matter is within its jurisdiction, as to such a subject matter, it is not a ^/ourt of limited jurisdiction. It is also spoken of sometimes AS a court of inferior jurisdiction. But in the recognized use of this word " inferior," as applied to courts of various jurisdic- tions, this application may be wrongly applied. By courts of inferior jurisdiction is generally meant those courts which are not considered courts of record and whose proceedings do not import absolute verity.^^ The mere fact that a case may be prosecuted in error or appeal from the Probate Court to the Court of Common Pleas no more makes the Probate Court an inferior court than it does the Court of Common Pleas, from which appeals may be taken and error prosecuted to the Circuit Court. § 23. In actions for sale of real estate, can determine title to land. It is now settled beyond question that in an action brought by an administrator, executor or assignee to sell lands or real estate 10 Id. 354. The Probate Court has full juris- 11 Quoted with approval, Doan vs. diction to adjudicate all questions Bitely, 4!) 0. S. 597. arising in proceedings properly be- 12 Brown vs. Reed, 56 0. S. 264. fore it. Wilberding vs. Miller, 90 13 The Constitution so states 0. S. 29. (Const., Art. IV, § 7) and the courts Tlie jurisdiction of the Probate have frequently held that Probate Court will not be interfered with Courts are in the fullest sense by a writ of prohibition. State vs. courts of record and therefore Lueders, 101 O. S. 211; or manda- (Shryer vs. Richmond, 16 O. S. 455) mus, State vs. Lueders, 101 O. S. are not "inferior" courts. See §20. 211. § 24 JURISDICTIOIf 24 that not only may all liens upon or to the land be determined, but that the title to the land itself may be quieted in such an action. This is held to be within the power of the court, al- though there is no express statutory provisions to that effect. The court holds that it follows from the power given to sell real estate, and that it will be presumed that the legislature intended that the real estate might be placed in that condition in which it would bring the most money ; and therefore if a cloud rests upon it that question ought to be settled."^* Whether or not the title could be quieted in an action brought by a guardian to sell the real estate of his ward is somewhat of a mooted question. The reasoning used in Doan vs. Bitely, given in a note, would be sufficient for holding that it might be done. But it is questionable whether it fully appears that the act conferring authority on guardians to sell real estate gives the Probate Court power to pass upon such a question. The safer course would be for the guardian in such cases to bring his action in tlie Court of Common Pleas. § 24. Growth of the jurisdiction of the Probate Court. In almost every matter over which the Probate Court has at any time been given jurisdiction there is a constant tendency to enlarge its power ; and in addition the court is constantly receiv- ing new and distinct jurisdiction from both the courts and law- making bodies. The competency of the court to deal with vast and complicated affairs is more and more in evidence from addi- tional legislation and recent decisions of the courts, and it 14 Doan vs. Bitely, 49 O. S. 588; diction, if capable of extrcising it, Sayler vs. Simpson, 45 0. S. 141. to determine the ultimate rights of The policy of our legislation has the parties, and administer to them long been opposed to the necessity their complete remedy. The policy of a resort to different jurisdic- is a commendable one, v.-ith which tions and multiplicity of actions, the statute making actions like in order to obtain the full and that under consideration, civil ae- final relief to Mhich parties may tions. and giving the Probate Court be entitled, and in favor of clothing co-ordinate jurisdiction with the tribunals once acquiring control of Court of Common Pleas, is in har- the subject-matter of a controver- mony. Doan vs. Bitely. 49 O. & sy, and of the parties, with juris- 594. 25 INJUNCTIONS § 25 therefore follows that the earlier decisions of the Supreme Court are not of much value for the purpose of assisting one in arriving at the jurisdiction of the court today. The legis- lative mind, having become convinced that these courts are able to deal with complicated affairs, it is easy to construe an act of the legislature in accordance with such views, and hold that as to the matter conferred on the Probate Court it has full and complete jurisdiction. It must not be forgotten, however, that the Probate Court is strictly one of statutory power, except as to matters specified in the constitution, and if he statute giving jurisdiction does not contain such power, expressly or impliedly, then it could not be exercised.^^ § 25. Power to grant injunctions. A further evidence of this growth of power in the Probate Court is that relating to injunctions. In the Code of Pro- cedure adopted immediately after the constitution of 1851 by section 239, autliority was given to the Probate Court to grant a temporary injunction in an action pending in the Court of Com- mon Pleas when the judges of such courts were absent. But no authority was given to the probate judge to grant an injunc- tion in a cause pending in his own court. The law remained in that condition until 1885, when original section 239 having be- come sections 11827, 11878, 11879, G. C, was so changed as to allow the Probate Court to grant an injunction at the time of commencing the action or at any time thereafter in causes pend- ing therein just in the same manner as judges of the Common Pleas. So at present, if an action is pending in the Probate Court over which the court has proper jurisdiction and it is proper and necessary that an injunction be granted therein, 15 As was said bj^ Judge Sum- are to be measured by the statu- mers in Jones vs. Green, 21 C. C. tory grant alone." (Woerner, § 392, 101: The reason is not that Pro- Doan vs. Bitely, 49 0. S. 588; bate Courts have not the power to Clapp vs. Banking Co., 50 0. S. grant equitable relief, for "while 528), but the reason is that juris- they possess no original chancery diction of the subject-matter has powers, yet within the scope of the not been conferred, jurisdiction conferred upon them See § 209, Eevocation of letters, their powers are not confined to In re Geo. H. Miller's Est., 12 either legal or equitable rules, but Dec. 562. § 26 JURISDICTION 26 the Probate Court has full and ample power to make such order. The question as to the right to make the order would depend upon the fact whether or not the court had jurisdic- tion of the action pending therein. Where the Probate Court grants a temporary restraining order in an action pending in another court the Probate Judge for the time being is merely- authorized to act for such action as a judge of the other court. It is not an official act in the Probate Court, and therefore no original entry need be made in the Probate Court of such action.'" The laAV authorizing the Proba'te Judge so to act is constitutional.'^ § 26. Power to appoint receivers. In two particular instances is the power to appoint receivers by the Probate Court in matters pending therein specifically provided for by statute, to-wit : Where a partner dies and there is an application made, and the partnership assets are appraised and the surviving partner refuses to take them, the Probate Court is a court of competent jurisdiction for the appointment of a receiver for such partnership to wind up and dispose of the assets in accordance with the law providing for receivership gen- erally.^® This power was not conferred by law until 1890.^* The other case in which specific power is granted is under the statute in proceedings in aid of execution.'" The general act providing for the appointment of receivers did not confer power on the Probate Judge to appoint receivers for causes pending in its own court prior to the amendment of section 5587 in 1885.^^ The statutes formerly only gave to the 16 The Probate Court could prob- plaintiff must file an affidavit that ably not punish bj' contempt a re- the Common Pleas or Circuit Judge fusal to obey an injunction by him is absent, granted in an action pending in is § SOOI, G. C, § 427. Common Pleas. Such matter would i^ Ohio Laws, vol. 87, p. 98. properly come before a Common 20 § 11782, G. C, § 1942. Pleas Judge, etc. 21 Ohio Laws, vol. 82, p. 35. iTPhelon vs. Ry. Co., 5 C. C. §11894, G. C. 545; 3 C. D. 267. The General Code grants to Pro- Some Probate Judges make an bate Courts the same right to grant entry in their own journal so as injunctions in actions pending be- to keep a record in their own office fore it as is granted to judges of of tlieir official acts. other courts. § 11877, G. C. The statute requires that the 27 EXCLUSIVE JURISDICTION § 27 Probate Court power to appoint receivers for actions pending in the Court of Common Pleas when tlie judges of such court were absent.^^ As the law now stands the Probate Court has the same power to appoint receivers for actions pending in its own court as the Common Pleas has for actions pending in its court. Some diffi- culty may arise in the application of the law of receivership to many matters coming within the jurisdiction of the Probate Court. But whether or not a receiver can be appointed must rest upon the fact whether the reason of such desired appoint- ment comes within one of the clauses set out in section 11894 G. C. There is a general clause providing that receivers may be appointed in all other cases where they have been heretofore ap- pointed by the usages of equity. It would therefore seem, that without the specific authority of a statutory provision, that the Probate Court could not appoint a receiver in matters which might be strictly termed probate matters, sucli as might arise ex parte in the administration of an estate or the guardianship of a ward, the probating of a will, settling of accounts, etc. The pending of an administration of an estate in a Probate Court is not what might be tenned a pending action therein." § 27. Exclusive jurisdiction. ' ' Except as hereinafter pro- vided, the probate court shall have exclusive jurisdiction : "1. To take the proof of wills, and to admit to record au- thenticated copies of wills executed, proved, and allowed in the courts of any other state, territory, or country. In case of the sickness or unavoidable absence of the probate judge, any common pleas judge may take proof of wills and approve bonds to be given, but the record of such acts must be pre- served in the usual records of the probate court ; "2. To grant and revoke letters testamentary and of ad- ministration ; "3. To direct and control the conduct, and settle the ac- counts of executors and administrators, and order the dis- tribution of estates; 22 Ohio Laws, vol. 51, p. 97. appears to be necessary to make 23 The appointment of a receiver such appointment, in order to pre- is merely a provisional remedy an- serve the property during the liti- cillary and auxiliary to the main gation so that the relief awarded action, and can only be made in an by the final judgment, if any, may action brought to obtain some other be effective. Ry. Co. vs. Duck- equitable relief where the court has worth, 2 C. C. 518; 1 C. D. 318. the right to grant, and where it See Special Administration, § 128. §27 JURISDICTION 28 "4. To appoint and remove guardians, direct and control their conduct, and settle their accounts ; "5. To grant marriage licenses, and licenses to ministers of •the gospel to solemnize marriages ; "6. To make inquests respecting lunatics, insane persons, idiots, and deaf and dumb persons, subject by law to guardian- ship ; "7. To make inquests of the amount of compensation to be made to the owners of real estate when appropriated by any corporation legally authorized to make such appropriation ; "8. To try contests of the election of justices of the peace; *'9. To qualify assignees and appoint and qualify trustees and commissioners of insolvent debtors, control their conduct and settle their accounts." [R. S. § 524.]-* 24 § 10492 G. C. The Probate Court has full juris- diction to adjudicate all questions properly before it. Wilberding vs. Miller, 90 0. S. 28. This section does not confer juris- diction upon the Probate Court to supervise and control a testa- mentary trustee in the administra- tion of a trust, when. Pike vs. White, 22 C. C. (N.S.) 61. The court must appoint a testa- mentarv trustee before it can act. Herrislile vs. Flack, 3 0. App. 444; 23 C. C. (N.S.) 447. Jurisdiction is the power to hear and determine. Sprankle vs. Sprankle, 22 C. C. (X.S.) 480; aflf. 78 O. S. 404. It is worthy of note that the above section has remained the same since 1854, with the exception that clause nine was added by the codi- fiers in 1880, thereby giving to the Probate Court, exchisive jurisdic- tion in assignment matters. It is further to be noted, that the above section is a general provision which applies to the matters relating therein in other provisions of the General Code. Clause one beinc: ap- plicable to §§ 10213 to 10603 G. C; clause two, S§ 10604 to 10636 G. C; clause three, §§ 10637 G. C. and following: clause four to §§ lOni.^ to 11037 G. C: clause five. §§11187 to 11198 G. C; clause six to §§ 19.53 to 1977 G. C: clause seven, §§ 11038 to 11001 G. C; clause eight. §§ o762 to 5768 G. C; clause nine, §§ 11092 to 11180 G. C. Under this section it is held that the Probate Court has jurisdiction to order an administrator to receive payment, of an unmatured note. Denmead vs. Sharp, 14 Dec. 301. The Probate Court has no author- ity to direct an administrator or executor to purchase a monument under this section. In re Ferguson, 6 N. P. (X.S.) 417; 18 Dec. 374. Affirmed by Supreme Court. In a case reported in 49 Bull. 103, jurisdiction was exercised on appli- cation of the administrator to direct him w^hat he should do — to deter- mine whether he should carry out a contract of the deceased or not. The Probate Court has no power to di- rect an administrator to allow a claim against the estate. It is well settled that even in matters in which the Probate Court has exclusive jurisdiction, that if for some reason the Probate Court has no power to pass upon a cer- tain question and the jurisdiction in some way is defective, the Com- mon Pleas Court still retains juris- diction. Thus in a recent case in the Supreme Court. Robinson vs. Williams. 62 O. S. 401. where a man had given a mortgage and then platted the ground upon wliich tlie mortgage was given, laid out streets, etc., without any release therefrom of the person holding the mortgage and then the party made an assignment, it was held that a foreclosure of the mortgage niiglit be maintained in the Court of Com- mon Pleas, although the Probate Coiirt had exclusive jurisdiction of assignment matters. By the constitution it is made a court of record, and it is declared that it shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, and the settlement of accounts of executors, adminis- trators and guardians. Constitu- 29 CONCURRENT JURISDICTION 28 §28. Concurrent jurisdiction. "The probate court shall have concurrent jurisdiction : "1. In the sale of lands on petition by executors, adminis- trators, and guardians, and the assignment of dower in such cases of sale ; "2. In the completion of real contracts on petition of execu- tors and administrators ; "3. In allowing and issuing writs of habeas corpus, and de- termining the validity of the caption and detention of the per- sons brought before it on such writs." [R. S. § 525.]^^ It is a well settled principle of law that where courts have concurrent jurisdiction that that court which first obtains juris- diction will retain it to the exclusion of every other court."' Especially is this true where the remedies afforded by each are equal. If the remedy and powers of the courts were unequal then it might be said that that court would retain jurisdiction which could grant to all parties the most complete remedy. ^^ An action or proceeding is begun in a certain court and the jurisdiction in that court attaches at the time that summons is tion, Art. 4, §§ 7 and 8. Prima facie, then, whatever is done by the Probate Court in these matters is done by the proper authority or tribunal. Following the provisions of the constitution, the general as- sembly has provided, § 10492, G. C, that the Probate Court shall have exclusive jurisdiction to take the proof of wills, and to admit to record authenticated copies of wills executed, proved and allowed in the courts of any other State, terri- tory or country; to grant and re- voke testamentary and of adminis- tration ; and to direct and control the conduct and to settle the ac- counts of executors and administra- tors, and to order the distribution of estates. These statutory pro- visions do not and cannot limit or enlarge the jurisdiction of the Pro- bate Court in the matters mention- ed. Whatever is done, therefore, by the Probate Court in the mat- ters of probate of wills, appoint- ment of executors and administra- tors and directing and controlling the accounting of such executors and administrators is presumptive- ly within the jurisdiction of the court. Hoffman vs. Fleming, 47 Bull. 430. 25 § 10493 G. C. Where courts have concurrent jurisdiction, the one first acquiring jurisdiction will retain the same. If the relief is different each may retain, and the court first determin- ing the question common to both is conclusive on the other. D. U. R. R. PS. D. M. Traction Co., 1 N. P. (N.S.) 296; 14 Dec. 143. Affirmed by Circuit Court, 4 C. C. (N.S.) 329. Affirmed by Supreme Court, 72 0. S. 429, 644, 645. 25 § 10493, G. C. J 26 Keating vs. Spink, 3 O. S. 105 ; State vs. Railroad, 35 0. S. 154. 27 In a case in the Probate Court of Clark county (Bateman vs. Mor- ris, 4 N. P. 397 ; 7 Dec. 287 ) in which the administrator brought a suit to sell the lands of a deceased per- son after a suit had been brought in the Court of Common Pleas to foreclose a mortgage on the land, §29 JURISDICTION 30 issued, or as has been said, at the time the right to begin the inquiry commences.^* § 29. Jurisdiction exclusive of that of any other probate court. "The jurisdiction acquired by a probate court over a matter or proceeding is exclusive of that of any other probate court, except when otherwise provided by law." [R. S. §527.]-^ The above section merely puts into statute form the rule that applies to courts of concurrent jurisdiction. There is but one case in Ohio in which this section has been the subject of a re- ported decision.^" In this case there was an application for let- ters of administration made upon the estate of a deceased in Hamilton County, and the matter was submitted to the Court, but the Court refused to appoint the applicant administrator. The matter then went over until some eligible person should in which ccmmon pleas action, the administrator had not been made a party. It was held that the Pro- bate Court would retain jurisdic- tion. The reason of this being, that the administrator had not been made a party and that as it was his duty to pay all demands existing against the estate as well as the right of the heirs to insist that the personal property should first be applied to the payment of debts ; and therefore the adminis- trator was a necessary party in order to be precluded from bring- ing an action himself as the statute directs. It seems that from the fact that the mortgage is merely regarded as security for the debt, that before suit could be brought to foreclose a mortgage the debt ought to be presented to the administrator just the same as any other debt against the estate. Some have gone even so far as to insist that the Probate Court has exclusive jurisdiction in the administration of estates, the same as in assignment cases, but in a recent case in the Circuit Court (Citizens Sav. Bank vs. Ide, 20 C. C. 665: in C. D. 800), this was ex- pressly denied and a foreclosure in the Court of Common Pleas was up- held wlicre the same made the lieirs, administrator and all other lien holders parties. Public policy, if no other consideration, requires tliat a construction so long accepted and ac- quiesced in should not be disturbed. 2S Spinning vs. Life Ins. Co., 2 Dis. 336; In re Wortliington. 4 Dec. 381 ; Bateman vs. Morris, 4 N. P. 3!)7; 7 Dec. 287. The power to hear and determine a cause is jurisdiction. Sheldon vs. Oren, 3 0. S. 4!14. Some of the Probate Courts have concurrent jurisdiction in divorce and partition proceedings, and cer- tain criminal actions. In the counties of Pickaway, Licking, Richland, Perry, Defiance, Henry. Fayette and Coshocton Pro- bate 'Courts have concurrent juris- diction in divorce, alimony, parti- tion and foreclosing mortgages, § 10404 G. C. 29 § 1049S G. C. 30 In re Worthington, 4 Dec. 381. It is not special legislation to give the Probate Court jurisdiction in cases involving the question of keepiner saloons open on Sunday. ObererN-s. State, 28 0. S. 620. Jurisdiction not lost by removal of LMiardian from state. Netting vs. Strickland, 9 C. D. — ; 18 O. C. C. R. 136. 31 APPELLATE JURISDICTION § 30 1)6 presented to whom the court might grant letters. In the meantime application was made by another party to the Probate Judge of Lucas County, and letters of administration were granted in that court. In a very thoroughly considered case Judge Ferris held that the appointment made by the Lucas County Court was void, that the matter was exclusively within the jurisdiction of the court of Hamilton County, and that the jurisdiction attached at the time the application was made. §30. Appellate jurisdiction. The Probate Court has jurisdiction by way of appeal in a number of matters coming from inferior boards, etc. Thus there is a right of appeal in county ditches,^^ township ditches,^' drifts,^^ certain pikes,^^ establishing county roads,^^ and for material for improving roads,^^ township roads,^^ and insolvent decedents' estates.^^ These matters are all regulated by statute and where not fully considered in this work reference must be had to the General Code. § 31. Jurisdiction to review inferior courts. The Probate Court has no right to entertain proceedings in review of inferior tribunals by way of a bill of exceptions, etc., but under and 'by way of appeal in various matters mentioned in the preceding section the court has power to review the action of various boards and inferior tribunals, and if erroneous set aside the proceeding, and in some instances when the proceedings of the inferior tribunals have been found to be faulty they are set aside and the court hears the matter de novo. § 32. Shall have same powers, and observe rules of common pleas so far as applicable. "In the exerci'fee of jurisdiction the probate judge shall have the powers, perform the duties, and be governed by the rules and regulations provided by law for the courts of common pleas and the judges thereof in vacation, so far as they are consistent with laws in force." [R. S. § 537.] ^° 31 § 6460 a. C, § 1833. 37 § 7373 G. C. 32 § 6625 G. C, § 1857. 38 §§ 7075-6 G. C, § 1805. 33 § 6746 G. C, § 2000. 39 § 10890 G. C. 35 8§ 654-5 G. C., § 2004. 40 § 10499 G. 0. 36 § 7062 G. C., § 1785. §33 JURISDICTION 32 The matter of jurisdiction as applicable to individual branches of the jurisdiction of the Probate Court will be con- sidered when treating of such branches in future chapters in this work and reference must be had to such places for further discussion of the jurisdiction of the Probate Court.*^ § 33. Action in common pleas asking direction of court re- specting estate, who may bring. ' ' An executor, administrator, guardian, or other trustee, may maintain an action in the court of common pleas against the creditors, legatees, distributees, or other parties, asking the direction or judgment of the court in any matter respecting the trust, estate or property to be ad- ministered, and the rights of the parties in interest, in the manner, and as fullv, as formerly was entertained in courts of equity." [R. S. §6202.]-'- § 33a. When suit by creditor. "After being requested in writing by a creditor, legatee, distributee, or other party in interest, to bring such action, if an executor, administrator, guardian, or other trustee fails for thirty days so to do, the creditor, legatee, distributee, or other party making such re- quest, may institute the suit." [R. S. § 6202. j*^* ■11 As to grantinj? letters testa- montarv, see Chapt. 5. §72: Ancil- lary letters. Chapt. 11. §172; Re- vocation of letters, Chapt. 14, §209: New bond. Chapt. IG. §24.3: . 16 C. C. (KS.) .544. 42* § 108.58 G. C. 33 COMMENTS § 34 § 34. Comments. It was a common practice of Chancery Courts for trustees to come into that court and receive instruction upon their rights in the management of a trust. The above statute is a recogni- tion of this rule. Before the Court will give relief, however, it must be shown that there is a trust involved.*^ The Court would not construe a will under the above section for the mere fact of giving an opinion of the Court as to its effect upon certain after-acquired property.** The person invoking the jurisdiction of the Court must show that he is an interested party and that he invokes the Court for his ovim safety and that there is some need for action of the Court. Thus where an executor filed a petition asking whether or not he should erect a monument and did not state that there would be any money in his hands or coming to his hands which could be appropriated for that purpose, the Court refused to en- tertain jurisdiction.*^ Where a trust is created for the benefit of one body or society and there are two bodies claiming it, the executor may compel the parties claiming the fund to interplead and have the Court make a decision thereof.*'' Generally it may be said that authority is granted to an ex- ecutor to maintain a civil action in the Court of Common Pleas asking the direction of the Court in any matter affecting the trust estate or property to b^. administered and the right of the parties in interest.*^ An executor may bring an action securing direction of the Court as to whether a legacy is payable immediately or at some future time.*^ An administrator petitioning for the sale of land to pay debts 43 Collins vs. Collins, 19 0. S. 46 First Presb. See. vs. First 468. Presb. Soc, 25 O. S. 128. 44Corry vs. Flemming, 29 O. S. 4T Merrick vs. Merrick, 37 O. S. 147; Bowen vs. Bowen, 38 O. S. 126. 426. 48 Gordon vs. Groesbeck, 1 C. C. 45Rothgeb vs. Mauek, 35 O. S. 320; 1 C D. 176. 503. See Chase vs. Isherwood, 1 N. P. 31 : 5 Dec. 1. §34 JURISDICTION 34 may have a construction of the will to ascertain to whom it has given the title/^ A guardian may bring an action and have the court determine whether a certain claim shall be paid or not.°° It has recently been held that an executor or administrator may bring an action under the above section to have the Court pass upon the question whether or not a widow of a deceased is entitled to a year's allowance.^^ An action under the above section has been held to be appeal- able/^' 49 Farrar vs. Fallestine, 4 C. C. 235; 2 C. D. 519. See Hollister vs. Howe, 4 N. P. 168; 6 Dec. 157, where it is said an administrator or trustee under the will can maintain a suit to con- strue the will if there is anything to construe. sowing vs. Hibbert, 7 N. P. 124; 8 Dec. 65. This might also be done in Pro- bate Court, § 1362, § 1360, § 1364. siMcCalla vs. MeCalla, 46 Bull. 280. See § 329, when appraisers fail to make allowance. 62 Swing vs. Townsend, 24 O. S. 1. See Whittakers Forms 719, for petition to construe will. The superior excellence of a court of general jurisdiction like our Com- mon Pleas, resides in the fact that whatever the case may be, there will not in general be a failure of justice from the want of power in the Court to hear and determine. Its jurisdiction is in all cases easily determined. It possesses all the powers of a court of justice that are not expressly denied to it, or exclusively given to some other tri- bunal, and in all questions of doubt, jurisdiction is resolved in its favor. Judgment in both cases. Robinson vs. Williams, 62 0. S. 410. 36 JUDGE TO DETERMINE QUESTIONS § 35 CHAPTER III. GENERAL PROVISIONS OF PRACTICE, APPEAL, ETC. § 35 Probate judge to determine § 43b Rule sls to party appealing in all questions, except, etc. fiduciary capacity in any § 36 Code of civil procedure gov- case. erns, when. § 44 When bond need not be given. § 37 Notice of proceedings in Pro- § 45 When must be filed. Written bate Court, how given. notice of appeal. § 38 Depositions and evidence. § 46 To whom bond should be § 39 When appeals may be taken made payable. from Probate Court to § 47 Amount of penalty of bond. Court of Common Pleas. § 48 Form of appeal bond. § 40 What may be appealed. § 40 Transcript — when to be filed. § 41 Who may prosecute appeal. § 50 Party interested must file § 42 Trial on appeal. transcript. § 43 Bond on appeal, when not re- § 51 Proceedings in Common Pleas quired. — certifying same back. § 43a Amount of bond. § 52 Proceedings in error. § 53 Entries, nunc pro tunc, etc., power. § 35. Probate judge to determine all questions, except, etc. "All questions, except those arising^ in criminal actions and proceedings, nnless otherwise provided by law, shall be deter- mined by the probate judge, unless, in his discretion, he orders them to be tried by a jury, or referred, as provided for ref- erences in the court of common pleas." [R. S. § 6400.] ^ This section has been quoted - as showing the intention of the legislature to confer upon the judge of the Probate Court all power that is necessary to be exercised in the proper trial of a subject matter over which his court has jurisdiction. It recog- nizes the fact that in a proper case he may call a juiy or may refer the matter to a master in the same manner as a judge of the Court of Common Pleas. It should be read in conjunction with section 10499,^ which likewise confers upon the Probate Judge the same powers and the same duties as judges of the 1 § limn G. C. Trial by referee, §§ 11475, 11486. See summoning jnrv, § 11419 G. C. 2 Doan vs. Bitely, 49 0. S. .596. Trial by jury, §§11447, 11465 3 § 32. G. C. Consent is necessarv to refer a Trial by court, §§ 11469, 11474 case. In re Gorman, 2' N. P. (N.S.) G. C. 667; 15 Dec. 204. § 36 PROVISIONS OF PRACTICE 36 Court of Common Pleas exercise in vacation so far as the same are consistent.* § 36. Code of civil procedure governs when. ' ' The provi- sions of law governing civil proceedings in the court of com- mon pleas, so far as applicable, shall govern like proceedings in the probate court, when there is no provision on the subject in this title." [R. S. § 6411.]5 In reference to procedure in the Probate Court, Woerner says," " Although Probate Courts are mostly, if not universally, courts of record, having a seal, a clerk or authority to act as their own clerk, and executive officers, yet their procedure is gen- erally sununarj', requiring no pleading in the technical sense, nor adherence to artificial rules in the statement of the cause of action or defense. An intelligible statement of an existing substantial right, which the Court has jurisdiction to enforce, is a sufficient allegation of all matters necessary to sustain a judg- ment; and the simple appearance of the defendant usually en- titles him to rebut the proof offered by the other side, or prove any matter in defense ; save, perhaps, a cause of action constitut- ing a set-off or counterclaim, of which the other side must have sufficient notice to enable it to prepare any defense it may have to the same. The practice in county courts is purposely so framed that parties can attend to their own business in ordinary matters, and the decision should be so rendered as to subserve the ends of justice according to the evidence, without regard to technical precision in pleading." In a great many of proceedings in the Probate Court a metliod of procedure is outlined, but where an action in the Pro- bate Court is of a like character of one for which the Civil Code provides, then the provisions of the Civil Code are to be applied 4 See §11410. as to summoning trial by referee. Kinkead's Pract. jiirv. Kinkead's Pract. 251. 217. See §§ 11447 to 11465 as to trial 5 § 11212 O. C. by jury. Kinkead's Pract. 178, 338, Tliis means in like proceedings. 246. ' :Mansfield vs. Cole. 16 X. P. 200; 25 See S§ 11460 to 11474 as to trial Dec. 231. by court. Kinkead's Pract. 206. The coiirt mav erant a new trial. See §§ 1147.5 to 11486 G. C. as to etc. Doan vs. Bit.lv. 40 O. S. 588. 6 Woerner on Admin. 330. 37 NOTICE OP PROCEEDINGS § 37 SO far as practicable ; and thus where an action is such that a jury is required to determine the issues between the parties, the code in reference to the calling of a jury and the sub- mission of the case applies.'^ And it has been held in actions triable by jury where the same is waived by the parties the Court may be required to state its findings as provided by section 11470 of the General Code.« § 37. Notice of proceedings in Probate Court, how given. "When notice of any proceedings in a probate court is re- quired by law, or deemed necessary by the judge, and the manner of giving it is not directed hy statute, he shall order notice to be given to all persons interested therein, in such manner and for such length of time as he deems reasonable." [R. S. §6406.]« The above general provision is to supply a method and man- ner of giving notice in proceedings in the Probate Court where the statute does not specifically provide the kind of notice that should be given ; and, where the statute does not provide the kind of notice that should be given, by virtue of the above statutory provision, the same is left in the absolute discretion of the Probate Judge. Where the statute provides how the notice shall be given, then it becomes a jurisdictional fact that such notice be given in the manner the statute directs, and where a proceeding is brought in tlie Probate Court to which the Code of Civil Procedure applies, then the notice should be given in the manner the code provides. The proceedings in the Probate Court are generally ex parte and in rem, but even before the Court can receive jurisdiction of a proceeding in rem it is neces- 7 See Ry. Co. vs. O'Harra, 48 0. process upon him either actually or S. 343; Doan vs. Bitely, 49 0. S. constructively, and this right, rec- _„„ ognized at common law is secured bv constitutions and judicial deci- sKittredge vs. Miller, 12 C. 0. sions. 22 A. & E. Ency. of Law, 128; 5 C. D. 391. title. Service of Process. 9 s 11205 G C When a guardian removes from T ' . r 1 i , . . 1 f the State, notice can be served by It IS a fundamental principle of publication. Netting vs. Strickland, justice that no valid proceedings can 9 C. D. 844; 18 0. C. C. 136. be had against any person until he There is no provision of law giv- should have been notified of such S" "°*'^*^. *'' f -"^^If" i",^"?,^^^^ ,. , . , State. Gilbert vs. (filbert, 13 C. C. proceedings by proper service of 29; 7 C. D. 60. § 3Y PEOVISIOKS OF PRACTICE 38 sarj that notice in some manner be given. Thus in the admin- istration of estates a notice is given by proclamation in a news- paper/" and therefore many proceedings may afterwards be had in the management of an estate which would be legal without any particular notice. So it has been held that in reference to guardianships that after the appointment has been made the court has jurisdiction of the subject matter and may proceed without further notice. But the Court should err, if err at all, upon the fundamental principle that the rights of no one in any respect whatever should be adjudicated upon without the party having had his day in court and the opportunity to defend if he chooses. In all matters where notice is required the safer plan of procedure is for the Court to make a finding that a notice has been given as required by law or the former order of the Court ; this will prevent the question whether or not a notice was given, from being raised collaterally. The mere fact that the stat- ute requires notice to be given ^\^ll not of itself make the pro- ceedings an adversary one.^^ And where the proceeding is in rem and the statute requires a notice t-o be given, it has been held that the proceeding is not void, although such notice is not given. ^" 10 Chapt. 31, § 543. decree iti rem, and actually invests 11 Barr vs. Closterman, 3 C. C. the executor or administrator with 445; 2 C. D. 251. the character which it declares be- i2Denson vs. Cilley, 8 O. S. 604. longs to him." (2 Smith's Lead The remedy by due course of law Cas., 7th Am. ed., § 593). Subse- guaranteed by section 16 of the Bill quent acts in the administration of of Rights, extends to all the ad- the estate, done by or under direc- versary rights of persons in prop- tion of the court, are steps in the erty, and requires that before there same proceedings. With respect to is a judicial determination affect- some of these acts, provision is made ing such right process to obtain that notice shall be given, jurisdiction of the person claim- While obviously many acts may ing it shall be issued and served, be performed in the administration except that the legislature may pro- of the estate without notice (as in vide for a substituted or construct- Treasurer of Franklin Co. vs. Mc- ive service to be made when actual Elvain, 5 Ohio, 200). others can service is impracticable. State vs. not be properly performed in the Guilbert, 56 0. S. 575. absence of it, though the statute " A grant of probate or of ad- be silent. Of the latter class are ministration is in the nature of a proceedings to appoint new *p- 39 DEPOSITIONS — APPEAIj § 38 § 38. Depositions. ' ' Depositions taken according to the provisions of law to be used on the trial of civil cases, may be taken and used on the trial of any question before the probate court, where such testimony is proper." [R, S. § 6404.] ^^ The same rules of evidence are applied in actions tried in the Probate Court as are applicable to causes which are tried in the Court of Common Pleas. The presumptions of law and the proof necessary to establish a cause of action are alike in all courts. § 39. When appeals may be taken from Probate Court to Court of Common Pleas. "Appeal may be taken to the com- mon pleas court, by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the probate court in settling the accounts of an executor, admin- istrator, guardian, and trustee, or of assignees, trustees or com- missioners of insolvents; from an order removing or refusing to remove an executor, administrator, guardian, assignee, trustee or other officer appointed by the probate court; or in proceedings for the sale of real estate to pay debts ; or to change the allowance made by appraisers of an estate to a widow, minor child or children, for a year's support; or against one suspected of having concealed, embezzled or con- veyed away the property of dead persons ; or in cases for the completion of real contracts, or in the administration by as- signees, trustees, or commissioners, of insolvent estates ; or in proceedings to appoint guardians or trustees for idiots, luna- tics, imbeciles, or drunkards. The cause so appealed shall be tried, heard, and decided in the court of common pleas in the same manner as though the court of common pleas had original jurisdiction thereof." [R. S. §6407.] " praisers, and the act of sucli ap- trator. Eoger vs. Trumpler, 38 C. praisers in making allowance to a C. 187. widow for a year's support. Heck Also from an order appointing a vs. Heck, 34 O. S. 369. guardian for a drunkard, Clark 13 § 11206, G. C. Common Pleas. But not from the An appeal from the Probate Court appointment of an administrator, refusing to appoint a guardian of a Luburg a's. Luburg, 13 O. App. lunatic, takes up the wdiole case, (1920). and if the Common Pleas Court de- Other statutes providing for ap- cides there is need for a guardian. peal are as follows: Appropriation it may appoint one. Guardianship by municipal corporation. §§ 3695- of Oliver, 77 0. S. 475. 3606; Proceedings to enforce dis- 14 § 11206 G. C. tribution, §10859 G. C, §785; See Mansfield vs. Cole, 14 N. P. Insolvent estates, § 10890 G. C, 209 as to power of court to vacate § 1004; Inventories, § 10640 G. C, its former orders and what consti- §993; Claim of executor, etc., tutes a final order appealed from. §§ 10729-,32 G. C, §641; From re- An appeal lies from on order of fusal to probate will, § 10532 G. C, the Probate Court determining the § 1116; From order settling account validity of an account rendered by of guardian, § 10954 G. C, § 1493; an attorney employed by adminis- In contest of election of probate judge, § 7252 G. C. § 40 PKOVISIOXS OF PRACTICE 40 § 40. What may be appealed. As a general rule it may be said that actions pending in the Court of Common Pleas which are triable by jury are not ap- pealable, and all actions which are not triable by jury are ap- pealable. If an ordinary issue were tried in the Probate Court which by the rules of law was triable by jury, such a question could not be tried on appeal. But the rule applicable to issues pending in the Probate Court rests upon the fact whether or not the statute gives a right of appeal. For without a statute giv- ing such right there is no appeal from any action in the Probate Court; and as a general rule no appeal can be taken from an interlocutory order; it must be an appeal from what is known as a final judgment or decree, that is, one which disposes of the whole merits of the case and leaves nothing further for the con- sideration of the court.^^ It is further held that the appeal must not be from such order as merely affects the administration of the trust and therefore the approval by the Probate Court of the election of an assignef for creditors is not appealable.^* It has likewise been held that a refusal to confirm a sale was not appealable.^^ But it has been held that a confirmation of private sale by an assignee of certain stocks is appealable,^^ and that confirmation of private sale of real estate is also ap- pealable.^^ In another case, however, it was held that a mere confirmation of sale which does not define and determine rights of parties, but merely confirms acts in obedience to a former order is not appealable.^" If a confirmation also contains a 15 Kelley vs. Stanberry, 13 Ohio icBrigel V3. Starbuck, 34 0. S. 408; Teaff vs. Hewitt, 1 0. S. 511; 2S0. Evans vs. Dunn, 26 0. S. 439. i^AuItman vs. Seiberling. 31 0. An appeal from the judgment of a S. 201. Probate Court to the Court of Com- is Schumacher Assignment, 5 X. mon Pleas, does not vacate or annul P. 145: 5 Dec. 386. the judgment appealed from, it is Browne vs. Wallace, 60 0. S. merely suspends its execution during 177. the pendency of such appeal, and - ' Norwood Park Co. Assignment, error may be prosecuted at the same 4 X. P. 240; 6 Doe. 341. time. Jennings vs. Walker, 10 C. C. The court in Browne vs. Wallace, (N.S.) 586; 86 0. S. 100. 00 0. S, 177, seems to make a dis- 41 WHO MAY APPEAL 41 distribution, then it is certainly appealable."^ It is generally held that the decree in foreclosure finding the amount and or- dering the sale is a final and appealable order. ^^ It has been held that an appeal lies from a refusal by the court of insolvency to administer upon property declared to have been conveyed in fraud of creditors,^^ and also that an appeal lies from a final order in a proceeding to recover concealed assets.^* § 41. Who may prosecute appeal. The statute relating to appeals in the Court of Common Pleas provides that " a party or other party directly affected by a judgment may appeal therefrom." ^° The question, there- fore, whether or not a party has a right to appeal will depend upon a number of circumstances. If he has any substantial right which will be in any manner affected by the judgment then he has a right to appeal. Thus it has been held that a judgment ordering the cancellation of the lease of a railroad, executed by its owner to another company, is a judgment direct- tinction between a private sale and a public sale. 21 Center Bid. Assoc, vs. O'Con- nor, 8 Rec. 99 ; Kelley vs. Stanberry, 13 Ohio 408; Spence vs. Basey, 34 O. S. 42. 22 Baker vs. Lehman, Wright 522. 23 In re Schumacher, 5 N. P. 387 ; 6 Dec. 125. 24 Harris vs. Westervelt, 15 C. C. 534 ; 8 C. D. 367. The matter as to appeal will be discussed in various future sections. As to revocation of letters, chapt. 14, § 232; As to ex- ceptions to inventories, chapt. 18, § 317; As to widow and children's allowance, chapt. 19, 340; As to as- sets concealed or embezzled, chapt. 22, § 413; As to presentation of claims not due, chapt. 33, § 583; As to claims of executor or adminis- trator, chapt. 38, § 643; As to ae- eountinj?, chapt. 41, § 747; As to distribution of assets, chapt. 43, § 785 ; As to sale of real estate, chapt. 49, § 906 ; As to settlement of in- solvent estates, chapt. 53, § 1005; As to probate of wills, chapt. 58, § 1116; As to spoliated wills, chapt. 60, § 1153; As to election of widow, chapt. 65, §1229; As to appoint- ment of guardians, chapt. 71, § 1342; As to removal of guardians, chapt. 73, §1359; As to guardian's sale of real estate, chapt. 76, §1431; As to guardian's accounting, chapt. 81, § 1495; and As to guardians of lunatics, etc., chapt. 82, § 1515. See § 1659. A proceeding brought to vacate a judgment under § 11631 G. C, rendered in a proceeding to sell real estate is not appealable, as to course to pursue in such cases, see Fox vs. Bank. 25 Bull. 28; Bank vs. Mullen, 18 Dec. 637. 25 §§ 12224-5 G. C. The section relating to the Pro- bate Court provides an appeal may be taken "by any person against whom such order, decision, or decree shall be made, or who may be inter- ested thereby." § 11206 G. C, §39, see § 1514. § 42 WHO MAY APPEAL 42 \y affecting the stockholder and that such stockholder has a right to appeal."^ The securities on a guardian's bond may except to the finding of the Probate Court and appeal the same.^^ The guardian of drunkard has no right to appeal from a decision of the Probatje Court, terminating the guardianship,^^ nor an administrator.^'' § 42. Trial on appeal. The cause so appealed shall be tried, heard and decided in the Court of Common Pleas in the same manner as though the said Court of Common Pleas had original jurisdiction.^^ From the liberal policy of allowing amendments it is generally held that the Court on appeal may allow such amendments as justice may require and new parties may be brought in and their rights effectually adjudicated upon.^^ The application for amend- ment is addressed to the sound discretion of the Court,^^ but amendments cannot be permitted whidi will have the effect of changing tlie cause of action, that is, an action at law could not be changed into a suit in equity.^* In such trial the Court acts de novo and is not concerned with the decision of the Court below as to whether it was right or wrong.^* The Court may go into the question whether the appellant has such an interest as will entitle him to appeal, ^^ and gener- 26 Henry vs. Jeanes, 47 0. S. 116; si § 1120G G. C. see 48 0. S. 443. But the parties do not have a 27 Netting vs. Strickland, 18 C. C. right to a jury trial. Shroyer vs. 144; 9 C. D. 841. A party may ap- Riclimond, 16 0. S. 467. peal a case, even though it is not 32 Grant vs. Ludlow, 8 O. S. 1 ; necessary that he be made a party Potter vs. Norwood, 21 C. C. 461; (Bowlus vs. Shanabarger, 19 C. C. Bausch vs. McConnell, 13 C. C. 640; 137; 10 C. D. 167), provided such 7 C. D. 547. party has some interest in the mat- sa Brock vs. Bateman, 25 O. S. ter. 609. See Comb vs. Jefferson. 3 Mete. 3* Nelson %'s. Kennedy. 2 C. D. 72; Studebaker vs. Markley, 7 Ind. 671; 4 C. C. 498. App. 368. se Bruster vs. Anderson, 1 C. D. 29 Unreported case. Clark County. 268; 1 C. C. 479. C. C. 3' In re Dunham, 8 C. C. 160; 4 30 See Martin vs. Dershiem. 46 C. D. 329. Bull. 172. See § 1778. 43 APPEAL BOND, ETC. § 43 ally all questions as to whether or not the appeal has been perfected according to law. It is a general rule that but one appeal may be allowed, that is, if a case is appealed to the Common Pleas Court, it cannot be further appealed to the Circuit Court.^^ §43. Bond on appeal — when not required. "A person desir- ing to so appeal from an order, decision, or decree of a probate court, within twenty days after it is made, must give a bond, executed to the adverse party, with one or more sufficient sureties to be approved by such court, and conditioned that the party appealing will abide and perform the order, judg- ment, or decree in the case, of the appellate court, and pay all moneys, costs, and damages required of, or awarded against him." [R. S. §6408.]="' § 43a. Amount of bond. "When the order, decision, or de- cree, from which an appeal is taken, directs the payment of money, the bond must be for double the amount, and in other cases, for such sum as the probate court prescribes." [R. S, §6408.]=^"* § 43b. Rule as to party appealing in fiduciary capacity in any case. "When an appellant from an order, judgment, or decree, in or by any state court or tribunal is a party in a fiduciary capacity in which he has given bond in Ohio for the faithful discharge of his duties, appeals in the interest of his trust, upon written notice to the court, within the time limited for giving bond, of intention to appeal, it shall be allowed without bond." [R. S. § 6408.] =^"1 § 44. When bond need not be given. When the person appealing from a judgment or order, etc., is a party in a fiduciary capacity in which he has given bond within the State and appeals in interest of the trust, he need not give the bond. It will be observed that there are three con- ditions necessary in order that an appeal may be taken from 38 Bauer vs. Lohr, 6 Bull. 754; In Written notice does not take the re Correy, 4 C. C. 220; 2 C. D. 510; place of an appeal bond unless it Moore vs. Moore, 46 0. S. 89. appears that its appeal is taken 39 § 11207 G. C. by a party in a fiduciary capacity, 39* § 11208 G. C. and in the interest of the trust. Est. 30t § 11209 G.' C. of Arkenberg, 1 X. P. (X.S.) 9; When one of two executors, who 13 Dec. 656. is also a devisee under the will, Where a ^ardian is removed, appeals from a decision of the Pro- and he apneals, he must give bond, bate Court upon the allowance of In re Wallace, 4 N. P. (N.S.) 449; the claim of his coexecutor, he must 17 Dec. 136; 78 O. S. 417. Affirmed, give bond. Downing vs. Downing, The statutory right of appeal un- 3 C. r". (N.S.) 623; 23 0. C. C. 384. der §6417 R. ' S., removing an ex- §45 PROVISIONS OF PRACTICE. 44 the judgment of the Probate Court without a bond being given. First, the person appealing must be a party in a fiduciary ca- pacity. What is meant by that is, that he must be acting as ex- ecutor, guardian, administrator, trustee, assignee, etc. Sec- ond, the appeal must be in the interest of the trust. This has been held to mean by the Supreme Court, that if the party ap- peals from a judgment affecting adversely his own pecuniary interest he is required to give bond.'*" Thus an assignee of an insolvent estate who has a personal claim against the estate cannot appeal without giving bond from a judgment against him,*^ because it is not in the interest of the trust.^2 The words "in the interest of the trust" mean for the bene- fit of the trust. It must appear in the plaintiff's bill of par- ticulars, that he acted in a fiduciary capacity.*^ The third condition is, that the person appealing must have given bond within the State, therefore an executor residing out of the State and never having given bond here is not entitled to appeal without bond.** § 45. When must be filed. Written notice of appeal. The bond must be given within twenty days after tlie order is made. This time is computed by excluding the first day and including the last.*^ ecutor, does not conflict with § 524, giving the Probate Court exclusive jurisdiction to grant and revoke let- ters testamentary. In re Sells Est., 5 N. P. (X.8.) (>2!); li) Dec. 5G7. 40 Collins vs. JMillen. 57 0. S. 289. An executor in a joint suit can appeal the cause as well for himself as to his codefendants without giv- ing security. Emerick vs. Armstrong, 1 0. 513; Hance vs. Chappell, 20 C. C. 214; 11 C. D. 130; Thomas vs. Moore, 52 0. S. 200. It does not include public ofiicials — State vs. Smilev, 14 C. C. GOO; 8 C. D. 117; 14 C. C. 609; 8 C. D. 117. 41 Biddle vs. Phippes, 2 C. C. 61; 1 C. D. 363. 42 The court can not relieve a partv from giving bond, etc. Thomas vs. Moore, 52 0. S. 200. Where one of two executors^ who is also a lega- tee under the will, is dissatisfied with the finding of the Probate 'Court upon the allowance of a per- sonal claim of a coexecutor, he nuist give bond. Downing vs. Downing, 23 C. C. 3S9. This clause "in the interest of the trust," seems not to have been in the former statutes. Collins V3. Millen, 57 O. S. 294. Where the court terminates the guardianship of a drunkard, and the guardian appeals from such order, such a])peal is not in tlie interest of the trust, and he must give bond. Unreported case, C. C. Clark Co. 43 Brown vs. Larkin, 10 C. D. 829. It applies to appeals from justices of the peace. Thomas vs. Moore, 52 0. S. 200. Wiiether an appeal is prosecuted in tlie interest of the trust must be determined from the record and the original papers in the case, author- ized to be used by §6400 R. S.; if any presumjjtion of fact arises it is that the administrator is bene- ficiallv interested. In re Est. Ark- enberg, 1 X. P. (N.S.) 0; 13 Dec. 656. The presumption is that when an administrator appeals, if there is any, is that he is beneficially inter- ested, and written notice must be filed within thirty-one days after judgment is returned. Fergus vs. McClure, 12 C. C. (N.S.) 87; 31 O. C. C. 207. 4 4 Work vs. Massie, 6 Ohio 503; Denison vs. Talmage, 29 O. S. 433. An a]»ppal by a guardian from judgment terminating the trust is not in interest of tiie trust and a bond must be filed within twenty days. In re Robinson, 18 N. P. 286. 45 Bushong vs. Graham, 4 C. C. 138; 2 C. D. 464. In an appeal 45 APPEAL. BONDS, ETC. § 46 If the party apppalinsr is not roniiirod to ffive a bond, then he must p-ive a written notice to the fonrt of his intention to anneal, within the time limited for giving a bond, that is twenty days from the time the order was made. If bond is given this notice of intention to appeal is not required.*^ Bnt otherwise the statute must be strictly complied with, and therefore al- though there has been some holding to the contrary,*^ it is now settled beyond question that tl^ mere fact of a notice given in the journal entry will not be suflficient.*^ The notice must be separately given in writing to the Court.^^ This is a matter of importance and attorneys have been mis- led by the fact that notice of appeal taken from the Court of Common Pleas was formerly sufficient if incorporated in the journal entry. § 46. To Whom bond should be made payable. The bond must be executed on the part of the person appeal- ing to the adverse part3^^° While this is the language of the statute, yet if a mistake is made it may be corrected. Thus where, by a mistake, an ap- peal bond, attempted to be given in a case, is defective in not naming the obligees, and is therefore invalid, this would not entitle the appellee to a dismissal of the appeal as against a motion by the appellant for leave, to file an amended appeal bond.^^ In another case it was said that the provisions of the statute from a final judgment of a justice § G408 R. S., for one acting in a of the peace where the tenth day oc- fiduciary capacity, are not cumula- curred on Sunday, it was lield that tive, but mutually exclusive, and it would be iu time if filed on Mon- relate to separate and distinct char- day, the eleventh day. acters of appeal. Meyer vs. Seinsheimer, 5 N. P. Where an administrator has an 281; 7 Dec. 409. individual interest in the appeal, It dates from the time entry is written notice of his intention to filed, not from the time the oral appeal is not required by § 6408 opinion is made. State v. Seward, R. S. Iti C. C. 443; 9 C. D. 1G8. Written notice of an intention to 46 Keck vs. Douglass, 6 C. C. 649; appeal does not take the place of an 3 C. D. 629. appeal bond, unless it appears that 47 Hirsh vs. Kilsheimer, 12 C. C. the appeal is taken by a party in a 291; 5 C. D. 514. fiduciary capacity, in the interest 48 Browne vs. Wallace, 16 C. C. and for the benefit of the trust 124; 8 C. D. 704. alone, /n re Est. Arkenberg (1903), 49 Willis vs. Willis, 20 C. C. 664 10 C. D. 798. AIT. 57 0. S. 668 Brown vs. Wallace, 21 C. C. 417 1 N. P. (X.S.) 9; 13 Dec. 650. As to appeal bonds in condemna- tion, see 48 Bull. 942. Affirmed Sup. Ct., 47 Bull. 163. so § n207-9 G. C, §43. The two methods for perfecting si Ireland vs. Ireland, 11 C. C. an appeal, which are provided by 565; 5 C. D. 277. § 47 PROVISIONS OF PKACTICE 46 relating to appeals, appeal bonds, and proceedings thereunder to perfect an appeal, are remedial in their character, and must be liberally construed so as not to defeat the remedy on un- substantial grounds. In furtherance of this beneficial purpose, by provision of statute, a bond that is insufficient in form or amount may be amended or an additional or new bond given, etc." § 47. Amount of penalty of bond. The statute says that when the order, decision or decree from which the appeal is taken directs the payment of money, then the penalty shall be in double tlie amount thereof and in other cases in such amount as shall be prescribed by the Probate Court. The words " if the order, judgment, or decree direct tlie pajTnent of money," can and should be restricted to orders against a party to the case as an individual, as distinguished from an order as to tlie division of an existing fund controlled by the court or in the hands of an official depositary. Suck an order is not one for the payment of money, because not di- rected to the personal resources nor in legal contemplation affect- ing the finances of an individual, but is as it purports to be, the allotment of a fund held only for purpose of partition ; and therefore where the Probate Court made an order of distribu- tion, among other things, awarded to one A. W. $1,600. An- other claimant, not paid in full by reason of the allowance of this claim appealed from this item and the Probate Court fixed his appeal bond at $250, it was held sufficient.^^ This question is very fully gone into in another case, and it is there held that in order to avoid a hardship, which might occur where the party appeals who has an interest in but a small part of the fund, tlie Court would be inclined to follow the last B2 Smith vs. Frenzer, 12 C. C. 250; unless corrected by giving a new or 5 C. D. 658; Aff. 40 Bull. 303. independent bond. White ts. More- A bond given to the State of Ohio lidge 7 C. C. 348; 4 C. D. 629. does not comply with the statute sa Wrr/ierfeldt's Appeal, 2 Dec. and on motion such an appeal ma 473; 2*? Bull. 226. properly be dismissed by the court. 47 APPEAL BONDS S 48 part of the section, and the bond would be fixed in such a sum as the Court might think proper.^* Where the Court found that an administrator de bonis non was indebted to the estate in a large sum of money, which it ordered him to pay to his successor, and the administrator ap- pealed, it was held that the bond in such a case must be double the sum of the judgment.^^ In an assignment case where there were various controversies between the secured and unsecured creditors, the Court held that the bond did not need to be double the amount of the matter passed upon by the Court, but in such a sum as the Court might fix, which was $250.'^ It seems therefore that the Court will not, unless strictly coming within the law, require the bond to be in double the amount. § 48. Form of appeal bond. Know all Men by these Presents: That we are held and firmly bound unto in the penal sum of Dollars, to the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Signed by us, and dated this day of A. D. 190 .. . The condition of the above obligation is such, that whereas, the said taken an appeal from a certain rendered against in favor of the said in the Probate Court, within and for the County of in the State of Ohio, on the day of A. D. 190. . ., for the sum of Dollars, to the Court of Common Pleas, within and for the County aforesaid. Now, if the said shall abide and perform the order and judgment of said Court of Common Pleas, and shall pay all moneys, costs and damages, which may be required 64 Mannix vs. Goebel, 1 C. C. 550 ; appeal, an application for writ of 1 C. D. 307. In this case, the court mandamus to compel the court to made a finding that the assignee of fix a lower bond was allowed. an estate was indebted to the estate 55 Jn re Estate of Ziegler, 3 N. P. in the sum of $55,000 and fix the 307; 6 Dec. 54. bond at $111,000, double the se White vs. Morelidge, 7 C. C. amount. The assignee desiring to 348; 4 C. D. 629; 28 Bull. 286. § 49 PROVISIONS OF PRACTICE 48 or awarded against by said Court, then this obligation to be void, otherwise to remain in full force and virtue in law. ( Signed ) I approve the above Bond witti the sureties thereto, this day ^f A. D. 190.... Probate Judge.57 §49. Transcript — when to be filed. ''Upon the giving of such bond, or notice, when that only is required, the probate judge shall make an authenticated transcript of the docket or journal entries in the cause, and the order, decision, or decree, appealed from; by the appellant's filing of which, w4th the clerk of the common pleas court on or before the second day of its next term after such bond or notice was given, the appeal shall be perfected. The original papers pertaining to the cause may be used upon the trial, or hearing in the court of common pleas." [R. S. §6409.]=« If the transcript be filed in time it may be amended under § 11363 G. C. Omitted entries may be supplied at any time before final judgment. "^^ § 50. Party interested must file transcript. In a case reviewing the authorities of the State pretty thor- oughly ®° it is held that when a person appeals from the decision of the Probate Court to the Common Pleas Court, under § 11201 of the General Code, to perfect his appeal, he must file a transcript of the proceedings in the former court with the clerk of the latter court within the time therein prescribed, and it is not the duty of the Probate Judge to file it. That the fil- ing of the transcript within the time fixed is a jurisdictional fact, and unless it was done within the required time the Pro- 5^ See § 1778. which an undertaking or notice can 58 § 11210 G. C. be given. Downing vs. Downing, 23 It must be filed within the time C. C. 3S9. provided by statute, to-wit, or or 59 Falconer vs. Martin (Sup. Ct.), before the second day of the term 47 Bull. 551. after the undertaking, or notice is so in matter of assignment ot given — not the second day, etc.. Sears, 5 N. P. 116; 7 Dec. 253. after the expiration of the time in 49 PROCEEDINGS IN ERROR § 51 bate Court has no jurisdiction.""* That the statutory require- ment that the transcript shall be filed within the time fixed is mandatory and not directory."^ § 51. Proceedings in Common Pleas — certifying same back. "Upon the decision of a cause, appealed to the court of com- mon pleas, the clerk shall make out an authenticated transcript of the order, judgment and proceedings of such court therein, and file it with the probate judge, who shall record it, and the proceedings thereafter be the same as if such order, judgment, and proceedings had been had in the probate court." [R. S. §6410.]«2 § 52. Proceedings in error. The statute provides that a judgment rendered or final order made by a Probate Judge, etc., exercising judicial function in- ferior to the Court of Common Pleas may be reviewed, vacated or modified by the Court of Common Pleas."'' This provision of our statute is in the general chapter providing jurisdiction in error, and there are no other provisions relating to the Probate Court except that which relates to the terms of such court."'* It therefore follows that as to all matters of practice the same rules and laws apply to proceeding in error from the Probate Court as apply in proceeding in error from the Court of Com- 60* Downing vs. Downing, 23 C. C. cannot l)e prosecuted from the Com- 389. mon Pleas Court to the Circuit 61 By General Code, §11210, it is Court. North vs. Smith, 27 C. C. made the duty of the person ap- 367; 5 C. C. (N.S.) 495. Reversed, pealing to file the appeal in the 73 0. S. 247. Court of Common Pleas. Biddle vs. Wliile error and appeal may be Phipps, 2 C. C. 62; 1 C. D. 363. concurrently prosecuted, and if the See § 1780, Municipal corp. appeal be dismissed the case may be See § 1858, Ditch appeal. heard on error. Hull vs. Bell, 54 62 § 11211 G. C. 0. S. 241. 63 § 12241, as amended (1902), 95 Yet if it is heard on appeal, that vs. 392, reads as follows: "An or- necessarily dismisses the error pro- der made by a Probate Court re- ceedings, as the appeal takes the moving or I'efusing to remove an whole case to be reviewed. Ginn vs. executor, administrator, guardian, Co. Com., 11 C. C. 396; 58 0. S. assignee, trustee or other officer ap- 693. pointed by a Probate Court, and See Jenney vs. Walker, 10 C. C. a judgment rendered or final order (N.S.) 586; 80 0. S. 100. made by a Probate Court, justice § 12241 G. C. of the peace, or any other tribunal, A judgment will not be reversed board, or officer, exercising judicial on error for the action of the court functions, and inferior to the Court below, in regard to a matter of dis- of Common Pleas, may be reversed, cretion. Legg vs. Drake, 1 0. S. vacated, or modified by the Court of 286. Common Pleas." 64 § ii643 G. C. Under this act it is held error § 39 infra. § 52 PROVISIONS OF PRACTICE 50 mon Pleas. The provisions of the General Code therefore relating to exceptions,®^ and the chapter relating to nevsr trials," and the chapter relating to new trial and other relief after judg- ment ®^ apply to proceedings in the Probate Court. Error can only be prosecuted from a final order or judgment affecting a substantial right.®® It has been held that tlie order must not only affect a substan- tial right, but it must be prejudicial.®^ The substantial right must also be a legal right. ^^ It may further be said that where the statute leaves a matter in the absolute discretion of a judge, as for instance under the former statute the removal of an administrator from his trust, that an order of that kind will not be reviewed by a higher court in proceeding in eiTor. Likewise the order appealed from must be one by the judge in his judicial capacity; if it is a minis- terial act as contra distinguished from a judicial act, then the same will not be reviewed in proceeding in error. Proceeding in error must be commenced wit^iin seventy days from the ren- dition of the judgment or making the final order complained ^£71 'j'l^ig (Ja^g would be determined from the date of the jour- nal entry rendering the judg-ment or making the order. And this is so notwithstanding the fact that a motion for a new trial may have been filed. A proceeding in error is commenced by the filing of a petition and issue of summons.''^ 65 §§ 11559 to 11574 G. C. 69 No^ig ^,g Martin, 4 C. C. 365; Kinkead's Pract. 508. 2 C. D. 598. 66 §§ 11575 to 11581 G. C. 70 Armstrono: vs. Herancourt Kinkead's Pract. 498. Bre\vin' '■^ ^"^•^k^n^'^'.RO ^'fl Tavlor vs. Thorn. 20 O. .S. 56r»; In 668. re'Sattler. 21 Bull. 161: Goebel Even where under the law the 183; Taylor vs. Huber, 13 O. S. 288. 55 NECESSITY FOR § 56 records showing that the real estate may not be liable for some unsatisfied debt of the deceased. Another reason: Under our law when real estate descends to the heirs there is no evidence without an administration who are such heirs. This may not always be disclosed, but will usually be found in the application made for administration. However, it has recently been held that where it appears that substantially all outstanding debts of the deceased testator have been paid by the parties entitled to the fund under the terms of the will of deceased, there is no necessity for an administrator or executor to close up the estate, and courts will not tolerate or encourage proceedings under the direction of the Probate Court for the administration of an estate nor the expenditure of money left by deceased parties for the mere forms of administering upon an estate.^ If there are no claims due the estate to collect, or if there are such claims and the creditors are willing to pay them to the heirs, and the heirs pay all the debts of the decedent and there are no minor heirs, an administration may be dispensed vdth, especially if the decedent owned no real estate. But if he owned real estate or there exist minor heirs, it is highly desir- able, necessary, I may say, that there be an administration of the estate.^ * § 56. When there ought to be no administration. A good many States have provided that w^hen the property left by a decedent is not more than sufficient to pay the widoVs allowance, etc., that upon a showing made to that effect in the Probate Court, that no administration be required. There is no statute to that effect in Ohio. But it has often occurred to the author that such a law would be a very salutary one. For, in the language of a distinguished author, " The soundness of the principle upon which such provisions rest, or rather ab- 6 Catlin vs. Huestis, 11 C. C. 120; the formalities prescribed by law, 6 C. D. 23. results disastrously to those inter- 6* See § 800. ested. The law now requires that A lawyer of 35 years' practice before property inherited can be gives h's experience' that in nine transferred there must be an affi- cases out of ten an attempt to set- davit filed showing the heirs, etc. tie an estate without going through § 1111a. § 57 ADMIKISTEATION 56 surdity of a contrary view is self-evident, why should the law compel an administration where there is nothing to be admin- istered ? The appointment of an administrator in such case could have no possible effect except to diminish or to eat up what the law intends for the support of widows or orphans." ^ § 57. When there may be no administration. It seems that the only instance in which there may be no ad- ministration of an estate is where the testator devises his prop- erty to a person or persons and also makes them executors to settle his estate, which is found in the f ollomng : Different bond may be given when executor is residuary legatee. "If the executor is residuary legatee, instead of the bond pre- scribed in the two next preceding sections, he may give a bond in a sum and with two or more sureties to the satisfaction of the court with condition to pay all the debts and legacies of the testator and to pay over such estate to the persons entitled thereto in case the will at any time be set aside. In such case he shall not be required to return an inventory, unless it be made to appear to the satisfaction of the probate court that one should be made and returned, if the probable value of the estate is less than five hundred dollars." [R. S. § 5997.]^ "The executor shall not be liable for legacies paid to legatees other than himself, after eighteen months from the probating of the will, and before an action to set aside has been com- menced. The legatee, however, shall be liable to repay the legacy and interest thereon if the will be set aside." [R. S. §5997; vol. 102 V. 200.]^* Under this section the executor and legatee must give bond to the satisfaction of the Court with a condition to pay all the debts and legacies of the decedent, and the executor giving such bond at once becomes liable for all debts of the testator. But, as will be seen in the following section, the real estate is not 7 Woerncr on Admin. 436. See Shields vs. Matthew, as to See Carr vs. Hull, 63 O. S. 394. discussion as to nature of bond. 22 8 § in60S G. C. C. C. fX.S.) SOS; McBride vs. 8* § 10609 G. C. Vance. 73 O. S. 2.58. 57 NO ADMINISTRATION § 58 discharged from any liability for the debts of the decedent. Such bond dispenses witli the necessity of returning an inven- tory, unless ordered by the court, where the estate does not ex- ceed $500 in value ; and also dispenses with the further ac- counting to the Probate Court and operates as an admission of sufficient assets and a guarantee to pay all debts, since as there is no inventory of the assets required to be filed, there is no means of knowing whether the assets equal the debts and liabilities.® The bond cannot be surrendered or cancelled, at least not after the expiration of the time within which the law requires an in- ventory to be filed. The filing of such bond confers upon the residuary legatee and executor the right to collect all assets of the decedent and appropriate the same to his own use, and use and convey the real estate without any further control or ac- counting to the court.^*^ In order to take advantage of the provisions of § 10608 G. C, a mere designation in the will of the person as executor and residuary legatee is not sufficient to authorize a person to collect demands due the testator. Such persons must first be appointed by the court as executor. ^^ This section is in derogation of the common law, and there- fore must be strictly construed. Its language would indicate that it would not apply unless the residuary legatee was also named in the will as executor; and that if the will named no one or a different person the residuary legatee could not take advantage of its provision. § 58. Form of bond of residuary legatee. Know all Men by these Presents: That we and are held and firmly bound 9 It may be that under the law the assets of the estate. Or the which now seems to require inven- Court Avill require the inventory to tories in every case to be filed and be made. report made to the auditor, the ob- lo Woerner on Admin. 434, 435. ject and purpose of which is to pre- n Tappan vs. Tappan, 30 N. H. vent the estates from escaping taxa- 50; LafTerty vs. People's Bank, 76 tion, that a statement should be pre- Mich. 35 ; S. C. 43 N. W. Rep. 34. Bsnted to the Probate Court showing § 59 ADMINISTRATION 58 unto the State of Ohio, in the sum of Dollars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors and administrators, if default be made in the condition following: Whereas, by the last will and testament of , deceased, duly admitted to probate by the Probate Court, within and for the County of , and State of Ohio, the said made executor and residuary legatee of all the estate, both real and per- sonal of said , deceased. Now if the said shall pay all the debts and legacies of the said decedent, and pay over said estate to the persons entitled thereto, in case the will be at any time set aside, — together with the charges of administration, and all other legal claims against said estate, then this obligation to be void, otherwise to be and remain in full force and effect. Signed by us at Ohio, this day of ... . A. D. 190.... EXECUTED IN PRESENCE OF § 59. Liability upon the bond. The residuary legatee is not required to give such bond — he may do it and it must be supposed would not do so unless satis- fied that the amount of assets would exceed the amount of debts and liabilities. The residuary legatee who gives bond is also the executor, and the bond is in the place of the bond ordinarily required of an executor. It creates no liability nor affords a remedy which the latter does not, but is only intended to provide for the payment of the debts of the testator and not against any unjust claims. The residuary legatee has only to pay just claims against the estate. And a person suing need not show the presentment or rejection of the claim as is ordinarily re- quired in a suit on a claim against an executor or administra- tor.^^ In such an action, the claim not having been previously established in an action against the executor in his representa- tive capacity, the plaintiff is not a competent witness to testify as to transactions between him and the testator. 12 See § 475. i' Surety on the bond has lien on 13 Stephens vs. Hartley, 13 O. S. residuary share. Tidd vs. Black, 525. 4 C. a (N.S.) 216: 26 0. C. C. 118. 59 RESIDUARY LEGATEE § 60 § 60. Discharge of lien on property. Whether the giving of tlie bond releases the personal prop- erty from a creditor's right to have the same applied to his claim or not is a mooted question. The weight of authority, however, is that the remedy is cumulative, and the personal property is liable unless conveyed to a bonafide purchaser.^* The right as to real estate is expressly reserved in Ohio by the following statute : "The giving of the bond prescribed in the second preceding section shall not discharge the lien on the testator's real estate for the payment of his debts, except such part as has been lawfully sold by the executor to one who purchased in good faith, and for a valuable consideration." [R. S. §5998.]^** § 61. Officiating without appointment. While the laws of Ohio do not recognize an administrator or executor de son tort, yet the liabilities of an intermeddler \vith the effects of a deceased person are discussed in the books under that head. If an injury is done to the personal property, or real estate which is disposed of by Avill, of a deceased per- son, the action to recover for such injuries must be brought by the rightful executor or administrator and not by creditor.^" Every person, other than the legally appointed administrator or executor, dealing with the effects of the deceased person un- less his acts are beneficial, may be held liable for his acts in reference thereto. If the creditor pays a claim to any person other than the executor or administrator he is still liable to the 1* Thompson vs. Brown, 16 Mass. administration, but the widow took 172; Laflferty vs. Bank, 76 Mich. possession of all the personal estate. 35 ; 43 N. W. Rep. 34 ; Kreamer vs. She proceeded to collect some of the Kreamer, 52 Kans. 597. notes that drew a usurious rate of 14* § 10610 G. C. interest. It was held that the mak- 15 Dixson vs. Cassel, 5 O. 533 ; er could set up the same as he could Benjamin Le Baron, 15 O. 517; Van have if he would have given it to Ausdal vs. Potterf., 41 0. S. 677. an administrator. In the latter case there was no § 62 ADMIlSriSTEATION 60 rightful administrator for a payment of the claim. The gen- eral rule as to the liability of an intermeddler might be stated that if his acts are beneficial to the estate no liability would be incurred, but if they were injurious he would be responsible. Among those things which it is stated a person may do without being liable are notably all acts or offices of kindness and charity and the looking to the preservation of the property. Mr. Wil- liams mentions such as locking up the goods for preservation, directing the funeral and paying expenses thereof out of his own means or out of the effects of the deceased, making an in- ventory of his property, feeding his cattle, repairing his houses or providing necessaries for his children. ^^ Also where the property is not a greater amount than is al- lowed by law for the immediate support of the family, the widow is not liable for so using the assets. Or where the widow supports the family of one absent from home before certain news of his death, or being compelled to vacate the premises, moves the furniture, partly to an auction room to be sold and partly to another house to be used by her, or where she ap- propriates the wearing apparel of less value than debts which she pays, or where the assets appropriated will not pay the ex- pense of taking out administration.^^ § 62. Acts done by rightful executor or administrator before qualifying. An administrator or executor may, by relation, ratify and make valid all acts which come within the scope of a rightful administrator's or executor's authority; and whatever dealings, justifiable on this principle and in the interest of the estate, he may have had with it before his appointment are cured in modern practice by the grant of subsequent letters.^® Where an act is done in good faith by such an executor or administra- tor before his appointment he cannot afterwards avoid it, but will be an estoppel in the absence of fraud. ^^ 16 Williams on Executors 261. is Sch. on Extrs.. § 195. 17 Woerner on Admin. 418. i9 Bennett vs. Lyndon, 8 App. 61 TIME WITHIN GRANTED § 63 Indeed it may be said tliat where an executor knows of his being named in the will as such, it is his duty before appoint- ment to look after the estate and preserve it with reasonable dili- gence; and it would not be inappropriate for him to contract and make arrangements for all funeral expenses and matter at- tached thereto. Whether or not his right in this respect is su- perior to that of the family of the deceased may be doubtful; generally in reference to such matters courts are inclined to leave that to the family of the decedent and that their wishes and inclinations about such matters should prevail.*" § 63. Letters relate back to time of death.^^"^ For general purposes it may be said the letters of administra- tion relate back to the time of the death of the intestate and vest the property in the administrator from that time. On this principle an administrator may maintain trespass for injuries to the goods of the intestate committed after his death and he- fort the appointment ; or maintain an action on a contract made with the defendant before appointment; or for money belong- ing tw the estate collected by defendant before grant of letters ; and ou the same principle the heirs have no power before the ap- pointment of an administrator to bind the personal estate by agreement.*^ This doctrine of relation is a fiction of law to prevent injus- tice and the occurrence of injuries where otherwise there would be no remedy ; and would not be applied in case where the rights of innocent parties intervened.** A conveyance under a power of sale in a will, before probate of such will, by one nominated as executor will be validated by a subsequent probate of the will.*' § 64. Time within which letters of administration will be granted. There is no provision in the laws of our State requiring ap- plication for letters of administration within any specified time 20 See §§61, 70. 22 Per Napton, J., in Wilson vs. 20a Cited and approved, In re Wilson, 54 Mo. 213, 216. Pollock, 60 Bull. 274; 17 N. P. 492. 23 Brooks vs. McComb, 38 Fed. R. 21 Woerner on Admin. 386. 317; Babcoek vs. Collins, 60 Minn. 73. § 65 ADMINISTRATION 62 from the death of the testator. Provision is made for the cita- tion of the person holding a will to produce it before the court for probate. Likewise there are provisions authorizing the citation against an executor to appear and take or decline ad- ministration. There is also provision for citation against other persons who are by right entitled to administration to appear before the Court and either decline or take. But there is no limitation as to when such proceedings must or may be had. Generally it may be said that so long as there are assets to be administered upon or any other reason for administration of the estate letters will be granted. It is, however, provided that there is a limitation to an absolute right to have administration upon an estate ; the statute relating to which is as follows : ''Administration shall not be originally granted as of right after the expiration of twenty years from the death of the testator or intestate. But, within his county, each probate judge may grant letters of original administration upon the estate of a person deceased, after the expiration of twenty years, upon petition of the next of kin or other person or per- sons interested, or their agent, and on good cause shown there- for. Before allowing the prayer of such petition, such judge may direct notice thereof to be given, by publication, for a period not exceeding thirty days, in one or more of the news- papers printed in the county where it is filed." [R. S. §6014.]=^* The object of this provision seems to be that after such a great lapse of time an administration ought not to be granted without notice to all that might be interested or affected by such administration and the public generally.^^ § 65. Application. The application for an appointment after the expiration of twent}'- years, as provided in the above section of the Revised Statute, should set forth, in addition to the statements re- 24 § 10626 G. C. vs. Biddle. 74 0. S. 182; reversing 25 § 10626 G. C. 4 C. C. (X.S.) 449. Statute does not begin to run See McBride vs. Vance, 73 0. S. until notice of appointment. Hoiles 258. 63 NOTICE^ ETC. § 66 quired in an ordinary application, the reasons that now exist for such an application ; that is, it ought to state why an admin- istration has not been had at an earlier date. And if the de- cedent died owning real estate which has since been sold the names of the holders of such real estate should also be given. Likewise the names of all other persons who are in any way in-, terested in such an estate should be given.*® § 66. Notice, etc. In all such cases the Court should require that notice be given either directly to all interested parties or by publication. If the notice is given by publication it should be for a period not exceeding thirty days. It is not very specific how often a pub- lication should be made, but should think it would be wise to make five insertions in a weekly newspaper. FORM OF ENTRY. {Title.) A. B., having filed his petition herein, asking for letters of administration on the estate of E. F., represented in said petition to have died on or about the day of and then being a resident of this county, it is ordered said petition be for hearing on day of and notice thereof be given by publication as required by law. FORM OF NOTICE. Notice is hereby given on day of , the under- signed filed his petition in Probate Court, county, Ohio. Asking that there be an administrator appointed for the estate of the late E. F., who died on or about the day of , residing at , in said county, and said petition will be for hearing on the day of at o'clock. § 67. Hearing. Upon the day of hearing a copy of such notice, with proof of service if advertised, as the case may be, should be filed in court, and if the Court is satisfied that there is good reason for such appointment, that all persons interested therein within the 26 The forms used under appoint- ment of executors and administra- tors may readily be adopted. § 67 ADMINISTKATION 64 county have had due notice, such administration should be granted and the following would be an entry showing such a fact: GRANT OF LETTERS. This day this cause coining on to be heard and it being shown that notice thereof has been given as required by law and the former order of this Court and it appearing from the testimony of parties that good cause is shown, it is hereby ordered and the Court does hereby grant to C. D. letters of administration on the estate of E. F., deceased, late of said county; and thereupon said C. D. appeared in open court, presenting his bond as such administrator in the sum of dollars, which is approved by the Court. 65 DEFINITION, ETC. §68 CHAPTER V. LETTERS TESTAMENTARY. § 68 Definition, etc. § 84 § 69 Distinction between administra- § 85 tor and executor. § 86 % 70 Power of the executor prior to § 87 letters. § 88 § 7 1 When application can be made. § 89 § 72 In what court application § 90 should be made. § 91 § 73 Will must be duly probated. § 92 § 74 Inhabitant or resident. § 93 § 75 The estate to be administered. § 76 Application for appointment § 94 § 77 Oath to application. § 78 Form of application for letters testamentary. § 95 § 79 Who are capable of receiving appointment. § 80 Named in the will. § 96 § 81 Legally competent. § 82 Residence of the executor. § 97 § 83 Bond of executor and its con- dition. § 98 § 83a When bond not required. Form of executor's bond. When bond need not be given. Separate bonds. Form of executor's letters. The order of appointment. Form of entry. Effect of order. How the order may be attacked. Renunciation. Administration during the mi- nority of an executor. An executor of an executor can not administer the trust of first testator. The power of executors and administrators during the contest of a will. Contest of will. May borrow money, etc. Application to repair buildings and borrow money. Form of entry.i § 68. Definition, etc. An executor is a person appointed by a testator to carry out the direction and request of his will and dispose of his property according to his testamentary provision after his decease.^ Usually every will designates some one or more persons to whom the testator intrusts the carrying into effect of his testa- mentary desire; and papers have been upheld and deemed and ISee § 1013, Wills, etc. See § 1081, Probate of Wills. See § 1250, Testamentary Trus- tees. 2 Whart. law lex. title Executor. 2 Bl. Com. 494. See chapter 13a, Trust companies as executor. § 69 LETTERS TESTAMENTARY 66 entitled to probate which have named no disposition of property whatever.^ The mere failure to mention some one as executor does not effect the validity of the will, for the Court will never allow a trust to fail for want of a trustee. § 69. Distinction between administrator and executor. The functions, powers, duties, rights and liabilities of execu- tors are in most respects identical with those of administrators. An executor being named in the will as the person whom the tes- tator desires to administer his estate, and from that fact he is entitled to receive the appointment from the Court of Probate.* While an administrator receives his right to administer from some provision of law, and the Court acting upon such provision, grants to him letters of administration ; an executor, so far as no other provision is made in the will for the settle- ment of an estate, acts under the same law and is under the same responsibility as an administrator. But in all matters in the administration of the estate, where not contrary to law, he must follow the provisions of the will. The mere fact of being named as executor in the will does not give him power to act — it merely confers upon him the right to be appointed as such executor by the Probate Court.^ § 70. Power of the executor prior to letters. Our statute provides as follows : "No executor named in a will, before letters testamentary are granted, shall have any power to dispose of any part of the estate of the testator except to pay funeral charges, nor to interfere with such estate further than is necessary for its preservation." [R. S. § 6004.]« This section does not prohibit such possession of the property under the will as niaj^ be necessary for its safety until the pro- 3 19 Am. & Eng. Ency. of Law 5 § 1251. Distinction between ex- 178. ecutor and testamentary trustee. See § 1026, Having property. « § 10616 G. C. 4 §§ 79. 81 and 108. 67 WHEN APPLICATION MADE § 71 bate of the will, but merely inhibits the exercise of any power of deposition over the estate or any interference with it. But if it were necessary, for example, to take possession of the per- sonal estate for its protection, in any respect, the executor would be justified in so doing.' This section deprives a person named as executor in the will from so acting as to become a representative of the decedent per- son.® §71. When application can be made. " When a will is duly proved and allowed, the probate court shall issue letters tes- tamentary thereon to the executor, if any be named therein, if he is legally competent, and accepts the trust and gives bond, if that be required. Provided, however, if the executor named in a will be a non-resident of this state, the court may refuse to issue letters testamentary to such person named therein. Otherwise, the court shall grant letters of administra- tion on the estate as hereinafter provided." [R. S. §5995; 108 V. 275.] » It will be noticed from the above statute that there is no time limited within which executors must qualify. It is, however, generally speaking, highly important that they should qualify as promptly as possible. They should have a reasonable time after the will is probated to consider whether they will accept the appointment. In the next chapter it will be seen that if 7 § 62. executor nor confer title upon him, People vs. Commissioners, 31 Hun but are the authentic evidence 235; Van Schaack vs. Saunders, 32 of the power conferred by the will Hun 520. and which existed before he was 8 Matter of Flandrow, 28 Hun appointed. The property of the tes- 279. tator is in the hands of the execu- The executor derives his appoint- tor appointed by the will, before the ment and title to the estate from the probate, and he may exercise many will, though he is not called in sub- of the powers of an owner over it. stantial power cf deposition or ad- He cannot dispose of it, but he may ministration until the Probate Court take it into his possession for safe grants him authenticated evidence keeping. of his right in the form of letters People vs. Barker, 150 N. Y. 52; testamentary upon proof of the will. Hartnett V. Wandell, 60 N. Y. 346; The will is the source of executor's Morris, Admin., vs. Bills, Wright title and general powers. The let- 343. tera testamentary founded on pro- See § 61 ; Woerner on Admin. 384 bate of the will do not create the 9 § 10605 G. C. § 72 LETTERS TESTAMENTARY 68 they do not qualify they may be cited to appear before Court, and if they decline to take, some one else may be appointed.^** § 72. In what court application should "be made. ''Upon the death of an inhabitant of this state, letters testamentary, or letters of administration on his estate, shall be granted by the probate court of the county in which he was an inhabitant or resident at the time he died. When a person dies intestate in any other state or country, leaving an estate to be admin- istered within this state, administration thereof shall be granted by the probate court of a county in which there is any estate to be administered. The administration first lawfully granted, in the last mentioned case, shall extend to all the estate of the deceased, within the state ; and exclude the juris- diction of any other court." [R. S. § 5994.] ^^ Under this section it is held that although the will of a testa- tor, wherever domiciled at the time of his death, may be ad- mitted to probate in any county of the State in which he may have left real or personal estate ; yet, if the testator be a resident of this State at the time of his death, letters testamenary on such probated will can issue only from the Probate Court of the county in which the testator resided.^'^ When any person shall die in any otber State or country, leaving an estate in tliis State, then there may be an adminis- tration in any county in which there is an estate; and in such cases the Probate Court first assuming jurisdiction shall have exclusive jurisdiction, and no appointment can be made in any other county.^^ Likewise the court first acquiring jurisdiction over the estate of a deceased resident of this State acquires ex- clusive jurisdiction. If the appointment be made in a coimty where there are no assets and where the deceased was not an inhabitant, although there be assets in another county of the State, such appointment is not void — it is merely voidable and cannot be attacked in a collateral proceeding/* 10 § 101. Citation of executor. 13 § 29. Excl. Juris. 11 § 10604 G. C. § 111, Appt. Adm'r. See § 11028 G. C, for Trustees of A person sentenced to the peni- persons unheard of. tentiary for life is not dead so that The court has no jurisdiction to letter on his estate can issue. Fra- appoint an administrator for the zier vs. Fulcher, 17 0. 260. estate of a person who was a non- l^ Robinson vs. Enpins, 24 Fla. resident at the time of his decease. 2.37: S. C. 4 So. Rep. 812: Arnold Steel Castings Co. vs. Farkas. 15 vs. Arnold. 62 Ga. 627: ^hirphv vs. N. P. (X.S.) 60n. Creighton, 4.5 la. 179; Gilchrist vs. 12 Limes vs. Irwin, 16 0. S. 488. 69 INHABITANT, ETC. § 73 § 73. Will must be duly probated. Several facts must exist to give the court jurisdiction in the appointment of an executor. Among which may first be men- tioned the fact that the will must have been somewhere duly probated. Good practice demands that the will be originally probated in the county in which the Probate Court has jurisdic- tion to appoint an executor. However, if the will has been pro- bated in any other place than that in which application is made for letters testamentary, the Probate Court should first require that the will be admitted to record in the county of its own jurisdiction. In no instance ought letters testamentary be is- sued until this has been attended to, although it may not be absolutely essential to give the court jurisdiction.^^ § 74. Inhabitant or resident. The next jurisdictional fact is that the decedent was an in- habitant or resident of the county in which the application is made. If the application does not state, it will be presumed the deceased was an inhabitant or resident of the county.^*^^ It has been said that it was not always easy to determine the place of residence of a person at the time of his death so as to fix jurisdiction over his estate in the proper forum. It has been defined as being, in the common law sense, the place where one has his true, fixed and permanent home and principal establish- ment, to which whenever he is absent he has the intention of returnino;.^''' Williams, 1 B. Mon. 133; O'Connor dence there. But a person's domi- vs. Huggins, 113 N. Y. 511; S. C, cile is a place where he may reside 21 N. E. Rep. 184; 1 N. Y. Supp. in fact, or for many purposes may 377 ; Sullivan vs. Fosdick, 10 Hun. be deemed to reside. A man's domi- 173. Contra, People's Savings Bank cile, as the word implies, is his vs. Wilcox, 15 R. I. 258; S. C, 3 house, his home; and it may contin- Atl. Rep. 211. ue such for many years, without be- See § 1086, In what court will ing actualy inhabited by him. But probated. an inhabitant of a place is one who 16 See § 1081, et seq. Probate of ordinarily is personally present wills. there, not merely in itinere, but as a ^^1 6a Miller vs. Miller, 13 N. P. resident and dwdler therein. A per- 17 Woprner on Admin. 442. ^°" who, in contemplation of law, A habitation is a place of abode, has a domicile, may, nevertheless a place to dwell in; and an inhabi- as a matter of fact, be a mere wan- tant is one who has an actual resi- § 74 LETTERS TESTAMENTAEY 70 Where a person of unsound mind or a minor not of age lias acquired a residence he cannot of his own accord change the same/* Absence for reason of comfort, business, temporary convenience and the like do not intend an abandonment of the residence. But a mere temporary residence in a county does not give the court of that county jurisdiction to grant letters; it must be a fixed domicile or residence/^ If a person has left one domicile to acquire another in a differ- ent county, but die on the way, it has been held that letters should be granted in the place of destination ; ^" while others favor the old domicile ; ^^ and still others the place of his death.'* If a foreigner traveling in this State die here our courts have no jurisdiction to grant letters of administration unless he left assets here.^^ If an inhabitant of a county die an administrator for him must be appointed in such county, although he have no assets there, and has assets in another county of the State.^* To work a change of domicile there must be a concurrence of the intention to acquire the new domicile with the fact of hav- ing acquired one and abandoned the former one without the in- tention of returning thereto.*^ derer, and not an inhabitant of any existence. 21 Am. & Eng. Eney. of place. Holmes vs. Oregon & Cal. Ry. Law 123. Co., 5 Fed. 523; 10 Am. & Eng. is See § 1322. Ency. of Law. 774. is George vs. Watson, 19 Tex. Residence means the act or the 354; Harvard College vs. Gore, 5 state of being seated or settled in a Pick. 370. place. It embraces not only per- 20 Burnett vs. Meadows, 7 B. Mon. sonal presence in a place, but an at- 277; S. C, 46 Am. Dec. 517; Olson's tachment to it by those acts or Will, 63 la. 145. habits which express the closest con- 21 Cummings vs. Hodgdon, 147 nection between the person and the Mass. 21 ; Embry vs. Miller, 1 A. K. place, as by usually sitting or lying Marsh, 300; S. C, 10 Am. Dec. 732; there. In re Collins, 64 How. Pr. 63. State vs. Hallett. 8 Ala. 159. Residence does not mean precisely 22 Leak vs. Gilchrist, 2 Dev. 73 ; the same thing as domicile when ap- Alford vs. Holbert, 74 Tex. 346. plied to succession of personal es- 23 Aspinwall vs. Queen's, 2 Curt, tate, but rather a fixed and perma- (U. S.) 241. Cited in T. & B. In- nent abode, a dwelling place for th# diana Probate Practice 41. time being as contradistinguished -* R. R. Co. vs. Reeves, 8 Ind. App, trom a mere temporary locality of 667 ; S. C, 35 N. E. Rep. 199. 25 Woerner on Admin. 443. 71 ESTATE TO BE ADMINISTERED § 75 To create legal domicile there must be actual residence com* bined with intent to remain.^** § 75. The estate to be administered. There must be some estate to be administered or some office for the executor to perform before there can be an appointment. It will be sufficient to authorize an appointment if there is prop- erty in some other county in the State ; even if there be none in the county in which application is made. Property brought into the State after the deceased's death for the mere purpose of giving jurisdiction confers none."^ If, however, the property is brought within the State with good faith and not for the pur- pose of giving jurisdiction, the courts thereby acquire jurisdic- tion and may appoint an administrator.^® A judgment held by the deceased in this State is such an asset as justifies the appointment of an administrator here,^" So if an action lies to set aside a conveyance in fraud of creditors.^^ So if a debt is due from an inhabitant of this State to the deceased.^^ If a policy of insurance on property in this State be issued here, and there is an agent of the insurer upon whom process can be served residing in this State, letters may be granted here.^^ If the claim prove invalid, yet the grant of letters be- cause of such claim Avill be valid. ^* Evidence of debt payable to bearer, or which transfer title to 2S Greene vs. Burkhard, 8 N. P. Smith vs. N. Y. Ins. Co., 57 Fed. 237; State vs. Kulm, 8 N. P. 197. Rep. 133. See §§758, 1094, 1086. so Thomas vs. Tanner, 6 T. B. On application to probate a will Mon. 52. the Probate Court has jurisdiction ^i Bowdoin vs. Holland, 10 Cush. to fully and finally determine the 17. domicile of the testator. The declar- 32 Stearns vs. Wright, 51 N. H. ation of the testator in his will as 600; Murphy vs. Creighton, 45 la. to his place of residence is of high 179; Wyman vs. Halstead, 109 U. S. character in determining this ques- 654. tion. Wilbering vs. Miller, 90 O. ^3 Xew England Ins. Co. vs. Wood- S. 28. worth, 11 U. S. 138; Smith vs. N. Y. 27 Christy vs. Vest, 36 la. 285; Life Ins. Co., 57 Fed. Rep. 133. See Varner vs. Pevil, 17 Ala. 286. Sulz vs. Mutual, etc., Ass'n, 28 N. 29 Pinney vs. McGregory, 102 Y. Supp. 263; S. C, 7 Misc. Rep. Mass. 186; Borer vs. Chapman, 110 593; In re Miller, 5 Dem. 381. U. S. 587; Carroll vs. Hughes, 5 34 Sullivan vs. Fosdick, 10 Hun. Redf. 337; In re Hooper, 5 Dom. 173; Holyoke vs. Mutual Life Ins. 242; Fox vs. Carr, 16 Hun 434; Co., 22 Hun. 75. § 76 LETTERS TESTAMENTAEY 72 person by mere delivery, in the hands of an applicant in this State for letters will confer jurisdiction to grant letters here.^' Such are shares of stock in the county where the stock books are kept, transfers made and dividends paid.^'' A note secured by a mortgage on property situated in this State is sufficient to authorize the granting of letters here.^^ So real estate situated in this Stat-e authorizes the granting of let- ters.^^ A folding chair is sufficient to confer jurisdiction.^" So a suit* on a unliquidated claim.'*'' So a claim against an ad- ministrator who has distributed the assets contrary to the provi- sions of a will he knows is in existence when he made the dis- tribution.*^ § 76. Application for appointment. Before an appointment is made an application must be filed which must state the name of the husband or widow and all o' the next of kin of the deceased known, the postoffice address, i/ known, and also in general terms as to what the estate consist:* of and the probable value.*^ In addition it must state that the will has been proved and that the testator died an inhabitant or resident of the county. It must also be under oath. It is exceedingly important that all the jurisdictional facts be set forth in the application ; while it may not be absolutely necessary to support the jurisdictional power of the Court to have a recital of all the facts, yet it is of the highest importance that a record should be made of all facts and circumstances which call for the judicial power of the Court. The application affords the most convenient means for 35 Goodlet vs. Anderson, 7 Lea. Nicrosi vs. Guily, 8.5 Ala. 365 ; S. C, 286: Shakespeare vs. Fidelity Co., 5 So. Eep. 156; Bishop vs Lalouette, r.^ ^ o^ ,-o T. cK 67 Ala. 107: Lees vs. \\ etmore, 58 97 Pa. St. 1/3; Beers vs. Shannon, j^ j-^. ^^^,^ ^.^ Coltrain, 19 Wend. 73 N. Y. 292; Moore vs. Jordan, 36 37s. Kan '^71 ^^ White vs. Xelson, 2 Deni. 265. 36 Arnold vs. Arnold, 62 Ga. 627. '' Robinson vs. Epping, 24 Fla. , , T., , • i iin 23(: 4 bo. Rep. 812. 37 Clark vs. Blackmgton, 110 ^^ j,j ^^ Xesmith, 1 X. Y. Supp. Mass. 369. 243. 38Apperson vs. Bolton, 29 Ark. Where the estate exceeds $100 .,^ T, iv 1 ^ T.„^;„N At Til there must be an administration. 418; Rosenthal vs. Renick. 44 111. g^^^j^^^ ^.^ Bettman. 199 Fed. 838. 202; Sheldon vs. Rice, 39 Mich, 296; 42 § io617 G. C; § 114. 73 OATH TO APPLICATION § 77 the proper allegation, so the finding may constitute an adjudi- cation of all the necessary f acts.*^ It would likewise be proper for an applicant to state his own place of residence ; if the will was probated in any other place than the county in which the application is made that fact should be stated and the name of such place given. If there are any minor heirs or legatees tlieir names, ages and guardians, if known, might also well be included. As to the averments show- ing the county in which the deceased died it has been held suffi- cient to aver that he was " late of " a particular county.** Also the statement that iinadministered assets remain is suffi- cient.*^ An appointment, however, without a written petition has been held not void, merely voidable.*® Also an application for an administration on two estates in one petition will not ren- der the appointment void.*^ The application should also show any indebtedness the deceased had against the applicant.*^^ § 77. Oath to application. The statute says that it must be under oath ; by this is meant not that it should be verified as pleadings generally are, but that it should be sworn to as a fact and not as a matter of belief. However, it has been held tliat the averment " to the best of af- fiant's knowledge and belief " is sufficient.** Likewise a failure to verify the application will not subject the appointment to collateral attack.*^ The oath may be taken before a notary or any person em- powered to administer oaths. ^° § 78. Form of application for letters testamentary. The State of Ohio, County, ss. PROBATE COURT. The last will and Testament of who died 43 Woerner on Admin. 561. 47 Saul vs. Frame, 3 Tex. Civ. 44 /n re Crawford, 21 C. C. 554; App. 596. .. , T 1-7 r. 1 ooo 47a §10617 G. C: §114. Abel vs. Love, 17 Cal. 233. ,, g^^^^^^^ ^.^ ^^right, 7 Barb. 39; 45 Pumpelly vs. Tinkham, 23 Barb. Roderigas vs. East River Inst., 76 321. K. Y. 316. 46 Robinson vs. Epping, 24 Fla. « Appeal of Miller, 49 N. W. Rep. 237 J 4 So. Rep. 812. 50 Pickens vs. Hill, 30 Ind. 269. § 79 LETTERS TESTAMENTARY 74 on the day of , an inhabitant and resident of said County, having been heretofore admitted to Probate in said Court, and the undersigned, whose Post Otfice address is County, Ohio, having been named therein as execut , hereby makes application for letters Testamentary thereon. That the applicant was indebted to deceased in the sum of $ Said decedent left Personal Estate composed of moneys, goods, chattels, rights and credits, estimated of the value of about - - - - - - - - $ And Real Estate being Of estimated value of about $ , — so much thereof as is directed by said Will to be sold, being of about the value of $ Said applicant offers bond in the sum of - - - $ with and all freeholders, as sureties, and suggest and as appraisers. Said decedent died leaving h husband widow — and the following persons all the next of kin of the deceased, to this afSant know. Tliat said applicant was indebted to deceased at the time of his death as follows: NAME. DEGREE OF KINSHIP. P. O. ADDRESS. The foregoing application was signed in my presence and sworn to before me this day of 190 . . . Probate Judge. Deputy Clerk. § 79. Who are capable of receiving appointment. All persons, generally speaking, are capable of becoming exe- cutors who are capable of making wills. ^^ This is the common- law rule which is in force in our State. The only limitation which the statute designates is that the person must be legally competent. Recently it has been enacted by statute that cor- porations upon complying with certain provisions incorporated in the law may become executors.'"'- As to who are legally com- petent will be treated of in a subsequent section. § 80. Named in the will. The person asking the appointment must be named in the will. This does not necessarily mean that he should be desig- 51 Sch. Ex. 32. constitutional the appointment could 52 § 3821c R. S. This law was not be attacked collaterally. See declared unconstitutional, and it was 53 Bull. 83-446 ; 79 O. S. 89. Later held in another case that tlie order act of 1919, 108 vs. 120, §207a; of the Probate Court could be collat- 710-160 G. C. Chapter 13a. No erallv attacked. Telegraph vs. Sav- bond is required except on applica- ings'Co., 30 0. C. C. 380; 78 0. S. tion. 398; affirming, witliout report, 20 See § 1252. Wlio may be trustee. Cir. D. 380. This latter case, how- Marriage of a female is no dis- ever, was overruled, and it was final- qualification. § 10636 G. C. ly held that even if the law was un- 75 LEGALLY COMPETENT § 81 nated by his name in the will ; it will be sufficient if the lan- guage used by the testator be such that it shows an intention that a certain person be invested with the character of execu- tor.^^ The testator may even delegate the appointment to a third person.^* So the testator may empower the survivor of two executors named, or a single executor, to appoint a co-executor on one hand or appoint his successors on the other hand until the will shall have been executed, and such appointees will be charged with the trust estate in place of their predecessors/* If the testator used the word trustee and yet imposed upon him duties involving tlie functions of an executor, this is a good appointment.^'^ Where the testator in his will did not specifically appoint any executor, but nominated four persons to act as his trustees, and bequeathed to them his residuary estate, with power to receive any sums due to the residue, and to give and discharge for the same ; and the will contained directions " to my executors," as to the payments of his debts, and as to the manner in which they were to deal with the residue and other portions of the estate, and generally it appears that the testator had used the word trustees and executors indefinitely as referring to the same person, it was held that the trustees were executors.*^ § 81. Legally competent. Statute provides that the person named in the will shall be appointed if legally competent, but it fails to provide as do the statutes of many of the other States, what is considered to be legal incompetence. It has been thought by some ^* that where such objections exist against the appointment of the person as 53 Carpenter vs. Cameron, 7 ^6 Richards vs. Moore, 5 Redf. 278. Watts. 51 ; Matter of Blancan, 4 67 /„ re Melville, 15 Prob. Div. 22. Redf. 151. See § 1308. Testamentary guard- 54 Hartnett vs. Wandell, 60 N. Y. ian. 346. osGiauque Settlements, 203. ssMulford vs. Mulford, 42 N". J. Eq. 68. § 82 LETTERS TESTAMENTAEY 76 would justify his removal by the court after his appointment there would be sufficient to refuse him in the first instance. It has, however, been held by several Probate Courts in Ohio to the contrary ; and that, under the common law rule, which pre- vails in Ohio, none are legally incompetent except minors, idiots and insane persons.^^ And that where the person was not thus legally incompetent he was entitled to receive the appoint- ment.®° To this might be added that the Probate Judge could not receive the appointment himself.^^ And likewise the guardian of a deceased person could not be appointed. Courts sometimes permit guardians to resign and file their account, and then appoint them administrators. The difficulty in the way of this practice is that the administrator in settling with the guardian is one person acting in two capaci- ties. It may perhaps be legally done, but is not commended. There is no special provision on this subject, but it is not within the duties of the guardian to settle up the estate and make dis- tribution to the persons entitled. Formerly it was held that a married woman could not act as executor, but this is now abol- ished by statute.^- An infant improperly appointed is an admin- istrator de facto and her acts are valid and can not be collaterally attacked."-^ § 82. Residence of the executor. At common law non-residence of the executor did not dis- qualify him to act. There being no statutory provision on the subject, it is safe to assume that the common-law rule prevails in Ohio. Yet the law certainly does not encourage such ap- pointments, for it is provided that a resident executor may be removed if he moves from the State. And if removal from the State is good cause to terminate the trust, non-residence ought to be a good reason for refusing it. And it may be said that it is not advisable where the same can be avoided to appoint a non-resident as executor. In fact no one ought to be appointed, ordinarily, to either the position 59 /»?. re Sultzbach, 5 X. P. 218; of his iinsiiitability would need to S. C, 5 Dec. 510. be raised upon an application to re- 60 in re Oscamp, 5 Dec. 584; 7 N. move. In re Sell's Est., 5 X. P. P. 685. (X.S.) 629; 52 Bull. 610. 61 §§ 1589, 1590 G. C, § 9. If the person named in the will 62 § 10636 G. C. See chapter on has since the death of the testator Letters of Administration, § 115. been convicted of a crime the court See § 222, Incompetencv, 1308, and might refuse to appoint him. In re 1309, Guardians. "" Marsh. 60 Bull. — . If the person named is capable he 62aTowlin vs. Pesh (W. Va. must be appointed., and the question 1914), 80 S. E. 450. 77 MUST GIVE BOND § 83 of executor or administrator who is not a resident of the county in which the application is made ; and therefore within the juris- diction of the court to control and govern his actions concerning the trust. There may, however, be stronger reasons for the ap- pointment of a non-resident as executor, by reason of his being named in the will. He may have particular knowledge of the affairs to be administered and besides he was selected for that purpose by the decedent who is presumed to have known his qualification. In a recent case it was held that a non-resident person named as executor must be appointed.^^" The statute has now been amended to make it optional with the court.®^*^ § 83. Bond of executor, and its condition. "Every executor before entering upon the execution of his trust, must give bond, with two or more sufficient sureties, in such sum as the court orders, payable to the state with conditions as follows : "1. To make and return to the court, on oath, within thirty days, a true inventory of all the moneys, goods, chattels, rights, and credits of the testator which are by law to be administered, and which come to his possession or knowledge ; and, also if required by the court, an inventory of the real estate of the deceased ; "2. To administer according to law, and the will of the testator, all his goods, chattels, rights and credits, and the proceeds of all his real estate, sold for the payment of debts, or legacies, which comes to the possession of the executor, or to the possession of any other person for him ; "3. To render upon oath, a just and true account of his administration within twelve months and at other times when required by the court or the law. Failing to do so for thirty days after he has been notified of the expiration of the time by the probate judge, he may forthwith be removed by the court and he shall receive no allowance for services, unless the court enters upon its journal that such delay was necessary and reasonable." [R. S. §5996; vol. 102-200'.]«3 § 83a. When bond not required. "When two or more per- sons are appointed executors, none shall intermeddle or act as such but those who give bond as before prescribed; except that when, by the terms of a last will, the testator expresses a wish that his executor may execute it without giving bond, the court admitting it to probate, at its discretion may grant let- ters testamentary, with or without bond; and when granted without bond, at any later period, upon the application of a party interested, may require bond to be given, and on default in giving it the executor may be removed." [R. S. § 5996.]®^* 62b Tn re Season^ood, 37 O. C. C. S3* § 10607 G C 200; 2.5 O. C. C. (KS.) 369. An order for a bond must comply 62c §] 0605 G. C- §71. with this section. In re Willson, 63 § 10606 G. C. 14 N P. 443 § 84 LETTERS TESTAMENTARY 78 The bond must be in such a sum as the Court may direct, usually double the amount of the assets to be administered, and must be signed by two securities required by law to be inhabitants of the State ; and usually required by the rules of the court to be freeholders and resident of the county. Valid letters testamentary cannot be granted until satisfac- tory bond is given.^* § 84. Form of executor's bond. Know all Men by these Presents, That we, and are held and firmly bound to the State of Ohio, in the penal sum of Dollars, to the payment of which sum, well and trly to be made, we do bind ourselves, our heirs, executors and administrators, jointly and severally by these presents. Signed by us and dated at Ohio, this day of , in the year one thousand nine hundred and The Condition of the above Obligation is such. That if the above bound Execut of the last Will and Testa- ment of deceased late ol , in the County of aforesaid: First, Shall make and return to the Probate Court, within and for said County, on oath within thirty days, a true inventory of all the moneys, goods, chattels, rights and credits of the Testa which are by law to be administered, and which shall have come to . . h . . . . possession or knowl- edge; and, also, if required by said Court, an inventory of the real estate of the deceased ; Second, Shall administer, according to law, and the Will of the Tes- tat , all h . . . . goods, chattels, rights and credits, and the proceeds of all h . . . . real estate that may be sold for the payment of h . . . . debts or legacies, which shall at any time come to . . h . . . . possession, or to the possession of any other person for . . h . . . . ; and. Third, Shall render, upon oath, a just and true account of ..h.... administration, within twelve months, and at any other times when required by said Court or the law; and failing so to do for thirty days after . .he. . . . shall have been notified of the expiration of the time by the 64 See S 233 ef seq. on bonds, even where the will desires the same See § 280 et srq. on inventory. to be omitted. In re Willson, 14 See § 506 ct scq. Care and man- X. P. 44. agement. A party "interested" is any one See § 702 ct seq. Accounting. who has any right in the property The matter of requiring a bond to be administered. Id. rests with the discretion of the court 79 BOND NOT NEEDED § 85 Probate Judge, . . he . . . . shall receive no allowance for services, unless the Court shall enter upon its journal that such delay was necessary and reasonable; Then this obligation to be void; otherwise to remain in full force and virtue in law. Executed in Presence of This bond approved in open Court, this. . . .day of A. D. 19. . .. Probate Judge. § 85. When bond need not be given. Statute provides that when the will expressly provides that the executor maj be excused from giving bond that the letters may be issued without such bond. If the Court deems the same expedient, bond may be omitted. It may be difficult to say just what circumstances ought to exist to induce the Court to dis- pense with the bond. It seems to be left in the sole discretion of the Court. An Appellate Court would not interfere with this discretion unless it be plainly in conflict with the letter and spirit of the law.®^ I think, however, it may be stated that it is a general rule among Probate Judges tliat where any party in interest demands that the bond be given that it will then be re- quired, otherwise the directions of the testator will be followed ; and the Court should, if it has any reason to suspect the integ- rity, the mental capacity or financial ability of the executor, protect the estate and interest of all concerned by requiring such bond.«« It would seem from the wording of § 10607 G. C. ; § 83, that only the court admitting the will to probate may dispense with the bond, and that if an application be made in a court other than that which admitted tlie will to probate, the general pro- vision of the statute must be complied with and the bond given. ®^ §86. Separate bonds. "When two or more persons are appointed executors, administrators, or testamentary trustees, the court may take a separate bond, with sureties from each. esWoerner on Admin. 544. «7 See §§ 1310, 1333 Gdns. 66 See chapt. 16, § 243. New bonds. § 87 LETTERS TESTAMENTARY 80 or a joint bond, with sureties from all of them together. In all bonds with sureties, given by executors, administrators, or trustees, all the sureties must be inhabitants of this state, and such as the court approves. The bonds shall be filed in the court taking them." [R. S. § 5999.] *^« If the executors, administrators or testamentary trustees so desire, it is a general practice to allow each of them to make a separate bond. But where there is no request of that kind it is usual to make a joint bond. The general form of bond here- inbefore given will answer the purpose of a separate or joint bond — it being treated as a separate one if executed by one and a joint bond if executed by all.** § 87. Form of executor's letters. The state of Ohio, County, ss. I, Judge of the Probate Court within and for said County, in the name and by the authority of the State of Ohio, do by these presents MAKE KNOWN that in said Probate Court at on the day of one thousand nine hundred and the last will and testament of late of in said Count, deceased (a copy of which is hereto annexed) was duly proved and allowed, by said Court, and that the administration of all and singular the Goods, Chattels. Rights and Credits of the said deceased any way concerning last Will and Testament was committed to in the County aforesaid, the Execut in the said Will and Testament named ; and the said Execut shall : First, Make and return to the Court, on oath, within thirty days, a true inventory of all the ]\Ioneys, Goods, Chattels, Rights and Credits of the Testa which are by law to be administered, and which shall have come to possession or knowledge, and have the same appraised by three suitable disinterested persons, and also, if required by the Court, an inventory of the real estate of the deceased. Second, Shall administer according to law and the will and the Tes- ta all Goods, Chattels, Rights and Credits, and the pro- ceeds of all Real Estate that may be sold for the payment of debts or legacies, which shall at any time come to possession, or to the possession of any other person for ; and es§ 10611 G. C. ters are issued if the proper order 69 See chapt. 13, § 201, Co. Admin. is made in the journal. Fields vs. See § 1264, Testamentary trustees. Block, 4 C. C. (N.S.) 216: 20 0. C. A person who is eligible may be C. 113. legally appointed, although no let- 81 ORDEK OF APPOINTMENT § 88 Third, Shall render, upon oath, a just and true account of administration within twelve months, and at any other times when required by said Probate Court or the law ; and failing so to do, for 30 days aiiter he shall have been notified by the expiration of the time, by the Probate Judge, he shall receive no allowance for services, unless the Court shall enter upon its journal that such delay was necessary and reasonable. And we hereby appoint the said Execut of all and singular the said Goods, Chattels, Rights and Credits which were of the said deceased. In testimony tchereof, I have hereunto affixed the Seal of said Court at in said County, this day of 190 .. . Probate Judge. § 88. The order of appointment. The order should designate the person and the estate over which he is appointed. An order granting letters on one estate out of a number, without stating which one, applies to none, and is void.'° An order providing that " A. be and herebj is appointed ad- ministrator on giving proper bond," fixing tbe amount of the bond (and the surety) is an absolute and not a conditional grant if the bond be filed on the same day ^^ or before revoked. An order granting letters is an adjudication that all the facts ex- isted which were necessary to give the court jurisdiction, and that all steps had been taken that were necessary to the issuance of the letters.''^ The fact that the appointment is made hurriedly does not render it void,^^ even if made on the day of the death of the decedent.^* § 89. Form of entry. APPROVAL OF BOND AND GRANTING LETTERS. This day came A. B. and filed his application to be appointed executor under the will of C. D., and at the same time filed his bond in sum of TOHarwood vs. Wylie, 70 Tex. 107; S. C, 23 Pac. Rep. 528; 24 Pac. 638; S. C, 7 S. W. Rep. 789. Rep 381. 71 Tucker vs. Harris, 13 Ga. 1; 73 Bowen vs. Stewart, 128 Ind. Haskins vs. Miller, 2 Dev. L. 360. 507. '2 In re Griffith's Estate, 84 Gal. 74 in re Comfort's Estate, 12 Psk. Co. Ct. Rep. 571. §90 LETTERS TESTAMENTARY 82 Dollars with E. F. and G. H., sureties thereon. Whereupon the Court finds that the allegations of the said application are true, and that the bond is sufficient according to law and the same ia hereby approved, and it is ordered that letters testamentary be granted to A. B. ; and that H. I., J. K. and L. M. be appointed appraisers.^o § 90. Effect of order. The Probate Courts of this State being courts of record and competent to decide on their own jurisdiction, and exercise it to final judgment, their records import absolute verity.^® And therefore an order m^ade of an appointment of an execu- tor or administrator cannot be attacked collaterally.^®* No evi- dence can be adduced showing anything contrary to the record. It will conclusively be presumed in all collateral proceedings that the order was made upon full proof of all the facts neces- sary to authorize it; and letters issued under the seal of the court are conclusive evidence of the authority of the executor to act. If any attack is to be made upon the order of the Court it must be made in a direct proceeding in the court in which the order itself was made.^^ TB If real estate is to be appraised, in view of the statute which requires appraisers of real estate to be free- holders, while, perhaps not absolute- ly essential, it will follow the spirit of the law if the appraisers be free- holders; and where real estate is expected to be appraised, the follow- ing should be added to the above entry. '' And il is ordered that said executor include an inventory and appraisement of all real estate of said decease." '« Uy. Co. vs. Village of Belle Center, 48 O. S. 273; Astram vs. Ten Eck, 28 Bull. 265. 7c* T. & 0. C. Ry. vs. Beard, 20 C. C. 681. 77 See § 208 et seq. on resignation and removal. See § 1558, assign- ments. All questions necessarily arising in the ease becomes res adjudicata by the final order of appointment, which binds all the world until set aside or reversed by a direct pro- ceeding for that purpose. Schroyer vs. Richmond, 16 0. S. 455. But the jurisdiction of the court is a matter into wliicli inquiry may be made even in collateral proceed- ings where the record contains no finding of fact expressly showing jurisdiction. Scobey vs. Gano, 35 0. S. 550. An inquiry into the truth or fal- sity of statements made to the court, is not a collateral attack upon the findings of the court, and a decree of court cannot estop a person from asserting that in procuring the de- cree a false statement was made, or perjury committed, that statement inducing a wrong finding. Com- mercial Gaz. Co. vs. Dean, 25 Bull. 251. An order of the Probate Court, appointing an executor, if made without jurisdiction, is void, and it may be disregarded in any other court, but if made in the exercise of proper jurisdiction over the sub- 83 RENUNCIATION § 91 § 91. How the order may be attacked. The order of appointment may be attacked in the same man- ner as judg-ments of courts of general jurisdiction are; and for cause may be set aside or vacated. No appeal will lie from the order of the Probate Court making an appointment of an execu- tor or administrator or guardian.'"^ If the order is to be set aside in a higher court it must be by proceedings in error.^^ § 92. Renunciation. Renunciation is a declination of an executor to accept the trust. If he so desires he may do so voluntarily ; if he neither takes nor declines the court may under sec. 10612 G. C. (§ 100) , issue a citation for him to appear, either to take or decline ; if he refuses to take, it will be held that he declines. It is very com- mon practice for him to file a paper declining to serve. After letters have been granted and he has qualified as executor, he cannot renounce the appointment made in the will ; he must then resign if he does not desire to administer the trust.^® And if he renounces the office he may retract such renuncia- tion, provided no administrator has been appointed previous to his retraction. ^° An agreement made with persons in interest before a testa- tor's death and contrary to his expressed wishes by one named as executor, to renounce the executorship for a stated consid- eration, is contrary to public policy and void. In general, any agreement for a consideration to renounce an executorship is illegal, and a court of equity will refuse to enforce it.^^ § 93. Administration during the minority of an executor. "When a person appointed executor is under the age of twenty-one years at the time of proving the will, administra- tion may be granted with the will annexed, during his mi- ject-matter and estate, although heard in the Probate Court, may- based upon erroneous conclusions of have an adverse judgment reviewed law and fact, it can not be coUater- on error. McCallip vs. Sharp, 13 ally attacked. Bank vs. Telegraph Dec. 650; affirmed, 69 0. S. 650; Co^, 79 0. S. 89. ]Miller vs. Miller, 36 O. C. C. 195, 77a This view is sustained by the 19 O. C. C. (N.S.) 203. recent case of Luburg vs. Luburg, 13 79 Goods of Veiga, 32 L. J. P. 9. 0. App. (1920). Appeal may be so Eobertson vs. McGeoch, 11 had from appointments of guardians Paige 640; Taylor vs. Tibbats, 13 B. for idiots, lunatics, improvidents, Mon. 177; Casey vs. Gardiner, 4 etc. Bradf. 13; Davis vs. Inscoe, 84 N. 78 Can not be attacked collaterally. C. 396 ; Harrison vs. Harrison, 4 T. & O. C. R. vs. Beard, 20 C. C. Notes Cas. 434. See § 119. 681. 81 Sch. on E.vecutor, § 48. Any person having a right to be § 94 LETTERS TESTAMENTARY 84 nority, unless there be another executor who will accept the trust, in which ease the estate shall be administered by him until the minor arrives at full age, when he may be admitted as executor with the former, upon giving bond as before pro- vided." [R. S. § 6001.] 8^' It "will be observed that this section only applies to where the person named in tlie will as executor is under the age of twenty-one years. There is in Ohio no such thing as an admin- istrator to act while a person entitled to letters of administration is under age. The law favors the rapid settlement of estates; and even under this provision, if the estate can be settled in the ordinary time or by a provision of the will, before the person named as executor- arrives at the age of maturity, it should be done; and it is only where the proper administration of the estate will require it to be prolonged until the minor arrives of age that he should be permitted to exercise his trust. The per- son appointed such administrator is governed by the law gen- erally applicable to the administrations of estate. ^^ § 94. An executor of an executor can not administer the trust of first testator. "The executor of an executor has no authority, as such, to administer the estate of the first testa- tor. On the death of the sole or surviving executor of a last will, administration of the estate of the first testator, not already administered, may be granted, with the will annexed, to such person as the court deems fit to appoint." [R. S. §6003.]^* This section abrogates the common law rule, for it was ac- cording to the common law doctrine that an executor of an ex- ecutor, how far soever in decree remote, stands as to the points S2 § 10613 G. C. istered and turned over the surplus, 83 Administrators during minority he may show this undr the plea of are said to possess all the authority, plenc administravit in defense of a for the time being, of general admin- suit by creditors. Woerner on istrators, whatever may have been Admin. 404. the prevailing opinion in earlier S4 § 10615 G. C. times; their acts are binding upon An administrator with the will the estate, and when their office has annexed means here the same as an expired by reason of the majority of administrator under § 10617 G. C. the executor or administrator in his Seasongood vs. Seasongood, 23 O. C. own right, they are liable to credi- C. (N.S.) 360. tors for devastavit, but only to the If two are named and one dies executor or administrator for the the other should be appointed. In re assets; and if he has only admin- Marsh, 50 Bull. 5. 85 POWEK DURING CONTEST^ ETC. § 95 both of being, having and doing in the same state and plight, as the first and immediate executor.^^ When the executor dies then all his powers, or any one through him, so far as administration of the estate is concerned, ceases. The only thing the executor of the deceased executor can do, and that which he must do, is to file an account of the deceased ex- ecutor's trust within six months after the date of the appoint- ment of the executor or administrator of such deceased ex- ecutor.®* And for the purpose of compelling such accounting the court has the same power over the executor or administrator of the deceased executor or administrator as is had over the ex- ecutor or administrator during his lifetime.®^ § 95, The power of executors and administrators during the contest of a will. "When a will is contested, the executor, or the administrator de bonis non, wath the will annexed, or the testamentary trustee during the contest may control all the real estate not specifically devised, included in the will, and all the personal estate of the testator, not before such contest duly administered ; collect the debts, and convert all assets into money, except such as are specifically bequeathed ; pay all taxes on such real and personal property, and all debts ac- cording to law ; if necessary to preserve the real property from waste, repair buildings and other improvements; insure them, upon an order therefor first obtained from the court having jurisdiction of such executor, administrator, or testamentary trustee, and for such repairs, taxes and insurance, advance or borrow money on the credit of such estate, which shall be a charge thereon. They also may receive and receipt for a dis- tributive share of an estate or trust to which such testator would have been entitled, if living. The probate court may require such additional bonds as from time to time seems proper." [R. S. § 6019a.] «« 85 Williams Ex. 959. to remove the administrator. In re The reason given by Blackstone is, Schonacker, 58 Bull. 78, yet the "for the power of the executor is Court of Common Pleas cannot de- founded upon the special confidence clare it at an end. Sanker vs. and actual appointment of the de- Mattison, 11 C. D. 125; 20 0. C. C. ceased; and such executor is there- 229. fore allowed to transmit that power ss See §§ 10820-21 G. C; § 707. to another in whom he has equal 87 See § 707, Admin, of deceased confidence. 2 Bl. Conn. 506. must file acct. While breaking the will may be 88 § 10633 G. C. See § 10635 G. C. sufficient cause for the Probate Court § 159, as to legality of sales made. § 96 LETTERS TESTAMENTARY 86 § 96. Contest of will. May borrow money, etc. Substantially by virtue of the provisions of this section the functions of the administrator as to the distribution of the estate are suspended. He has power to proceed to collect the debts and to convert all the assets into money, except such as are spe- cifically bequeathed. Likewise he is to have control of the real estate included in the will, but not specifically devised ; if specifically devised, it would be under the control of the legatee. Likewise, if not at all devised, it would be under the control of the heirs, unless a» application would be made by the executor or administrator to sell the real estate to pay debts. For a con- test of the will, will not suspend the right of an executor to file a petition to sell real estate to pay debts. As to the property under his control, both real and personal, he has the power to preserve the same ; and whenever it is necessary to preserve the real estate from waste, or repair the buildings, he may insure the same, and may borrow money for that purpose. For it must be remembered that generally- no administrator or executor can borrow money upon the responsibility of the estate ; if he borrows money for a proper purpose he may credit himself with it in his account, but it is done upon his o^vn responsibility. Even under this statute, if made a charge upon the estate, it must be done with the approbation of the Probate Court.^^ He can not sell real estate to make distribution. An executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees.®" etc.,— if will is set aside, etc.— a new Tlie Court of Common Pleas can- judgment setting aside the will does not appoint a receiver of real estate not revoke the order o4 appointment. specifically devised in an action to Sanker vs. Mattison, 20 C. C. 229; contest a will devising the same. 11 C. D. 125. Burgess vs. Sullivan, 2 X. P. (N.S) 88 As to borrowing money. See 327: 14 Dec. 712. Smith V6. Hayward (aff. 45 Bull. As soon as a will is probated the 228) 5 N. P. 501; S. C, 5 Dec. 462; devisee is entitled to control the Welsh vs. Perkins, 5 0. 52. same. This case does not decide that 90 Andrews' Ex'rs vs. His Adm'rs, there might not be a receiver, but 7 0. S. 143 ; In matter of Estate of the mere fact of a contest will not be Jacob Seegar, 1 Dec. 113; 7 X. P. sufficient — no receiver can be ap- 208; In re Estate of Daniel Laws, 18 pointed afterward. Bull. 198; 17 Bull. SO. 87 BOKKOW MONEY § 97 § 97. Application to repair buildings and borrow money. This application is made in the discretion of the Probate Court, and while it may be granted without any notice to any ini;erested party, yet where the sum is considerable, it should not be granted without notice to such parties. The application may be in the following form : (Title.) A. B. represents to the Court, that on the day of , he was appointed executor under the will of C. D., that afterwards, on the day of , a petition was filed in the Court of Common Pleas of county, by E. F. to contest said will, which said suit is still pending. Your petitioner further represents, that under the will of the said deceased, certain real estate (here described the name), came into his possession. That said buildings on said property are in a very bad condition, and badly in need of repairs. Likewise they should be kept insured, and that he has no money in his hands, that can be applied for that purpose. He represents, that it will require for re- pairs (here insert what it is proposed to be done), which will cost about dollars; and that insurance and taxes thereon will amount to dollars; therefore he asks that he may have authority to borrow the sum of dollars, to pay such taxes and insurances on said property, and make needed repairs thereon. sign. A. B. being duly sworn, says the allegations in the above application are true. § 98. Form of entry. This day this cause came on to be heard, upon the application of A. B., executor of C. D., for permission to borrow money to pay taxes, costs of insurance, and make certain repairs on the real estate, devised under the will of said C. D. ; and it appearing to the Court I'lat it is proper and necessary for a preservation of said estate that said expenditure be made, and that the amount asked for, is reasonable, and that such expenditure will be for the benefit of said estate. Wherefore authority is hereby granted to said A. B. to borrow the said sum of dollars, to bear interest not exceeding % and payable within months from this date; and the sum will be a charge upon the assets belonging to said estate. 99 ADMINISTRATOR WITH WILL ANNEXED 88 CHAPTER YI. ADMINISTRATOR WITH THE WILL ANNEXED. § 99 Definition. § 105 Bond of administrator with § 100 If executor renounces, etc., ad- the will annexed. ministration to be granted. § 106 Powers and duties — Personal § 101 Citation of executor. trust. § 102 Entry ordering issue of cita- § 107 Estate directed or devised to tion. be sold by executors, etc., § 103 Form of citation to take or failure of executors to act, renounce administration. who may sell. I 104 If executor does not qualify. Application, etc. § 99. Definition. Whenever the person designated in the will declines to serve, or where there is a will without designating any person as execu- tor, the person appointed by the court to administer the estate is known in law as an administrator with the will annexed. Like an administrator, he receives his sole authority to act from the court making the appointment. But like an executor, he administers the estate in accordance with the directions of the will. His duties are therefore more closely allied to those of an executor than an administrator. When it is proper to make such an appointment is provided for in the following section : * § 100. If executor renounces, etc., administration to be granted. "If a person named as executor in the will of a de- cedent refuses to accept the trust, or, if after being duly cited for that purpose, neglects to appear and accept, or if he neglects for twenty days after probate of the will to give bond, as before prescribed, the court shall grant letters testamentary to the other executor, if there be any capable and willing to accept the trust, and if there is no such other executor named in the will, commit administration of the estate, with the will an- a When a will is contested and See §161, as to the appointment broken tlie duties of an administra- of an administrator to act jointly tor witli tlie will annexed ceases. with an executor. In re Schonaker, 55 Bull. 78. 89 CITATION OP EXECUTOR § 101 nexed, to such person as would be entitled thereto if the deceased had died intestate." [R. S. § 6000.] ^ § 101. Citation of executor. If the person named in the will fails to accept within twenty days after probate of a will he must be cited to appear before the court, and either accept or decline. This citation may be issued on the court's own motion, but it would be more regular if some interested party would appear and file an appli- cation for the issue of such citation. The application may be in the following form : {Title.) The undersigned respectfully represents that he is interested in the estate of C. D., deceased, as , that the will of the said C. D. was duly probated in Probate Court, of County, Ohio, on day of : 190 . . . , and that A. B. was named in said will as executor thereof. That twenty days time has elapsed since the said will was probated and the said A. B. has neglected to give bond and qualify as such executor. Wherefore the undersigned asks that he be cited by the Court to appear on a day to be named and accept or decline said trust. sign State of Ohio, County, ss. The undersigned being duly sworn, says the facts stated in the foregoing application are true. 2 § 102. Entry ordering issue of citation. This day came and filed herein his application for an issue of the citation against , who is named in the will of as executor therein ; and has failed to accept said trust as required by law, and said cause is set for hearing on day of at o'clock, and it is ordered that a writ of citation be issued, directing the said to appear in this court on or before that day, and accept or decline said trust. 1 § 10612 G. C, Probate Court must appoint B, if he 2 See §1328, choice of Gdn.; is not mentally or physically dis- § 1257, Trustees. qualified. In re Sells, 5 N. P. 629, Where A and B were named joint 52 B. 610. executors. A refused to serve, the § 103 ADMINISTKATOE WITH WILL ANNEXED 90 § 103. rorm of citation to take or renounce administration. Probate Court County, Ohio. In the Matter of the estate of Deceased. No Appointment of CITATION. To of Deceased. You are hereby cited to appear before the Probate Court within and for said County, at the Court House, in on or before the day of A. D. 190. . ., at o'clock M., and make knowTi your intention to take or renounce the administration of the estate of said decedent, or the administration will tnen and there be committed to some other suitable person. In witness whereof, I have hereunto set my hand and affixed the seal of said Court, at this day of 190 Probate Judge.3 § 104. If executor does not qualify, application, etc. If on the day set for hearing the executor appears and chooses to accept, he will be required to make application, as provided in the previous chapter. If he does not appear or declines to accept, and there is another person mentioned in the will as executor, then such other person shall be qualified as sole executor. If there is no other person mentioned in the will then the application for an appointment of an administrator with the will annexed should be made ; and the form of this ap- plication would be similar to that used bv an executor, and in addition should state that the executor has declined, etc. If the exeoutor has made a written declination it should be at- tached to the application; and the party appointed wonld be required to jsrive bond with similar conditions as those of an executor.* The persons entitled to such administration are to 3 See § 1328. another person with liim, unless for 4 See next section. good reasons it is necessary so to do. When two persons are named in It may be douhtful, unless all con- a will and one of said persons is cerned agree, wlietlier tlie court has deceased before the testator the a right so lo do. In re Marsh, 50 court will appoint the survivor as Bull. 5. sole executor and will not associate See § 162. 91 POWERS AND DUTIES § 105 be preferred in the order provided for in § 10617 G. C.^ for the appointment of an administrator. In some States it is held that the legatees under the will are entitled to be appointed admin- istrators with the will annexed. But such is not the law in Ohio. The entry providing for the appointment of an admin- istrator with the will annexed should state the fact that the ex- ecutor has declined or has been cited and refused to accept." § 105. Bond of administrator with the v^rill annexed. "Every person who is appointed administrator with the will annexed, before entering on the execution of his trust, must give bond in like manner and with like conditions as required of an executor." [R. S. §6002.]^ § 106. Powers and duties. Personal trust. It is provided by the Code in New York that where letters of administration with the will annexed are granted, the will of the deceased shall be observed and performed, and the admin- istrator with such will annexed will have the rights, powers and are subject to the same duties as if they had been named execu- tor in the will." While there is no statute similar to the above in our State, yet it very properly expresses the duties of such an administrator. While there is little doubt but what the above rule is the true one, the difficulty occurs in its application where the duties and trusts placed upon the original executor are not such as are usually needed in the administration of an estate.* 5 Chapt. 7, Letters of Admin, § Where the will gives a power to the 114. donee in a capacity distinctively dif- 6 Thompson vs. Meek, 7 Leigh. ferent from his duties as executor, 419; Robertson vs. McGeoch, 11 so that as to such duties he is to Paige 640; DePeyster vs. Clenden- be regarded wholly as trustee and ing, 8 Paige 295; Newton vs. not at all as executor; and where Cocke, 10 Ark. 169. the power granted or the duty in- 7 § 10614 G. C. volved imply a personal confidence 8 " The debate has turned mainly reposed in the individual over and upon the inquiry what were the dis- above and beyond that which is or- tinctive duties of an executor as dinarily implied by the selection of such, and when they were to be re- an executor, there is no room for garded as not appertaining to his doubt or dispute. In such case the ofRce, but as personal to the trustee. power and duty are not those of ex- § 107 ADMINISTEATOK WITH WILL ANNEXED 92 An executor is always a trustee for the personal estate for those interested under the will.^ It may be said that where the trust is a personal one, that is, one that is especially reposed in the executor, that it does not follow and vest in the adminis- trator with the will annexed. This question is very ably dis- cussed by a learned author, who deduces ths following conclu- sion: " The general rule, then, may be stated to be that where the provision defining the trust, when considered separately or in connection with the rest of the will, is imperative,®* or evidences no intention on the pai't of the testator of reposing any such special or personal confidence or discretion in the executors as would dissociate the trust confided to them from their ofiice as executors, or prevent them from fully administering it, an administrator with the will annexed will be entitled to complete the execution of the trust.^" § 107. Estate directed or devised to be sold by executors, etc., failure of executors to act, who may sell. "\Vhen a last will and testament is admitted to probate, or a will made out of this state is admitted to record as hereinbefore provided, and lands, tenements, or hereditaments are given or devised by such will to the executors therein named, or any of them, to be sold or conveyed, or such estate thereby is ordered to be sold by such executors, or any of them, and one or more of the executors so named dies, refuses to act, or neglects to take ecutors, virtute officii and do not 663; Bingham vs. Jones, 25 Hun 6; pass to the administrator with tha Pratt vs. Stewart, 49 Conn. 339. will annexed. But outside of such » Wager vs. Wager, 89 N. Y. 161. cases the instances are numerous in »* Clifford vs. Morrell, 22 App. which by the operation of a power Div. 470. in trust, authority over the real es- lo Jessup's Sur. Prac. 557 ; Matter tate is given to the executor as such of Post, 9 N. Y. Supp. 449; Opinion and the better to enable him to per- of Ransom, Surr., Jessup's Sur. form the requirements of the will." Prac. 558; Hood vs. Hood, 85 N. Y. Jessup's Sur. Prac. 556; Wager vs. 561, 571; Mott vs. Ackerman, 92 N. Wager, 89 N. Y. 161; DePeyster vs. Y. 539; Bain vs. Matteson, 54 N. Y. Clendenning, 8 Paige 295; Conklin 663; Matter of Clark, 5 Redf. 466. vs. Egerton, 21 Wend. 430; 25 Id. See § 1265 et seq., Surviving Trus- 224; Rooms vs. Philips, 27 N. Y. tee, etc. 357; Bain vs. Matteson, 54 N. Y. 93 POWERS, ETC. § 107 upon himself the execution of the will, then all sales and con- veyances of such estate by the executor or executors who took upon himself or themselves in this state the execution of the will, or the survivor or survivors of them, shall be as valid as if the residue of the executors had joined in the sale and conveyance. But if none of the executors named in such will take upon themselves its execution, or if all the executors who take out letters testamentary, die, resign, or are_ removed before the sale and conveyance of such estate, or die, resign or are removed after the sale and before the conveyance is made, the sale or conveyance or both shall be made by the administrator with the Avill annexed." [R. S. § 5980.]^^ In construing these statutes it is held that they confer upon the administrator with the will annexed all powers given to the executor for the purpose of paying debts or legacies or both, and especially when there is an equitable conversion of land into money for the purpose of such payment or distribution, and where the power of sale is imperative and does not grow out of a personal discretion confided to the individual ; but no discre- tionary trust or power conferred upon the executor, or for a spe- cial purpose collateral to the ordinary duties of an executor or administrator, or indicating a special confidence reposed in the individual/'* 11 § 10590 G. C. sell real estate. Taylor vs. Gallo- l2Woerner on Admin. 724. way, 1 0. 117. When the will names two execu- See Fleishman vs. Shoemaker, 2 tors and only one qualifies, he may C. C. 152; Williams vs. Beach, 17 O. 171; Mitchell vs. Dunlap, 10 0. 117. §108 LETTEKS OF ADMINISTKATION 94 CHAPTEH YII. LETTERS OF ADMINISTRATION. § 108 Definition, etc. § 100 Death of party. § 110 Who is an intestate. § 1 1 1 When and where application should be made. §112 Application, etc. § 113 Form of application for let- ters of administration. §114 To whom letters of adminis- tration shall be granted. § 115 Who are capable of being ap- pointed. §116 Residence of administrator. § 117 Order of priority among those entitled. § 118 When entitled in the same degree. § 119 Renunciation, waiver, etc. § 120 Husband and widow. § 121 The next of kin. § 122 The creditor. § 123 To such person as the Court may see fi.t. § 124 Must give bond, etc. § 125 Form of administrator's bond. § 126 Granting letters. § 127 Form of administrator's let- ters. § 108. Definition, etc. An administrator is a person appointed by the Probate Court to administer the estate of a person who dies intestate. The important distinction imder the laws of our State between ex- ecutor and administrator is in the duties pertaining to the ad- ministration of an estate. Where not contrary to law, and the provisions of the will cover the matter of a settlement of the tes- tator's estate, an executor must follow the directions of the will. And the authority of an administrator is measured by the law of the forum of his appointment, while the executor not only has those powers, but other and greater powers conferred by the will. Or the will may circumscribe or restrain the powers which the law confers on the administrator, so long as it is not repugnant to the law of the forum,^ As an administrator derives his authority solely from the court., as a general rule it has been said that his title to the property of the deceased vests from the time of his appointment. Yet for particular purposes it relates back to the death of the 1 Saunderson vs. Stearns, 6 Mass. 37; Scott vs. West, 63 Wis. 529. 95 DEATH BY PARTY § 109 intestate, and allows the administrator to recover for injuries to the estate of the intestate which occurred before his appoint- ment. And therefore the heirs have no right before the ap- pointment of an administrator to bind the personal estate by an agreement.^ § 109 Death of party. The most important and essential point in appointing a per- son to administer an estate is that the party formerly owning the estate is dead. This means extinction of life, not what is known as a civil death ; and while some very few cases hold to the contrary, the great weight cf authority is that there can be no valid administratien of the estate of a living person . If let- ters are granted upon such an estate they are absolutely void; and all action thereunder is invalid. It is therefore highly im- portant that indisputable proof be offered to the court making the appointment of the death of a party. Where the proof is only such that may arise from unexplained absence for at least seven years it might be proper, together with other circum- stances attending the case, to warrant the court in making the appointment. But the person accepting such appointment would do so at great risk, as well as the person dealing with such an administrator. Some States provide by statute that an unexplained absence for a certain number of years is con- clusive proof of a party's death, for the purpose of administering upon his estate. It seems to me that such a law is a wise one, for usually the unexplained absence of a person for seven years is the fault of the absentee, and property ought not to be tied up in an uncertain manner for an indefinite time.^ Where the testator's death is controverted, or is not stated in the petition for probate, on positive personal knowledge, the bur- den of proving it is upon the proponent,* 2 1 Woerner on Admin. 383, 385; a prima facie presumption and may §69, Distinction between Extr, ; be rebutted, and one so absent is § 1251, Distinction between Test. Tr. not thereby estopped from claiming 3 1 Woerner on Admin. 444, 449; his rights in property. Oglesby vs. Sch. Extr., 55. Rose, 21 Dec. 291. 4 Prout vs. McNab, 6 Dem. 152. See Curry vs. Pierrot, 12 O. App. A person in the penitentiary for 506, where it was held that a pre- life is not civilly dead. sumption of death was not shown The presumption of death arising from the facts. from absence of seven years is but § 110 LETTERS OF ADMINISTEATION 96 If the fact can only be imperfectly proved, circumstances must be shown sufficient to raise a legal presumption of death. It is necessarily impossible to give any standard by which to measure the sufficiency of circumstantial evidence of death; mere information and belief, founded on nothing, is of course not proof in any legal sense.^ It is not necessary, speaking generally, that any specific pe- riod of time should elapse to create the presumption of death, but it may arise whenever the facts of the case will warrant." § 110. Who is an intestate ? An intestate is a person who dies without leaving any valid will to dispose of his real or personal property. A person may die intestate, first, as one who has never made a will; second, one who has made a will but revoked it validly prior to his death ; third, one who has made a will defectively, executed so as not to be entitled to probate under our statute. So a man may leave a valid will to pass personal property, but not real estate. He will then be intestate as to real property, but testate as to personal. There is no presumption that the deceased left a will.^ But it should be proven to the satisfaction of the court making the appointment that there is no will, and for this purpose the 5 Roderigas vs. East River Savings stances produced tc the surrogate, Bank, 76 N. Y. 316. was sufficient to justify the issuing 6 In the matter of Nolting (43 of letters of administration, and Hun 456), it appeared that the al- that the surrogate erred in refusing leged decedent had left his home un- to do so. Redf. Sur. Prac. 153. der the depression following an at- The fact that a passenger on an tack of delirium tremens, declaring ocean vessel was last seen about 10 his intention to commit suicide, and o'clock at night, when the steamer had gone toward the river; that was in mid ocean, and was never thereafter he had not been heard seen or heard of afterwards, though from for more than 10 years, al- diligent search was made, is suffi- though previously he had communi- cient to justify a finding that he la cated regularly with his relatives. dead. Travelers Ins. Co. vs. Rosch, Held that, from his silent absence 23 C. C. 491. during 10 years, the law would raise ^ Stokesberry vs. Reynolds, 57 Ind. a presumption of his death, which, 425. coupled with the facts and circum- 97 WHO IS INTESTATE § 111 testimony of witnesses may be heard. If it appear that there has been a will, although it may be claimed that the will was revoked, or that it is invalid, the court ought not to grant ad- ministration until the fact is determined whether or not the will is still existing.^ A special administrator might be ap- pDinted as provided by § 10619 G. C.° § 111. When and where application should be made. There is no designated time in which a person entitled to be appointed administrator of an estate should apply for such au- thority. The application must be made within a reasonable time, depending upon the circumstances of each case. It has been held that eighteen days was not an unreasonable time for a person living in an adjoining county to make an application.^" In the State of Indiana it is provided by statute ^^ that if the person who is entitled to administration does not qualify within twenty days from the time of the decedent's death that letters may be granted to the next of kin or such other persons as may be entitled thereto. In the State of New York it is said ^^ that no administration can be granted other than to the person en- titled thereto, unless they renounce their right in writing, or they be cited, if residents of the State, and to appear and take or decline to take. While such m-ight not be the law in Ohio, yet it surely would be good practice, and no letters ought to be granted until those entitled thereto have renounced their right, unless a very considerable time has elapsed. The same rule which applies to the granting of letters testamentary, so far as the same relate to the court in which the same are granted, ap- plies to the granting of letters of administration, and therefore whatever was said under that subject will apply here.^* The jurisdiction of the court attaches from the time of filing the ap- 8/n re Taggart's Estate, 16 N. Y. is Jessup's Sur. Prac. 62. Supp. 514. i< § 72 Application for Extr. B See chapt. 8 on Special Adminis- The laws of Ohio are applicable to tration, § 129. estates of deceased inmates of the 10 Todhunter vs. Stewart, 39 O. S. National Soldiers' Home near Day- 181. ton, Ohio. Howell vs. Soldiers' "§ 2227 (1881); § 2380 (1894). Home, 8 O. L. R. 121. • § 112 LETTERS OF ADMINISTRATION 98 plication, and the subsequent appointment by another court of the State is void.^^ § 112. Application, etc. Whatever was said under the chapter of letters testamentary in reference to the importance of the application is true here, and in addition the application should state the time of the death of the party, and that there is no existing will. If the application is filed by a person other than the one who is en- titled to the letters it should be stated that such a person has de- clined to serve. If none of the parties who are entitled to qualify appear within a reasonable time a citation should be issued, requiring them to appear in the court and accept or de- cline." § 118. Form of application for letters of administration. The State of Ohio, County, SS. IN PROBATE COURT. being duly sworn, says that a resident of the Township of in said County, died on or about the day of A. D. 190..., and that there is not, to the knowledge of this affiant, any last Will and Testament of said decedent; that said tlecedent left h . . . . widow , whose postoffice address is and the following persons, h . . . . only heirs at law. NAME. DEGREE OF KINSHIP. POSTOFFICE ADDRESS. That above named are children of said decedent under 15 years of age at the time of said decease. The undersigned, whose Post Office address is asks to be appointed Administrator of the estate of said decedent, and on h . . . . Oath aforesaid says: That the applicant was indebted to the deceased in the siun of - - $ The amount of personal property will be about - - $ And of real estate, about $ Total. That the applicant is indebted to for proceedings against a person en- deceased in the sum of $ . titled to administration. 15 7j) ye Worthington. 4 Dec. 381. If there are several of a class en- 16 The form of application for a titled to act, tlie court niisiht ap- citation against an executor and the point one of the class — but it would proceedings thereunder used in the be better to notify all in the class preceding chapter, may be adopted before one of their number is ap- pointed. 99 TO WHOM GRANTED § 114 And offers a bond as administrator of said estate in the sum of $ , with whose post office address is Ohio, and whose post office address is Ohio, as sureties thereon. Sworn to before me and signed in my presence this • day of 190.... Probate Judge. DECLINATION. The undersigned of the said decedent, hereby declines tlie administration of said estate and recommends tue appointment of as administrator. § 114. To whom letters of administration shall be granted. "Administration of the estate of an intestate shall be granted to persons hereinafter mentioned, residents of this state, in the following order : "1. The husband or widow of the deceased; "2. One or more of the next of kin of the deceased. The court may grant letters of administration jointly to the hus- band or widow and one or more of such next of kin, and upon failure of the person or persons so entitled to administer the estate voluntarily either to take or renounce such administra- tion, if resident within the county, they must be cited by the court for that purpose ; "3. If the persons so entitled to administration are incom- petent, or evidently unsuitable for the discharge of the trust, or if witnout sufficient cause they neglect to take administra- tion of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust ; "4. If there be no such creditor, and the court is satisfied the estate exceeds the value of one hundred dollars, it shall commit administration to such other person as it deems fit. Letters of administration shall not be issued upon the estate of an intestate until the person to be appointed has made and filed an affidavit that there is not, to his knowledge, a last will and testament of such intestate. Before being appointed executor or administrator, every person shall make and file an application under oath, which must contain the names of husband or widow and all the next of kin of the deceased to such person known, their postoffice addresses if known, and also a statement in general terms as to what the estate con- § 115 LETTERS OF ADMINISTRATION 100 sists of and the probable value thereof, and also a statement of any indebtedness the deceased had against such person making said application." [R. S. § 6005; 101 v. 226.] ^' V § 115. Who are capable of being appointed. The administrator receives his authority from the eonrt making the appointment, and in no sense rests upon the wishes of the deceased ; therefore the rule as to who are competent to receive the trust is not so strict in the cases of granting letters of administration as in granting letters testamentary. If any of the causes which would justify his removal by the court after the appointment is made, exist against the applicant, he might be considered as being evidently unsuitaMe and the ap- pointment refused him. The court has a wide discretion in this matter and should not appoint any one that it is satisfied will not be for the welfare of the estate. ^^ The court is not bound to appoint an unsuitable person.^^ In one case it was held that the husband who has a claim against the estate antagonistic to the heirs and legatees, and that their existed animosity of feeling between him and the heirs, that he was an unsuitable person and was refused the appoint- ment.^" In other States it has been held that a professional gambler is not competent.-^ Nor a habitual drunkard.-- Nor an im- provident man, if his fault is so great as to be likely to en- danger the estate.-^ Nor intestate's mistress.-* Nor a felon convicted in this State." Nor an insolvent or bankrupt.-^ 17 § 10617 G. C. 26 Cornpropst's Appeal, 33 Pa, St. 18 For causes of removal, see 537. chapt. on resignation and removal, Where a treaty with a foreign § 208 ct seq. Marriage is now no country provides that consuls may disqualification, § 10036 G. C. be appointed administrators of the 19 In re Dillers Application, 5 N. estates of citizens of the country P. 255; S. C, 6 Dec. 182. they represent, dying in this coun- 20 /n re Brennan, 5 X, P. 490; 5 try, wlien such consul is absent he Dec. 4fl9. mav designate one to act. In re 21 McMahan vs. Harrison, 6 X. Y. Steinger, 22 Dec. 88; 12 X^. P. 107. 443; S. C, 10 Barb. 659. Under a treaty with Sweden it 22 Elmer vs. Kechl*. 1 Redf. 472; has been held that the appointment Smith vs. ^Moore, 3 How. (^liss.) 40. of a foreign consul was still in the 23 //; re Cutting, 5 Dem. 456; Mc- discretion of the court. Pazano vs. Gregor vs. McGregor. 3 Abb. App. Cerri. 93 0. S. 345. Dec. 92. The same under treatv with Italy. 24 Plaisance's Estate, :Mvr. Prob. In re Costanso. 60 Bull". 413. (Cal.) 117. ' See also Cerri vs. Telephone, 219 25 O'Brien's Estate, 67 How. Pr. Fed. 285; 13 O. L. R. 425; In re 503. Toderello. 15 X'. P. 593; In re Balboa, 16 X". P. 9. 101 RESIDENCE OF ADMINISTRATOR § 116 But a poor man may be.^^ Nor a person having any interest adverse to the estate.^" ISTor a debtor to the estate.^^ Nor one hostile to one or more of the distributees.^^ Nor a surviving partner of the individual estate.^^ Illiteracy, as a general rule, is not a disqualification/* Neither will eccentricities of character,^® nor old age,^® unless they are such as make them evidently unsuitable.^^ § 116. Residence of administrator. It will be observed that no person who resides out of the State shall be appointed administrator. In all cases the ap- pointee must at least be a resident of the State. The Probate Court in Hamilton County has a rule, which, if it has received the sanction of the Supreme Court, ^^ and I presume it has, may be enforced, that a non-resident of the county will not be appointed either as executor or administrator or guardian.'** This rule, while a salutarj^ one, may work a hardship in some cases, and while it ought to be generally enforced, it would not be wise in all instances. In re estate of Ulhom it was held that the Probate Court is authorized to refuse to appoint a son of the deceased as admin- istrator of the estate on the ground that he is a non-resident of 29Levaii's Appeal, 112 Pa. St. 294. 35 McGregor vs. McGregor, 1 30 State vs. Keinliardt, 31 Mo. 95 Wright vs. Wright, 72 Ind. 149 Jones vs. Whiteliead, 6G Ga. 290 Keyes 133. 36 Matter of Berrien, 3 Dem. 263. ST See 1 Woerner on Admin. 524. Heron's Estate, 6 Phiia. 87. See § 1332, Gdns.; §222, Incorape- 31 Territory vs. Valdez, 1 X. Mex. tency. 533. Pr.; Succession of Chaler, 39 Under the Federal Keserve Act a La. Ann. 308. national bank may be permitted to 32 Bridgman vs. Bridgman, 30 W. act as administrator, etc. 63 Bull. Va. 212; Drew's Appeal, 56 X. H. 6. 319; Moody vs. Moody, 29 Ga. 519. See chapter 13a as to trust com- 33 Brown's Estate, 11 Phila. 127; panics. In re Garber's Estate, 74 Cal. 338; 38 § 1591 G. C. Hevvard vs. Slegel, 52 111. 336; Al- The court, however, refused to temus' Estate, 32 La. Ann. 364; follow it in the case of an e.xecutor Cornell vs. Gallagher, 16 Cal. 367. named in the will. In re Season- 34 Gregg vs. Welson, 24 Ind. 227; good, 27 0. C. C. 200; 23 O. C. C. Wilkey's Appeal, 108 Pa. 567; Em- (N.S.) 369. erson vs. Bower's 14 N. Y, 449. 39 Rule 14, Goebel Rep. See § 1502; Gdns. § 117 LETTEES OF ADMINISTRATION 102 the State, and instead grant letters of administration to a cred- itor of the estate not of kin of the deceased.*" § 117. Order of priority among those entitled. The order of priority established by statute is as follows: First, to the husband or widow of the deceased or next of kin ; second, to a creditor ; tbird, where the estate exceeds the value of one hundred dollars, any person the court may think fit. Tbe court must pursue tbe order prescribed by the statute if the persons preferred have the proper qualifications. It has no discretion to vary the order.*^ This, however, does not pre- vent the person so preferred from associating one not preferred with him, even over the protest of the next in degree entitled to the appointment.*^ And if an administrator has been ap- pointed the court can associate the person preferred with the appointee.*^ § 118. When entitled in the same degree. If there is but one person in the same class the Court will have no discretion, if such person is not incompetent or evi- dently unsuitable. But where there are a number of persons in the same class the Court may find considerable difficulty in selecting. In such cases the Court has an absolute discretion which will not be disturbed on appeal except for a very gross case of abuse.** In some States even where persons are in the same class the law provides where one of such class shall have preference over 40 12 C. C. 765; 4 C. D. 526, § 74, vs. Young, 5 Gill 197; In re Scan- , , . ... , .-. Ion's Estate, 2 Pa. Dist. Rep. /42; as to what constitutes residence. j,^^ ^.^ Kiester, 6 N. P. 216; 8 Dec. 41 Hayes vs. Hayes, 75 Ind. 395 ; q^Q. Pendleton vs. Pendleton, 6 Sni. & M. ''2 Shropshire vs. Withers. 5 J. J. 448; Muirhead vs. Mtiirhead, 6 Sm. ^^^^^^^lO; Quintard vs. Morgan, 4 ' Dem. Ib8. <& M. 451 ; Matter of Williams. 5 43 Read vs. Howe, 13 la. 50. Dem. 292 (approved 44 Hun 67); 44 Bowie vs. Bowie, 73 Md. 232; Cook vs. Carr, 19 Md. 1 ; Wickwire Wallis vs Cooper 123 Ind. 40; Sue- T^ 1 o/^« o -xu cession of Boudreaux, 42 La. Ann. vs. Chapman, 15 Barb. 302; Smith 296; State vs. Fowler, 108 Mo. 465. 103 WHEN IN SAME DEGREE § 118 the other. But in our State there is no such provision, and while resting in the absolute discretion of the Probate Judge, it will not be amiss to give some instances of the manner in which such discretion has been exercised.* In cases of conflict- ing claims, the applicant upon whom a majority of the parties in interest agree will generally be preferred.*^ But not, of course, unless the nominee belongs to the same class. Other things being precisely even, the scale may be inclined by the preference of an older over a younger person,*® or of a male over a female,*^ and an unmarried over a married woman ; *^ one ac- customed to business over one inexperienced.** It is said that the fact that an applicant had twice been a bankrupt militates against him to the preference of one who had not been bankrupt.^" And so does the fact that one being next of kin is also a creditor.^^ Nor will one be appointed who is in such hostility to the others as will disqualify him from fairly considering their claims^^" It has been the practice, whether fully justified in the law or not, where the members of a clasS' cannot agree on one of their class, or where there is exceeding great hostility between the members of one class and another class, where they may sus- tain the relation of parent, brother and sister, that the Court will appoint none of them, but will grant the administration to a disinterested person. Experience has demonstrated that this is a very salutary rule, and without qi\estion results in the best administration of the estate and for the welfare of all con- 46 Mandeville vs. Mandeville, 35 *» Williams ys. Wilkins, 2 Phillim. Ga. 243, 247; McBeth vs. Hunt, 2 loO; Atkinson vs. Hasty, 21 Neb. Strob. L. 335, 341; Cartwright in re 663, 667. (Eng.), 1 Freem. 258; Sawbridge so Bell vs. Timiswood, 2 Phillim. vs. Hill, L. R., 2 P. & D. 219; Mur- 22. dock vs. Hunt, 68 Ga. 164, 166. bi Wms. Ex. (427); Webb. vs. «Wms. Ex. (427); Warwick ts. Needham, 1 Add. 494; Owings Y8. Greville, 1 Phillim. 123, 125; Cop- Bates, 9 Gill 463, 466. pin vs. Dillon, 4 Hagg. 361. 376; 52 Drew's Appeal, 58 N. H. 319. Hill's Case, 55 N". J. Eq. 764. * This discretion will not be re- 47 In re Drowne, 1 Connolly 163, viewed, unless abused. McCallip vs. 169; Hill's Case, supra; Iredale vs. Sharp 13 Dec. 650. Ford 1 Sw & Tr 305; Chittenden A finding of the Probate Court vs Knightr2 Lee. 559; Wickwire vs. that the next of km - -d-t 7 un- s ' ' suitable, will not be disturbed unless Chapman, 15 Barb. 302. ^^^^ ^^^^^^.^ ^^.^^ ^^^^^^^ the discretion. 48 Administration of Curser, 89 N. Affirmed 09 0. S. 500. Y. 401, 404. ' § 119 LETTEES OF ADMINISTKATION 104 cerned. Whether or not when that condition exists they are evidently unsuitable within the statute I am not fully prepared to aver, but there are cases in which I think it may justly be held that when this condition of the affairs exist they are all evi- dently unsuitable. It is said that no notice is necessary to the other parties in the same class with the applicant, and the appointment may be made ex parte to any of those who are equally entitled.^^ § 119. Renunciation, waiver, etc. The right given by statute to administer may be renounced. But no appointment should be made over the right of a person entitled to an appointment without the record in some manner showing the fact that the right has been lost. The renuncia- tion may be spontaneous, in which case it should be in -writing and filed with the court, or it may be under citation of an inter- ested party. The renunciation may be absolute or conditional ; in any case it may be retracted before an appointment is made. If the renunciation is made on the condition that a certain per- son be appointed, and such person does not receive the appoint- ment, the renunciation is void.®* The right may be waived by neglect to appear and qualify for an unreasonable length of time. It may also be waived by contract expressly made, in which such right for a valuable con- sideration is surrendered. The safe way, however, is where B3 Woerner on Admin. 531. Notice void, Rinehart vs. Rinehart, 27 N. ought to be given, however. J. Eq. 475. B4 Compensation cannot be col- So a widow, renouncing in favor of lected for introducing a person to a particular person, is not bound by another for the purpose of having the renunciation if this person is the person introduced appointed ad- not appointed. See § 92 McClellan's ministrator. Swiggett vs. White, 8 Appeal. 16 Pa. St. 110. 116. Bull. 22. And a widow renouncing her right All the next of kin having re- as administratrix is, nevertheless, nounced in favor of the eldest among on the discovery of a will, entitled them, if he could find security, the to letters cum testamento annexo. if appointment of his nominee, on his the executors do not qualify. Bro- failing to obtain security, was held die vs. Mitchell, 85 Md. 516. See § 115. 105 HUSBAND OK WIDOW § 120 the person entitled has not appeared and qualified, to cite him to appear in court for that purpose. An agreement to secure an appointment as administrator of one not entitled thereto by law and furnish him with bond is void.''' § 120. Husband and widow. The surviving husband or vdfe is entitled if not evidently unsuitable or incompetent to letters of administration. This right exists only where there is an actual marriage relation.'" A marriage absolutely void from the beginning confers no right." But if the marriage was only voidable and not avoided before the death of the consort the right exists.'* The abandonment by the one of the other does not destroy the right.'** The fact that they lived apart for several years before death occurred will not destroy the right,**" even though the surviving party agree to make no claim on the deceased's estate.®^ It is a disputed matter whether such a right can be surren- dered by an ante-nuptial agreement.®^ But if the contract is clear that it was the intention to relinquish this right it will be valid.^^ It is also held that the adultery of the consort might destroy the right ®^ 55 Clifford vs. Brown, 15 Bull. 386 See Woerner on Admin. 529, et seq See § 1094, Probate of Will. 56 O'Gara vs. Isenlohr, 38 N. Y 296; See Smith vs. Smith, 1 Tex 621; S. C, 46 Am. Dec. 121. 57 Bowning vs. Reave, 2 Phillim 69. 58 Elliott vs. Gurr, 2 Phillim. 16 White vs. Lowe, 1 Redf. 376 ; Park 60 /n re Ross' Estate, 11 Pa. Co. Ct. Rep. 601 ; S. C, 1 Pa. Dist. Rep. 744. 61 Garretson vs. Garretson, 4 Ohio C. C. 336; S. C. Geobel, 187; 21 Bull. 54. Case discussed. 62 Fowler vs. Kell, 14 Sm. & M. 68; Ward vs. Thompson, 6 Gill. & J. 349; Bray vs. Dudgeon, 6 Mnf. 132; Maurer vs. Naill, 5 Md. 324; er's Appeal, 44 Pa. St. 309; Smith Grovane vs. Grovane, 1 Har. & M. vs. Smith, 1 Tex. 621. 346. See § 327. 59 Coover's Appeal, 52 Pa. St. 63 19 Am. & Eng. Ency. of Law, 427; Nusz vs. Grove, 27 Md. 391; 192. Altemus' Case, 1 Ashm. 49. «* See 21 Bull. 54. §121 LETTERS OF ADMINISTRATION 106 § 121. The next of kin. If there be no surviving husband or wife, or if such husband or wife renounce the trust, then the right is conferred on the next of kin. Who are such next of kin is given in Williams on " Executors," and it is said the rule there made is substan- tially followed in most of the American States. The rule given by him is as follows : " In the first place the children ; and on the failure of children the parents of the deceased are entitled to the administration ; then followed by brothers and sisters ; then grandfathers and grandmothers ; then nieces and nephews ; great-grandfathers and great-grandmothers; and lastly cou- sins." «" If the husband is entitled to his wife's property, and if the next of kin be a married woman and she renounces, the grant is made to the husband, for he is interested, and the grant must follow the interest and the wife cannot by renouncing deprive her husband of his right."^*^ It has been held that in detennining who are the next of kin, adopted children must be considered. ^^ The court is not bound to appoint two because they have equal claims.®* § 122. The creditor. The next in order to which the statute gives the right of ap- pointment is the creditor. A person applying under this head should have a prima facie claim against the estate of the deceased. If two creditors have equal claims, the first applying should be appointed even if the claims are doubtful, if the applicant is a person of good charac- ter he ought to be appointed. The creditor of an alleged distributee has no right as such to apply for letters of administration upon the estate of the an- cestor, nor to intervene in such a proceeding.®' 65 Wms. on Ex. 425. 67 Estate of McCully, 13 Phila. The words '^next of kin," as used 296. in § 10617 G. C, mean those rela- es Succession of Gains. 7 So. Rep. tives who, at the time of appoint- 788. See § 913. Descent, etc. ; §1199, ment, would inherit in case of in- Construction of Wills. testacy. Hence, children and other 69 [n re Pitchlvnn's Estate. 19 relatives of such persons, in esse, Wash. T^aw Rep 563 of "°,^ |"c^"^^«^^- -^icCallip vs. A cashier of a cor.ooration mav be Sharp 13 Dec. 6o0 appointed, where the eorfwration is 66 VVoerner on Admin. 522. ^ creditor. McCallip vs. Sharp, 13 Dee. 650. 107 court's choice § 123 A tender bj the heirs to the creditor of the amount of his claim deprives the creditor of his statutory right to be appointed administrator. '" A cause of action which does not survive the debtor does not support his claim to administer the estate/^ The practice in Probate Court generally is that where the next of kin and the husband or wife declines, the person recom- mended by them to be appointed, receives the appointment. The right of such appointee is perhaps under the statute not superior to that of tlie creditor, but unless the creditor is in danger of losing his claim by insolvency of the estate the rea- sons for appointing such recommended person are very strong, for he has the confidence of those who are most familiar with the estate and presumably are most interested in its welfare, and is more likely to receive their aid in securing a good administration, etc. §123. To such person as the court may see fit. Further provision is that if there be no creditor competent to undertake the trust it should be given to such person as the court may think fit, but the appointment in such case is limited to the fact that it must be sho\vn that the estate exceeds the value of one hundred dollars ; ^" and in such case it is important, for it goes to the jurisdiction of the court that it be shown af- firmatively in the application and that the court make a finding that the estate exceeds one hundred dollars in value ; for without such finding the appointment is void as being beyond the jurisdiction of the court. § 124. Must give bond, etc. The court having determined that tlie party is dead upon whose estate an administrator is desired, and that the deceased left an estate and that a certain person is entitled to be ap- 70 Culley vs. Mohlenbrock, 36 111. Other things being equal, the court App. 84. will appoint as administrator the 71 Woerner on Admin. 522. one desired by the beneficiaries. 72 As to amount and kind of as- Sargent vs. Corbley, 7 C. C. (N.S) sets, generally to entitle administra- 226; 28 0. C. C. 125. tion, see § 75, chapt. on Letters Testamentary. § 125 LETTERS OF ADMINISTRisTION 108 pointed, the next matter in order will be the giving of a proper bond. This bond must be signed by two securities, who must be inhabitants of the State and should be residents of the county and freeholders ; and the practice is to make the penalty in dou- ble the amount of the supposed assets. The statute relative to giving bonds is as follows: "Before entering on the execution of his trust, every admin- istrator shall give bond with two or more sufficient sureties, in such sum as the court orders, payable to the state, with conditions as follows : "1. To make and return into court on oath, within thirty days, a true inventory of all moneys, goods, chattels, rights and credits of the deceased, w^hich have or may come to his possession, or knowledge, and, if required by the court, an. inventory of the decedent's real estate; "2. To administer according to law all the moneys, goods, chattels, rights and credits of the deceased, and the proceeds of all his real estate sold for payment of his debts, which come to the possession of the administrator or to the possession of any person for him ; "3. Upon oath to render a true account of his adminis- tration, within twelve months, and at other times when re- quired by the court or the law. Failing so to do for thirty days after he has been notified by the probate judge of the expiration of the time, he may forthwith be removed by the court and he shall receive no allowance for services, unless the court enters upon its journal that such delay was necessary and reasonable. "4. To pay any balance remaining in his hands, upon the settlement of his accounts, to such persons as the court or the law directs ; "5. To deliver the letters of administration into court in case a will of the deceased be thereafter duly proved and allowed." [R. S. 6006; vol. 102 v. 200.] " § 125. Form of administrator's bond. (Revised Statutes, § 6006.) Know all Men by these Presents, That we. and 73 § 10618 G. C. See § 1333 paid the money and it was used to Gdns. ; see § 233 on Bonds. pay funeral expenses, unpaid board, Tlie bond can not be extended be- and suit was brought against the yond its plain term. Murphy vs. company a motion to arrest from Dorsey, 3 C. C. (X.S.) 119; 23 the jurv was sustained. Insurance O. C.'C. 157. Co. vs."Burbank. 3 App. 302. 19 0. Where an industrial insurance C. C. (N.S.) 557, 26 O. C. C. 280. 109 GRANTING LETTERS § 126 are held and firmly bound unto the State of Ohio, in the penal sum of Dollars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors and ad- ministrators if default be made in the condition following: Whereas, Letters of Administration upon the estate of deceased, were granted to the said by the Probate Court of County, in the State of Ohio, on the day of A. D. 190 ... ; Now if the said as Administrat. . . .of the estate of said deceased shall : First, Make and return into Court, on oath; within thirty days; a true inventory of all Moneys, Goods, Chattels, Rights and Credits of the de- ceased, which have or shall come to . . h . . . . possession or knowledge ; and, also, if required by the Court, an inventory of the real estate of the deceased. Second, Administer according to law, all the Moneys, Goods, Chattels, Rights and Credits of the deceased, and the proceeds of all h. . . . real estate that may be sold for the payment of h . . . . debts, which shall at any time come to the possession of the administrat. . . ., or to the possession of any other person for . . h Third, Render, upon oath, a true account of . . h . . . . administration within twelve months, and at any other times when required by the Court or the law, and failing so to do for thirty days after ..he., shall have been notified of the expiration of the time by the Probate Judge, . . he ..shall receive no allowance for services, unless the Court shall enter upon its journal that such delay was necessary and reasonable. Fourth, Pay any balance remaining in . .h. . hands upon the settlement of . .h. . accounts, to such personr as the Court or the law shall direct; and, Fifth, Deliver the letters of administration into Court, in case any will of the deceased shall be thereafter duly proved and allowed; Then this obligation to be void; otherwise to remain in full force and virtue in law. Signed by us, and dated at Ohio, this day of 190 EXECUTED IN PRESENCE OF This bond approved in open Court, this day of 190. . . Probate Judge. § 126. Granting letters. The entry granting letters of administration ought to show that all the jurisdictional facts have heen affirmatively passed upon by the Court. For the form of a proper entry '* the one 74 § 89, Executors, etc. the blanks may be filled. Sonrada One who signs in blank the printed vs. David, 15 N. P. 257. form, consents by implication that § 127 LETTEKS OF AD^S^^ISTRATION 110 under the chapter on letters of administration can be easily adopted." § 127. Form of administrator's letters. The State of Ohio, County, ss. To All who shall see these Presents, Greeting: Be it known, That by the Court of Probate, of said County, Administra- tion of all and singular the Goods, Chattels, Rights, Credits and Estate, which were of late of said County, deceased^ has been granted unto whose duty it shall be to have all and singular the said Goods, Chattels, Rights and Credits appraised by and to return upon oath, within thirty days, a true inventory thereof, also of the moneys belonging to the said decedent at the time of h . . . . death ; to administer, according to law, all the said Moneys, Goods, Chattels, Rights and Credits, ( and also the proceeds of the Real Estate of said decedent, which may be sold for the payment of h. . . .debts), which shall at any time come into the possession of said Administrat. . . .or of any person for ; to render upon oath a true account of administration, (within twelve months, and at any other times when required by the Probate Court or the law, and failing so to do for thirty days after shall have been notified of the expiration of the time by the Probate Judge, shall receive no allowance for services unless the Court shall enter upon its journal that such delay was necessary and reasonable; and to pay any balance remaining in hands upon settlement accounts, to such persons as the Court or the law shall direct). Witness my hand and the Seal of said Court, at Ohio, this day of A. D. 190. . . Probate Judge. By Deputy Clerk. The State of Ohio, County, ss 1, Sole Judge and Ex-Officio Clerk of the Probate Court within and for the said County, certify that the foregoing is a true copy of the original Letters of Administration, granted in the premises by said Court, and remaining on file in my ofEce. Witness my hand and the seal of said Court, at this day of A. D. 190.... Probate Judge and Ex-Officio Clerk of the Probate Court 75 As to the manner of setting legally made can not be attacked aside an illegal appointment. See collaterally. Carr vs. Hull, 65 O. chapter on resignation and removal. S. 394. An appointment, although il« Ill DEFINITION §128 CHAPTER VIII. SPECIAL ADMINISTRATION. 128 Definition. 129 When to be appointed. 130 Delay warranting appoint- ment. 131 Application, jurisdiction, etc. 132 Who may be appointed. 133 Must give bond. 134 Form of Special Administra- tor's bond. 135 Form of entry appointing spe- cial administrator. 136 Form of special administra- tor's letters. 137 Powers, duties and compensa- tion of special administrator. 138 Power to collect, suit, etc. 139 Power to sell. 140 Power to pay debts, fees, etc. § 141 When the powers cease. § 142 How special administrator may be proceeded against by the executor, etc. § 143 Application for citation, etc. § 144 Form of application. § 145 Form of entry ordering cita- tion. § 146 Form of citation. § 147 Journal entry ordering writ of attachment. § 148 Form of writ of attachment. § 149 Entry committing to jail. § 150 Special administrator not lia- ble to creditors — limitation of action against executor, etc. § 128. Definition. A temporary or special administrator is an officer appointed by the Probate Court to take charge of a decedent's estate until a final appointment can be made. This kind of administration it is said, seldom occurs, the Probate Courts preferring, for the convenience and security of all concerned, to have the adminis- tration of the settlement of estates as simple as practicable.^ It is said that they are limited in their powers, usually to the collection and preservation of the property of a decedent, until a proper administrator is appointed, and that it is not necessary for them to file an inventory.^ 13 Redf. on Wills 113; Sch. Ex. § 135; Wms. on Ex. 513; Woerner on Admin. 406. 2Tomlinson vs. Wright, 12 Ind. App. 292. § 129 SPECIAL ADMINISTRATION 112- But our law contemplates that there be an inventory, for it is provided that it shall be a condition of the bond that an inventory be returned within thirty days, etc.^ § 129. When to be appointed. ''When, by reason of a suit concerning the proof of a will, or from other cause, there is delay in granting letters testamentary or of administration, the court may appoint a special administrator to collect and preserve the effects of the deceased." [R. S. § 6007.]* It will be noticed that two things exist by virtue of this stat- ute before such an administrator can be appointed. First, that there is a suit concerning the proof of the will ; second, if from any other cause there shall be a delay in granting letters. As to what is meant to be included within the phrase of any other cause, the statute gives no directions. In some of the States it has been provided what should constitute at least some . of the other causes for the appointment of a special adminis- trator. In iSTew York it is provided that if a person is sup- posed to be dead and his abode cannot be ascertained, and there are circumstances which afford reasonable grounds to believe either that he is dead, or becomes a lunatic, or that he has been secreted, confined or otherwise unlawfully made away with, a temporary administrator may be appointed.^ And in Indiana it is provided that where anyone is intermed- dling with the estate, or that there is no one having authority to take care of the same, a special administrator may be ap- pointed.* Special letters may be granted if a mil is lost.' § 130. Delay warranting appointment. It is not every delay that will warrant the appointment of a special administrator. It is not to be taken as warranting the exercise of the power unless the condition of the estate may be 3 § 10620 G. C; § 133; §310, Pros- When for any cause there is a ecution ao:ainst, etc. dalay in granting letters, a special 4 § 10610 G. C. administrator may be appointed, to 5 § 2670 Civil Code. collect and preserve the assets of 6 § 2301 R. S. 1804. the estate. McBride vs. Vance, 73 7 Goods of Campbell, 2 Hazz. 555; 0. S. 298. Goods of Metcalf, 1 Add. Ec. Rep. 343. 113 APPLICATION, ETC. § 131 such that possible harm or inconvenience could result from such delay to the party interested. But where there are no such conditions, or the estate is not of such character that necessary delay in having some person authorized to take charge of the estate will necessarily or probably cause the loss of the estate, or likely to impair the rights or remedies of persons interested therein, a case is not made out for the appointment of a tem- porary administrator.^ Customarily, where a contest occasions a delay in the issuance of letters, a temporary administrator will be appointed for the purpose of getting in assets and con- serving the estate. It has been held to be a clear case for the granting of such letters when there are outstanding numerous promissory notes, unsecured, to realize on which diligence in prosecuting the same would be required.^'* A special administrator may be appointed for the sole pur- pose of prosecuting or defending a particular suit instituted by or against a person who may die while it is pending. ^^ So an administrator may be appointed for the sole purpose of instituting and carrying on a particular suit if there be a pres- ent necessity for it.^^ § 131. Application, jurisdiction, etc. The application may be made by any person interested, and it must be made in the same court in which it would be proper for an administrator to be appointed.^^ It must be sworn to and be in writing, and should give the probable value of the assets, the time of death and residence of the deceased and such other facts as will warrant the court in making the appointment. It may be very much doubted whether the applicant will be re- 8 Matter of Eddy (N. Y.) 10 Misc. 12 Goods of the Elector of Hesse, 211. 1 Hagg. 93; Woolley vs. Green, 3 10 Matter of Eddy, 10 Misc. 211; Phillim. 314; Ex parte Lyon, 60 Matthews vs. Am. Cent. Ins. Co., 154 Ala. 650; Mcxirthur vs. Scott, 113 N. Y. 449. U. S. 340. 11 Wade vs. Bridges, 24 Ark. 569; i3 § ni, when application made Lothrop's Case, 33 N. J. Eq. 248; for Admin.; § 72, when application Wolflfe vs. Eberlein, 74 Ala. 99. made for Exec. § 132 SPECLAX ADMINISTBATION 114 quired to set out the names and addresses, and ages, if minors, of the heirs at law, yet no harm could be done if this was fol- lowed. Therefore the form given for the appointment of an ad- ministrator or executor might be used in making the application for a special administration ; and in addition to the facts there- in set forth it should be alleged that there was a contest pending for the proof of the will, or some other fact, which would show the necessity of the appointment of an administrator to serve imtil a regular administrator could be appointed. § 132. Who may be appointed. It will be observed that the granting of a special administra- tion and the selection of a person to be appointed is given by the statute to the discretion of a judge; and it has been held that it is an absolute discretion.^* As to the manner in which this discretion should be exer- cised it has been said : " It is important that a person in- trusted with temporary administration should be not only com- petent and honest, but disinterested ; and if he had to be either a relative or a creditor of the deceased it might often be very difficult to select a temporary administrator who should be in- different as between the parties to a contest among applicants for permanent administration or a contest over the probate of a will." '^ In one case the Court, declined to appoint a party to the liti- gation." Also if the person be named as executor in the will and as the chief beneficiary thereunder, or if he has any hostile interest to the heirs or next of kin, he should not be appointed. ^^ So where the person named as executor in the will is charged by the contestants with having exercised undue influence upon the deceased he will be rejected as temporary administrator.^* 14 Greece vs. Helm, 91 Mich. 450. it Howard vs. Dougherty, 3 Redf. 15 Judge Bartlett. In matter of 535. Plath, 56 Hun 223. ^^ Cornwell vs. Cornwell, 1 Dem. 16 Crandell vs. Shaw, 2 Redf. (N. 1 ; In re Wanninger's Estate, 3 N. Y. Y.) 100. Supp. 137. 115 BOND, ETC. § 133 § 133. Must give bond. ' ' Before entering upon the duties of his trust, every sucli administrator must give bond, with two or more sufficient sureties, in sueli sum as the court orders, pay- able to the state, with condition that he will make and return into court, within three months, a true inventory of the moneys, goods, chattels, rights, and credits of the deceased, which have or may come to his possession or knowledge, and that he will truly account, on oath, for the moneys, goods, chattels, debts, and effects of the deceased, received by him as such special administrator, whenever required by the court, and deliver them to the person appointed executor or administrator of the deceased, or to such person as is lawfully authorized to receive them." [R. S. §6008.]i« It will be observed that as to surety, penalty, etc., the same law applies to the bond of a special administrator as to a gen- eral administrator. "° § 134. Form of special administrator's bond. Know all Men by these Presents, That we and are held and firmly bound unto the State of Ohio in the penal sum of Dollars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors and administrators if default be made in the condition following: Whereas, Letters of Special Administration upon the estate of , deceased, were granted to the said by the Probate Court of County, in the State of Ohio, on the day of A. D. 190 ... ; Now if the said as Special Administrat of the estate of said deceased, shall: First, Make and return into Court, on oath; within three months, a true inventory of all Moneys, Goods, Chattels, Rights and Credits of the deceased, which have or shall come to. .h. .possession or knowledge; and, also, if required by the Court, an inventory of the real estate of the deceased. Second, That.. h.. will render a true account under oath of all the Moneys, Goods, Chattels, Debts and Effects of the deceased that shall be received by ..h.. as such Special Administrator Avhenever required by the Court; and will deliver the same to the person who shall be appointed executor or administrator of the deceased, or to such other person as shall be lawfully authorized to receive the same. 19 § 10620 G. C. 20 § 233 et seq. on bonds. § 135 SPECIAL ADMINISTRATION 116 Then this obligation to be void; otherwise to remain in full force and virtue in law. Signed by us, and dated at , Ohio, this day of 190.. .. EXECUTED IN THE PRESENCE OF This bond approved in open Court, this day of 190. . . Probate Judge. § 135. Form of entry appointing special administrator. This day this cause came on to be heard upon the application of A. B. filed herein for a special administrator upon the estate of C. D. ; and the same was submitted to the Court, whereupon the Court finds the allegations of said application are true; and it further appearing to the Court, that said A. B. has filed his bond herein in the sum of Dollars, with and sureties thereon. The said bond is hereby proved, and it is ordered that letters of Special Administration be granted to said A. B. as in such cases made, and provided by statute ; and , and , are appointed appraisers of said estate. § 136. Form of special administrator's letters. The State of Ohio, County, ss. To All who shall see these Presents, Greeting: Be it known, That by the Court of Probate, of said County, Adminis- tration of all and singular the Goods, Chattels, Rights, Credits and Estate, which were of , late of said County, deceased, has been granted unto whose duty it shall be to have all and singular the said Goods, Chattels, Rights and Credits appraised by and to return upon oath, within three months, a true inventory thereof, also of the moneys belonging to the said decedent at the time of h . . death ; to administer, according to law, all the said Moneys, Goods, Chattels, Rights and Credits, which shall at any time come into the possession of said Administrat. , . .or of any person for ; to render upon oath a true accoimt of administration, at such time as the Court direct, and deliver all the Goods, Chattels, Debts and Effects of the deceased, received by him to the person who shall be appointed executor (or administrator of said estate), whenever required. Witness my hand and the Seal of said Court, at Ohio, this dav of A. D. 190. . . Probate Judge. By Deputy Clerk. 117 POWERS, ETC. § 137 § 137. Powers, duties and compensation of special adminis- trator. "Such special administrator must collect the goods, chattels, and debts of the deceased, and preserve them for the executor or administrator who thereafter is appointed. For that purpose he may begin and maintain suits as admin- istrator, and also sell such perishable and other goods as the court orders sold. He shall be allowed such compensation for his services as the court thinks reasonable, if he forthwith delivers over to the executor or administrator who supersedes him, the propertv and effects of the estate, as hereinafter pro- vided." [R. S. §6009.]-! § 138. Power to collect, suit, etc. It is one of the principal duties of a special administrator to preserve the estate, and to accomplish this he has the same power as a general administrator. He may employ persons to as- sist him in taking care of it, gathering crops, feeding stock, etc., the same as a general administrator. Likewise he has power to bring suit to collect outstanding debts due the estate. In this respect he occupies the same relation as that known in law as an administrator 'pendente lite. The power of a special administrator is limited by the statute. But whatever he may lawfully do, it is binding upon the estate. ^^ This power to collect is undisputable, and it necessarily im- plies the further power to do whatever is requisite in order to perfect the chose in action so that collection can be enforced. ^^ The power to do any act includes the power to do all that is reasonable to do it effectively.^* The general power to collect being conferred on the special administrator, I have no doubt that by permission of court he may compound, compromise or sell desperate claims in like manner as a general administrator could. 21 § 10G21 G. C. 24 Id. by Vann, J., at page 460; 22Woerner on Admin. 401. See § Hall vs. Lauderdale, 46 N. Y. 70, 440, Collection of assets. 73; Parker vs. Supervisors, 106 N. 23 Matthews vs. American Cent. Y. 392. Ins. Co., 154 N. Y. 449, 460. § 139 SPECIAL ADMINISTRATIOISr 118 § 139. Power to sell A special administrator has no power to sell any property except by order of court. The power given a general adminis- trator to sell personal property at public sale without an order of court does not exist in a special administrator. The statute does not seem to confer any power whatever upon a special ad- ministrator to sell real estate ; and I very much doubt if he has any control whatever over real estate. Possibly if he were ap- pointed to take charge during the contest on proof of a will he might take control of property devised in the will, other than that which is specifically devised, and perform such acts in its preservation as is provided under sec. 10633 G. C.-'^ If per- sonal property is sold an application should be made to the court as is provided for the private sale of personal property. § 140. Power to pay debts, fees, etc. Our statute is silent upon the power of a temporary adminis- trator to pay debtSj and if he has no power to pay debts he could not sell real estate for that purpose. Indeed it is very questionable whether under our statute a special administrator has any authority whatever over real estate. It is said that in the absence of statutory authority he has no power other than may be necessar}^ to collect the effects ; not even to invest or dis- tribute them, nor to pay legacies or debts, but if they were to be paid bona fide they will be allowed."*' It seems that the only power he has to pay out moneys of the estate is for his o'i'l an accounting of the trust. proceedings in error commenced, tlie Railway vs. White, 87 0. S. 413. court will not appoint a receiver. 135 DEFINITION^ ETC. §165 CHAPTER XL ANCILLARY ADMINISTRATION. 165 Definition, etc. § 174 166 Not favored ana limited to necessity of appointment. § 175 167 Difference between ancillary and principal administration. § 176 168 When appointment may be § 177 generally made. § 178 169 Powers of executor and ad- ministrator under will made § 179 out of this State. 170 Administration and proceed- § 180 ing when decedent was not a § 181 resident of the State, but en- § 182 gaged in business therein, etc. § 183 171 Where appointment shall be § 184 made. 172 To whom and in what time § 185 granted. 173 Application, etc. for administra- Application tion. Form of application for ad ministration under section. Notice — proof, etc., required. Entry, etc. Form of entry ordering ad- ministration. Form of application for let- ters of administration. Form of administrator's bond. Form of entry. Form of administrator's let- ters. Powers, duties, etc. Payment of debts and dis- tribution. Several administration for one estate, situate in different States.i § 165. Definition, etc. The words " ancillary administration " have been thus de>- fined : " A local and subordinate administration of such part of the assets of a decedent as are found within a State other than that of his domicile, and which the law of the State where thej are found requires to be collected under its authority in order that they may be applied first to satisfy the claims of its own citizens, instead of requiring the latter to resort to the jurisdiction of principal administration to obtain payment; the surplus, after satisfying such claims, to be remitted ta thb place of principal administration." ^ 1 See § 749. Ancillary account- ing. 2 Century Dictionary. There may be instances where the tax commission might proceed to have an ancillary administration to collect the inheritance tax, al- though this can generally be done, by application to have the value fixed by the Probate Court. Where it appears in the order of the court appointing an administrator that the deceased was a resident of an- other state, the administration in Ohio must be ancillary to that of the other state of which he was a resident. Miswald vs. Marks, 19 C. C. 605, 10 C. D. 355. § 166 ANCILLARY ADMINISTRATION 136 This definition is an excellent one and emphasizes the fact that ancillary administration is a secondary or subordinate one. The statutory provisions consequently providing for the grant- ing of ancillary letters testamentary or of administration with the veil! annexed or of administration upon a foreign grant of administration, are conditioned, first, by a regard for the rights of creditors resident in the State and their protection, and sec- ond, by principles of comity under which the Ohio law recog- nizes the status of a foreign executor or administrator in his own State or country, whose right to distribute the estate after the payment of debts and administration expenses in this State is safeguarded.^ § 166. Not favored and limited to necessity of appointment. It was a well-settled rule of common law, that executors and administrators could not sue or be sued except in the country from which they derived their appointment. Therefore if a creditor wished to bring suit, to reach the estate he must first have a representative appointed by the local court. But our statute, having piovided that executors and administrators may both sue and be sued if within the jurisdiction of our State in the same manner as local administrators or executors ; the neces- sity for an ancillary administration does not exist to the same extent that it formerly did. It is the general policy of the law to have the administration of tlie estate as simple as possible. Therefore ancillary administration is not favorexi, and such an administrator will only be appointed when it is actually neces- sary to protect the interest of a resident of this State. And that no ancillary administrator will be appointed until all reme- dies against the foreign administrator have been exhausted ; and that if the resident creditor has had ample opportunity to pres- ent his claim to the foreign administrator, and if rejected to have brought suit against him within the jurisdiction of the court in which an ancillary administration is asked for, and has 3 Jessup's Sur. Prac. 650. See § 1318. Ancillary guardians; See interesting art in 21 Cent. § 749, Ancillary accounting. Law J. 186. i 137 DIFFERENCE^ ETC. § 167 failed to so act, the court might refuse to make such an ap- pointment.* The administration of an ancillary administrator is limited to the purpose for which appointment has been made ; and if he goes beyond his powers he will be responsible even if done by the sanction of the court.^ § 167. Difference between ancillary and principal administration. The difference between an ancillary and principal adminis- tration is material and important when there are several admin- istrations. When the deceased dies in another State or country, custody, management and distribution is proper in that State, and are exclusively under the control of the administrator there appointed.® The administration granted in the country of the decedent's residence is principal administration, the other is ancillary. The ancillary administrator is auxiliary to the original foreign administrator, and subordinate to him so far as the collection of the assets and proper distribution of them, and is confined to the collection of the assets and the payment of the debts due the citizens of the State, leaving any balances that may remain to be remitted to the State of the decedent's domicile, and there be disposed of in accordance with the laws of such State.^ It is the object of the ancillai-y administrator to administer the assets found within the State and remit the proceeds to the parent administration. But if there are many creditors, the courts having control of such ancillary administration will not allow the estate to be remitted to the foreign State until such creditors are first paid. If the general estate is solvent they are paid in full, but if not, they are paid 'pro rata, taking all the estate and all liabilities in account to ascertain such pro rata payments.* *ln re McCreight, 6 N. P. 481. 7 Swearingen vs. Morris, 14 O. S. B Swearingen vs. Morris, 14 O. S. 430. 428. 8 Williams vs. Welton, 28 0. S. 8 Wms. on Ex. 291; 3 Redf. on 451. Wills 28. § 168 ANCILLARY ADMINISTRATION 138 So far as it may be necessary to protect the resident creditor, the assets belonging to the decedent in this State must be con- verted into money and such debts paid ; and if it be necessary such an administrator might file a petition to sell real estate of a decedent in this State. § 168, When appointment may be generally made. There seem to be three statutes, to-wit, § 10604,^ § 10625 ^o and § 10540/^ which provide for the appointment of what may be termed an ancillary administrator. Under § 10604, G. C, which is the section which provides for the appointment of an original executor or administrator, it also provides "that when any person shall die intestate in any other State or country, leaving an estate to be administered within this State, the administration thereon shall be granted by the Probate Court in any county in the State in which there is any estate to be administered ; and the administration which shall first be lawfully granted shall extend to all the estate of the deceased within the State and shall exclude the jurisdiction of the Probate Court of every other county." The above part of § 10604 provides for the appointment where a non-resident should die intestate. If the non-resident should die testate the appointment would be made under the following section. § 169. Powers of executor or administrator under will made out of this State. "After allowing and admitting to record a will, pursuant to either of the next four preceding sections, the court may grant letters testamentary thereon, or letters of ad- ministration with the will annexed, and must proceed in the settlement of the estate found in this state. The executor tak- ing out letters, or the administrator with the will annexed, shall have the same power to sell and convey the real or personal estate, by virtue of the will or the law. as other executors or administrators with the will annexed." [R. S. §5941.] ^2 « § 72. 11 $ 169. 10 § 170. 12 § 10540 G. C. 139 WHEN NON-RESIDENT § 170 It would seem that the provisions of sections 10604 and 10540 G. C, were broad enough to enable the court to appoint an ancillary administrator in every case where one was needed. But for some reason, which has never been very clear, the fol- lowing was also enacted into our statute law. § 170. Administration and proceeding when decedent was not a resident of the State but engaged in business therein, etc. "When a person dies, whether testate or intestate, not being at the time of death a resident of this state, but having been en- gaged in business herein, as partner or otherwise, and leaving in this state property belonging in whole or in part to his estate, the probate court of the county in which such business was prosecuted, or of an.y county in which the property is situated, or where a debtor of such decedent resides, upon the applica- tion of a creditor of his, whose claim is founded on a contract made or a right of action which accrued in this state, shall grant to such creditor or other person, administration of all and singu- lar the assets of such decedent in this state. The proceeds of such assets shall be applied to the payment of the debts proved against such estate before the administrator. The surplus, if any, must be paid into the court granting administration for the benefit of the estate of the decedent, in the state where he resided at the time of his death." [R. S. § 6013.] ^^ § 171. Where appointment shall be made. By the general provisions mentioned in § 10604 G. C, the Court may grant an administration in any county in which there are assets to be administered. This right seems to be enlarged under § 10625 G. C, so that the application may be made either in the county in which his business has been prosecuted or the county in which the property is situated, or in the county where the debtor may reside. It will be observed further that a considerable number of conditions must exist in order to enable the application to be made under § 10625 G. C. that are not 13 § 10625 G. C. § 172 ANCILLARY ADMINISTRATION 140 required if made under § 10604. The only thing that is required ander § 10604 is that there is an estate in the county, and that the party has died intestate in another country. While under § 10625, if the decedent, whether he died testate or intestate, was a non-resident of the State, and engaged in business here, whether it was partnership or not, leaving an estate in this State, the administrator may be appointed. But it is further provided that the creditor in making such an application must have a claim which is founded on a contract made, or right of action, which accrued within this State before the grant could be made. In that it provides that an administrator may be appointed for a testate in the county other than that in which there are assets § 10625 is broader than § 10604. But in requiring that it can only be made by a creditor who has a claim founded on a contract made, or right of action accrued, in this State, § 6013 is narrower than § 10604. Even if the person would have died testate an application might have been made under the general provision, for if no will would have been produced the court might have made an appointment.^* If an appointment is sought under a foreign %\-ill as a matter of course the appointment would be made in the county in which the foreign will had been admitted to probate, as provided in § 10540 G. C. § 172. To whom and in what time granted. There is no statutory limit within which the application for an appointment of an ancillary administrator must be made. I have no doubt the rule applicable to the appointment of admin- istrators and executors generally would be applicable, and it has been held that it might be granted at any time, at least within twenty years after the decedent's death.^^ ISTeither is there any provision as to whom letters should be 14 Bustard vs. Dabney, 4 0. 68. isMcKee vs. Simpson. 36 Fed. R. 248. J 141 APrLICATION, ETC. § I'i^S granted, except in § 10625 G. C, where it is said that it may be granted to the creditor making the application, or some other person. I am inclined to believe that in the appointment of an ancillary administrator or administration of a non-resident deceased person, the Court may use its discretion and appoint whoever will administer the estate for the best interest of all concerned. Generally it might be said that this should be the creditor, but unless the estate is insolvent a creditor's right would not b© superior to that of any other suitable person ; and there might exist many substantial reasons why the creditor should not receive the appointment. § 173. Application, etc. If the application be made under § 10G04 G. C, the allega- tions required will be that the decedent died intestate, residing in a State other than our own, and that there is an estate to be administered in the county in which the application is made. In addition there must be shown that there is some reason for the administration. The mere fact that the non-resident dies intestate, owning property in this State, will not alone warrant an appointment. But if it is shown that there is personal property in this State, or outstanding debts, or credits of the decedent, it would be proper to make an appointment. But if there was only real estate and no debts or credits, no appoint- ment should be made. If the application is tiled under § 10625 G. C, it ought to state that the person died, and at the time of his death he was not a resident of this State, but he was engaged in business here; and that he had property in the county within which the application was made ; or that a person owing the decedent resided in such county ; and further it must be alleged that the claim of the creditor making the application is founded on a right of action which accrued within this State. It seems the practice has been that when making the appoint- ment for an ancillary administrator that the court must first pass upon the question whether or not an appointment will be made. This practice should undoubtedly be followed if the applica- § 174 ANCILLARY ADMINISTRATION 142 tion is made under the provisions of § 10625, G. C. It might not be unwise to follow it if the application is made under § 10604, G. C. But if the application be made under § 10540, G. C, it should be made as an original application is made for the appointment of an executor or administrator with the ^^•ill an- nexed. The admitting to record of a foreign will would make out a case justifying an administration; and the allegation of such admission to record in the application would be sufficient. § 174. Application for administration. (Under § 6013 Revised Statutes.) To the Probate Court of County, Ohio. The undersigned, a creditor of the decedent, asks of this Court that Administration be granted upon all and singular the assets, situate within the State of Ohio, of , deceased, who, at the time of h . . . . death was a resident of the county of , in the State of .and whose death occurred on the day of 190. . ., and who at that time was engaged in the pro.secution of business in the County of , in the State of Ohio, as and left in said County of , in the State of Ohio, property belonging to his estate: — the undersigned, creditor, states that , a debtor .... of said decedent, resides in said County, Ohio. He further states that his claim against said decedent is founded on a contract made or right of action accrued within this State, viz. : (Here state if there was, or is, an administrator in the State where de- cedent died.) Wherefore petitioner asks that an administrator be ap- pointed to administer upon the property of said decedent intestate in this State. Dated , 190... The State of Ohio, County, ss. , named in the foregoing petition, being sworn, says that the statements therein are true as. .he verily believes. Sworn to and subcribed before me this day of , A. D. 190... , Probate Judge. § 175. Form of application for administration under § 10604. To the Probate Court of Comity, Ohio: The undersigned (here state the fact showing the interest of the peti- tioner) asks of this court that an administration be granted upon all and 143 NOTICE^ ETC. § 176 singular assets, situated within the State of Ohio, of A. B., deceased, who died on or about tlie day of , and was a resident of the county of , in the State of , and that said A. B. died intestate, 1 6 leaving the following described property within this county to be administered upon. To wit: Further alleges (here allege the reason why the application is made). (If the applicant knows, he should further state than an administrator was appointed in the State in which the decedent lived and whether or not the said administrator is still acting. ) Wherefore the Petitioner requests that there be an administrator appoint- ed to administer upon the property of the said A. B., situated in the State of Ohio. Sign. Sworn to and subscribed before me and in my presence this day of §176. Notice — proof, etc., required. As no one has a preference in the right of appointment, but the same rests in the discretion of the Conrt. Notice is not re- quired before an administrator of a non-resident be appointed. But if no notice is given, a motion to set aside an appointment filed within a reasonable short time after it is made, and by one not having had notice, will be entertained, th.e same as if objec- tions would have been made to the appointment in the first in- stance. It is held, that if an appointment is sought under § 10625, G. C, that the Court must be satisfied that there is strong probability that the creditor applicant can in a court of law establish the fact that he is the creditor of the decedent, and that upon the question whether or not the applicant is a creditor the Court may hear such testimony as it deems ad- visable; and further that the decedent must not only at his decease have been a non-resident of this State, but he must also have been engaged in the prosecution of business in this State.^'' Likewise it has been held that in order to justify the Court in making such appointment, it must appear that it is necessary to do so to protect the interest of the creditor in this State; and that a creditor by his laches may lose his right to enforce such 18 If said party died testate and state that fact as provided under the will has been admitted to record, § 10540 G. C. 17 In re McCreight, G N. P. 479. § 177 ANCILLARY ADMINISTRATION 144 appointment, at least unless he affirmatively shows that he lias no other remedy by which to protect himself.^® If the ap- pointment is sought under § 10604, G. C, the same evidence will be required as to jurisdiction, etc., other than the decedent was a non-resident of the State, as if the application were made for an original administrator. If made under § 10540, G. C, it must of course show that the will had been admitted to record. While a non resident person may be appointed executor under a foreign will, yet it is not obligatory on the Court to do so, for if it is good cause to remove a local administrator or execu- tor because he moves from the State, it certainly would be good cause not to appoint him in the first instance, by reason of his non residence. § 177. Entry, etc. The entry should show an affirmative finding on all the juris- dictional facts ; and in one case it was held that where these words appeared in an entry to-wit: " It is ordered that said Mitchell, a brother, be and is hereby appointed administrator of the estate of the deceased, late of the City of Marine, Michigan " ; that this was a substantial finding by the Court, that the deceased was not at the time of his death a resident of Ohio.^« § 178. Form of entry ordering administration. {Title.) This day came A. B. (here designate character in which the application is made), and filed herein his application that there be an administration ordered on the estate of late C. D., a resident of coujity, State ; and the same was submitted to the Court. Whereupon the Court finds the allegations contained in the said application are true, and that there ought to be an administration upon the estate of the said C. D., situate in the State of Ohio. § 179. Form of application for letters of administration. Deceased. To the Probate Court of County, Ohio: Administration having been heretofore ordered upon all and singular the 18 In re McCreight, 6 N. P. 481. i9 In re Meswald vs. Marks, 19 C. C. 605; 10 C. D. 355. 145 BOND, ETC. § 180 assets situate within tlii* State, of deceased, who at the time of h . . . . death was a resident of the Counjty of , in the State of - tlie under- signed, whose postoffice address is , County, Ohio, asks that such administration be granted unto h . . . . , and upon h . . . . oath says that the applicant was indebted to the deceased in tlie sum of $ ; that all the prop- erty, situate within the State of Ohio, belonging to the estate of said decedent, is about as follows, to-wit: Personal Estate, - - - - - -$ Real Estate, - - - - - - $ Total, $ And offers a bond in the sum of $ , with and as sureties thereon, and suggests and as appraisers. Sworn to and subscribed before me this day of A. D. 190.... , Probate Judge By , Deputy Clerk. § 180. Form of administrator's bond. In the Probate Court of County, Ohio. In the Matter of the Estate of Deceased. Know all Men by these Presents : That we and are held and firmly bound unto the State of Ohio, in the penal sum of Dollars, to the pay- ment of which we do hereby jointly and severally bind ourselves, our heirs, executors and administrators if default be made in the conditions following: Whereas, An application duly made to said Court, administration had been before that time ordered by the Probate Court of County, Ohio, " upon all and singular the assets, situate within the State of Ohio, of deceased, who at the time of h . . . . death, was a resident of County, in the State of and such administration was on the day of A. D. 190..., granted by said Court unto Now, if the said as administrat as aforesaid, shall: First, Make and return into said Court, on oath, with thirty days, a true inventory of all Moneys, Goods, Chattels, Eights and Credits of the deceased, situate within the State of Ohio, which have or shall come to h. . . .possession or knowledge; and also, if required by said Court, an in- ventory of the real estate of said deceased. Second, Shall administer according to law all the Moneys, Goods, Chat- tels, Rights and Credits of the said deceased, situate within the State of § 181 ANCILLARY ADMINISTRATION 146 Ohio, and the proceeds of all h . . . . real estate within said State, that may be sold for the pajTnent of h . . . . debts, which shall at any time come to the possession of said administrat. . . ., or to the possession of any other person for h Third, Shall render upon oath a just and true account of h. . . . admin- istration, within twelve months, and at any other time when required by said Court or the law, and failing so to do for thirty days after h. . . .shall have been notified of the expiration of the time by the Probate Judge h. . . . shall receive no allowance for h .... services, unless the Court shall enter upon its journal that such delay was necessary and reasonable. Fourth, Shall pay any balance remaining in h. . . .hands upon the settle- ment of h . . . . accounts, to such persons as said Court or the law shall direct. Sealed with our seals, and dated this day of A. D. 190. . . EXECUTED IN PRESENCE OF § 181. Form of entry. This day came A. B. and filed herein his application for letters of admin- istration upon the estate of C. D., a non-resident of this State; and at the same time filed herein his bond in the sum of Dollars, with E. F. and G. H. sureties thereon; and the same was submitted to the Court. Whereupon the Court finds that said application is in proper form and the allegations therein are true; and that the bond given is sufficient in amount and proper in form ; and the same is hereoy approved and the Court further finds the said A. B. is a suitable person to administer upon the said estate. Wherefore it is ordered by the Court, that letters of administration be granted to said A. B. ; and that G. H., H. I. and J. K. be appointed ap- praisers of said estate. 20 § 182. Form of administrator's letters. The state of Ohio, County, ss. To All who shall see these Presents, Greeting: Be it knoicn. That by the Court of Probate of said County, administration of all and singular the assets, situate within the State of Ohio, which were 20 This form of entry may be tion never becomes ancillary. For if changed to some extent where re- no administration be held or re- quired for an application made un- quired at the domicile of the dece- der §§ 10540 and 10G04. I do not dent, the administration here might think it is necessary to provide in be original: and the entry of the the entry that the administration is court in making the appointment an ancillary one. There may be oc- could not change the law in this casions arising when, if the applica- respect. tion bo made under §§ 10540 G. C. See Swearingen vs. Morris, 14 0. and 10604 G. C, that the administra- S. 424. 147 POWERS, ETC. § 183 of late of County, in the State of , deceased, has been granted unto , whose duty it shall be to have all and singular the said assets, appraised by and to return upon oath, within thirty days., a true inventory thereof, to administer according to law all the said assets, and also the proceeds of the real estate of said decedent, situate within said State of Ohio, which may be sold for the payment of debts, which shall at any time come into the possession of said administrat. . . .or any person for ; to render upon oath a true account of administration months, and at any other time when required by the Probate Court or the law; and failing so to do for thirty days after he shall have been notified of the expiration of the time by the Probate Judge, he shall receive no allowance for services, unless the Court shall enter upon its journal that such delay was necessary and reasonable ; and to pay any balance remaining in hands upon settlement of accounts to such persons as the Court or the law shall direct. Witness, , Judge of said Court at , this day of A. D. 190.... , Probate Judge, And Ex-officio Clerk of Said Court. By ,' Deputy Clerk. The State of Ohio, County, ss. I, , Judge of the Probate Court within and for said county, certify that the above is a true copy of the original Letters of Administration granted in the premises by said Court, and remaining on file in my office. Witness my hand and the seal of said Court, at this day of A. D. 190. . .. , Probate Judge. And Ex-officio Clerk of the Probate Court. § 183. Powers, duties, etc. It is not every administration of the estate of a non-resident that is ancillary, but whether it be ancillary or not, so far as the law is applicable to that part of the administration of the estate which applies to the appointment, collection of assets, and payment of the debts to creditors residing in this State, the laws of this State apply ; and may be said to be similar to those applicable to an adminstration of an estate of a deceased resi- dent. It is only when it comes to the distribution of what remains in the administrator's hands after the debts of local § 184 ANCILLARY ADMINISTRATION 148 creditors have been paid, that any other law other than the laws of our own State apply. Then it becomes very important. ^^ § 184. Payment of debts and distribution. As above mentioned the first thing for an administrator of the estate of a non-resident in the matter of distributing w^hat he has collected, is, that he first pay the expenses of adminis- tration ; second, such debts as may be proved against the estate by the creditor here; and if there are legatees who reside here a distribution will be made to them. But it is here vitally important to distinguish whether the assets come from personal property or real estate. If they come from personal property, they must be distributed according to the laws of the domicile of the deceased. After distribution has been made to local creditors and heirs or legatees residing here, the residue may be remitted to the original administrator. But this is not obligatory and the court may use its discretion.'" It seems that under the provisions of § 10625 G. C.,-'* it is contemplated that such remaining sum be paid over to the original adminis- trator; and I doubt if the Court could make any other order if the appointment was made under that section. If the assets in 21 Woerner on Admin. 374. were no creditors in N. Y., but all If an ancillary executor or ad- the next of kin of the intestate, five rainistrator has been properly ap- brothers and five sisters all resided pointed he becomes, so far as our in N. Y. On the application of the courts are concerned in protecting Kings County administrator for a his rights, and those of the creditors final accounting, the foreign admin- within this State, a local executor or istrator presented a petition claim- administrator, ing the right to intervene as princi- In Phelps, 2 W. L. G. 120. i al administrator and asking for the 2-* S 170. transmission of the property to him 22 See Matter of accounting of for distribution under the Pennsyl- Hughes, 95 N. Y. 55, at p. 60. In yania law. The Court of Appeals in the Hughes case, the decedent was a reversing the decree of the Surro- lesident of Pennsylvania, where he gate which granted his application, died intestate. Soon after his death held that as it did not sufficiently his brother was appointed adminis- appear that there were creditors to trator of his estate, in N. Y., by ^e paid in Pennsylvania, and as all the Surrogate of Kings County. A the next of kin were all residents of week later an administrator of the the State presumably consenting to property of the deceased was ap- distribution in N. Y., and as the pointed in Pittsburg, Penn. There 149 SEVERAL ADMINISTRATIONS § 185 the hands of the administrator came from the sale of real estate, then the law of 'the place of the real estate would control its dis- tribution.-^ § 185. Several administrations for one estate, situated in dif- ferent States.- "^ As each administration of a non-resident of the State is controlled exclusively by the laws of the State in which each respective appointment is made the following general prin- ciples will be applicable to such administration and that if de- cedent leave property in different States, there must be, as a rule, an administrator in each State, although there will be only one domestic administrator and the remainder will usually be ancillary. Usually the same person ^vill be appointed in each State, unless his non-residence disqualifies him, and that person is the one who takes out letters at the domicile of the decedent.^* The administration in one State is wholly independent of that in another."^ And the fact that administration has been granted in one State does not impair or abridge that in another.^® There is no privity between administrators in different States,^' although there may be between executors of the same estate in different States."^ The personal estate is to be distributed to transmission of the funds under such 25 Sherman vs. Page, supra. circumstances to the Pennsylvania 26 Henderson vs. Clark, 4 Litt. administrator would merely subject 277; Naylor vs. Moody, 2 Blackf. the assets to double commissions, it 247; Grant vs. Reese, 94 N. C. 720; would be an idle show of courtesy Aspden vs. Nixon, 4 How. 467 ; Pond to remit the funds to a foreign vs. Makepeace, 2 Met. 114; McLean jurisdiction. "When the only effect vs| Meek, 18 How. 16. would be to deplete it by unneces- 27 Taylor vs. Barron, 35 N. H. sary charges and expenses to the 484; Stacy vs. Thrasher, 6 How. 44; prejudice of all parties interested." Hill vs. Tucker, 13 How. 4.58; Cres- Opinion of Andrews, J., at page 63. well vs. Slack, 68 la. 110. 23 Woerner on Admin. 375. 28 Hill vs. Tucker, supra; Goodall 23a Cited Albrccht vs. Hoflfman, 24 vs. Tucker, 13 How. 460. Dec. 21, 16 N. P. 209. {Contra — Grant vs. Reese, 94 N. 24 Woodruff vs. Schultz, 49 la. C. 720) ; Hooper vs. Hooper, 125 N. 430; Sherman vs. Page, 85 N. Y. Y. 400; Garland vs. Garland, 84 Va. 123; Fletcher vs. Sanders, 7 Dana 181. 345; Schultze vs. Pulver, 11 Wend. See Woerner on Admin. 360. 361 ; Hunter vs. Brvson, 5 Gill & J. 483. § 185 ANCILLARY ADMINISTRATION 150 heirs and legatees, however, according to the law of the domicile of the deceased.^® Each administration is limited to the prop- erty having a situs within its jurisdiction.^** A judgment against one cannot be used as a cause of action against another, so as to affect assets under the control of the other.^^ A judg- ment obtained by a foreign administrator against a debtor of the estate cannot be sued upon by the domiciliary adminis- trator, nor by any other administrator who does not succeed the one so obtaining such judgment.^* But see as to construction of wills to the contrary. ^^ If a judgment be rendered against an estate in one State and partly paid, and then suit brought against the estate on the same claim in another, it is not neces- sary to plead such judgment and part payment; and such admin- istrator is not estopped from disputing such claim by reason of the fact tliat he had defended it in the first State ; for he cannot bind the estate outside of the last State.^* 29 Russell vs. Madden, 95 111. 485. Marks, 10 C. D. 357 ; 19 0. C. C. 30MeCord vs. Thompson, 92 Ind. 605. 565; Reynolds vs. McMullen, 55 32 Talmage vs. Chapel, 16 Mass. Mich. 568. 71. 31 Brodie vs. Brickley, 2 Rawle. 33 Washburn vs. Van Steenwyk, 431; Braithwaite vs. Harvey, 36 32 :\Iinn. 336; McCartney vs. Pac. Rep. 38; Slauter vs. Chenowith, Osburn, 118 111. 403; S. C, 121 111. 7 Ind. 211; Low vs. Bartlett, 8 Al- 408; Staigg vs. Atkinson, 144 Mass. len, 259; Judy vs. Kelley, 11 III. 564, as to real estate. 211; Rentschler vs. Jamison, 6 Mo. 34 Braitlnvaite vs. Harvey, 36 Pac. App. 135. Rep. 38. Where the decedent was, at the A judgment recovered against a time of his death, a resident of an- domiciliary administrator in Ala- other State, administration must bo bama can not furnish a right of ancillary, and funds in the hands action brought by a judgment-credi- of the administrator here are prop- tor against an ancillary adniinis- erly ordered over to the administra- trator of the same estate. Albrecht tor in the other State. Meswald vs. vs. Hoffman, 24 Dec. 19; 16 X. P. 209. i 151 DEFINITION §186 CHAPTER XII. FOREIGN ADMINISTRATION. § 186 Definition, etc. § 187 Foreign executors and admin- istrators may be sued here. § 188 Law governintr local admin- istrators applies to foreign. § 188a Jurisdiction of courts. § 180 Same — continued. § 100 Procedure of heir, etc., against foreign administrator. § 101 Suit against foreign admin- istrator by heir or legatee. § 102 Form of refunding bond. § 103 May be required to secure dis- tributees and indemnify sureties. § 103a Other remedies. § 104 Form of bond to secure dis- tributee or surety frqpi foreign executor. § 195 May prosecute suits in this State. § 196 Validity of voluntary pay- ment to foreign administra- tors. § 197 Foreign executor or adminis- trator may be authorized to sell real estate. § 198 Law applicable to such sales. § 199 Foreign executor or adminis- trator to give bond unless al- ready bound. § 200 Foreign executor, etc., to give further bond to account for surplus when he sells more than is necessary to pay debts, etc.i § 186. Definition, etc. By the phrase foreign executor or administrator, the Court never means the mere non-residence of the individual holding the office, but the foreign origin of the representative capacity." It is not the residence of an executor or administrator outside of the State which makes a foreign executor or administrator, but the creation of his official character imder and by force of law foreign to our own. The representative character therefore is the sole product of the foreign will and depending upon it for existence, cannot pass beyond or have any force or effect outside of the jurisdiction of its origin. But by the comity of States by which one State always respects the jurisdiction of iSee chapt. 11, § 16.5 et seq. Ancillary Administration. 2 Hopper vs. Hopper, 12.5 N. Y. 400. § 187 FOEEIGN ADMINISTEATION 152 another when not in conflict with the rights of citizens of its own jurisdiction, the duties, powers and rights of such foreign executors or administrators are generally respected and fol- lowed. The foreign executor or administrator mav reside in this State, and the local executor or administrator may reside in any other State. A foreign executor or administrator may be ancillary to one in this State or the local executor or admin- istrator may be ancillary to one residing here and appointed by a foreign Court. The common law rule, that executors and administrators have no authority beyond the jurisdiction of the State that gave them their appointment and cannot be sued or sue in their representative capacity in any other State, has been completely abrogated by statutory provision in our State, as will be seen from the following sections of the General Code made a part of this chapter. They have particularly all the rights and all the liabilities of a local administrator or executor and there would seem to be no necessity for appointing an an- cillary or local administrator in this State, when jurisdiction could be acquired over the foreign executor.^ § 187. Foreig-n executors and administrators may be sued here. "An executor or administrator, duly appointed in any other state or country, or his legal representatives, may be prosecuted in an appropriate court in this state, in his capacity • of executor or administrator." [R. S. § 6129.]* The above section only gives jurisdiction over foreign execu- tors when service can be gotten upon them in this State. If they do not place themselves in such a position that a legal service could be had upon them no valid judgment could be recovered. A foreign administrator cannot be compelled to appear in any of our courts unless as above stated he brings himself within the jurisdiction of the local court, but he may 3 See § 1132, Powers under will therein, no right to review accounts made out of state. § 165, Ancillary of an executor appointed in another Administration. State, over property situate in this 4 § 10763 G. C. State. In re Crawford, 68 O. S. 58; It is a generally accepted rule affirming 21 C. C. 554; 11 Cir. D. that the power of an administra- 605. tor or executor over the estate of a This section has stood for forty deceased person emanates from the years and never been constitution- laws of the State where he receives ally attacked. Craig vs. Ry., 2 X. his appointment. It does not dc P. 56; 3 Dec. 74. jure extend to other States and can An administrator appointed in not confer, as a matter of right, any Michigan can not bring an action in authority to collect assets of the the Federal Court for wrongful deceased" in another State. death in Illinois. See Bernard vs. A Probate Court in this State has, Shane, 201 Fed. 453; 11 0. L. R. 43. although the will has been probated 153 SUE AND BE SUED § 187 do SO voluntarily.® " It is a matter concerned where the au- thorities differ/' says a distinguished author,® " Whether an administrator is guilty of laches or negligence in failing to collect assets beyond the jurisdiction of his forum, or obtaining letters in the foreign jurisdiction in which there may be proper- ty belonging to the estate." At most an administrator of this State cannot be charged with assets in another State, unless it be shown that he could, under the laws of that State, have col- lected and recovered such assets, using ordinary diligence in order to do so.^ If a foreign administrator appears in court and proceeds to trial without objection he cannot then be heard, that the Court has no jurisdiction to hear and determine the cause.* Concerning the above section it was said, by Judge Ranney, ' " that by the administration laws, all foreign executors and ad- ministrators may sue and be sued in this State, like those of our own appointment, thereby in most cases making it unneces- sary that an ancillary administration should be instituted. In quite an extended opinion in one of our lower courts ^° it was held that the above section was constitutional and that a Court in our State would not go into the question whether or not a judgment recovered against a foreign administrator would be effective. It has been laid down in a reconsideration of the matter, that it is a rule in Pennsylvania that a foreign executor within the jurisdiction of their court is liable to be sued by a resident creditor of his decedent ; and such suit will be sustained unless it entrenches unduly upon the jurisdiction of another court already attached, or would expose parties to inequitable burdens, although in that State there is no statute specifically making them liable.^^ BLampton vs. Nichols, 2 C. S. C. lo Craig vs. Ry. Co., 2 N. P. 64; R. 55. 3 Dec. 146. 6 Woerner on Administration 364. n Laughlin vs. Solomon, 180 Pa. 7 Goodwin vs. Jones. 3 Mass. 514; St. 177; 2 Prob. Rep. Ann. 74 and Hamilton vs. Carrington ( S. C), 1!) notes. S. E. Rep. 616; Leonard vs. Put- Service may be had by attachment man, 51 N. H. 247; Judge vs. Kel- against a non-resident executor, if ley, 11 111. 211; Sheldon vs. Rice, 30 the property of the decedent, which Mich. 206. is attached, is in this State. Am. 8 Hamilton vs. Taylor, 2 C. S. C. Steel Wire Co. vs. Mevers, 22 Dec. R. 402. ■ 733. 9 Swearingen vs. Morris, 14 0. S. See Williams vs. Welton, 28 O. 424. S. 457. |§ 188 FOREIGN ADMINISTRATION 154 § 188. Law governing local administrators applies to for- eign. "The provisions concerning settlements of the estates of deceased persons, and the remedies and proceedings herein given against executors and administrators appointed by the law of this state, shall also apply to foreign administrators or execu- tors appointed by the laws of any state or country, and residing in this state, or having assets or property herein." [R. S. §6130.] 12 § 188a. Jurisdiction of courts. "The several courts of pro- bate, common pleas and superior courts, shall have the same power and authority over such foreign executors and adminis- trators as if they were appointed under the laws of this state." [R. S. §6130.] 12* § 189. Same — continued. There are no judicial decisions to aid in the construction of the above section, but it would seem that if the foreign ad- ministrator resided in any county in this State, or brought himself within the jurisdiction of any Probate Court of a county in which there were assets of a non-resident decedent,^^ that such foreign administrator might by citation, be brought into a Probate Court of such county and compelled to give bond, make an inventory and sale of the estate and file an ac- count just the same as if he were a local administrator; and A very interesting case in which personal service might be had on it was sought to compel an admin- him. The Philadelphia court there- istrator in this State to go into an- fore rendered a judgment in favor of other State and litigate a claim the wife and paid her the claim, against an estate is that of Cross vs. Under the laws of Ohio (§ 3628), a Armstrong, 44 O. S. 613. part of this policy would have be- Tlie decedent had had his life in- longed to the creditors of the de- sured with a Pennsylvania company ceased ; and in a suit by the admin- for $10,000, payable on its face to istrator against the widow for such his wife. After his death the wife portion of the money paid to her by had possession of the policy and en- the Insurance Co. it was held that tered suit thereon in the Common the Court of Pennsylvania could not Pleas Court of Philadelphia; and determine a right against the ad- raade the administrator of the de- ministrator in Ohio and that the ceased a party to that action. The administrator was not bound by the administrator did not appear, nor Philadelphia suit. did anything which voluntarily 12 § 10764 G. C. brought him within the jurisdiction 12* § 10765 G. C. of the Philadelphia court so that a is Cross vs. Armstrong, 44 0. S 613. 155 PEOCEDUKE OF HEIK § 190 that, if a Court once acquired jurisdiction of such an adminis- trator in a proceeding to compel him to do any of the things which the law requires of a local administrator, such admin- istrator would thereafter be within the jurisdiction of such Court; and if he failed to comply, a local administrator de bonis non might be appointed to take charge of the effects ; and then after paying local creditors or resident heirs and legatees, the Court might order the remainder paid to the foreign admin- istrator. Of course, here like in the other provisions of our statutes, a foreign administrator must bring himself within the jurisdiction of a local court, before any proceedings can be had. Such foreign administrator might be compelled to file an ac- count and thereafter suit can be brought by any distributee as provided in the case of local administrator. Likewise in the matter of the presentation of claims, and the statutory limit applicable to suits on rejected claims, and generally it may be said that such foreign administrator having been brought within the jurisdiction of a certain Probate Court of our State would be held responsible in all the administration of such estate, the same as a local administrator. § 190. Procedure of heir, etc., against foreign administrator. "Any common pleas court or superior court may compel a for- eign administrator or executor residing in this state, or having assets or property herein, to account at the suit of an heir, dis- tributee, or legatee, who is resident in this state, and make distribution of the amount found in his hands to the respective heirs, distributees, or legatees, according to the law of the state granting such letters. When suits are pending, or unsettled demands against such estate, the court also may require a re- funding bond to be given to such executor or administrator by the heirs, distributees, or legatees entitled thereto in case the amount paid is needed to pay debts of the estate." [R. S. §6131.]^* § 191. Suit against foreign administrator by heir or legatee. The above section further enlarges the right of residents to enforce claims they may have against foreign administra- 14 § 10766 G. C. § 191 FOREIGN ADMINISTRATION 156 tors, provided such administrators reside in this State, or have property here belonging to the decedent. It would seem that the previous section (6130) would have provided for every case that might have occurred, but the above section is probably in- tended to more particularly apply to a case where in a foreign administration, it had been found that a certain amount was due to a resident of Ohio. But whatever may have been the intent, it certainly confers on a Superior or Common Pleas Court full power to j)rotect any local distributee, legatee or heir; and probably puts into statute, a rule which would have been enforced by a court of equity without statute. The above statute seems to have an equity proceeding in contemplation when it provides that a foreign administrator may be compelled to account, accounting being a proceeding in equity. For it has been elsewhere held, that an executor may be compelled by a court of equity in a State to which he may have removed, to disclose with what funds he has purchased property, the char- acter of the funds, whether he holds the property as trustee and for what use and trust.^^ And also that where an executor or administrator removes the property of the estate in his charge without having completed the administration, to any other State, and fails to obtain new letters of administration there, a court of equity will grant relief to any person whose interest is there- by jeopardized, on the ground that where the trust fund is in danger of being wasted or misapplied, the court of chancery on application of those interested will interfere to protect the lunds from loss.^'' It is said that it may be stated, however, as a general propo- sition, that the liability of an administrator for property fraud- ulently or without having been fully administered, brought from the State in which he received his appointment to another State, is to the creditors and distributees alone, and does not authorize the grant of letters in the latter State.^' 15 Woerner on Admin. 371. it McCabe vs. Lewis, 76 Mo. 296. 16 Woerner on Admin. 370; Cal- Wlion a married woman died dom- houn vs. King, 5 Ala. 523; Seller iciled in this State and her husband •vs. Dnnn, 3 Head. 87 ; Dillard vs. obtains letters in Pennsylvania, suit Harris. 2 Tenn. Ch. 193. cannot be maintained in this State 157 BOND^ ETC. § 192 § 192. Form of refunding bond. Know all Men by these Presents: That we, E. F., G. H. and I. J., are firmly bound unto C. D., the adminis- trator (or executor) of A. B., deceased, and his successors in the sum of Dollars (double the amount of the liability) to the payment of which we hereby jointly and severally bind ourselves, if default be made in the condition following: Whereas, on the day of in the county of State of C. D. was duly appointed and qualified as administrator (or executor) of the estate of A. B., deceased. Whereas, afterwards there was proceedings had in the Court, of County in the State of Ohio, C. D. to account to and heir (distributee or legatee) who is resident in this State, for his said share of said estate. And whereas afterwards, to- wit: On the day of , an order was made in said Court of County, Ohio. Finding that, the said K. L. is entitled to the sum of Dollars, as such heir etc., of A. B., deceased. And, whereas it was ordered that the said K. L. make to said C. D. a refunding bond to save the said C. D. harmless from any liability which might result to him from the payment of said sum to K. L. There now being unsettled demands (or suit pending in the Court, of County ) against said estate. Now if the said K. L. shall refund the said amount of Dollars, so ordered paid to him by the Court, of County, so much thereon as may be necessary to satisfy any demand that may arise from pending suits or unsettled claims or otherwise that may be recovered against the estate of said A. B., deceased ; and shall indemnify C. D. against all loss and damage on account of payment of such sums as ordered by the Court. Then this obligation shall be void; otherwise it shall remain in full force. Signed by us this day of 190 .... § 193. May be required to secure distributees and indemnify sureties. "When a foreign administrator or executor has wasted, misapplied, or converted assets of such estate, or has insufficient property to discharge his liability on account of the trust, or his sureties are irresponsible, distributees, heirs, or legatees, in any such court may compel him to secure the amounts respectively due to them, and any of his sureties may require indemnity on account of their liability as bail." [R. S. §6132.]i« by an heir while the matter remains Adams vs. Adams, 7 0. S. 84. unsettled in the Pennsylvania court. is § 10767 G. C. § 193a FOREIGN ADMINISTRATION 158 § 193a. other remedies. ' ' The several provisional remedies and proceedings authorized in such courts, also apply to the person and property of such administrator or executor. Such courts may make any order or decree touching his property and effects, or the assets of such estate, necessary for the safety and security of those interested therein." [R. S. §6132.]^** This section is a continuation of the matters referred to in § 10766, G. C, and specifically confers on the Court, ample power to protect a resident distributee, heir or legatee, and seems to apply further, that if he has given surety, that the Court may order him to protect such surety. Neither § 10747 G. C, nor § 10766 give any rights to creditors. A creditor must work out his right through § 10764-65 G. C. § 194. Form of bond to secure distributee or surety from foreign executor. Know all Men by these Presents: That we, E. F., G. H. and I. J., are firmly bound unto C. D. an heir (distributee or legatee) of A. B., deceased, in the sum of Dollars to the payment of which we hereby jointly and severally bind ourselves if default be made in the condition following: Whereas, on the day of , in the county of , State of , E. F. was duly qualified and appointed administrator (or executor) of the estate of A. B., deceased. Whereas, afterwards there was proceedings had in the Court, of , in the county of in the State of Ohio, to compel the said E. F. to secure the sum of Dollars, which was due to the said C. D. as such heir (distributee or legatee) from the estate of said A. B. ; and, whereas, afterwards, to-wit: on the day of an order was made in tha said Court of County, Ohio, in which it was ordered and decreed that the said E. F. should execute and deliver to the said C. D. a bond in the sum of Dollars, to secure him in the payment of the said sum so found due him. Now if the said E. F. shall pay to the said C. D. the said amount of Dollars so found due him by the Court, of and fully satisfy the said C. D. in all de- mands therefor, then this obligation shall be void, otherwise it shall remain in full force. Signed by us this day of A. D. 190 18* 10768 G. C. 159 PAYMENT, ETC. § 195 § 195. May prosecute suits in this State. "An executor or administrator, duly appointed in any other state or country, may commence and prosecute an action or proceeding in any court in this state, in his capacity as such, in like manner and under like restriction, as a non-resident is permitted to sue." [R. S §6133.]^« This section places a foreign administrator on the same plane of any non-resident person in the bringing of suits in the inter- est of the estate. In the absence of such statute no aation could be brought.^"^ Where an administrator had brought suit to collect assets belonging to his decedent it was sought to raise a question in the higher court that an ancillary administrator ought to have been appointed in this State. The court declined to go into that question, saying that whether or not an ancillary /idministrator ought to be appointed was a matter that rests in the Probate Court ; and that where there were no creditors in Ohio and tlie eifect would be to accumulate necessary charges to the estate the Probate Court might probably refuse to grant letters, or where they might have been granted, revoke them. But this was a matter proper only for a consideration of the Probate Court.'" It has also been held in this State that where a foreign ad- ministrator appeals a case that he must give an appeal bond. In that respect differing from a local administrator.'^ § 196. Validity of voluntary payment to foreign administrators. It is said that upon the question of the validity of the volun- tary payment of a debt to a foreign executor or administrator the authorities are not unanimous, and that the tendency is in the direction of recognizing the validity of such payment, unless there are creditors in the home State whose debts are unpaid or there exists a local administration.'' In our own State where plaintiff's intestate resided in Ten- ia § 10769 G. C. 22 Woerner on Admin. 364. 19a Bernard vs. Shane, 220 Fed. Payment by an Oliio debtor to an 220. administrator appointed by another 20 Purcell vs. Heinberger, 1 W. state tlian Oiiio, prior to the ap- L. B. 205; 3 Dec. (Rep.) 343. pointment of an administrator in 21 Work vs. Massie, 6 Oliio .503. Ohio is a satisfaction of tlie debt. See Kinkead's PI., § 41 for man- Crawford vs. Missionary Society, 22 ner of bringing suits against non- Dec. 804. residents. §197 FOREIGN ADAIINISTnATION 160 nessee, where he died, and had on deposit money in this State, and administration was first granted in Tennessee and after- wards in this State, the parties with whom he had made the deposit promised to pay the same to the Tennessee administra- tor, without notice that one had been appointed in this State. The local administrator brought suit, and it was held that he could not recover, because, by the law of Ohio, a foreign admin- istrator has authority to collect debts and the liability attached at the time of making the promise.^^ From this proposition it is said that a debtor is liable to pay whenever he may be reached by the administrator.^* It has been held that a foreign administrator cannot release the mortgage on land against the domestic administrator." But I very much doubt whether this would be the law in Ohio, for the Supreme Court now holds that the debt is the principal thing and the mortgage an incident. If the foreign adminis- trator has power to receive payment of the debt it would follow that he could cancel the mortgage. ^ 197. Foreign executor or administrator may be author- ized to sell real estate. ' ' When an executor or administrator 23 Weitzell Admr. vs. Cinn. Sav- ings, 1 W. L. J. 393; Stevens vs. Gay lord, 11 Mass. 264. 24 Woerner on Admin. 364. Nelson, J., of the Supreme Court of the United States, says : " Ther« is doubtless some plausibility in it (the objection to, the validity of the voluntary payment to a foreign ad- ministrator), growing out of the interest of the home creditors. But it has not been regarded of sufficient •weight to carry with it the judicial mind of the country. With the ex- ception of the case in Tennessee none have been referred to, nor have our own researches found any main- taining the invalidity of the pay- ment. The question has been direct- ly and indirectly before several of the courts of the States, and the opinions have all been in one direc- tion, in favor of the validity." Wilkins vs. Ellett, 9 Wall. 740, 742, referred to with approval in Wyman vs. Halstead, 109 U. S. 654. The cases referred to by Justice Nel- son are: Williams vs. Storrs, 6 John. Ch. 353; Doolittle vs. Lewis, supra; Vroom vs. Van Home, 10 Pai. 549, 557; Schulz vs. Pulver, 11 Wend. 361 ; Trecothick vs. Austin, 4 Mason 16, 33; Stevens vs. Gay- lord. 1 1 Mass. 256 ; Nisbet vs. Stew- art, 2 Dev. & B. L. 24 ; Parsons V9. Lyman, 20 N. Y. 103, 108. Some of these decisions contain mere dicta or intimations on the point under consideration. 25 Stone vs. Scripture, 4 Lans. 186; Stevens vs. Gaylord, 11 Mass. 256. 161 SALES OF REAL ESTATE § 198 is appointed in any other state, territory, or foreign country, on the estate of a person dying out of this state, and no executor or administrator thereon is appointed in this state, the foreign executor or administrator may file an authenticated copy of his appointment in the probate court of any county in which there is real estate of the deceased, together with an authenticated copy of the will, if there be one ; after which, under an order of the court, he may be authorized to sell real estate for the payment of debts or legacies and charges of administration, in the manner and upon the terms and conditions prescribed in the case of an executor or administrator appointed in this state, excepting in particulars wherein a different provision is herein- after made." [R. S. § 6168.] ^^ § 198. Law applicable to such sales. This statute confers upon foreign administrators the right to sell real estate situated in this State under the same rules ap- plicable to local administrators. Statutes authorizing these sales are liberally construed, but prescribed formality cannot be supplied by presumption.^^ It would therefore be essential that all formalities be complied with. A decree of another State authorizing an administrator to sell Ohio lands to pay debts is ■wholly void and passes no title.^^ But where one of the heirs assented to and promoted the for- eign decree his interest passes to the buyer at the sale.^® The buyer at such sale cannot compel the heirs to reimburse him, but the court will require the taxes to be repaid as a condi- tion of quieting the title.^° The Indiana statute, in conferring the power on foreign ad- ministrators to sell real estate, is very similar to our own, and comments under their statute will be applicable to our own. The executor derives his authority to sell from the laws of the place where he attempts to operate, and in the case of a for- 26 § 10813 G. C. 29 Salmond vs. Price, 13 O. 368. 27Goforth vs. Longworth, 4 O. soNowler vs. Coit, 1 0. .519. 129. Power to sell under a will becomes 28 Nowler vs. Coit, 1 O. 519; Sal- legally inoperative when the estate mond vs. Price, 13 O. 368; Blake vs. is settled. Ward vs. Barrows, 2 O. Davis, 20 O. 231, 244; Price vs. S. 241. Johnston, 1 O. S. 390. See also Henry vs. Doctor, 9 O. 49. § 199 FOKEIGX ADMIXISTKATION 162 eign administrator, where local laws exist, he must substan- tially comply with them before he can secure the authority to sell lands.^^ In a proceeding for the sale of real estate in this State by a foreign executor, the sale is to be authorized in the same manner and upon the same terms as in the case of an executor appointed in this State, except that, if it is shown that sufficient surety for application of the proceeds has been given in the State or county where the executor is appointed, and a duly authenti- cated copy of such bond is filed in the court where the petition is made, no further bond will be required.^' The petition must show : First,- what amount of personal property, if any, has come to his hands ; second, the amount of the debts outstanding against the estate of the deceased, so far as the same can be ascertained, and the insufficiency of the per- sonal estate to pay the same ; third, a description of the real estate of the deceased liable to be made assets, showing the State and county where the same is located ; fourth, the names and ages of the heirs, legatees or devisees of the deceased ; fifth, tbat the executor has filed in the court an authenticated copy of his appointment ; sixth, that the will of the testator has been duly probated. ^^ § 199. Foreign executor or administrator to give bond unless already bound. "When it appears to the court grant- ing tile order of sale that such foreign executor or administrator is bound with sufficient surety or sureties in the state or country in which he was appointed, to account for the proceeds of such sale, for the payment of debts or legacies and charges of admin- istration, and a copy of such bond, duly authenticated, is filed in court, no further bond for that purpose shall be required of him here. Otherwise, before making such sale, he must give bond to the state of Ohio with two or more sufficient sureties, conditioned to account for and dispose of such proceeds for the payment of the debts or legacies of the deceased and the charges 31 Lucas A's. Tucker, 17 Ind. 41. Thornton and Blackledge on Admin. 32Rapp vs. Matthias, 35 Ind. 332. (Indiana). 33 Rapp vs. Matthias, 35 Ind. 332. 163 ADDITIONAL BOND §200 of administration, according to the laws of the state or country in which he was appointed." [R. S. §6169.]^* § 200. Foreign executor, etc., to give further bond to ac- count for surplus when he sells more than is necessary to pay debts, etc. "When such foreign executor or administrator is authorized by order of the court to sell more than is necessary for the payment of debts, legacies, and charges of administra- tion, before making the sale, he shall give bond, with two or more sufficient sureties, to the state of Ohio, conditioned to account, before the court, for all the proceeds of the sale that remain, after pa.yment of such debts, legacies, and charges and to dispose of them according to law." [R. S. § 6170.]^'^ The two preceding sections relate to bonds of such foreign ad- ministrators. If there is any doubt about the bonds being in- sufficient or there are local creditors, heirs, distributees or lega- tees, I have no doubt that under the provisions of § 10764 G. C, § 188, the bond might be required and perhaps should be re- quired, for it is the duty of our local courts to protect the people of our o\\Ti State, and not require them to go into a foreign jurisdiction to secure their rights. The form generally ap- plicable in such cases will be very similar to the one required by local administrators in the sale of real estate.^® 34 § 10814 G. C. 35 § 10815 G. C. 36 For the law applicable to the sale of real estate by an executor or administrator, see chapt. 46 on that subject. § 811, et seq. Additional bond may be required when bond is insufficient. Wade vs. Graham, 4 0. 126. See Griswold vs. Frink, 22 O. S. 79, as to surplus, etc. § 201 JOINT ADMINISTEATION 164 CHAPTER XIII. JOINT OR CO-ADMINISTRATION. § 201 Definition, etc. § 204 Liability for act of co-admin- § 202 Separate or joint bonds. istrator. § 203 Power of one to bind the oth- § 205 Situs of property — Taxa- er in the co-administration tion. of the estate. § 206 Remedies against each other. § 207 Division of commissions. § 201. Definition, etc. Joint executors are tliose who are joined in the execution of a will. In law, however numerous joint executors may be, they constitute but one person.^ Formerly a distinction seems to have been made between joint executors and joint administrators.^ But now, in respect to their rights, duties and liabilities, co-administrators stand upon the same footing as co-executors, with this difference : that their powers and duties, being defined by positive law, are not capable of any special variation as may be those of executors.' Joint executors or joint administrators may act independ- ently, the act of any one, within the scope of his authority, being considered the act of all. As is said : " If a man appoint sev- eral executors they are esteemed in law but as one person, rep- resenting the testator, and therefore the act done by any one of them which relate either to the deliveiy, gift, sale, payment, possession or release of the testator's goods are deemed the act of all, for they have a joint and entire authority over the whole." * 1 Schouler Extrs. & Admrs., § 400, where tliere is but one executor, un- Bouvier Law Diet. ; Ames vs. Arm- U>ss assented by all parties in inter- stronir, 10(5 Mass. 15; Barry vs. est it would be void. Lambert. !tS N. Y. 300. - Hudson vs. Hudson. 1 Atk. 4fi0. Sec S lfi2a as to the appointment 3 Schouler Kxtrs. & Admrs., § 404. of an administrator to act with an •'Bacon's Abridg., p. 37; Herald execTitor. The same rule applies vs. Harper. S Blkf. 170; Long vs. where a purchase is made by a joint Rodman, 5S Ind. 5S; Schouler executor of the assets of the estate Extrs. & Admrs., § 400. from his co-executor as in the case 165 BONDS^ ETC. § 202 One executor cannot prevent a co-executor from taking pos- session of the assets of the estate, nor can he take such assets from him after he has taken possession." Joint letters should not be granted where one of the parties thereto objects.® In this State every person named in a will as executor must qualify and give bond if required to entitle him to letters. Failing in this he shall have no power to act as executor. One executor may qualify for general purposes and another for a special purpose, if such appears from the will to be the intention of the testator.'^ And where one executor fails to qualify or renounces his trust, letters may issue to others named in the will.* § 202. Separate or joint bonds. It is provided by§ 10611, G. C, § 86, that where two or more persons are appointed administrators or executors or testa- m^itary trustees that a bond may be taken, which is joint or several. I think it might be stated as a general rule that sev- eral bonds are preferable to joint bonds, and Avhere a separate bond is given the penalty in each should be in the same amount as that in the joint bond, for as one administrator has full con- trol and power over the estate, he may take to himself a com- plete administration of the estate. Therefore his bond should 5 Hali vs. Carter, 8 Ga. 388 ; ministrator Oi* executor are vast and Wood vs. Brown, 34 N. Y. 337. complicated, it may be well to join 6 Brubaker's App., 98 Pa. St. 21. with him some one to share the re- 7 Schouler Extrs., § 40. sponsibility and give advice, etc. But 8 Schouler Extrs. & Admrs., § 41, from the fact that one possesses the § 10G21 G. C, § 137; Miller vs. power of all, if he is of a mind to Meetch, 8 Pa. St. 417. exercise the power, association with As a general rule it may be said, others does not necessarily result in that joint administration of an es- a benefit to the estate ; and where tate is not to be commended. For the estate is small my observation usually the entire administration of and experience has been in favor of the estate depends upon one, even the single administration in prefer- though there be a number of persons ence to a joint administration, appointed. Where the estate is large See § 709. Successive Administra- and the interests intrusted to the ad- tion; § 1264, Joint Trustee. , § 203 JOINT ADMINISTRATION 166 be in full amount. If a separate bond were given, the bonds- men would only be liable for that which came within the ad- ministration of such administrator giving the bond. But if the bond is joint, additional difficulties are incurred, and where the property comes into joint possession, if waste is committed by one of the administrators after the death of the other, it will be the right of the surety that the estates of both the administrators shall be exhausted before the surety shall be subjected to the surviving administrator's fraud. Such administrators, as be- tween themselves and the surety, are principals, and the surviv- ing administrator and the representatives of the deceased ad- ministrator will be jointly liable to indemnify the surety if he has been subjected to the waste committed by one of the princi- pals after the death of his associates.® § 203. Power of one to bind the other in the co-administration of the estate. Since joint executors and joint administrators are regarded in law as constituting but one person and the title of each ex- tends to the entire personal estate of the testator or intestate, each one has for most purposes as full and ample power over the estate as if he were the sole representative, unless otherwise pro- vided by statute ; and therefore one may collect the assets of the estate and give a receipt to debtors, com|K)und, compromise or release debts due, or causes of action belonging to the estate, dis- charge mortgages, pledge or mortgage the estate to secure ad- vances of money necessary for administration purposes, where the same is permitted by the court or statute, sell or otherwise dispose of the assets of the estate, notes and other choses in ac- tion, submit matters to arbitration and assent to legacies.^" 3 Eckert vs. Myers, 45 0. S. 525. misconduct of the other. Seymour Where two executors give a joint vs. Stone, 4 W. L. M. 323. and several bond with sureties, they Overruling — Chenniel vs. Stone, 3 are liable for the misconduct of each W. L. M. other, and are each bound to indem- lo 17 Am. & Eng. Ency. of Law, nify the sureties against loss by 2nd ed. 620; Woerner on Admin. 733; Schouler on Extrs. 400. 167 LIABILITIES^ ETC. § 204 In the conveyance of real estate, as a matter of course, where it rests in the discretion of the executors to make the sale, a valid sale cannot be made unless they all join. But if the sale is made by an order of the court on petition for tliat purpose, I apprehend that a deed executed by one in conformance to such order would be valid, although there are some holdings that all the administrators must join in the petition. ^^ One administrator may accept a claim that is presented to him for allowance against the estate, but such acceptance will not preclude the other administrators from resisting its pay- ment. ^^ A notice of dishonor or protest to one or several co-executors of the deceased endorser is sufficient.^^ One executor cannot bind his co-executor by confession of judgment.^* Of course one executor cannot bind a co-executor to an act which by the will was extended to all in the nature of a trust ^° § 204. Liability for act of co-administrator. Ordinarily one joint executor or administrator is not liable for the assets which come into the hands of another, nor for the laches or mismanagement of the co-executor or administrator, unless he consent to or join in any act which results in a loss to the estate. In which case, though the loss be the direct con- sequence of the default, carelessness or mismanagement of the other, they will all be equally liable. So if the executor mis- manage or waste the estate he becomes liable. What consti- tutes such negligence as to make one liable for devastavit or mismanagement of the estate by his co-executor or co-adminis- trator, depends largely on the cireiunstances of each case.^^ If the executor is conscious of the mismanagement of tlie co- 11 See Woerner on Admin. 734. 13 Bank vs. Wallace, 13 S. C. 347 ; 12 Forsyth vs. Ganson, 5 Wend. Beals vs. Peck, 12 Barb. 245. 558; Hall vs. Boyd, 6 Pa. St. 267; i< Forsyth vs. Ganson, 5 Wend. Haramon vs. Huntley, 4 Cow. 493; 558; S. C, 21 Am. Dec. 241. Weston vs. Miirnan, 4 Ind. 271; Mc- is See Seymour vs. Stone. § 202, Cann vs. Sloan, 25 Md. 575. Separate and joint bonds. 16 Woerner on Admin. 738. § 204 JOINT ADMINISTRATION 168 administrator and acquiesce in it, or if he be negligent in taking steps to prevent the loss, he will he liable. ^^ But if he could show that his own conduct was within the usual rule of prudence under like circumstances, and that he did not contribute to the loss upon such a standard of liability, he is excused ; for the cardinal doctrine is that co-executors are liable for their own acts and conduct, and not for the acts or con- duct of their co-executors.^® In our own State it was held that although where one of two executors is insolvent during the whole period of his executor- ship, the claim due from him to his testator ought to be included in the inventory among the credits and effects of the decedent, as required in § 10691, G. C. Such executors will not be held liable for the same as for so much money in their hands, nor will they be required to apply and distribute the same in pay- ment of the debts and legacies and among the next of kin as part of the personal estate of the deceased.^** If co-trustees authorize one of their number to manage a fund, etc., tliey will all be responsible.^^ Generally mere passive conduct will not be sufficient, but some positive act on the part of the co-administrator is neces- sary.^^ IT 17 Am. & Eng. Ency. of Law, estate. In order for one co-executor 2nd ed. 620, and authorities there to only be liable for his own acts, cited. presupposes entirely independent ac- 18 Schouler on Extrs. 402. tions on the part of the one in de- 19 Brown vs. Harshman, 9 C. C. 1 ; fault; and the other is liable if he 6 C D. 10. This case is cited with in any way contributes thereto, approval in the case of McCoy vs. whether intentionally or otherwise, Allen, 608 (6 C. D. 659), of the as by voluntary and unnecessary same volume, but is denied in the paying over or delivering assets of case of Perkins vs. Scott, 212, in the the estate to him, or enabling him same volume. The case of Allen vs. in any way to obtain possession of McCoy was reversed in the 57 O. S. the assets. If, however, there are 641 on the authority of McGaughey good reasons for turning over the vs. Jacoby, 54 O. S. 487. The same assets, and the parties act in good principle would reverse the decision faith, he might not be responsible.20 made by the Circuit Court in Brown 20 Jn re Osborn, 87 Cal. 1. vs. Harshman; and -vpould establish 21 state vs. Gulford, 15 0. 593. the opposite rule and would make a 22 17 Am. & Eng. Ency. of Law, joint executor liable for a debt due 2nd ed. 628. from the insolvent co-executor to the 1G9 POWERS OF EACH § 204 It is not negligence, however, to fail to examine a co-admin- istrator's bank account for two years ;,"^ nor failure to attempt to withdraw the funds from his hands on notice of his insol- vency ; ^* nor is the estate of an administrator liable for a waste committed by the otlier administrator after the death of his co- administrator."^ But if several administrators agree among themselves that each shall take a certain distinct part of the estate, and none of them shall intermeddle with the other's por- tion, they will be all liable for any act of neglect of one of their number resulting in loss to the estate.^* If two joint administrators sign a receipt for money it raises a presumption that both received it, and the burden of showing that one did not receive the money and that he had not the power to control or secure it is upon him who denies liability.^^ 23 Irwin's Appeal, 35 Pa. St. 294. acquiescence of the legatees in such 24 Worth vs. McAden, 1 Dev. & B. Eq. 199. 25 Young's Appeal, 99 Pa. St. 74. 26 Knight vs. Haynie, 74 Ala. 542; Weldy's Appeal, 102 Pa. St. 454. 27 Monell vs. Monell, 5 Johns. Ch 283 ; Sterrett's Appeal, 2 Pen. & W 419; Hall vs. Carter, 8 Ga. 388, Stewart vs. Conner, 9 Ala. 803 ; Nett man vs. Schremnij 23 la. 521 ; Ed monds vs. Crenshaw, 1 Harp. Ch 224 ; McKim vs. Aulbach, 130 Mass 481. But see Wilson's Appeal, 115 Pa. St. 95. The fact that legatees complain continuously to two co-executors, both before and after an accounting by the managing executor, of the non-payment of their legacies by the managing executor, and that such co-executors are chargeable with knowledge of the mingling by the managing executor of the money of the estate with his private funds does not render them liable for waste committed by him in an amount greater than the balance shown to be due the estate by the account, the account, and the managing execu- tor's reputation of pecuniary abil- ity and personal integrity, excusing the co-executors from making fur- ther inquiries which would lead to the ascertainment of such waste. Weyman vs. Thompson (N. J. Ch.), 25 Atl. Rep. 205. Though the entire management of an estate was in the hands of one of three executors, and though two co-executors never had possession of any assets, yet such co-executors by joining the other in an account final, in so far as allowance for disburse- ments and the ascertainment of as- sets acknowledge to have been re- ceived are concerned, become jointly chargeable for the balance due the estate by such accoimting and by the decree of the orphans' court allow- ing it with interest; and the fact that the account was prepared by the managing executor, and that the two co-executors signed it on his re- quest without investigation, because of their confidence in his integrity and on his assurance that they would be relieved of all responsibil- §205 JOINT ADMINISTRATION 170 § 205. Situs of property. Taxation."* It sometimes becomes important where there are two execu- tors to determine tlie situs of the property. Generally it may be said that the situs of the property is at the residence of the executor or administrator who has actual possession and control of it. The question arises perhaps oftener in the matter of list- ing the property for taxation. In Ohio v. Matthews ^* it was held, that where three executors of an estate resided in the same township, two of them within the corporate limits of a village, the other witliout such limits, and the three having possession, in the law of taxable moneys, bonds, and stocks of the estate, the same must, in view of the equities and analogies of the statutes — which does not expressly provide for such case — be entered for taxation, one-third as of the place of residence of each ex- ecutor. In another case,^* where there were four executors and two of them resided in Mahoning county, the late domicile of the decedent, and one resided in the same county but in the city of Youngstown, and tlie other in the city of Cleveland; and the assets of the estate were kept at the late residence of the de- ceased, it was held that one-fourth of the assets were taxable in Youngsto^vn and the balance in the county of Mahoning. Xo ity thereby, does not relieve them of such liability, as such conduct of the managing executor does not amount to a fraud on his co-execu- tors. VVeyman vs. Thompson (N. J. Ch.) , 25 Atl. Rep. 205. An executor being about to leave the State tem- porarily, turned over to his co-execu- tor the funds in his hands. There- after he took no part in the man- agement of the estate, but his co- executor attended to the business. The executors filed a joint account four years after the time prescribed by the statute. At this time said executor knew that there was a shortage, which he personally made up without reporting it. He never made any effort to have a final set- tlement on such account. It was held that his co-executor having thereafter used the funds on hand at the time of such report, and hav- ing become insolvent, the executor was liable therefor. The fact that the money and sole management of the estate was turned over to said co-executor with tlie concurrence of one having a power of attorney to collect moneys due non-resident ben- eficiaries of the estate in no way relieves said executor from respon- sibilitv. In re Osborn's Estate, 87 Cal. I: S. C. 25 Pac. Rep. 157. 2"a The statute now requires that the property be listed from the place where decedent died. See §5371-3: 107 v. 31. 2S 10 0. S. 431. 29 Todd vs. Hughes, 3 O. L. J. 206. 171 REMEDIES AGAINST EACH OTHER § 206 part of it being assessed against the executor residing in Cleve- land. In a later case ^° it was held that where an estate was com- mitted to two or more persons residing in different counties the property must be listed by the executor having actual possession and control and at his place of residenca^^ § 206. Kemedies against each other. As co-executors or administrators are considered in law as one, as a matter of course they could not sue each other for mat- ters pertaining to the administration of the estate. Yet it has been held that this rule only holds good while the co-executors are both alive, and that if one dies the survivor might bring suit against the representatives of the deceased co-administra- tor. Also where only one qualifies under a will he may sue the executor who has not qualified.*^ Where one of two executors has in his hands the balance re- maining for distribution an action can be maintained against him without joining his co-executor or administrator.^^ A court of equity would not aid one co-executor against the wrongful acts of the other so long as there was a remedy else- where. Our statutes confer full and ample jurisdiction on the Probate Court to remove a mismanaging executor or admin- 30 Brown vs. Noble, 42 0. S. 405. The executors qualified before and 31 See Sommers vs. Boyd. 48 0. S. reported to the Surrogate's Court of 648; Woerner on Aamin. 691a. New York. Under these circum- A resident of New York died in stances, the Auditor of Erie county that State, having appointed four has no right to place at least one- executors of his last will. Three so half of the personal property of the appointed lived in New York, one in estate upon the tax duplicate of said Erie county, Ohio. One executor county for taxation, and plaintiff failed to qualify, one qualified and had a remedy by injunction to pre- subsequently resigned, leaving the vent him from doing so. Hawk vs. other two in charge of the estate^- Benn, 6 C C. 452; 3 C. D. 535. one residing in New York and the See § 511 as to Taxation, other in Ohio. The property of the 32 Marsh vs. Oliver, 14 N. J. Eq. estate was all held in New York, 259. tione of it being brought in Ohio. 83 Negley vs. Guard, 20 O. 310. § 207 JOINT ADMINISTRATION 172 istrator, or require him to give additional bond. In this State a court of equity would hardly interfere.^* § 207. Division of commissions. When the compensation is made in the form of commissions on the value or amount of the estate, the rate of the commission is not ordinarily affected by the number of the executors or ad- ministrators, but the amount which may be allowed will be di- vided among them, and as a general rule an equal division will be made. There is, however, no rule of law or equity which declares that co-representatives, without regard to the time spent, responsibility assumed or service rendered, are entitled to an equal pro rata share of the statutory fees. On the con- trary, it has often been held that if their services are unequal the Court of Probate will give to each a share of the commissions in proportion to the services rendered by him.^° But such apportionment cannot, it seems, be made by a court of law in an action by one executor or administrator against an- otlier to recover a share of the commissions. The parties may also, by agreement, arrange with one another as to the duties and compensation of each.^* 34 See Woerner on Admin. 740; kins, 7 C. C. (N.S.) 240; 28 0. C. Schouler Extrs. 403. C. 208. 35 See § 658. Commissions joint Where one administrator died al- admrs. ; Andress vs. Andress, 46 most at the beginning of the admln- N. J. Eq. 528 ; Hill vs. Nelson, 1 istration, and the survivor did sub- Deni. (N; Y. ) 357; Matter of Har- stantially all the work of settling ris, 4 Dem. (N. Y. ) 463; Waddill the estate, it was held that he was vs. Martin, 3 Ired. Eq. (38 N. Car.) entitled to the entire commissions, 562 ; Grand vs. Pride 1 Dev. Eq. to the exclusion of the representa- (16 N. Car.) 269; Hodge vs. Haw- live of the deceased executor. Mar- kins, 1 Dev. & B. St. Eq. 564; tin vs. Jones, 87 Md. 43, distinguish- Walker's Estate, 9 S. & R. (Pa.) ing Richardson vs. Stansbury. 4 Har. 223; Stevenson's Estate, 1 Pars. Eq. & J. (]\Id.) 275. Cas. (Pa.) 18. 36 17 Am. & Eng. Ency. of Law, See also Mount vs., Slack, 39 N. 2nd ed. 633. J. Eq. 230; 45 N. J. Eq. 129. The See § 645 et seq. Commission of court may apportion commissions be- Extrs. tween coexecutors. Meyers vs. Hop- 173 FOWEB OF COURT §208 CHAPTER XIV. REVOCATION OF LETTERS — RESIGNATION AND REMOVAL. 208 Power of co'irt — Nature pro- §219 ceedings, etc. § 220 209 Jurisdiction to revoke letters. 210 Resignation, etc. §221 211 Kevocation where wrongfully §222 made. § 223 212 Form of resignation and en- § 224 try, etc. § 225 213 Removal of executor for § 226 cause, etc. § 227 i 213a Proceedings after removal. ' i 214 Who must file application, $ 229 etc. § 230 i 215 Application. j 231 i 216 Form of application. i 217 Form of entry for hearing, etc. § 232 i 218 Notice, etc. Form of notice. Causes — Habitual drunken* ness. Gross neglect of duty. Incompetency. Fraudulent conduct. Removal from the State. Unsettled demands. Any other causes. Other statutory causes. Hearing and entry. Effect of order of removal. Acts after his removal, etc. Termination of authority by completion of trust. Appeal and error.i * § 208. Power of court. Nature proceedings, etc. As the Probate Courts of tliis State are courts of record, com- petent to decide on their own jurisdiction and exercise it to final judgment, and their records import absolute verity;^ it follows that where an appointment of an administrator or executor is made, however erroneous it may be, it could not be ignored or set aside except by the court that made it, and in a direct proceeding for that purpose. Although some courts have held that if a Probate Court made an appointment where it had no jurisdiction in the matter, that such appointment would be i*See § 1300 et seq.. For removal i Ry. Co. vs. Belle Center, 48 O. of trustee. See § 1358, For removal S. 273; Astram vs. Ten Eck, 28 Bull, of gdn. See § 151, Admr. dc bonis 265. non. § 209 RESIGNATION AND KE^MOVAL 174 a nullity, and that another court having jurisdiction might make a valid appointment without the first being revoked.^ But such, it occurs to me, is not the law in Ohio. The grant of letters of administration are said to he in the purest sense proceedings in rem, and in a contest for the right of administra- tion there are strictly no parties plaintiff or defendant. The applicants are all actors, some of whom may withdraw and others come in at any time during the progress of the cause, even after the appeal. Objections to the grant of letters will be heard from any person claiming to be interested. If his right to appear is disputed the question will be decided upon proof. ^ The authority of an administrator or executor to act may be extinguished in a number of ways. First, the grant may have been improperly made, as for instance, if made in the wrong court or to the wrong person, or if granted to an ad- ministrator when there was an existing will, or an administrator already appointed, or for a living person ; second, it may be terminated by a voluntary act, that is, by resignation of the ad- ministrator or by deatli ; third, it may be terminated by the removal of the administrator or executor for cause by the court ; fourth, it may be terminated by a completion of the adminis- tration. These different methods will be treated of more fully in the following sections.* § 209. Jurisdiction to revoke letters. Among the matters which are intrusted to the exclusive juris- diction of the Probate Court is "To grant and revoke letters testamentary and of administration." ^ This settles beyond question tliat no court but the Probate Court can exercise juris- diction to revoke letters of administration ; and it may be said further, upon the principle tliat where a court of competent ju- risdiction once acquires control of the subject matter in litiga* a Woerner on Admin. 569. trustee; § 1359, Removal of gdn.; s Woerner on Admin. 565. § 1558, Removal of assignee. * See § 707, Admr. of deceased to r, § ]^()492 q C. file account; § 1301, Removal of 175 KESIGNATION §210 tion, that it will retain control to the exclusion of every other court., that the court which grants the letters of administration is the only court which has jurisdiction to revoke them." The mere fact of a will being set aside, in a suit on contest, will not vacate tlie order appointing an administrator.' § 210. Resignation, etc. At common law an executor could not resign after having accepted the trusty nor could an administrator; and it is said that even now it is very much doubted whetlier an administra- tor can resign if the court declines to accept the resignation.^ This matter is, however, definitely settled in Ohio by the fol- lowing statute : ^ "The court issuing letters testamentary or appointing an ad- ministrator, if it deems fit, upon good cause shown, may receive the resignation of such executor or administrator, and appoint an administrator in his place." [R. S. § 6015.]'' « Formerly neither appeal nor er- ror would lie from the decision of the Probate Judge. § 24, § 232. 7 Sanker vs. Mattison, 20 C. C. 230; 11 C. D. 125. A note given for the purpose of ■ecuring a resignation where the trustee is subject to removal for mis- conduct, etc., is without considera- tion and cannot be enforced. With- ers vs. Ewing, 46 0. S. 400. 8 Baier vs. Baier, 4 Dem. 162. 9 § 10627 G. C. A testator, domiciled in Mississip- pi, devised his entire estate to C, his heirs and assigns, with full power to dispose of the same and apply the proceeds upon specified trusts. By subsequent clauses he named C. co-executor with two oth- ers, limiting the power to sell and convey to C. alone; and provided that if C. should die or should " re- fuse to take upon himself the execu- tion of the will," C.'s power should pass to W. C, accepted the trust, was qualified as executor and took upon himself the execution of the will. Afterward he executed a resJ«r- nation, both as trustee and as exec- utor, and on an ex parte applica- tion, an orphan's court in Missis- sippi made an order accepting it, and appointed W. his successor. No law of that State gave power to any court, upon such an application, to divest a trustee, holding title, of his powers or estate. Soon after C. (who did not convey to W.) resumed action as trustee; for value con- veyed part of the Ohio land to a hona fide purchaser, received the purchase money, and placed it in the hands of the chief executor, who duly applied and accounted for it. W. never acted or claimed to act as to the land. Held: 1. The resignation was not such a "refusal to take upon him- self the execution of the will" as transferred title to W. Veazie vs. McGugin, 40 O. S. 365. It is not necessary to state in the entry "that the removal was made that the court deems it fit and upon good cause shown" the resignation is received. State vs. Moffit, 13 C. C. (N.S.) 152, 169; 23 0. C. C. 238; affirmed, no opinion, 82 O. S. 433. g 211 RESIGNATION AND KEMOVAL l76 § 211. Revocation, where wrongfully made. It may be said to be an inherent power residing in every court to correct an error which it may have committed. Thus the court might of its own motion, although it will not generally do so, set aside an appointment which has been wrongfully made. " This power," says Judge Gray, " does not make tlie decree of the Court of Probate less conclusive in any other court or in any way impair probate jurisdiction. But renders that jurisdiction more complete and effectual." ^^ Thus where an appointment was made without notice the same was on motion reheard upon the application of an inter- ested party and revoked/" Also where letters of administra- tion had been granted to the wrong person, a motion to set the same aside was sustained.^^ Other instances of the exercise of such power is as follows : Such as issuing them in the wrong county,^* or when the alleged decedent is alive ; ^^ or, in the case of an executor, that the will was admitted to probate through fraud,^® or that a later will should be admitted,^^ or where a will had been previously probated and overlooked,^^ or discov- ered after the grant ; ^^ even a foreign will ; "" or where a person not preferred is appointed before the expiration of tlie time dur- ing which preference is given by the statute to another, where a time is given by statute ; ^^ or where there is no estate to be 2. The action of the orphan's court i6 Hamberlin vs. Terry, 1 &m. & did not affect C.'s powers as trus- M. Ch. 589. tee, and his deed was valid. Veazie i^ Waters vs. Stickney, 12 Allen 1. vs. McGugin, 40 O. S. 365. is Watson vs. Glover, 77 Ala. 323. 11 Waters vs. Stickney, 12 Allen is Edelen vs. Edelen, 10 Md. 52; 1, 15. Fatton's Appeal, 31 Pa. St. 465. 12 In re McCreight. 6 N. P. 479. ^o Dalrymple vs. Gamble, 66 Md. 13 Todhunter vs. Stewart, 39 0. S. 298. 181. 21 Mills vs. Carter, 8 Blackf. 203; 1* Jeflfersonville R. R. Co. vs. Skelly vs. Veerkamp. 30 Mo. App. Swayne, 26 Ind. 477; Croxton vs. 49; Mullanphy vs. County Court, 6 Renner, 103 Ind. 223; Wilson vs. Mo. 563; Dunham vs. Roberts, 27 Frazier, 2 Humph. 30. Ala. 701 ; Public Admr. vs. Peters, 15 Donaldson vs. Lewis, 7 Mo. App. 1 Bradf. 100; Kerr vs. Kerr, 41 N. 403. Y. 272. 177 FORM OP RESIGNATION § 212 administered,-- or granted to a person disqualified,-^ as to a minor,-* or to one not preferred,-'' or where an administrator de honis non is appointed before there is a vacancy in the office.^® If the court revoke letters of administration it will be pre- sumed, until the contrary appear, that the same court granted them,-'' § 212. Form of resignation and entry, etc. As a general rule, the administrator wishing to resign, will prepare his account and tender his resignation with the filing of . such account by writing the same in the account. If for some reason it was desired to have the resignation acted upon before the filing of an account, or the passing thereon by tlie Probate Court, such resignation might be made in open Court; but it would be better to make it in writing and the following might be used as a form : To the Honorable Probate Judge of County, Ohio: Dear Sir: — Desiring to sever my connection as administrator (or execu- tor) of the estate of A. B., I hereby tender my resignation as such admin- istrator (or executor) and beg that the same may be accepted by you. Sign. If the resignation is tendered other than in* the account filed the following might be used as a form of entry • This day came A. B., administrator (or executor) of C. D., and filed herein his written resignation of said trust and asks that the same be accepted by the court; and the same appearing to be for the best interest of all concerned the said resignation is accepted; and said C, D, is ordered to file his account of his administration of said estate, within days in this court.2s 22 Estate of Huckstep, 5 Mo. App, Slagle vs. Entrekin, 44 0. S. 637. ' 581 ; Townsend vs. Pell, 3 Dem. 367. The receipt of the resignation and 23 Koger vs. Franklin, 79 Ala, appointment will be sufficient, al- 50.5. though no journal entry be made 24 Carow vs Morvatt, 2 E. M, Ch. Johnson vs. Schwenk, 99 O. S. 124, 56. See S 227, 25 Morgan vs. Dodge, 44 N. H. 2.5-5. The authority of an administrator 2C Creath vs. Brent, 3 Dana 130; continues until terminated by one of Griffith vs. Frazier, S Cranch 9; the methods provided by statute. Springs vs, Erwin. 6 Ired. L. 27. Meyer vs. Watt, 48 0, S, 545, 27 State vs. Johnson, 7 Blackf. He is not liable for acts after hia 520, resignation has been accepted. Mc- 28 By accepting resignation the Cullough vs. Moffitt, 23 O. C. C, Court does not lose jurisdiction over 238; 13 0. C, C. (N.S.) 152; af- the administrator to compel him to firmed, 82 0. S, 433, file an account. § 213 RESIGNATION AND KEMOVAL 178 § 213. Removal of executor for cause, etc. The third method of extinguishing an administrator or executor's connection with the estate is by removal for cause, and this is provided for in the following provision of the General Code: "The probate court may remove any executor or adminis- trator, he having not less than five daj^s' notice thereof, for habitual drunkenness, gross neglect of duty, incompetency, fraudulent conduct, removal from the state, or if there are un- settled claims or demands existing between him and the estate, which the court thinks may be the subject of controversy or litigation between him and the estate, or persons interested therein, or for any other cause which in its opinion renders it for the interest of the estate that such executor or administra- tor be removed." [R. S. § 6017 ; 102 v. 101.] '^ § 213a. Proceeding's after removal. ' ' The other executor or administrator, if any there be, may proceed to discharge the trust as if the executor or administrator so removed were dead. If there be no other executor or administrator the court may com- mit the administration of the estate not already administered to some other person or persons, in like manner as if the executor or administrator so removed were dead." [R. S. § 6017.]-'** § 214. Who must file application, etc. I have no doubt that the court, may of its own motion remove an administrator or executor for cause, just as well as it may revoke letters of administration when they have been wrong- fully issued, but the more usual practice is that an application should be filed in court to invoke its action in the premises ; and ■while our statute does not provide that the application shall be made by a party in interest, yet the courts have frequently held that such an application must be filed by a party in interest, and that the court would not act where it did not appear that the person making the application had some interest in the matter.'" In this State it has been held that a prosecuting attorney has sufficient interest to file an application for removal if an admin- istrator fails or refuses to file an inventory.'^ 29 § 10620, G. C. state. It leaves the matter in the 29* § 10630, G. C. discretion of the judge. Seasongood 30 See Woerner on Admin. 581, v. Seasongood, 23 O. C. C. (N.S.) 31 See In re Pickards, 5 X. P. 369. 493; 7 Dec. 476. The jurisdiction of the Probate This section does not require the Court is exclusive. Munger vs. Jef- court to remove an administrator fries, 7 X. P. 55: 10 Dec. 12. merely because he moves to ano£lier 179 APPLICATION § 215 A creditor who is entitled to the letters may move for the re- moval of an administrator if the appointment was made within the time he had priority over a stranger.^^ So one injured in the maladministration of the estate.^* So may the widow/* or a legatee under a will when it has been revoked and an appeal taken,^^ or a legatee or his assignee,^*^ or sureties conceiving themselves in danger from their principal's misconduct,^^ or any of the heirs of the estate, especially if solvent.^^ Only next of kin may ask for the removal of an administra- tor on the ground that he is not the next of kin.?^ And if one next of kin yield his right to a stranger, he may not thereafter revoke his consent and ask for a removal/" An administrator whose appointment is void because of a former appointment may not .^sk for tlie removal of such prior appointee on the ground that his appointment is voidable.*^ An illegitimate son cannot ask to have his mother removed as administrator of his putative father's estate on the ground that she was never married to him, for he has no interest in the estate.*^ The natural guardian of an infant legatee cannot apply for a removal,*^ nor may the creditor only of the administrator.** § 216. ADplication. It has been a common practice in preparing an applicatiofi for removal of the administrator, to simply set out the words- of the statute without naming in detail the acts that are alleged 32 Ferris vs. Ferris, 89 111. 452. 39 Edmundson vs. Roberts, 1 How, 33 Succession of Decuir, 23 La. ^^^1^?;' ^^^- -r^. , ,„ m mr^ 40 Cole vs. Dial, 12 Tex. 100. Ann. 166. 41 Coltart vs. Allen, 40 Ala. 155. 34 Evans vs. Buchanan, 15 Ind. 42 Myatt v. Myatt, 44 111. 473. 438; Pace vs. Oppenheim, 12 Ind. ^^ Quin v. Hill, 6 Dem. 39. ' 44 Carroll vs. Hull, 21 La. Ann. 561 35Newhou3e vs. Gale, 1 Redf. 217. ^^ § 1514^ Procedure for removal 36Yeaw vs. Searle, 2 R. I. 164; of gdn. ; §1563, Procedure for re- Susz vs. Forst, 4 Dem. 346. moval of assignee. , -P ,«- If the administrator is insolvent, 37 De Lane's Case, 2 Brev. 167; ^^^ ^^^^^^ ^^ ^^.^ ^^^^ ^^jg,^^ ^^^^^^ Hardaway vs. Parham, 27 Miss. 103. ]jjg removal. Yakev vs. Strunk, 7 38 Reed vs. Crocker, 12 La. Ann. N. P. (N.S.) 177; 18 Dec. 734. 445. § 216 RESIGNATION AND REMOVAL 180 to constitute the cause for removal. In a very able opinion, Judge Fisher, of the Common Pleas Court, held that under § 10629-30 of the General Code, an application for the removal of an administrator or executor, must state the facts which consti- tute the alleged causes of removal. It is not sufficient to charge mismanagement, maladministration or misapplication of the funds in general terms ; and that it v^as' an error in the Probate Court to overrule a motion to maJie more definite and certain such a general charge.*^ The Court further held in this ease, that the application must show that the person making the same has an interest in the estate, and also that the proceedings are adversary in their character. From this decision, which was affirmed by the Circuit Court., and which I have no doubt states the law correctly, it will be necessary to set out in detail in the application for removal, sufficient cause to make out a prima facie case.*® § 216. Form of application. (Title.) Now comes the said A. B. and represents that he is an heir-at-law of the said decedent, C. D.. and legatee under the will of the said C. D., and as such is interested in the administration of the estate (or if the party is interested in any other way, so state), and he further represents to the court that the said E. F., executor of the said C. D., has been guilty of thi following misconduct in the management of said estate, to-wit: First, That he has been guilty of gross neglect of duty in the settlement of said estate in the following way. (Here allege any of the matters which in a subsequent section are held to constitute gross neglect of duty. ) Second, That said executor is wholly and duly incompetent to settle said estate. (Here allege the manner which it is claimed will constitute the incompc?tency. ) Third, That said executor has been guilty of fraudulent conduct in the settlement of said estate. (Here allege the fact upon which it is claimed the fraudulent conduct rests.) Fourth, That there are unsettled claims existing between said executoi and the decedent, etc. (Here allege in what manner the existence of such a claim would be a good ground for his removal.) Fifth, That he has been guilty of habitual drunkenness. (This allegation might be sufficient without further definiteness. ) Sixth, That said executor has removed from the State. Seventh. ( It might be further alleged whatever matter it is claimed will be sufficient to cause his removal.) 45 Fox Exrs. vs. Keister, 6 N. P. •*« See § 254, Application in re- 327: 8 Deo. 636: 9 Dec. 316. lease of bondsman. 181 NOTICE^ ETC. § 217 Wherefore the said A. B. prays that a notice may be issued to said E. F., executor of said C. D., requiring him to appear in this court and answer said charges as provided by law; and that he be removed from said trust. Sign. State of Ohio, County, ss. A. B., being first duly sworn, says that the allegations of his above appli- cation are true, as he verily believes. Sworn to and subscribed before me and in my presence this day of A. D. 190.... § 217. Form of entry for hearing, etc. This day came A. B. and filed herein his application for the removal of E. F., executor of the estate of said C. D. ; and the same is set for hearing on the day of , at o'clock ....M. And it is ordered that a notice of the said application and the causes therein alleged for the removal of said E. F. and the time of hearing same be issued, directed to (here insert name of person who is to serve the same), for the said E. F. to appear in this court at the time the said cause is set for hearing, and answer the same; and that said notice be served on said E. F. at least twenty days before the time of hearing thereof. § 218. Notice, etc. Only the statute providing for the removal of an adminis- trator or executor for cause, provides that notice should be given to the executor or administrator. But if an application or mo- tion were filed to tenninate an administrator or executor's au- thority, by reason that the letters were wrongfully issued, a proper practice would be to give the same notice as is required tinder § 10629-30, G. C. Of course, as a general rule, it may be said, that no administrator can be removed unless he has the notice required by statute.*'^ It will be observed that this notice must be served on the administrator or executor at least five days before his removal. If the administrator had absconded and gone to parts unknown, so that no personal service could be n:ade on him, or if he has gone beyond the jurisdiction of the court, then it would be well to give notice by publication. The first insertion being at least five days before the time of hearing. 47 Woerner Admin. 575. are without merit. In re Breckin- The constitution of a motion to ridge Est:, 7 C. C. (N.S.) 80; 27 remove an executor is not a sum- O. C C. 688. mary and ex parte proceeding, but See as to notice by publication, one in which the executor should Netting vs. Strickland, 9 C. D. 844; be allowed to show that the charges 18 0. C C. 136. § 219 RESIGNATION AKD REMOVAL 182 § 219. Ponn of notice. {Title.) To You are hereby commanded to notify E. F., administrator (or executor) of the estate of C. D.. that on the day of an application was filed in this court for his removal from said trust, because of his alleged unlawful acts therein, which are as follows. (Here state and set out in detail the grounds upon which the removal is asked.) And said application is set for hearing on the day of; A. D. 190..., at o'clock, at which time it is ordered that said E. F. will appear in this court and answer respecting said charges. If said E. F. fails to appear the court will proceed to hear the same in his absence, and make such orders as the facts will justify. Witness my hand and seal of this court, on this day of Sign. Probate Judge.** § 220. Causes. Habitual drunkenness. The drunkenness contemplated by this section should be such habitual indulgence on the part of the executor or administrator as would render him incapable of devoting the necessary time and the proper degree of attention to the administration of the estate.'*^ But the proof that the executor or administrator ha5 been seen intoxicated from time to time is not sufficient. Sur rogate Tucker held the statute contemplated " habitual, con tinned, inveterate and irremediable habits of drunkeniiess, iu capacitating him for the transaction of business." ^° 48 This notice may be served by being a common drunkard can bv any party. In which case the party substantiated, without proving tha<; making the services should make an ,, j ^ . , , affidavit on the back of the original ^^^ P^''^^'" accused of it has been notice of the time and manner in constantly drunk during the timi which the notice was made. If the covered by the complaint, or eve» notice is served by the Sheriff he that his drunkenness was a mattei Will make the usual return. The t j -i mi ■, original notice should be filed with °^ ^^''^ occurrence. The law no- the papers and made a part of the where undertakes to define how record of the case. many instances of intoxication, in See § 1568, Removal of assignee. „„„ „;..„„ 4-;„„ v, n u j j e 49 See Matter of Cadv. 36 Hun ^""J ^''^^ ^'™^' '^^" ^^ '^^''^'^ '"^- 122; affirmed 103 N. Y. 678. ficient to fix upon a man the impu- 50 Elmer vs. Kechele, 1 Redf. 472. tation of being a common drunkard. See Collins vs. Collins, 22 Dec. The use of the word ' common ' im- 345, where a number of cases are , j. j -^ , , cited and quoted from as to what P"""^ frequency, and it has been will constitute habitual drunken- ^^^^ 'that to convict a man upon iiess. snc'h a charge, it must be shown that In Com. vs. McXamee, 112 Mass he is an habitual drunkard." P,vi- 28o, it is said: 'The charge of 183 GROSS NEGLECT OF DUTY § 221 § 221. Gross neglect of duty. Just what might be comprehended within the phrase " gross neglect of duty," and which would be sufficient to remove an ad- ministrator or executor, has not been passed upon by our courts. It no doubt is meant to include acts that are not included within the meaning of habitual drunkenness, incompetency, fraudulent conduct, etc. A similar phrase is used in the divorce laws as a cause for divorce, and there it has been held that gross neglect of duty is an omission or forbearance to perform those duties imposed by the marriage relation.^^ So it may be said that a gross neglect of duty of an executor or administrator in the ex- ecution of his trust would be an omission or forbearance to per- form those duties which are imposed upon him by the law of administration. A failure to properly discharge his duties might be the result of various causes depending particularly upon each case; and what will constitute a failure sufficient to justify a removal must rest largely in the discretion of the Court. The first object that should always be kept in view in the administration of an estate, and in passing upon the relation ji an administrator or executor thereto, is that the estate is ad- ministered to the best interest of all concerned. An adminis- dence of habitual intoxication from that he should always be drunk, the use of chloroform held not to Occasional acts of drunkenness do sustain a complaint charging a per- not make one an habitual drunkard, son with being a " common drunk- Nor is it necessary that he should ard." Com. vs. Whitney, 11 Cush. be continually in an intoxicated (Mass.) 477. state. A man may be an habitual Ludwick vs. Com., 18 Pa. St. 172. drunkard, and yet be sober for days Said the Court in this case: "To and weeks together. The only rule constitute an habitual drunkard, it is, has he a fixed habit of drunken- is not necessary that a man should ness? Was he habituated to intem- be always drunk. It is impossible perance whenever the opportunity to lay down any fixed rule as to off"ered? We agree that a man who when a man shall be deemed a is intoxicated or drunk one-half his habitual drunkard. It must depend time is an habitual drunkard, and upon the decision of the jury, un- should be pronounced such." der the direction of the Court. It See § 1563, Removal assignee; § may, however, be safely said, that 1539, Removal guardian, to bring the man within the mean- 5i Schwartz vs. Schwartz, 7 N. P. ing of the act it is not necessary 194; 6 Dec. 525. § 222 RESIGNATION AND REMOVAL 184 trator ought not to be removed, and the Court will not remove him, for a trivial cause, but if the surrounding circumstances are such, no matter what may be the cause, that the estate will not be properly administered, such executor or administrator has lost his usefulness to the trust, and his connection therewith ought to be terminated. A court should bear in mind, however, that very often heirs or others interested in an estate are un- just and wrong in their criticisms of the administrator or ex- ecutor/" The New York statute provides that improvidence shall be a cause of removal, and it is said that the improvidence contem- plated by this section is that want of care or foresight in the management of the property which does render, or would be likely to render, the estate and effects of the decedent unsafe and liable to be lost or diminished.^^ § 222. Incompetency. Whatever would be^ a sufficient ground to prevent the appoint- ment of an executor or administrator, if newly discovered or 52 In speaking of this hostility, quire that the trustee should make etc., the Court in the matter of way for one who will manage the Havemeyer, 3 App. Div. N. Y. 519, estate according to the rules pre- says : " But when this condition of scribed for the management of such hostility between those interested in estates and who will act in sympa- an estate and its trustee exists, it thy with the beneficiaries rather becomes material to determine than in hostility to them." whether the feeling of hostility has 53 Matter of Cutting, 5 Dem. 456, been caused by an honest endeavor 457, citing Coope vs. Lowerre, 1 on the part of the trustee to carry Barb. Ch. 45; Goggshall vs. Green, out his trust and perform his du- 9 Hun 471; McMahon vs. Harrison, ties, in opposing the wishes of the 6 N. Y. 443 ; Emerson vs. Bowers, beneficiaries for an illegal and im- 14 N. Y. 449; O'Brien vs. Neubert, proper disposition of the trust 3 Dem. 156; Blank vs. Morrison, 4 funds, or whether it has been caused Dem. 297 ; McGregor vs. McGregor, by an attempt of the trustee to man- 1 Keyes, 133; Hayward vs. Place, 4 age the estate in a manner not au- Dem. 487. thorized by law or by the will of Affirmed in Supreme Court and the testator from whom he received Court of Appeals, his authority to act. If the latter See § 1302, Causes for removal of appears, we think that the interests trustee, of those concerned in the estate re- gee 115, who may be appointed. 185 FRAUDULENT CONDUCT § 223 created, would be svifficient to remove him after the appointment is made. As this matter of incompetency has been gone into rather fully in the chapters relating to the appointment of ad- ministrators and executors, for further investigation as to who may be considered incompetent, reference thereto will be made.'* Incompetency may be used as synonymous to unfitness, which has been defined as implying no want of capacity or mental in- firmity, but unfitness arising out of the situation of the person in connection with the estate of which he is administrator, by reason of being indebted to it, or having claims upon it, or in the interest he has under a will, or his situation as an heir at law." A specification of incompetency will not be supported by proof that an administrator could neither read nor write. The Court said : " This qualification would be very useful, but we cannot deem it absolutely essential. Such persons possess neveilJieless very considerable business capacity." ^® § 223. Fraudulent conduct. Fraudulent conduct means dishonest conduct. If there is one thing above another which a court will demand from a per- son acting in a fiduciary capacity, it is that of absolute honesty. If an administrator is shown to have been dishonest in any of his dealings in any matter concerning the welfare of the estate, the Court ought to have no hesitation in removing him. Just what conduct on the part of the administrator or executor would constitute fraudulent conduct is difficult to determine, for the manifold ways of committing fraud are as various and wide a« the ingenuity of man. An act may be unlawful and not fraud- ulent; thus where an executor vdth the knowledge of all inter- ested parties, bid in property at a sale of his own as such executor at a fair price, it would not be such fraudulent con- duct so as to justify his removal.'^ 54 See §§ 81, 115. 57 Fox vs. Keister, 6 N. P. 327; 55 Thayer vs. Homer, 11 Mete. 104. Dec. 316. 58 Gregg vs. Wilson, 24 Ind. 227. See § 1302. § 224 RESIGNATION AND KEMOVAL 186 Likewise there might be many other acts done by the executor or administrator which are not strictly within the letter of the law, but which, if done honestly and openly, would not justify the court in ordering his removal/* § 224. Removal from the State. Removal from the State is made a cause to justify the Court in removing an administrator or executor. The mere fact that the executor or administrator removes from the State will not be sufficient to compel the court to remove him. It is a mat- ter largely in the discretion of the court, and if the interests of the estate will be best subserved by continuing the administrator or executor he will not be removed.^^ Generally it may be said that it is no excuse that he had gone to another State because the greater part of the decedent's estate was there situated and he could better administer it there.®" The fact of becoming a non-resident does not of itself vacate the office, for that requires the judgment of the court/ ^ If an administrator becomes a soldier by joining the regular army he disqualifies himself to act and may be removed.®^ § 225. Unsettled demands. It is not every claim that an executor or administrator may have against an estate that will justify his removal, for § 6100 fully recognizes that such claim may be settled without a re^ moval of the executor or administrator,^^ There it is provided that the court must pass upon the claim of an executor or administrator and all interested persons made parties, and the same may be appealed to the Court of Common fis Woerner on Admin. 575. pointment, that if the estate is such B9 Cutler vs. Howard, 9 Wis. 309 ; that it needs his care and attention Scott vs. Lawson, 10 La. Ann. 547. to any extent, the Court should ex- 60 Ewing vs. Ewing, 38 Ind. 390. ercise its power of removal. 61 State vs. Rucker, 59 Mo. 17. See § 1302. 62 Berry vs. Bellows, 30 Ark. 198; « See § 631 et seq. Hebert vs. Jackson. 28 La. Ann. 377. As to what will constitute suffi- As a general rule it may be said, cient ground to remove, see In re that if an executor or administrator Breckinridge Est., 7 C. C. (N.S.) takes himself beyond the jurisdic- SG; 17 Cir. D. CSS, column 687; 27 tion of the court making the ap- 0. C. C. 688. 187 ANY OTHEK CAUSE § 226 Pleas by any person who is aggrieved by the decision of the Probate Court. The law of this State further being, that if the executor or administrator owed the estate anything, that the same becomes assets in his hands for which he is liable on his bond. As it is never to be presumed that a law is made with- out purpose, we must conclude therefore that there can exist a condition of affairs over unsettled demands existing between the estate and the executor or administrator which will justify the court in ordering his removal. If there are such claims exist- ing as will prevent a proper administration of the estate, the executor or administrator ought to be removed, but the mere fact of the existence of certain claims will not be sufficient.^^ § 226. Any other causes. If sufficient cause for removal cannot be found to exist under the above mentioned causes, the court will certainly have power, where there is a wrongful or injurious administration of the estate, to remove the executor or administrator under the desig- nation, or any other cause which in the opinion of such court renders it not for the interest of the estate that such executor or administrator he removed. The Masachusetts statute, from which State it is said we have received most of our probate law, had an almost similar omnibus clause, about which Justice Parker says : " The statute gives a very broad discretion to the judge, evidently intended not to define or limit the disabilitiea which should be the cause of removal, but to leave room for ap- plication of the power to all causes which may occur to render execution of the will or administration of an estate too per- plex." «« As a cause for removal it has been held to be sufficient that «5 In re Worthjngton, 5 N. P. 63 ; charge the administrator's account 6 Dec. 524. ' in Probate Court." " The Court," says Woerner, § Fisher, J., in Fox, Extr., vs. Keis- 271, "will not remove an adminis- ter, 6 N. P. 327; 9 Dec. 316. trator regularly appointed, upon the See § 1302. suggestion of a party who was privy <»8 Winship vs. Bass, 12 Mass. 199. to the appointment, that the admin- The clause cited in In re Schon- istrator is indebted to the estate, aker, 55 Bull. 7S. In this case it is which is denied by the administra- licld that where a will is contested tor; the proper remedy being to sur- and broken, the duties of an admin- istrator with the will annexed cease. § 226 RESIGNATION AND REMOVAL 188 at time of instituting the proceeding there was and still con- tinues to be acrmionious and hostile feeling between, aji execu- tor and testator's widow, and also a legatee, which intercepts and prevents such managing and husbanding of the estate as prudence, sound policy and interest of the devisees and cred- itors require. ^^ A failure to keep proper accounts may be sufficient for a re- moval.*® A refusal to obey an order of court is sufficient to justify the removal of an administrator.^'* He may be removed if he has committed waste, is wasting or squandering the estate,^** or is neglecting or mismanaging it,^^ or make improper investments or mingles the trusts funds ^vith his own if connected with other acts of neglect,^' or converts the assets to his own use,'^ or is gTiilty of gross carelessness in its management,'* or fails to redeem property on request made,''* or gives miauthorized preferences (perhaps),^^ or has allowed a fraudulent claim,"^ or conveys assets of the estate to his sure- ties to indemnify them,'^ or fails to perform the duties of his trust.'" 67 Estate of Pike, 45 Wis. 391; 1 ^i Lucich vs. Medin, 3 Nev. 81; Prob. Rep. 332. In this case it is Travis vs. Insley, 28 La. Ann. 784; said that a quarrel between an ex- Fernbacher vs. Fernbacher, 4 Dem. eeutor and devisee or legatee is not 227; S. C. 17 Abb. N. C. 339; Gray in every case a cause for removal of vs. Gray, 39 N. J. Eq. 332. an executor. The blame of such '^'^In re Simon's Estate, 155 Pa. may rest entirely on the devisee or St. 215; S. C. 26 Atl. Rep. 424. legatee and its existence may not 73 Gibson vs. Maxwell, 11 S. E. endanger the interests of any one or Rep. 615. interfere in the least with the prop- 7* Rogers vs. Morrison, 21 La. er execution of the trust. In such Ann. 455; Reynolds vs. Zink, 27 a case if the executor performs his Gratt. 29. duties it would or might be an abuse 73 Glines vs. Weeks, 137 Mass. 547. to remove him. 76 Foltz vs. Prouse, 17 111. 487. 68 In re Simon's Estate, 155 Pa. 77 Owens vs. Link, 48 Mo. App. 5)t. 215; S. C. 26 Atl. Rep. 424. 534, 69 Wright vs. McNatt, 49 Tex. 425. 78 Fleet vs. Simmons, 3 Dem. 542. Such as filing an account or giv- 79 Marsh vs. People, 15 111. 284; K^i'TIs?''' "^'^""^ ^^" ^^''^'^^^'^' Chew vs. Chew, 3 Grant Cas. 289; ""vo'x^wcomb vs. Williams. 9 Met. Wildridge vs. Patterson, 15 Mass. 525; Emerson vs. Bowers, 14 Barb. 148. 658. 189 STATUTORY CAUSES § 227 § 227. Other statutory causes. In addition to the matter specified in § 10629-30, G. C, there are a number of other statutory causes for the removal of an ad- ministrator or executor. Thus he may be removed if he fails to file an inventory,*** or if he neglects and refuses to return a sale bill within the time required by law,^^ or if he neglects to file his account.*^ Likewise if he is ordered to give a new bond and he fails to do so within the time required^^ Also if he is required by court to give a bond of indemnity to his sureties and he fails to do so he may be removed.** In all of these specified causes the party having failed to com- ply with the statutory provisions and the Court mights, perhaps, after having given him the order to do a certain act, remove the executor or administrator without a further hearing; but the better practice would be to file an application for his removal the same as in any other case. In addition to these specified causes for removal, if the administrator refuses and neglects to perform any other order given by the court or required by stat- ute, such as the giving of bond, etc., he may be removed. § 228. Hearing and entry. On the day set for hearing, proof of service of notice should be filed in the case and the evidence should be heard in like manner as in any trial ; and if the charges are not sustained a very short entry of dismissal will be sufficient. If sustained the following form may be used: {Title.) This day this cause came on to be heard upon the application of A. B., filed herein for the removal of E. F., executor of the estate of said C. D. ; and it appearing to the court that said E. F. hai? had due and legal notice of this proceeding and the time of hearing thereon as required by law (and if such be the fact, state; and the said E. F. being now here in court), and the said cause came on for hearing and was submitted to the court upon the 80 See § infifiO G. C, § 306. Application for removal and re- 81 See §10711 G. C, §491. covery of concealed assets may be 82 See § 10«2.'5 G. C, § 709. joined in one action. Harris vs. 83 See § 10S66 G. C, § 2.52. Westervels, 15 C. C. 534; 8 C. D. 84 See § 10867 G. C, § 253. 368. §229 BESIGNATION AND BEMOVAL 190 said application and the testimony of divers witnesses; and was argued to the court by counsel, whereupon the court finds that the said E. F. has been guilty of ( here insert the ground of removal alleged in the application, which the court finds to be true), and orders that the said E. F. be removed as executor of the estate of the said C. D., and that within days he file a full account of his administration of said estate, in this court as required by law, and the costs of this proceeding, $ are taxed against , and judgment for said sum, $ , the costs herein, is rendered against 86 § 229. Effect of order of removal. The removal authorizes the administratar de bonis non to im- mediately take possession of all the effects of the deceased, and bring suit for that purpose.^® The removal of one administrator and the appointment of another to supersede him is a judicial proceeding of sufficient notoriety and all connected therewith are bound to take notice of it.«' Where an obligor is appointed administrator of the obligee the debt is not thereby extinguished, but is merely suspended and the debts become assets in the hands of the obligor as ad- ministrator.*^ By accepting the resignation of an administrator pending the settlement of his accounts, the Probate Court does not there- by lose its jurisdiction over his person or the settlement of his accounts, and may proceed to hear and determine exceptions thereto, and ascertain the amount due from him to the estate, in like manner as if he had continued in the execution of his trust; and the amount so found due will, in the absence of fraud and collusion, be conclusive not only upon him but upon his sureties, in an action upon the administration bond, unless an appeal has been taken or the judgment has been reversed upon a proceeding in error.** 8B See § 10624 G. C. Since the above was written the 86 See § 157 ; Admrs. of Pitcher Supreme Court has expressly de- vs. Reese, 6 0. 418 (176). cided in accordance with the au- 87 Treasurer vs. McElvain, 5 0. thor's views, and that the court does 200. not lose jurisdiction over him until 88 Bigelow vs. Bigelow, 4 0. 138. his account is filed and settled, 89 In a recent case it was held notwithstanding the fact that the that the Probate Court has no juris- court may have made an order of diction to compel an administrator removal. In re Morrison, 68 O. S. to file his account after he has been 252. removed. If this is the law it In re Miller, 8 N. P. 385. ought not to be, and I doubt if it is. See James vs. West. 47 Bull.. 857, The removal is not complete until where the practice of filing an ao- the account is filed. count after removal was followed. 191 ACTS AFTER REMOVAL § 230 Where upon the settlement of the accounts of an administra- tor or executor, who has resigned or been removed, the amount due from him to the estate has been ascertained and determined by the Probate Court, it is not error in the court, to order its payment to his successor in the administration of the estate.^" As to the effect of the resignation the statute provides as fol- lows : "The acceptance of such resignation, and the appointment of another administrator, shall not affect tlie liability of the former executor or administrator, or his sureties, previously in- curred." [R. S. § 6016. ]«i § 230. Acts after Ms removal, etc. After the removal of an executor or administrator he has nothing to do except to turn over all property in his hands and file his final report-. All other acts are invalid.^^ If the executorship is terminated by death, his successor must within six months file an account. As a matter of course, hav- ing no control over the estate, the removed administrator or ex- ecutor will not be liable for any act affecting the estate after his removal.'*^ If a suit be pending against him in his representative capac- ity he may plead his removal and his successor must be substi- tuted.'* All sales made and all acts done in good faith by an executor or administrator previous to his removal are valid.'^ The removal terminates the authority of the removed admin- istrator, over the assets received as well as those not received.® See In re Morrison's Est., 8 N. P. If the court refuses to remove 385. him and an appeal is taken, his 90 Slagle vs. Entrekin, 44 0. S. authority continues until the appeal 637; Woerner 58!). is heard. Melanpy vs. B. & L., 13 91 § 10628 G. C. Dec. 192. 92 0\von« vs. Cowan, 7 B. Mon. The resignation can take effect 152; Stubhlefield vs. McRaven, 5 even though no other administrator Sm. & M. 130. is appointed. State vs. Moffitt, 13 93 Marsh vs. People, 15 111. 284. C. C. (N.S.) 152, 159. 94 National Bank vs. Stanton, 116 If tlie administrator is discharged Mass. "435. t^ie mere fact that he permits a suit 95 § 6021 Pv. S., § 159, Sales of against the estate to be continued former executor, etc. will not be sufficient to hold him See § 160, Notice, bonds, etc. responsible. State vs. Moffitt, 33 O. See §95, Power during contest. C. C. 230; 13 0. C. C. (N.S.) 152; 96 Weaver vs. Reese, 6 O. 421. affirmed, 82 O. S. 433. § 231 EESIGNATION AND REMOVAL 192 § 231. Termination of authority by completion of trust. The object and purpose of the appointment of an executor or administrator having been accomplished, as a matter of course, his authority terminates, but unless it is terminated by one of the modes provided by statute it continues until the estate is fully settled. Where an administrator files what pur- ports to be his final account in Probate Court, and the court having found upon the hearing of the account that the executx)r had w^ell and faithfully discharged his duties and paid out to the proper person or persons all moneys in his possession as execu- tor ; and further ordered that the account be made final and that said executor be discharged from his trust, that he distribute among legatees and distributees of the estate of the decedent all of the uncollected assets of said estate. It was held that this was not such a finding as would prevent the administrator from proceeding to convert uncollected choses in action of said estate into money.®^ The Court says : " The primary duty of the executor wilsh respect to the choses in action is to collect them, and he is re- lieved of that duty only when he has otherwise disposed of them in one of the modes above mentioned. It is not shown by the record that the executor had disposed of the note sued on by him. He had not distributed to anyone entitled to its proceeds, nor had any distributee of the estate agreed to receive it, nor had he sold it, or filed it with tlie Probate Court for creditors or distributees. On the contrary, it appears that he still re- tained the note and his duty remained as long as he continued to be executor to collect the same by suit or otherwise, and ac- count for the proceeds. In a settlement made when that is done, whatever he or the Probate Court may call it, is not his final settlement."^* Discussing the order made in this case, the Court further says : " But we find no power conferred upon that court to discharge an executor or administrator from his trust upon the settlement of what is called a final account, thus extinguishing »7 Weyer vs. Watt, 48 0. S. 546. 97* id. 550. 193 APPEAL AND EKROR § 2o2 his authority as trustee. Unless therefore the order of the Pro- bate Court operated as a removal of the plaintiff from his trust or as a resignation of it by him, his authority as executor con- tinued notwithstanding the order." From this authority it may be said that the usual order made in the Probate Court upon tlie filing of what purports to be a final account in which it is generally stated that an account is approved and that there is balance in the hands of the executor of dollars, which he is ordered to distribute according to law, etc., will not release such administrator or executor if there are still out- standing assets to be administered upon ; and if such executor wishes to be released in such a case he should tender his resigna- tion witli the filing of his account, for in such a way can he only surrender his authority, unless removed for cause, before the trust is completely administered.®^ § 232. Appeal and error. The question whether the decision of tlie Probate Court, in the matter of removing an administrator is subject to review by a higher court in the nature of an appeal or proceedings in error has been of sufficient uncertainty to reach the Supreme Court. In re estate of Samuel Stell,^^ it was held that an appeal will not lie to the Court of Common Pleas from the order of the Probate Court removing an administrator. The same question came before the court again in the case of 98 An administrator is not dis- McCIaskey vs. Barr (Ohio), 79 charged from his trust until full Fed. 408; Fewlass vs. Keeshan administration is accomplished, and (Ohio), 88 Fed. 573. therefore an administrator was not See Hicks vs. Stone, 11 Bull. 67. discharged by filing in the Probate See § 798, Order of discharge. Court a written statement under 99 15 Q. S. 484. oath that no assets had ever come Statute as amended specifically al- into his hands as administrator; lows appeal. See § 39. 95 v. 416- and that no claim of any kind had ever been presented to him, except- § 11043 G. C. ing such as had been fully paid by When an appeal has been taken the widow, and that having received from a motion to remove an admin- no funds as administrator and hav- istrator, this does not affect the ing paid out nothing, he filed the right of the administrator to act, statement under oath as his final and he can collect a judgment pend- account as administrator and for ing the appeal. Melanpy vs. B. & L., the discharge of his trust. 13 Dec. 192. § 232 EESIGNATION AND REMOVAL 194 Ebersole vs. Schiller/'"' when the court again held that there is no right of appeal to the Court of Common Pleas from the Pro- bate Court, reviewing tlie removal of an administrator. Whether or not the proceedings in error would lie has been a matter of some doubt/°°* In the case of Fox vs. Kiester/°^ it was held that the order of the Probate Court in removing an executor or administrator is an order affecting a substantial right made in a special proceed- ing and may be reviewed on error on application to the Court of Common Pleas. This decision was affirmed bv the Circuit Court. ^°^ But in quite a recent decision in the Supreme Court ^°^ it was held that an order of the Probate Court removing an executor is not a subject to be reviewed on petition in error in the Court of Common Pleas. The Court expresses itself very briefly, but it says : " A con- clusion reached in the Common Pleas and Circuit Courts that an order of the Probate Court, removing an executor, is not subject to review on petition in error, is justified by the section (6017) of the statute as well as by the views which this court has heretofore expressed upon tlie general subject." ^°* 100 50 O. S. 701 ; Perrine vs. turb a finding of the Probate Court Printz, Dayton 65. to the effect that the next of kin is 100* The law as amended ( 1902 ) , "evidently unsuitable," or that the 95 V. 392, § 12241 G. C, § 52, pro- applying creditor is incompetent, vides that error may be prosecuted. within the meaning of § 6005, R. S., 1016 X. P. 210; S Dec. 030. unless it appears that the Probate 102 Id. 332. Court abused its discretion. McCal- 103 Monger vs. Jeffrie-. 43 r;iill. lip vs. Sharp, 13 Dec. 450. 217; 62 d. S. 149; Martin vs. Der- The statute, §6407 R. S. (§ 11206 shem, 46 Bull. 172. q. C), giving right to appeal to 10* Now changed by statute. See Common Pleas Court, does not con- § ^2. flict with § 524 R. S. ( § 10492 G. Citing in re Still, 15 O. S. 484; c.), giving Probate Courts original Brigle vs. Starbuck, 34 0. S. 280; exclusive jurisdiction to grant and Kbersole vs. ShiUer. 50 O. S. 701. revoke letters testamentary. In re See § 1575, Removal of assignee. Sells' Est., 5 X. P. (X.S.) 629; 19 Although the refusal of the Pro- j^^^ ggy bate Court to consider the applica- The Circuit Court, however cau- tion of the next of kin or of a cred- ^^^ ^^^j^,,, ^j^^ ^^^-^-^^ „f tl^^ Court itor for letters of administration, of Common Pleas. Smith vs. Bracy, may be reviewed in the Common 32 C C 383 Pleas Court, that court will not dis- 195 REQUIREMENT OF BOND § 233 CHAPTER XV. BONDS, EXECUTION, FORM, ETC. § 233 Requirement of bonds. § 239 Liability of judge in accept- §234 To whom made payable. ing bond, etc. I 235 Good signed in blank, § 240 Amount of penalty. §236 Sufficient condition. §241 Sureties — Qualification and §237 Execution, form etc. number. § 238 Approval and custody. § 242 Examination of sureties. § 233. Requirement of bonds. In a work of this character it will not be proper to go into the historical origin of the law requiring the giving of bonds. Suffice to say that the legislatures have always been solicitous in making provision for the safety of the beneficiaries of trust estates ; and that our statutes contemplate that whenever a trus- tee is appointed other than that of an executor or trustee under a will dispensing with bond, that a bond be given, indeed until such bond is given, no appointment ought to be made ; and some courts have held that an administrator or executor where the bond is not dispensed with could perform no legal acts in rela- tion to the administration of his trust, until a bond was given.^ But such, it seems, is not the law of Ohio, for in several in- stances it was held that the giving of a bond is not a jurisdic- tional requirement, and that the failure to give such bond does not of itself render the appointment void.^ And in another case it was held that the omission of an ad- ministrator to give bond with the requisite number of sureties upon it, will not affect his right to recover in an action where 1 Woemer on Admin. 546. Judge Pugh in the case of Martin sMitchel vs. Albright, 20 Bull. et al. vs. Falconer, 23 Bull. 333. 101. This case was followed by § 234 BONDS EXECUTION^ ETC. 196 letters have been issued by the Probate Court upon the bond as given and which remains unrevoked.^ In this case it is also said that such an appointment is void- able and not void, and therefore cannot be collaterally im- peached.* These cases cited seem to follow the decisions of the New York court, and that if advantage is to be taken of a defective bond in any way it must be in a direct proceeding in the court that made the appointment.^ § 234. To whom made payable. The general practice is that all trustees' bonds are made pay- able to the State of Ohio, the State being held to be a trustee for all parties interested in the administration of the estate. Where the statute makes provision to that effect, bonds should be made payable to the person for whose benefit they are spe- cially given. But the courts would not be strict about this mat- ter, and if an executor's bond should be made payable to one of the interested parties or to any person, it would be held that such person was a trustee for whoever might be interested, and for any person for whose benefit it was intended that the bond was given.*' 3 Slagle vs. Entrekin, 44 O. S. 637. But where the testator was de- * Sch. Exrs. 142 ; Bigelow vs. pcribed as James, when it should Comegj's, 5 O. S. 256. have been Joseph, the sureties were 5 Bloom vs. Burdick, 1 Hill 130 ; not held. McGooney vs. State, 20 37 Am. Dec. 299. 0. 93. See §§ 1333, 1337, 1343, 155*4. Likewise wnere made to the Su- 6 A bond made payable to the preme Court instead of District " Governor " instead of the State is Court. Myers vs. Parker, 6 O. S. not void. Sikes vs. Truitt, 4 Jones .^^02. Eq. 361; Johnson vs. Fugnay, 1 But where the bond by mistake Dana 514; Farley vs. McConnell, 7 was made to an administrator de Lans. 428. lonis non, instead to an adminis- If made to the " county," instead trator de bonis non with the will of -'people." Bay vs. Brock, 44 annexed, the surety was held. New- Mich. 45. berger vs. Finney, 17 C. C. 215; 9 Or " people of the State " instead C. D. 720. of State, Teris vs. Randell, 6 Cal. 632. 197 SIGNED IN BLANK § 235 § 235. Good signed in blank. "All official bonds, and bonds of executors, administrators, guardians and trustees, bonds re- quired or authorized to l)e taken by or before a court, judge, public board or officer, judicial or ministerial, bonds of in- demnity, and all other bonds conditioned to become void upon the performance by the parties thereto, or any of them, of the stipulations therein contained, shall bind and render liable thereon, both principals and sureties therein, whether at the time of tlie signing thereof by such obligors, or any of them, the amounts of such bonds be filled in or left in blank, if such amounts be filled in before, or at the time of the approval or acceptance of such bonds, and such filling in may be done in the absence of any or all of the obligors, and without any express authority for that purpose from them or any of them." [R. S. §6.]^ Before the passage of the above section of the General Code no blank could be filled in.^ It wall be observed that the above statute only provides that the amounts of such bonds may be filled in after they have been signed in blauk. It has been held, however, that the omission of the names of sureties or obligors in the body of the bond does not affect its validity or their obligation.^ But if a bond were written without any obligee it is very questionable if it could be enforced, although in a proper case it might be reformed ; then, after reformation, be enforced.^" Omissions may be supplied by construing the decree of ap- pointment and bond together.^^ A blank bond executed by the principal and sureties has been held sufficient to sustain the qualification and appointment until the vacation of the letters.^^ But a judgment at law upon such a bo ^d has been refused.^^ 7 § 5 G. C. signed it in blank. Sourada vs. 8 State vs. Boring, 15 O. 507; David, 15 N. P. 257. Famulener vs. Anderson, 15 O. S. As to signature obtained by fraud, 47.3. see Sourada vs. David, 15 N. P. 9 McLain vs. Simington, 37 0. S. (N.S.) 257. 660; Partridge vs. Jones, 38 0. S. 10 State vs. Watson, 2 Cleve. 314; 375; Bid. Assn. vs. Cummings, 45 Abrams v. Kounts, 4 O. 214. 0. S. 64. See Gardner vs. Woodyear, 1 O. Some of these bonds were on spe- 170; State vs. Slough, 12 C C. 105; cialties, etc. 5 C. D. 697. In a recent case it was held tliat n State vs. Price, 15 Mo. 375. tlie sureties were liable even thougli 12 Spencer vs. Gaboon, 4 Dev. L. tiiey were misled as to wlio was the 225. principal in the bond, where they 13 Cowling vs. Justice, 6 Rand. 340. § 236 BONDS EXECUTION^ ETC. 198 It is valid, although omitting to state in terms the conditions on which the obligation might be enforced, or which would ren- der the bond void/* The omission of the penalty does not render the bond void, for the law construes it with reference to the amount the penalty should have been/^ The omission of the name of the decedent does not render it void, for the papers on file may be referred to to supply the omission/^ Such immaterial blanks in a bond as date or name of the obligor may be filled in at any time. The bond is valid with- out them.^^ ^ 236. Sufficient condition. ' ' A bond payable to the state of Ohio, or other payee as may be directed by law, reciting the election or appointment of a person to an office or public trust under or in pursuance of the constitution or laws, and condi- tioned for the faithful performance, by such person, of the duties of the office or trust, shall be sufficient, notwithstanding any special provision made by law for the condition of such bond." fR. S. §7.]i« The provisions of 5 6, G. C, would make valid a bond of an executor or administrator if it failed to set out in detail all the conditions mentioned in the section requiring bond, etc. A bond with the will annexed, conditioned that the administrator will properly discharge his duties as administrator, is not for that reason void.^" The bond is valid, altliough the sureties are not named in the body of the lx3nd."" The bond is effective, although its conditions are not strictly in accordance with the requirements of the statute, but provide 14 Rose vs. Winn, 51 Tex. 545 ; 18 § 6 G. C. Newton vs. Cox, 76 Mo. 352. 19 Owen vs. State, 25 Ind. 371. 15 State vs. Britton, 102 Ind. 214 Soldini vs. Hyams, 15 La. Ann. 551 ^fason vs. Fuller, 12 La. Ann. 68 20 Jover vs. Cooper, 2 Bailey L. 199; Stone vs. Wilson, 4 McCord 203. Shalter's Appeal, 43 Pa. St. S3. Covers all the duties required of 16 State vs. Price, 15 Mo. 375. the official during his term, whether 17 Famulemer vs. Anderson, 15 0. imposed by statute before or after, S. 473. etc. Dawson vs. State, 38 0. S. 1. 199 SUFFICIENT CONDITION §236 in different and more general terms, for the faithful execution of the trust. '^ Where the will is annexed a condition to administer accord- ing to the will, instead of according to the law, does not render the bond void.^^ If it has more conditions than the statutes require, such addi- tional conditions will be regarded as surplusage.^^ The bond is valid although only one surety sign where two are required.^* Private arrangement between the principal and sureties in what maimer tlie bond should be filled out and used will not avoid it as to third persons who relied upon it as actually pre- sented and approved.^® A surety who signed the bond conditionally must retract be- fore the bond is approved and the court and innocent parties have placed reliance upon it.*** When the name of a person is signed to an administrator's bond without his knowledge, and afterwards, and before its ap- proval by the court, he is informed thereof, and does not object, it is toO' late to demand relief from liability after the adminis- trator has committed waste.^^ The bond of an executor, given to secure the faithful dis- charge of his duties as executor, cannot be construed as condi- tioned for the faithful discharge of his duties as trustee of a trust created by the will.^^ 21 Probate Court vs. Strong, 27 Vt. 202; Lanier vs. Irvine, 21 Minn 447 ; Judge of Probate vs. Claggett 36 N. H. 381; Pettingill vs. Pet tingill, 60 Me. 411; Casoni vs Jerome, 58 N. Y. 315; Holbrook, vs Bentley, 32 Conn. 502; Newton vs Cox, 76 Mo. 352; McFadden vs Hewett, 78 Me. 24. 22 Hall vs. Cashing, 9 Pick. 395 Hartzell vs. Com., 42 Pa. St. 453. 23 Woods vs. State, 10 Mo. 698 Grant vs. Brotherton, 7 Mo. 458 Ordinary vs. Cooley, 30 N. J. L. 179 24Slagle vs. Entrekin, 44 0. S 637; Steele vs. Tutwiler, 68 Ala. 107. 25 Franklin vs. De Priest, 13 Gratt. 257; Brown vs. Davenport, 76 Ga. 799; Field vs. Van Cott, 5 Daly 308; Cohea vs. State, 34 Miss. 179. 26 Canal, etc., Co. vs. Brown, 4 La. Ann. 545. 2T State vs. Hill, 50 Ark. 458 ; .S. C, 8 S. W. Rep. 401. 28 Hinds vs. Hinds, 85 Ind. 312; Coggeshall vs. State, 112 Ind. 561. See Foster vs. Wise, 46 O. S. 27; Kaufman's Estate, Goebel, 98. § 237 BONDS EXECUTION,, ETC. 200 An official bond conditioned to discharge the duties of an officer " according to law " embraces tlie duties required by laws enforced during tlie term of the officer, whether enacted before or after the execution of the bond.^" § 237. Execution, form, etc. These provisions of §§5 and 6, G. C, were no doubt en- grafted in our statutes from the fact that the persons whose duty it was to act on such bonds were public officials ; not hav- ing a direct interest in the matter, minor details might very easily be overlooked, and then our Supreme Court had given a very strict construction to that class of bonds, especially when considering the same in relation to the sureties thereon. In the . ease of State vs. Medary,^*' it is said : " The bond speaks for itself, and the law is that it shall so speak, and that the liability of sureties is limited to tlie exact letter of the bond. The sureties stand upon the wordsof the bond, and if the words will not make them liable nothing can. There is no construction, no equity, against sureties. If the bond cannot have effect ac- cording to its exact words the law does not authorize the court to give it effect in some other way in order that it may pre- vail." " This strict construction seems to have been given to a bond because it was a specialty under seal. Whether the abolish- ment of seals would make any difference might be a question, but there is enough uncertainty about the matter that Probate Judges and their deputies should exercise great care in this matter of taking bonds ; more than I know they generally do. Some Probate Judges require that the bonds be signed in open court. This is a very good rule, but difficult to put into prac- 29 Dawson vs. State, 38 0. S. 1. meaning and intention of the parties 30 17 O. 554. was plain, that time has gone by; .31 Judge Longworth, in Partridge and the only object of the court is, vs. Jones (38 0. S. 375), quoted that when the meaning and inten- with approbation the following : " If tion of the party are plain no gram- ever there was a time when courts matical inaccuracy and want of the listened to trivial and verbal inac- appropriate words shall render the curacies in contracts when the real instrument unavailing." 201 APPEOVAL AND CUSTODY § 238 tice; when done elsewhere there is always danger of forgery or misrepresentation. § 238. Approval and custody. It is provided by § 11, G. C, that every officer on receiving an official bond which by law is required to be filed or deposited with him, shall immediately on receiving such bond record the same in a book to be kept by him for that purpose ; and § 522, G. C, says that each judge shall have the care and custody of all files, papers, books and records belonging to his office ; and by § 10611, G. C, it is provided that the bonds shall be filed in the court taking the same and the bonds shall be such as the court shall approve. The following is a general statute relating to the same : "All bonds required or authorized by law to be given in the probate court, on being accepted and approved by the probate judge, shall be filed in his office." [R. S. § 6401. ]32 In reference to the approval and custody of such bonds I know of no Ohio decisions relating thereto. Courts elsewhere have held that the bond is valid, although no formal approval is entered thereon or of record. ^^ , Merely finding the bond on file in the clerk's office will raise a strong presumption that it was approved.^* It cannot be taJven from the clerk's office. A certified copy of it may be given in evidence.^^ If it and its record is destroyed it may be restored.^® In an action on a bond it is not necessary to first show its ap- 32 §11200 G. C. 34McClure vs. Colclough, 5 Ala. 33 State vs. Chrisman, 2 Ind. 126; 65. See United States vs. Dandridge, James vs. Dixon, 21 Mo. 538; Henry 12 Wheat 64; Apthrop vs. North, 14 vs. State, 9 Mo. 778; State vs. Farm- Mass. 107. er, 54 Mo. 439 ; Brown vs. Wheather- 35 Miller vs. Gee, 4 Ala. 359. by, 71 Mo. 152; Cameron vs. Cam- so Tanner vs. Mills, 50 Ala. 356. eron, 15 Wis. 1 ; Ford vs. Adams, 43 Ga. 340. § 239 BONDS EXECUTION, ETC. 202 proval before introducing it in evidence; that fact may be shown aftenvards.^^ § 239. Liability of judge in accepting bond, etc. The matter of the extent of the liability of a Probate Judge in accepting a bond that proves deficient in some manner is per- haps of more interest to the Probate Judge in the nature of in- formation, as to a proper discharge of his duties, than in the enforcement of such liability, if there be one ; for as yet there is no reported case in our State in which it was sought to hold the Probate Judge responsible. ^Vhether he is responsible or not, or, if responsible, under what conditions, is a mooted question. If the act of accepting a bond is a judicial act, the weight of authority is that he could never be held responsible. If the act is a ministerial one, which seems to be the prevailing opinion, he would be responsible in the exercise of ordinary care. Yet it has been held that even if it were a ministerial act, he would only be responsible for acting wilfully or maliciously.^* In another case it was held that it must be shown that he acted wilfully, corruptly or maliciously.^® The line of demarcation between judicial acts and ministerial acts is exceedingly fine, and tlie courts are not in harmony. In Michigan *° it is held that the approval of the form and security of a bond is a judicial act, for which, if the body or person whose duty it is to prove the same, acts wrongfully, there is no redress. In Iowa *^ it is held that the approval of a bond is simply the ascertainment of two facts, the amount which the person acting as surety was worth and the amount of the penalty. The as- certainment of neither fact involved the determination of a question of law or fact upon valid evidence. In the Court's opinion it was not a judicial determination. Elsewhere it is 37 Allen vs. State, 61 Ind. 268. 39 Tompkins vs. Sands, 8 Wend, See Myers vs. State, 47 Ind. 293. 462; 24 Am. Dec. 46. ssMcTerre vs. Lebow, 85 Tenn. ^o Bay Co. vs. Brock, 44 Mich. 45. 121. *i Hubbard vs. Switzer, 47 Iowa 681. 203 AMOUNT OF PENALTY § 240 said the approval or rejection of the bond is essentially a minis- terial act, though coupled with discretion/^ The better doctrine it seems would be that the Probate Judge ought to exercise ordinary care and especially should he be held liable for gross negligence.'*^ In some States the judge is held liable if he takes a defective guardian's bond, this construction depending largely upon the peculiar wording of the statute.** In a case not reported it was held *^ that a Probate Judge is not liable for accepting a forged bond. § 240. Amount of penalty. There is nowhere, as far as I have been able to discover, any statutory provision fixing the amount of penalties in adminis- trators' or executors' bonds. The general practice is to make it double the value of the property which is to be administered. Care should be taken that sureties on the bond are possessed of property sufficient to equal double that of property to be se- cured, excluding what might be exempted to them under the homestead or other exemption laws of our State.*^ The acceptance of an insolvent surety will not affect the va- lidity of the appointment, nor the validity of the administra- tor's acts.*^ Nor will the fact that the bond is insufficient in amount.*^ 4 2Adamson V3. LaFayette, 41 Mo. Judicial act — is an act of any 226. public ofRcer involving the exercise <3 See Miirfree on Official Bonds, of his judgment or discretion on a §§ 50, 51, etc.; Mechem on Public question affecting tne right of any Offices, §§ 619, 635, 643, 657, 686. party. The following are definitions of 44 Woerner on Gdns. 119. ministerial and judicial acts, from <5 Ingersoll vs. Smith, 36 Bull. the Century Dictionary: 302. Ministerial acts are "Those acts, <« Woerner on Admin. 555; §6891 offices and powers that are to be per- G, C. lormed or exercised uniformly on a *'' Slagle vs. Entrekin, 44 Ohio St. given state of facts in a prescribed 637; Herriman vs. Janney, 31 La- manner, in obedience to law or the Ann. 276. mandate of legal authority, without 48 Mumford vs. Hall, 25 Minn. depenrlence on the exorcise of indEr- 347. ment as to the propriety of so do- ing." § 241 BONDS EXECUTION, ETC. 204 In determining the amount of the estate, only property in this State will be considered.*^ Sureties who are legatees with no property except such as is derived from the will are not sufficient.^*' The acceptance of non-freehold sureties does not vitiate the bond,^^ nor a sale of real estate.^^ They need not be freeholders of the county where the bond is given,^^ but should be. A bond which divides up the penalty among the sureties is not absolutely void, but is not favored. °* And the same is true of several bonds in lieu of a single bond." Trust companies may become sureties or act as administra- tors without giving bond.^® A husband may be surety for his wife.''^ § 241. Sureties. Qualification and number. It is provided by statute that " sureties must be residents of this State and worth in tlie aggregate double the sum to be se- cured beyond tlie amount of their debts, and have property lia- ble to execution in this State equal to the sum to be secured." ^* The provisions of tliis section are directory and if not fully complied with would not vitiate the bond, and if a non-resident or an insolvent should attach his signature to the bond he would be held. Of course any interested person might make an ap- plication to require an additional or new bond. Where a rule of court forbids attorneys going on such bonds and an attor- ney violated the rule, it was held that the bond was valid and the attorney could not escape his legal responsibilities thereon.^'* 49 Le^^'is vs. Grognard, 17 N. J. In settlement of an account the Eq. 425. judge niay allow for premium paid 50 Ellis vs. Witt}', 63 Miss. 117. on the bond not above one-half per 51 Hicks vs. Chouteau, 12 Mo. 341. cent, per annum on the amount of 52 Johnson vs. Clark, 18 Kan. 157. the bond, unless it is double the 53 Barksdale v. Cobb, 16 Ga. 13. liability of the administrator, then 54 Baldwin vs. Standish, 7 Cush. it is one-fourth per cent, per annum. 207. 57 /„, re Grove, 6 Dem. 369. 55 People vs. Lott, 27 111. 215. 5S § 6801 G. C. 56 See §§9571, 9572 and 9573 G. 59 Wallace vs. Scoles, 6 0, 428 C., and chapter 13a, § 207m and 710- (181). 162 G. C. 205 SURETIES — QUALIFICATION § 241 It is also provided by another section of the General Code ""^ that sureties shall be inhabitants of this State. As it has been remarked before in this work, good practice demands that sureties be residents of the county in which the bond is given, for when a person is taken who is a non-resident of the county, it is difficult for the court to ascertain his financial standing; and not only that, if anything should occur that suit is required to be brought upon the bond, the person desiring to bring such suit might be compelled to go a considerable distance in a strange county to enforce a surety's liability. This might result to great inconvenience to the persons interested, and the court ought always in every way in its power protect the bene- ficiaries of a trust estate. In other sections ^^ it is provided that there shall be at least two sureties on the bond, but if a bond were taken with but one surety thereon the bond would be a valid one.**^ It has been recently provided ^^ that corporations known as surety companies may become sureties on administrators', ex- ecutors' or trustees' bonds.*** Before such a corporation can be taken as surety, it must comply with the laws of the State to the satisfaction of the Commissioner of Insurance. The usual way in such cases is for the company desiring to do busi- ness in a certain Probate Court to file in that court a certificate from the Commissioner of Insurance to the effect that the com- pany has complied with the laws of our State. This being done it would be well for the court to place upon record an entry which may be in the following form: In the matter of Company. This day came Company, by its representative , and filed herein a certificate of a com- missioner of insurance in the State of Ohio, showing that said company had complied with the laws of the State of Ohio; and upon examination, the said certificate appearing to be regular and in conformity to law, it is 80 § 10611 G. C, § 86. It is unconstitutional to compel 61 §10011 G. C, § 83; § 10618 G. an administrator or executor to give C. § 124. only as surety on his bond a surety e2 Slagle vs. Entrekin, 44 0. S. company, and an act of the Legis- G37. lature with such a requirement is «:'§§ 9510-11 G. C, §§9568-69-70 void. State vs. Robins, 71 0. S. G. a 273. «< In re Bank, 4 Dec. 228 ; 3 N. P. 286; §9571 G. C. § 242 BONDS EXECUTION, ETC. 206 hereby ordered that said be accepted as Burety on the bond of any executor, administrator, trustee or guardian hereafter appointed by this court. § 242. Examination of sureties. Our statute provides that a " court or officer authorized by law to prove the surety may require such person to testify orally or in "writing touching his sufficiency ; but this shall not in itself exonerate the officer in action for taking an insufficient sure- ty." ^° If the examination is taken orally, the ordinary oath should be administered to the party before proceeding -with, the examination. The Court should fully satisfy itself that the party has the requisite qualification before accepting him as surety. Very often the inconvenience attaching to the surety appearing in court and qualifying results in the substitution of some other method, generally by affidavit. The affidavit may be in the following form. State of OhiOj County, ss. A. B., one of the sureties on the bond of C. D., as administrator (or executor) of the estate of E. F., deceased, being duly sworn, says that he is a resident of in the County of Ohio. That he is worth beyond the amount of his debts, at least Dollars; and that he has property liable to execu- tion in this State equal to the sum of the bond upon which he has attached his name as surety. Sign. Sworn and subscribed before me this day of 85 § 10218 G. C. 207 APPLICATION FOR RELEASE §243 CHAPTER XVI. NEW BONDS— SURETIES, ETC. §243 § 243-1 §243a §243b §244 §245 §^46 §247 §248 §249 §250 release of § 251 etc. give Application for surety, etc. Application by executor Removal on failure to new bond. Costs, etc. Application and cause. Form of application. Entry ordering notice, etc. Notice, form of notice, hear- ing, etc. When order takes effect. When new bond may be re- quired by interested party. Liability of prior sureties. §252 §253 Liability of sureties on new bonds. If bond not given may be re- moved from trust. When executor or adminis- trator to give bond of in- demnity to surety. Application, procedure, etc. Sufficient cause for making order. Form of indemnity bond. Construction placed upon such bond. Additional bonds. General liabilities of sureties. §254 §255 §256 §257 §258 §259 § 259a Reduction of bond. § 243. Application for release of surety, etc. The fact that the surety assumes his obligation on the bond without any consideTation moving to him from the obligor, has induced the body making power of our State to enact statutes giving a vigilant surety full and ample opportunity to protect himself. He may require that the administrator or executor indemnify him by another bond, Or if there is any cause, demand a new bond. The ^atute providing for release, is as follows: "A surety of an execator or administrator, or the executor or administrator of a surety, at any time may make application to the proper probate court to be released from the bond of such executor or administrator, by filing his written request therefor with 'the judge of such court, and giving at least five days' notice, in writing, to such executor or administrator. If, upon the hearing, the court is of opinion that there i.s good reason therefor, it shall release such surety. The death of a surety always shall be good cause." [R. S. §6204.]^ § 243-1. Application by executor, etc. § 10861-1. An ex- ecutor or administrator, at any time may make application to the proper probate court for the release of his sureties, by filing his written request therefor with the judge of such court, and giving at least five days' notice, in writing, to such sureties. 1 § 10861 G, C. See § 1257, under bonds; § 1563. removal of assignee; foreign will; § 1343, additional § 1554, assignee's bond. § 243a NEW BONDS — SURETIES, ETC. 208 If, upon hearing, the court is of opinion that there is good rea- son to release said sureties it shall order said executor or ad- ministrator to file an account, as provided by law, and said sureties shall be released upon said executor or administrator filing a new bond and its approval by the court. [107 v. 401.] § 243a. Removal on failure to give new bond. § 10862. If such executor or administrator fails to give new bond, as by such court directed, he must be removed and his letters super- seded. Such original surety or sureties shall not be released until the executor or administrator so gives bond, but the original surety or sureties shall be liable for said executor or administrator's acts only from the time of executing the original bond to the filing and approval by the court of the new 'bond. [107 V. 401.] 1* § 243b. Costs. "The costs of such proceeding shall be paid by the surety applying to be released, unless it appears to the •court that the administrator or executor is insolvent, incom- petent, or is wasting the assets of the estate." [R. S. § 6204.] ^f § 244. Application and cause. It will be observed that the statute does not designate what shall constitute a good cause for the release of a surety. I may say that as a general practice the application will be granted for .the mere asking, although the court may refuse to do so unless it appears that the administrator or executor has changed in his financial condition since his appointment, or that he is wasting or mismanaging the estate. This statute is remedial and should be construed favorably towards the surety.- It applies to any bond given by an ad- ministrator, of whatever kind.' "While some of the courts have held that when an application for release is made, no reason need be assigned, such decisions have been generally made under a statute which gives the surety an absolute right of release and does not leave it with the discretion of the court. Under our statute, it being left to the discretion of the court, the applica- tion ought to contain a reason for the desired release. 1* § 10862 G. C. This statute vs. Watson, 3 Redf. 43; Johnson vs. gives the surety ample protection. Fugunay, 1 Dana 514; Harrison vs. Souhrada vs. DaVid, 15 X. P. (X.S.) Turbeville. 2 Humph. 242; Jones vs. 257. Ritter. 52 Ala. 280; People vs. Cur- it § 10863 G. C. rv. 50 111. 35 ; Allen vs. Sanders, 34 2 Kendrick vs. Wilkinson, 18 Ind. X. J. Eq. 203. 206; Sifford vs. ^klorrison, 63 :\rd. 3 Kendrick v, Wilkinson, 18 Ind. 14; DeLane's Case, 2 Brev. 167; Mc- 206. Kay vs. Donald, 8 Rich. 331; Lewis 209 FORM OF APPLICATION, ETC. § 245 § 245. Form of application. {Title, etc.) The undersigned A. B., surety on the administration bond of C. D., as executor (or administrator) of the estate of E. F., deceased, hereby makes an application under the provisions of section No. 6204 et seq. of R. S., to be released from the bond of said C. D. ; and alleges that the said C. D. is (here insert the cause assigned for removal). Wherefore said A. B. prays that the said C. D. may be ordered to appear in court to answer said application; and that A. B. may be released as surety on said bond; and that said C. D. as executor (or administrator) be directed to file a new bond, and that said A. B. be released from all further liabilities thereon.* Sign. § 246. Entry ordering notice, etc. Upon the filing of an application of a surety to be released, a Court should make an entry ordering that the cause be set for hearing on a certain day, and that notice be issued to said administrator or executor. The entry may be in the following form: (Title.) This day came A. B. and filed herein his application to be released as surety upon the bond of C. D., executor (or administrator) of E. F. Wherefore it is ordered that said cause be set for hearing on the day of , at o'clock . . . M. It is ordered that a notice of the said application and the causes therein alleged for the release of the said A. B., surety on the bond of said C. D., and the time set for* hearing the same, be issued to (here insert the name who is to serve the same) for the said C. D. to appear in this court at the time the said cause is set for hearing and answer the same ; and that said notice be served on said C. D. at least five days before the time of hearing. § 247. Notice, form of notice, hearing, etc. As to notice and form of notice, what was given under former chapters on resignation and removal will be applicable here ; and the form of notice provided there can very easily be adopted for the form required here.** And for form of entry, what has been heretofore said in a previous chapter will also be applicable- here.° The following may serve as a form of entry: 4 This application should be veri- 4* §218. fled. 5 § 228. § 248 NEW BONDS SURETIES, ETC. 210 {Title.) This day this cause came on to be heard upon the application of A. B. filed herein ; requesting that the said A. B. may be released as surety upon the bond of C. D. ; and it appearing to the court that the said C. D. has had due and legal notice of this proceeding and the time of hearing thereon as required by law; and the said cause came on to be further heard and was Bubmitted to the court upon the said application and testimony. Where- upon the court finds that the said C. D. (here state cause for removal) and orders that the said C. D. give a new bond as executor (or administrator) of the estate of E. F., within days, and that upon the giving of said new bond A. B. be released from all further liabilities as surety of the said C. D. And the costs of this proceeding * Dollars, are taxed against , and judgment for said sum Dollars costs herein is rendered against It is further ordered that said A. B. file an account of his said trust herein within days. The law does not require that an account be filed, but in order to show what amount the sureties on the new and old bonds might be respectively responsible for, it would be well to order an account.^* § 248. When order takes effect So far as tlie administrator or executor is concerned, the order takes effect from its date of entry. But so far as it concerns the releasing of the surety, it only takes effect when a new valid bond has been filed, and received the approval of the Probate Judge; and if a bond should be filed that was ille- gal or void, the sureties would not be discharged, although it might have received the approval of the Court. The case of Howenstine v. Sweet, ^ is an interesting one on this question. Here the administrator had been ordered to file a new bond within the time required by the order of the Court. lie pre- sented a bond which appeared regular and proper and the 6* The statute further provides, doubt for the purpose of preventing that unless the administrator or a capricious application for removal, executor is insolvent or incompetent If the release was granted without or is wasting the assets, the cost of good cause the statute would require the proceeding should be paid by the cost to be paid by the applicant, the surety. This provision is no See § 273. 8 13 C. C. 239; 7 C. D 498. 211 EEQTJIKED BY INTEBESTED PAKTY § 249 same was approved by the Probate Judge. Afterwards it was discovered that the new bond was a forgery, and it was held that the sureties on the original bond had not been released. To the same effect was Stevens v. Allman,' when a justice of the peace attempted to make a new official bond, by having other securities, attach their names to the original bond. The Court held that this did not release the sureties. § 249. When new bond may be required by interested party. A new bond may be required on the application of an inter- ested party as well as upon the application of a surety to be released. The statute relating thereto is as follows : "When the sureties on a bond of an executor or adminis- trator are insufficient, on the petition of a person interested and after notice to the principal in the bond, the court may require a new bond to be given with two or more sufficient sureties." [R. S. §6205.]« The method of procedure adopted under the provisions of § 10861-3, G. C, § 240, would be very applicable to the proceed- ing instituted under this section by an interested party. It does not require that any specified length of notice be given, but it would be well to follow the five days' notice required in the previous section. §250. Liability of prior sureties. ''When a new bond is required as above provided, the sureties in the prior bond shall nevertheless be^ liable for all breaches of the condition com- mitted before the new bond is approved by the court." [R. S. §6206.] 9 The wording of this section is not quite similar to the latter part of 10862 G. C. (§ 243a), but I apprehend the meaning is the same. Considerable contention has arisen about whether or not the giving of a new security will relieve the old one from his liability. In reference to a guardian's bond it was held, that 7 19 0. S. 485. 9 § 10865 G. C. 8 § 10864 G. C. § 251 NEW BONDS SURETIES, ETC. 212 where a guardian of the person and property of a minor, having received after giving bond, money belonging to his ward, em- bezzled the same, a subsequent discharge of the surety in such bond and tlie acceptance by the Probate Court of the bond with other surety in lieu of the first bond, will not exonerate such surety in the first bond with respect to the money so embezzled/^ In another case it was held that when successive bonds with different sets of sureties have been given by an executor and the devastavit occurred before the execution and approval of any of the bonds, the liabilities of the sureties in the subsequent bonds is secondary to that of the sureties on the bond sub- sisting and in force at tlie time the estate was wasted; and if the former had made good the loss, such sureties may recover against the latter the full amount paid by them on account thereon.^^ In this case the Court say "this last section (6206) expressly provides that the sureties in the prior bond shall be liable for all breaches of its condition which occurred before the approval of the new bond. The new bond is not given for the benefit of the sureties in the old one, but for the benefit of the estate." ^^ § 251. Liability of sureties on new bond. Whether or not the sureties on the new bond were liable for acts of an administrator or executor which occurred before the giving of such new bond is always one of some difiiculty. This matter was passed upon in our Supreme Court in Foster v. Wise.^'* In this case it was found that prior to the time that a new bond had been given, the executor had collected all the assets and converted them to his own use. The sureties on the new bond claimed that they were only liable for such assets as were converted by the executor after the execution of the bond of which they were sureties. The Court 10 Eichelberger vs. Gross, 42 0. S. testamentary trustee are liable for 549. default on the part of the trustee 11 Corrigan vs. Foster, 51 0. S. in not accounting for funds ".vhieh 225. were misappropriated before the exe- 12 See §§ 1353, 1424, 1554. cution of the bond, wliere the ac- The right of contribution among count was filed and the judgment sureties is founded in contract, etc. linding the amount due was tendered Oldham vs. Brown, 28 O. S. 41 ; Rus- after the execution of the second sell vs. Failer, 1 O. S. 327. bond. Smith vs. Worley, 12 0. App. 12* 46 0. S. 20. 367. Sureties on the second bond of a See 18 Cyc. 1251. 213 INDEMNITY, ETC. § 252 refused to accept this view, saying " the fact that prior to exe- cuting the bond the administrator had converted the assets to his own use, in no way affected the obligation to account for all that had been received by him belonging to the estate. It was to secure this obligation that the bond was required to be given." In a subsequent decision upon the facts of the same case,^^ it was held that while such sureties were responsible, yet if they are required to meet a loss they could sue the sureties of the former bond. It therefore results that where a defalcation has occurred during the existence of the prior bond, and a new bond is given, that the new bond becomes just so much additional surety for such defalcation.^* § 252, If bond not given, may be removed from trust. "In the cases specified in the next two preceding sections, if the principal does not give such new bond within the time ordered by the court, he shall be removed from his trust and some other person may be appointed in his stead, as the circumstances of the case require." [R. S. § 6207.] ^^ § 253. When executor or administrator to give bond of in- demnity to surety. "If an executor or administrator wastes or unfaithfully administers the estate, on the application of a surety in the administration bond, the court granting the letters may order such executor or administrator to render an account, and to execute to such surety a bond of indemnity, with sureties approved by it. Upon neglect or refusal to execute such bond within the time ordered, the court may remove him, and revoke his letters testamentary, or of administration, and appoint an- other administrator in his place." [R. S. §6208.]^8 13 51 O. S. 226. See Woerner on ministrator upon whose bond they Admin. 551. are surety. 1* See § 1424. A bond given under this section 15 § lOSCG G. C. binds the obligors for any loss sus- 18 § insoT G. C. tained by obligees on account of This section gives to sureties a liability for executor existing at method other than that provided by the time of its execution and there- 5 6204 R. S. to protect themselves after paid by the obligees. Buffing- against the wrongful acts of an ad- ton vs. Bronson, 61 O. S. 231. Se« § 1554, Assignees. See §§249,250. S 854 NEW BONDS SURETIES^ ETC. 214 § 254. Application, procedure, etc. The applications, notices, entries, etc., which have been heretofore provided in this work for a release of surety on an executor or administrator's bond can easily be adopted for a proceeding under § 10867 Gr. C.^' § 255. Sufficient cause for making order. It is provided that if the executor or administrator shall waste or unfaithfully administer the estate, the Court may make the order. In the subsequent section, it is provided what constitutes unfaithful administration, which is as follows: "If an executor or administrator unreasonably delays to raise money, by collecting debts and effects of the deceased, or by selling the real estate, if necessary, and he can obtain an order therefor, or neglects to pay what is in his hands ; and if, because of such delay or neglect, the estate be taken in execution by a creditor, it shall be unfaithful administration in such executor or administrator, and he shall be liable on his administration bond for all resulting damages." ^R. S. §6209.]^® § 256. Form of indemnity bond. Know all Men by these Presents. That we, C. E. B., as principal, and J. M. S. and E. M. are held and firm- ly bound unto J. P. B. and J. R., in the sum of dollars, for the payment of which well and truly to be made, we do hereby bind ourselves, our heirs, executors and administrators. Witness our hands and seals this day of 190.... The condition of this obligation is stich that, whereas the above named J. P. B. and J. R. are sureties for the said C. E. B., in a certain bond as executor of the estate of M. L. Now, therefore, if the said C. E. B. shall save and keep the said J. P. B. and J. R. harmless from all loss or damage by reason of being sureties on the said bond of C. E. B. and such executor of the estate, then this obliga- tion to be void, otherwise to be and remain in full force and virtue in law. E. M. J. M. S. C. E. B. 17 § 215 et seq. is § 10868 G. C. 215 ADDITIONAL BONDS § 257 § 257. Construction placed upon such bond. An indemnity bond executed in pursuance of § 10857 of the G. C, conditioned that the obligors shall save and keep the obligees harmless from all loss or damage by reason of their being sureties on the bond of an executor, is not limited in its obligation to such loss or damage as should arise from the failure of the executor to pay over money of the estate which came to his hands after its execution, but binds the obligors for any loss or damage sustained by the obligees on account of liability for tlie executor existing at the time of its execution and thereafter paid by the obligees.^" § 258. Additional bonds. Several sections of the G. C. provide for the giving of ad- ditional bonds/'* and in addition to these statutory provisions I have no doubt the Court may of its own motion require ad- ditional bonds to be given at any time when it is believed by the Court that the bond already given is insufficient. There is quite a distinction between a new bond and an additional bond : A new bond relieves the original surety from all wrong- ful acts of the administrator or executor which occurred after the new bond has been approved by the Court. Where an addi- tional bond is given, the liability of the surety on the original bond continues. As to all acts of the administrator or executor after the giving of the additional bond the two sets of sureties are equally responsible. As to such acts, they occupy the rela- tion of co-sureties for the administrator, and are liable for contribution to equalize the burden incident to the situation.^* It has been held where an administrator on his appointment gives the bond required by statute for the faithful adminis- tration of his trust as a whole, and afterward in a proceeding instituted by him to sell real estate of the deceased to pay debts, gives another bond as required by statute for the faithful dis- i9Buffington vs. Bronson, 61 O. S. 21 Daum vs. Kenast, 18 C. C. 1; 231. 9 C. D. 867. 20 §§ 10G33, 10789, 10790 G. C. § 259 NEW BONDS SUKETIES, ETC. 216 charge of his duties under such proceeding, such new bond does not take the j)lace of the former general administration bond, but the sureties upon the administration bond are jointly liable with the sureties on the bond under the proceeding to sell real estate for the faithful discharge of his duties, in such proceeding in accounting for the proceeds of the sale, and an action can be obtained against all such co-sureties jointly.^^ Of course the sureties on the additional bond would not be liable for a devastavit that occurred prior to the giving of the bond, unless the conditions of the bond were such as to make them liable, the same as if a new bond were given. That is, if the condition was merely that the administrator would faith- fully administer his trust. But I apprehend that if an addi- tional bond were given to cover certain assets that the surety on such bond could not be held liable for a waste of other assets, and that if an additional bond were given conditioned on the faithful performance of certain acts, the surety on such bond would not be liable for other wrongful acts of the adminibtrator even tliough they were committed after the giving of such bond. As to such acts sureties on the original bond would alone be responsible.^^ § 259. General liabilities of sureties. The fact that the signature of one of the sureties was forged has been held not to constitute a defense to the surety who signed, believing it to be genuine.-* The contract of suretyship is always strictly construed, and the liability is limited to the official acts of the principal."'^ Acts that do not lie within the line of official duty and authority, not under color of office, the officer may incur personal but not official responsibility, and for these acts the sureties are in no way responsible.-*' Some difficulty has been experienced in determining the liability for acts done merely under the color of the office. Acts done vir- tute officii, are where they are within the authority of the officer, but in doing them he exercises that authority improperly, or abu.ses the confidence which the law reposes in him, for these 22 Id., Sterritt vs. Lingu, 4 N. P. 24 Stern vs. People, 102 111. 540; 366; Id., 6 Dec. 481. Sewell vs. Breatliett Lodge, 150 S. 23 See Sch. Exrs. 148; Woerner on W. Rep. 677. Admin. 546, 548. See §875, Real 25 T.ucht vs. Behrens, 28 0. S. 240; estate; § 1353, Liability of surety, Curtis vs. Bank, 30 O. S. 570; Hall etc. vs. Williamson, 9 0. S. 17; Myers V9. 217 GENERAL LIABILITIES OR SURETIES § 259 the surety is liable. But for acts done colore officii whieli are of such a nature that his office gives him no authority to do, then the surety in many States is held to be not responsible.-'' However, in Ohio,-^ as well as in the great majority of the States, sureties have been held liable for acts done under either case.-" The rule is that a surety is bound by a judgment against his principal,^" unless there was fraud or collusion between the administrator and those who seek to enforce the payment. ^^ In some States a surety may appeal from such a judgment, though not a party to the record.^- The surety is not discharged by the death of his principal.^^ The death of an administrator of an unsettled estate does not start the running of the statute of limitations in favor of the sureties on his administration bond, since the liability of the deceased administrator is not fixed until the decree of the ■court approving the final account submitted by his adminis- trator, and the statute does not begin to run until the rendi- tion of such decree.^* An administrator was also guardian of certain minor dis- tributees, who before the settling of the administration account, attained their majority. In such case the liability to the distributees was not, by virtue of the vesting in one person, the capacity of both debtor and creditor, transferred from the administration to the guardian's bond, as at the time payment could have been demanded, the guardian 's right to receive funds Parker, 6 0. S. 502; McGovern vs. Carmack C. Com., 5 Binn. (Pa.) State, 2 0. S. 93; State vs. Conover, 184; Holliman vs. Carroll, 27 Tex. 4 Dutch. (N. J.) 224; People vs. 23; Saiigster vs. Com., 17 Gratt Lucas, 93 N. Y. 585; Clark vs. (Va.) 124. Lamb, 76 Ala. 406; State vs. Davis, so Goodwin vs. Wilson, 1 Blackf. 88 Mo. 585; 'Gerber vs. Ackley, 37 344; Governor vs. Shelby, 2 Blackf. Wis. 43. 26; Salyer vs. State, 5 Ind. 202; 26 McKee vs. Griffin, 66 Ala. 211. Speer vs. Pichmond, 3 Mo. App. 572; 27 Carey vs. State, 34 Ind. 105; People vs. Stacy, 11 111. App. 506; Brown vs. Mosely. 11 S. & M. Martin vs. Tally, '72 Ala. 23 ; McClel- (Miss.) 354; McElhany vs. Gille- Ian vs. Downey, 63 Cal. 520; Morri- land, 30 Ala. 183; State vs. Conover, son vs. Lavell,'81 Va. 519; Slagle vs. 4 Dutch. (N. J.) 224; State vs. Entrekin, 44 O. S. 637. See Nichol- Lonjr, 8 Tred. (X. C.) 415; Gerber son vs. Carr, 3 Blackf. 104. vs. Acklev, 32 Wis. 233. 3i Wolff vs. Shaeffer. 4 Mo. App. 28 State vs. .TpnninjTs. 4 0. S. 418; 367: S. C., 74 Mo. 154; Scofield vs. Hubbard vs. Elden, 43 O. S. 380. Churchill, 72 N. Y. 565. 29 Van Pelt vs. Littler. 14 Cal. 32 McCartnev vs. Garneau, 4 Mo. 194; Charles vs. . Raskin. 11 Towa App. 566; People vs. Stacv. 11 Til. 329; Hnran vs. People. 10 TU. App, App. .506; Buch's Appeal, 102 Pa. 21: Turner vs. Sisson. 137 Mass. St. 502. 191: State vs. Moore. 19 Mo 360; ^s State vs. PTouston, 4 Blackf. Turner vs. Killian, 12 Xeb. 5«0; 291 Cumminjjs vs. Brown. 43 "N". Y. 514; ^4 Williams vs. State, 10 So. Rep. People vs. Lncas, 93 N. Y. 585; 52; S. C, 68 Miss. 680. § 259a NEW BONDS — SURETIES, ETC. 218 had ceased.^^ In the absence of fraud, etc., the surety is bound by the finding of the Probate Judge.^° § 259a. Reduction of bond. Sometimes an estate can not be settled in full during the first year and it becomes necessary to continue the bond for a longer time, and very often but a comparatively small amount of the original assets remain for distribution. "Where a private individual is the surety this does not become a material matter provided the bondsman is willing to remain on the bond; but if a surety company is bondsman, it is material to have the costs reduced by having the bond reduced. In such cases an application should be filed in the Probate Court setting forth the reasons for such reduc- tion, and an entry permitting the same. The following may serve as general forms : FORM. "In re Estate of [ Application to Reduce Bond. Now comes , administrator of estate of , and represents to the court that he has tiled his first account in said estate and has made disposition of assets amounting to $ , and still has on hand assets of said estate of the par value of $ , his liability being pro- tected by the surety company of , and he says it would be to the interest of said estate to reduce the original bond from $ to $ to cover his liability for remaining assets in his possession." Administrator. Sworn to and subscribed before me and in my presence this day of , 192..." FORM. "In re Estate of | ^^^^^ ^^ ^^^^^^ ^^^^ This matter came on for hearing upon application of the administrator of the estate of for reduction of his bond from $ to $ , and upon evidence, no good reason appears why said bond should not be reduced; and it appearing to the court that it would be to the best interests of said estate to reduce said bond, it is therefore 'ordered that said bond be reduced from $ to $ , and the liability of the surety on said bond of said administrator be reduced accordingly." 35 Burnside vs. Robertson, 6 S. E. trator dc bonis non, instead of an Rep. 843; S. C, 30 S. C. 459. administrator de bonis non with the Such bond is strictly construed will annexed, the surety on the bond and when an administrator received was held. Newberger vs. Finney, 17 money from an insurance policy C. C. 215; 9 C. D. 720. which belonged to such persons as The surety is estopped to deny a the insured might designate, the legal appointment of an executor, bondsmen were not liable. Mur- where the bond recites such fact, phey vs. Dorsey. 23 C. C. 157. HoflFman vs. Fleming. 47 Bull. 430. 36 Gardner vs. Eshhrock, 34 Bull. Where an administrator gave a 287. general bond, and afterwards gave A surety upon a juderment for an additional bond to sell real es- $2,300 can not be liable for a iudsr- tate, both bonds are equally liable ment of .$2,346. Hall vs. William- for failure of administrator to pay son. 9 O. S. 17. inheritance tax. Hunt v. Bonding But where by mistake an adminis- Co., 58 Bull. 249. 219 SUIT ON BONDS § 260 CHAPTER XVII. SUIT ON BONDS. $ 260 Procedure — Remedy, etc. 6 271 Form of application. 8 261 Jurisdiction. § 272 Entry ordering hearing and § 262 Suit by creditor on liquidated notice, etc. demands. § 273 Notice, etc. § 263 Kind and nature of creditor's § 274 Hearing, etc. claim. § 275 Form of entry granting leave § 264 When suit could be brought to bring suit. by creditor. § 276 Defense in suit on adminis- § 265 Suit by legatee or distributee tration bond for not filing on liquidated demand. account — Costs. S 266 When right accrues to legatee, § 277 In suit on bond, claim al- etc. lowed to be prima facie evi- § 267 At what time action may be dence only of its justice. brought. How such claim contested. § 268 Suit o"n unliquidated demand. § ^78 Suit by succeeding adminis- , ^ trator or executor on bond. § 269 When Probate Court may au- § 279 Time within which suit may thorize suit to be brought. be brought. § 270 Application for leave, etc. § 260. Procedure. Remedy, etc. In the two preceding chapters we have treated of the manner in which bonds should be given, their forms and liabilities thereon. It now remains to speak of the manner in which the rights sought to be protected by such bonds may be enforced. The giving of a bond by an administrator or executor never re^ leases him from a personal liability for any devastavit of the estate; and therefor it has been very properly held that the remedy on a bond is a cumulative one.* As a matter of course no liability would exist on a bond given by an administrator or executor unless he had been guilty of such conduct as would have made him personally liable. But such personal 1 Thomas vs. Chamberlain, 39 O. S. 119. § 260 SUIT ON BONDS 220 liability of the administrator or executor must have been such an one as resulted from a wrongful exercise of his rightful authority as such official, it must be an act which was within his authority. Thus if an administrator gives a note in settle- ment of some claim against the estate and thereafter refuses to pay the note, this would not be such misconduct on his part as would authorize a suit on the bond as the giving of notes was beyond his power.' The bonds given by an administrator or executor being stat- utory it may be said that the remedy thereon is also statutory, and the action in order to exist must come within the provisions of the statute. Several distinctions are made by the various sections as to tiie manner in whicli an action on the bond can be brought. By §§ 10869 G. C. (§ 262) and 10870 G. C. (§ 265), the action can only be brought when the demand has in some manner been passed upon, or is what is called a liquidated de- mand. It can be brought by a creditor, legatee, or distributee, and is brought for the benefit of the person who institutes the action. The other action provided for is on unliquidated de- mand ; and is brought by any person interested ; but for the benefit of all who may be interested in the estate. In the latter case the action can only be instituted after leave is granted by the Probate Court. These distinctions will be discussed further in the following sections of this chapter.^ 2 Curtis vs. Bank, 39 O. S. 579. See § 612, Limitation of action See Flickinger vs. Sauni, 40 0. S. against Admin.; § 762, Distribution 591, whp^e it was held that the ex- of assets j § 784, Sureties and liabil- ecutor was personally liable, but not ities. on his bond. Suit should be brought against 3 As it is not within the province all the obligors. It is error to ren- of this work to go into the detail der a several judgment against one of the practice and jurisdiction of or more, leaving the action to pro- courts other than the Probate Court, ceed against the others. Voss vs. and as all actions on bonds are Loomis, 1 C. C. 20; 1 C. D. 12. brought in such other courts, we Citing 23 0. S. 243; 27 0. S. 674. must content ourselves with refer- In an action on the bond where ence to standard works treating on the bond recites the appointment of these subjects. See Kinkead's PI., an administrator, and the bond is § 354 ; Whittakers Forms, 134. approved by the Probate Court, sur»- 2'^^! JURISDICTION § 261 § 261. Jurisdiction. Some confusion formerly arose as to the court in which the suit on an administrator's bond should be brought. Before the adoption of the present constitution the Court of Common Pleas had probate jurisdiction and the statute provided that a suit on such bond should be brought in the court in which it was filed. It was claimed therefore that suvfli action must be brought in tbe Probate Court as that was the court in which the bond was filed. But this was denied.* It has also been held tliat a justice of the peace has no jurisdiction in a suit on an administrator's bond.^ The codifiers out of several former sections, evolved the following as our present statute : "An action on the bond may be brought in the common pleas or superior court of the county in which it was given, for the particular relief only to which the plaintiff is entitled, or be framed, in the petition or any cross-petition filed in the case, with a view to a settlement of all matters for which the prin- cipal in the bond is accountable. Heirs, devisees, legatees, widow, or next of kin, or others, who may be liable on account of assets coming into their hands, or otherwise are proper par- ties to be made defendants. When the action is framed for that purpose and the necessary parties are before the court, it may adjust and settle the estate in whole or part, rendering all judgments renuired, and awarding costs as it deems proper." [R. S. § 6215.]« This section, it will be observed, leaves no open question as to the court having jurisdiction. Likewise it makes ample provi- sion for settling all demands that may exist between the parties. The action must be brought in the county in which the bond is filed.' ties on the bond are estopped to s § 10874 G. C. deny tlie due appointment Hoffman , Hackworth vs. Robinson, 31 O. S. vs. Heming, 47 Bull. 430, Sup. Ct. 4 Dawson vs. Dawson, 25 0. S. 656. See § 784, Sureties may be 443; Reed vs. Reed, 10 C. C. 44; made parties, etc. 6 C. D. 19. 5 Hackworth vs. Robinson, 31 O. S. 655. § 262 SUIT ON BONDS 222 § 262. Suit by creditor on liquidated demands. The various sections provide for suits bj persons in various capacities. If tlie demand is an unliquidated one, unless the suit be by an administrator de bonis non,^ leave of the Probate Court must first be obtained. The following {?. the section providing for suit by a creditor on a liquidated demand. "After a creditor is entitled by law to payment of his debt by the executors or administrators, and the amount of the claim either has been admitted to be just, allowed bv them ascertained by judgment or award against them, or bv an order ot distribution, the bond they gave for the discharge of their trust, may be put in suit by such creditor, if upon demand made by him, they neglect to pay his claim." [R. S. § 6210.]^ § 263. Kind and nature of creditor's claim. It will b^ observed that the claim or demand must be one that has been admitted or allowed by tlie executor, or if it has not been allowed by the executor, that it has been ascertained by a suit tliereon as provided for in the section referring to rejected claims, or it must be the amount found by an award of arbitra- tion, or it must be- an amount which the Probate Court has or- dered to be distributed. The only instance in which the probate Court can order a certain amount distributed to a creditor is, when the estate is declared insolvent, then tlie Court ascertains the amount due to each creditor; and no doubt that is the re- quirement here alluded to, when it permits a creditor to sue on an order of distribution.^** 8 See 8 628, Executions against; rata the amount or the entire § 157, Proceeding against former amount, as the assets may prove, admin. etc. Smoclc vs. Bouse, 12 C. C. 46; 9 § 10869 G. C. 5 C. D. 293. 10 See State vs. Cutting, 2 0. S. 1 ; Tlie remedy on the bond is cumu- Cadwallader vs. Longley, 1 D. 407. lative. Thomas vs. Chamberlain, 39 When a claim is not disputed or O. S. 112. rejected, upon its presentation, it is Action must aver a demand, a sufficient allowance to allow a suit Woodson vs. State, 17 O. 161. to be brought for the money, pro 223 WHEN BROUGHT BY CREDITOR § 264 § 264. When suit could be broug-ht by creditor. Before suit can be brought, there must be a demand made, but there need not be obtained a leave of Probate Court.^^ Likewise it must be shown that the administrator has received assets applicable to the payment of such claims. The provisions of § 10740 G. C, § 611, excepting the executor or administrator from suit of creditor for twelve months from date of bond, or further time allowed by Court, has no application to suits upon the administration bond ; and where the debt of a creditor has been allowed and the executor or administrator has funds in his hands applicable to its payment, if the estate is solvent the creditor is entitled by law to its payment within twelve months from the date of administration bond. If not paid he may after the expiration of that time, upon demand, bring suit upon the bond and recover notwithstanding further time is given to collect the remaining assets of the estate.^- § 265. Suit by legatee or distributee on liquidated demand. "Such suit also may be brought by a legatee, after he is enti- tled to the payment of his legacy, and by the widow, or other distributee, to recover her share of the personal estate, after an order of the court, ascertaining the amount due to her, if the executor or administrator neglects to pay it when de- manded." [R. S. §6211.] '3 § 266. When right accrues to legatee, etc. The same rule applies to a legatee, widow or distributee under the provisions of § 10870 G. C. (§ 265) as applies to a creditor under § 10869 G. C. (§ 262).^* It will be observed that there 11 State vs. Cutting, 2 0. S. 1. the estate of a cosurety, it was held 12 Greer vs. State, 2 0. S. 575. that the living surety could plead In this case a query was made this set-off. Fisher vs. Cassidy, 49 whether or not a suit could be sus- O. S. 421. tained after one year, and before the In an action brought under this expiration of eighteen months. The section there must be a demand probabilities are that the suit could made before there is a right to not be maintained until the expira- sue, and the amount must be fixed tion of eighteen months. See Ham- by a court of competent jurisdic- merle vs. Kramer, 12 0. S. 252. tion, before such right exists. Henry See present statute. vs. Doyle, 82 O. S. 113. 13 § 10870 G. C. See § 761 ct src,. Where an action was brought by a i4 state vs. Cutting, 2 0. S. 1. distributee against a livin? surety, who Iiad received a distribution from § 266 SUIT ON BONDS 224 are three persons under § 10870 G. C. that may bring an action. First is a legatee, after he shall be entitled to the payment of his legacy. The question here might arise whether a legatee could bring suit on the bond without an order of the Probate Court directing the executor to pay such a claim. If the legacy is a general one, that is, one the amount to which the legatee is entitled, would depend upon what remains for distribution, I have no doubt that the legatee must pursue the same course as a distributee. But if the legacy is a specific one and the amount of the same is not and cannot be disputed by the execu- tor, the right would accrue under the same conditions as a creditor's claim. A very interesting decision upon the right of the legatee to enforce payment of his legacy, is that of Isher- wood's Estate. ^° Here the legacy was a specific one and an application was filed in the Probate Court of Lucas County to have an order made on the executors to pay the legacy. It was admitted that the estate was ample to pay all debts and the Court held that it had authority to order the executor to pay such legacy, and also had power where it was shown that ample and sufficient assets remained, to pay all possible debts, to order payment to be made without giving an indemnity bond. The second person provided for is the widow. From the read- ing of this section one would be inclined to believe that the only right conferred on the widow, was to recover on the bond when some order had been made by the Probate Court, ascer- taining her distributive share of the personal estate ; and such was the view taken by Judge White in Dawson vs. Dawson.^® ISTo doubt she has- such a remedy, but has she the right to re- cover on the bond, when the administrator or executor refuses to pay the allowance made to her for her year's maintenance? This matter is not free from doubt, but when the inventory is returned and approved by the Court, and no exceptions have been taken thereto, the amount coming to the widow has been fixed and ascertained ; and there is no other order of the Court needed in the ascertainment of such amount. The reasons there- fore for holding that the widow might recover on such a claim, 16 7 N. P. 332 , 5 Dec. 143. Such legacy is payable in one 16 25 O. S. 449. year, etc. "225 TIME ACTION BROUGHT § 267 are very strong. For, after the amount coming to her is fixed, she certainly has as good a right as a creditor whose claim has been allowed, or a legatee whose claim is specific. No doubt she could have an order of the Probate Court, directing the administrator or executor to pay the same on showing that he could do so without any personal liability. The third class entitled to sue under the provisions of 10870 G. C, are distrib- utees after an order of Court has been had, ascertaining the amount that is due them. The action would not lie where no further proceedings were had than the filing of an account and a general order of distribution made thereon ; for it should not be forgotten that the only order that a Probate Court can make in passing upon an account, is an order to distribute according to law." In order to ascertain what is due to each distributee, or where the legacy is a general one — indefinite in amount, or to a widow in relation to her share of the personal estate, a suit would need to have been first brought in a Probate Court or other court; and a finding made in such case determining the exact amount coming to each person. The action brought by a credi- tor, a legatee, a widow, or distributee under the provisions of sees. 10870 and 10869 G. C. is for the benefit of the persons in- stituting the action.^* § 267. At what time action may be brought. After the Probate Court or other court under the provisions of §10848-49 (§761) has ascertained the amount coming to a distrib- utee the action may be maintained. But if such suit is brought within eighteen months from the time that the administrator has given notice of his appointment, such distributee must first give an indemnity bond to protect such administrator from lia- bility for all further claims against said estate." A specific leg- 17 Bank vs. Beebe, 62 0. S. 41. etc. Gardner va. Ashbrook, 34 Bull. 18 In an action on the bond the 287. sureties, in the absence of fraud, etc., i9 Dawson vs. Dawson, 25 O. S. are bound by the finding made by 443. the Probate Judge as to the amount. § 268 SUIT ON BONDS 226 acy does not become due until one year after the time letters have been granted and no action could be had thereon, until eighteen months from such apppointment. Whether or not the Court might in any case permit such an action without an indemnity bond may be questioned. But if the case heretofore referred to,^** is to be followed there may be cases when the action might exist without such a bond having been given. The general statute of limitations applies and no action could be maintained if more than ten years had elapsed since the action accrued.^^ § 268. Suit on unliquidated demand. If an administrator or executor has committed a devastavit, any person interested although the demand may be unliquidated, may bring an action on the bond.^" The action in such a case may be brought in the name of the person who institutes the action. It might be brought in the name of the State, and such would be the better practice."^ But whatever is recovered, will be for the benefit of all interested in the estate.'^* Thus it would seem tliat where a person's claim is fixed and specific, the action should not be brought under the provisions of sees. 10868 (§ 255), 10871 (§ 269), but rather under sees. 10S69-10870, G. C. Before an aetion can be brought on an unliquidated demand, leave of the Probate Court in which the appointment was made, must be procured. The object and purpose of such leave is to guard the executor and his sureties against groundless prosecu- tion and mere technical breaches without substantial injury.-^ § 269. When Probate Court may authorize suit to be brought. Sees. 10869 and 10871 (§§265 and 269), having provided for the recovery against the obligors of a bond, where the claim 20 Isherwood's Estate, 7 X. P. 23 Migliton vs. Dawson, 38 0. S. 333; 5 Dec. 143. 650. 21 See § 11226 G. C; §20. 24 Dawson vs. Dawson, 25 0. S. 22 Under former law it was held 443; Greer vs. State, 2 0. S. 574. that an action for devastavit could See Woodson vs. State, 17 0. 161, not be maintained. Stewart vs. for decision under former statute Treasurer, 4 0. 98; Treasurer vs. requiring a demand before suit could Kemp, 5 0. 240. be brought. 25 State vs. Cutting, 2 0. S. 8. 227 APPLICATION FOR LEAVE § 270 has been liquidated, it remains to provide a remedy to an inter- ested person who may be injured by a devastavit of the adminis- trator or executor, but whose claim has not been reduced to a settled demand. In order to save the bondsman from, possibly, a needless litigation, it is provided that before such suit can be filed, the court having jurisdiction over an administrator or executor must give leave to file the same. The statute relating thereto is as follows: "When, on the representation of a person interested in the estate of a deceased testator or intestate, it appears to the pro- bate court that the executor or administrator has failed to per- form his duty, in any other particular than is specified in the next two preceding sections, the court may authorize any cred- itor, next of kin, legatee, or other person agsrrieved by such maladministration, to bring a suit on the bond." [R. S. §6212.]-« § 270. Application for leave, etc. While the statute does not indicate that the application should be in writing and a finding made thereon of record, yet no doubt such would be the proper practice. And in another State under a very similar statute it is said that the petition should state clearly all the facts necessary for the consideration of the Court, or properly to be notified to an adverse party, upon the petition. The citation ought to be issued to the administrator and his sureties, and that a petitioner ought to see tliat the citation is served in the manner required by its terms. '^ It is further said that the petitioner must be prepared at the time fixed for hearing, to show that the administrator has so failed to perform his duties and to render proper, a suit on his bond. And the order can only be made by a decree in writing."® It may be doubted whether it is absolutely essential that a notice be issued to either the administrator or the sureties on the bond. But it would be wise to do so. 2e§ 10871 G. C. Bennett vs. Woodman, 116 Mass. 27 Smith Probate Law, 398; Rich- 518. ardson vs. Oakman, 15 Gray. 57; 28 Fay vs. Rodgers, 2 Gray. 175. § 2T1 SUIT ON BONDS 228 § 271. Form of application. {Title.) Now comes A. B. and represents to the court that on the day of the said C. D. was appointed and is still acting as administrator (or executor) of the estate of E. F. He further represents that he is an interested person in the administration of said estate in this, to-wit: ( Here set out in detail the interest that the party filing the application claims to have.) Said A. B. further represents that the said C. D. has committed a devastavit in the administration of the said estate in the following manner, to-wit: (Here insert the manner in full which it is claimed an injury is being committed. ) Wherefore said A. B. prays that the court may issue a citation for said C. D. to appear in this court on the day to be named, and state a cause why the said A. B. should not be granted leave to commence a suit on the bond of the said C. D. ) , and that upon the hearing of said cause he may be granted leave to bring such suit. Sign.29 § 272. Entry ordering hearing and notice, etc. While as before herein indicated it may not be necessary that notice be issued to the administrator and his bondsman, it would be well to do so ; and the entry may be in the following form: This day came A. B. and filed herein his application for leave of court to bring suit on the bond of C. D., filed herein as executor (or admin- istrator) of the estate of E. F. Wherefore it is ordered that said matter be set for hearing on the day of , at o'clock, and that a notice thereof be issued and directed to (here insert name of person who is to serve the same), notifying the said C. D., G. H. and I. K. of the matter set forth in said application and the time of hearing same. §273. Notice, etc. The form of notice given under other chapters of this work, commanding the administrator or executor to appear before court, may be used in this instance.^" And what has been there said about the service of said notice and the proof of sen'iee is applicable here. 29 This application ought to be 3o § 247. sworn to as petitions are usually verified. 229 HEARING § 274 § 274. Hearing, etc. As to what might constitute siich a devastavit as would justify the Court in giving leave to sue, etc., will depend upon the par- ticulars of each case. It is provided in a previous section,^^ " that if an executor or administrator shall unreasonably delay to raise money, by collecting the debts and effects of the de- ceased, or by selling the real estate if necessary, and he can obtain an order therefore, or shall neglect to pay what he has in his hands; and if, in consequence of such delay or neglect, the estate of the deceased shall be taken in execution by an^ other of his creditors, it shall be deemed unfaithful admin- istration, and such executor or administrator shall be liable on his administration bond, and all damages occasioned thereby." In addition to the provisions of this section there might be a great many other instances in which the Court would be justified in granting leave. Thus if the administrator had failed to file an inventory or even if he filed an account and tlie account did not correctly state the assets, leave could be granted. But leave ought not to be granted if there is no immediate danger of the applicant or the estate suffering an injury. The administra- tor and perhaps his bondsman ought to have an opportunity to arrange the difficulty without litigation if possible; The leave ought never to be granted unless a good cause is sho^vn. It ought not to be had for the mere asking. The Court ought to go into the fact that the person filing the application has some in- terest at stake, as well as a finding that there has beeu a prima facie devastavit. § 275. Form of entry granting leave to bring suit. (Title.) This day this cause came on to be heard upon the application heretofore filed in this court by A. B. for leave from this court to bring suit on the bond of C. D. as executor (or administrator) of the estate of E. F., and it appearing to the Court that said C. D. had due and legal notice of the said application and the time for hearing thereon. The same came on to be heard upon the said application and testimony. Whereupon the Court finds good cause has been shown for granting to the said A. B. the leave of this court to bring a suit on the said bond of the said 31 § 10808 G. C, § 255. § 276 SUIT ON BONDS 230 C. D. and his sureties thereon. Wherefore it is ordered that leave be granted. § 276. Defense in suit on administration bond for not filing account — costs. "In actions on a bond of an administrator or executor, for its breach by not filing his final account at the time required by law, or by order of the court, the defendant may aver and give in evidence any facts tending to show that the breach did not occur because of neglect or unreasonable delay of the administrator or executor to settle the estate or file the account. If the defendant makes good his defense, he shall re- cover of the plaintiff his costs. In no case brought for such breach shall the plaintiff recover more costs than damages." [R. S. §6213.]=^=^ § 277. In suit on bond, claim allowed to be prima facie evi- dence only of its justice. How such claim contested. "When suit is brought upon the administration bond, by a creditor whose claim has been allowed or admitted by the executor or administrator, such allowance or admission shall be prima facie evidence only of the validity and justice of such claim. The executor, administrator or other defendants in the suit upon the administration bond, may contest it, and by the ver- dict of a jury, if either party requires it, the court may deter- mine the amount or justice of the claim. If neither party demands a jury, the court by reference to a master or other- wise, shall decide upon the claim." [R. S. § 6216.] ^^ § 278. Suit by succeeding administrator or executor on bond. "We have thus far considered in this chapter sections of the General Code conferring power upon a creditor, legatee, widow, distributee or any person who might be interested, to bring suit on the bond. This would include every one in his individual capacity, but not that in an official relation. This is provided for in the following section : "When the powers of an executor or administrator cease by death, removal, resignation, or otherwise, a succeeding admin- istrator, or co-executor, or co-administrator, may maintain an action on his bond against any of the obligors thereof, or their 32 § 10872 G. C. 443; Hackworth vs. Robinson, 31 O. See Dawson vs. Dawson, 25 O. S. S. 655. 33 § 10875 G. C. 231 TIME SUIT BROUGHT § 279 legal representatives, for any breach of its conditions." [R. S. § 6214.]^* It will be observed that the provisions of the above section are very much similar to those of sec. 10634 G. C, which have been sufficiently commented on, in the chapter relating to administra- tor de bonis non.^** § 279. Time within which suit must be brought. The time within which a suit on an administrator's bond can be brought to reach the funds omitted fi-om what purports to b© a final account of an executor or administrator, is ten years from the time the cause of action accrues, and the action accrues and the statute begins to run on the date when th© administrator's final account is heard and passed upon.^^ Interest may be recovered on an administrator's bond from the time the demand is made on the sureties.^® 34 § 10873 G. C. 36 Webb vs. Roettinger, 12 C. C. 34* § 158. 730; 4 C. D. 270; Aff., 37 B. 56. 35 Gilbert vs. Marsh, 4 N. P. 338; 1 Dec. 230. §280 INVENTORY 232 CHAPTER XYIII. INVENTORY. § 280 Definition — Importance of. § 281 Within what time to make inventory. § 282 When may be omitted. § 283 Proceedure where statement is filed in lieu of the ap- praisement — Form, etc. § 284 Appraiser, how appointed. § 285 If appraisers fail to act Jus- tice may appoint. § 286 Form of appointment of ap- praisers by Justice. § 287 Inventory to be made and by whom. § 288 How and when notice to be given. § 289 Service and form of notice. § 290 Appraisers' oath; by whom administered. § 291 Form of oath, etc. § 292 In whose presence and in what manner the articles shall be appraised. S 293 Detailed statement required. § 294 Value to be given articles. § 295 How bonds and other securi- ties to be inventoried and ap- praised. § 296 How other debts shall be in- ventoried and appraised. § 297 How inventory of money and bank bills to be stated. § 298 What it shall include. § 299 When real estate should be included. § 300 Signing of inventory; reten- tion of copy and return of original. § 300a Monthly statement of pro- bate court to county auditor. § 300b Taxes and penalty. § 300c Beginning of each succeeding tax year. § 300d Compensation of probate judge. § 300e No allowance of tax inquisi- tors. § 301 Appraisers' fees. § 302 Inventory to be sworn to by the executor or administra- tor. Form of oath, etc. § 303 Compulsory return of inven- tory. § 304 Application for citation, etc. § 305 Entry and writ of citation. § 306 Removal for failure, etc., and granting of new letters. § 307 Excuse for failure to return an inventory. § 308 Entry, form, etc. § 309 Eff'ect of such revocation. § 310 Prosecution of former bond by administrator de bonis non. §311 New assets after return of first inventory. § 312 Exceptions to inventory and proceedings thereon. Appeal to common pleas. § 312a Appeal on exceptions to in- ventory. § 313 Form of exceptions, etc. § 314 Form of entry ordering no- tice. § 315 Notice, etc. § 316 Hearing and order. § 317 Appeal. § 318 Effect of inventory as evi- dence. § 280. Definition. Importance of. An inventory is defined to be a list, schedule or enumeration in writing, containing article by article the goods, chattels, rights 233 DEFINITION IMPORTANCE § 281 and credits, and in some cases the lands and tenements of a per- son or persons.^ The word "inventory" in this chapter includes appraisement. [R. S. § 6023. j' The taking of a proper inventory is one of the most important duties devolving upon an administrator or executor in the dis- charge of his trust. It is important to him because it shows, or should show, just exactly what property is to be administered, and the probable value of it. In a controversy with an heir or creditor, it is invaluable to him as showing these facts, and thus prevent him from being charged for that which may never have come into his possession. To the heir, creditor or other inter- ested person in the estate it is alike invaluable, for if there is no inventory, or if the inventory be an improper one, no informa- tion is given to the heir or creditor as to what the administrator ought to be properly charged with. It also follows that great care should be exercised in having all the assets of the estate enu- merated, and likewise a value fixed tliereon. The statutes seem to cover the matter fully as to the time within which it should be made and returned, penalty for not returning, etc. Our statute provides an additional reason for the filing of an inven- tory when in certain cases it requires the payment of an in- heritance tax.^ A number of matters, such as proceedings where the person was supposed to have embezzled assets belonging to the estate, widow's allowance, the inheritance tax and what constitutes as- sets will be made the subjects of separate chapters.^* §281. Within what time to make inventory. "Within thirty days after his appointment, every executor and admin- istrator, and administrator de bonis non shall make and return upon oath, into court, a true inventory of the goods, chattels, 111 Am. & Eng. Ency. of Law, ing an inventory, is to enable the 812. Our inventory law was origi- Probate Judge and the i)arties in in- nally taken from New York. terest to know what property be- 2 § 10637 G. C; § 593. longs to the estate. Without it tliey An appraisal is an essential part could not understandingly call the of an inventorv. Sprankle v. Odell, executor to an account. Moore vs. 22 C. C. (X.S.") 4S0. ITolmos, 32 Conn. 553; Woerner on 3 Tlie great object of this inipor- Admin. 6R0. tant requirement of the law, requir- 3* See §§ 1593, 319, 342. § 282 INVENTORY 234 moneys, rights and credits of the deceased, by law to be admin- istered, and which have come to his possession or knowledge ; except that if their probable value be less than five hundred dollars, the court may direct it to be omitted. If his predeces- sors have so done, an administrator cle ionis non shall not bt required to return and file an inventory, unless, in the opinion of the probate court, it is necessary." [R. S. §6023; 102 v. 201.]-^ § 282. When may be omitted. As the statutes now stand an inventory can only be omitted, first, where the probable value of the property to b© administered is less than $500 in value; second, where an administrator de bonis -non is appointed and the former administrator filed an inventory, if the estate was such that he ought to have filed one; third, if the executor is a residuary legatee, unless it is made to appear to the Court that an inventory should be made and that the estate is $500 in value, it may be omitted.^ As a general rule it may be said that in every ease where there are minors having an interest or where the estate exceeds $500 an inventory should be required. A practice not strictly in ac- cordance with law has been followed in some courts, that where the estate consists entirely of notes, stocks, moneys or such ar- ticles that have a value which can be readily ascertained from a mathematical calculation, that a written statement of the execu- tor or administrator under oath, giving a description of the kind and value of such articles, is accepted in lieu of the ordinary ap- praisement. This gives to the Court and all persons in interest with less annoyance and cost to the estate, the same information as an inventory and appraisement. Where there is a widow or there is other personal property, it cannot be used. It is said that time alone constitutes no bar against the requirement of an inventory where the statute fails explicitly to sanction the omis- sion. But if a long period has elapsed, such as forty years, a presumption might arise eitber that the estate had been fully 4 § 10638 G. C. inventory, Sprankle vs. Odell, 22 O. 5 §§ 10008-9 G. C., §57; §10638 C. C. (N.S.) 480. G. C. § 281. It is clearly the duty of the court An appraisement is part of the to require an anpraisal. In re Pick- ards, 5 X. P. 493 ; 7 Dec. 476. 235 WHEN MAY BE OMITTED § 283 settled or that there were no assets available ; and time in con- nection, with other circumstances may operate much sooner to dispense with the filing of an inventory.® It is likewise provided by statute ^ that if a testator shall ex- press a VN^sh that there be no appraisement of his household goods and furniture, that the Court may omit the same upon an application of any party in interest. Under the law as it now stands it seems to be the imperative duty of the Probate Court to require an inventory in eveiy instance where the value of the estate is $500. Unless possibly under ^ 10608-9, G. C, where the executor is residuary legatee, there the Court seems to have a discretion. But taken in connection with the provisions of the law applying to the inheritance tax and other provisions requir- ing the Probate Judge to make monthly statements to the audi- tor, it seems that even in the case of a residuary legatee an in- ventory ought to be required. And it will be tlie duty of a Probate Judge to enforce the fil- ing of an inventory in all such cases.® In the case of an administrator de bonis non, where an inven- tory has been once returned, the provisions of the inheritance tax have been satisfied and therefore the giving of a new inven- tory may very properly vest in the discretion of the Probate Court, §283. Procedure where statement is filed in lieu of the ap- praisement. Forms, etc. If no inventory or appraisement is to be filed, as a usual mat- ter it goes by default, and no order is made in reference thereto. If, however, it is desired to omit a regular appraisement and sub- stitute a statement, it may be done in the following manner : ® 6 Sell, on Exrs. 231. See In re there are reasons why an appraise- Rierdon, 5 N. P. 516; 5 Dec. 606. ment by appraisers ought to he 7 §§10697-8 G. C, §470. omitted, if it can be done with 8 In re Estate of Pickards, 5 N. P. no injury to anyone. Sometimes the 493; 7 Dec. 476. If he fails, he may family are very much averse to hav- be liable on his bond. ing three men go through all their I wish to state that the filing of family affairs. If a full statement such a statement is not exactly in is filed by an administrator it seems conformity to law, but experience that the law is reasonably complied has demonstrated that many times with and no one is injured. § 283 INVENTOKY 236 (Title, etc.) Now comes A. B., executor (or administrator) of the estate of C. D., and represents to the court that (here insert whatever the reason may be for asking that a regular appraisement be dispensed with ) . He further represents that he herewith presents a full and complete exhibit of all the personal property of said decedent with the value thereon as near as he could ascertain the same; and he asks that the same may be accepted by the court in lieu of an inventory and appraisement of said personal property and that such inventory and appraisement be dispensed with. (Here in- sert a full itemized account of every article of property, bonds, or notes of the decedent, with its fair value.) State of Ohio, County, ss. Personally appeared before me, A. B., executor (or administrator) of the estate of C. D., who being duly sworn says that the foregoing statement of the personal property of the said C. D. is in all respects just and true; that it contains a true and correct account of all the personal estate and property of the deceased, which has come to the knowledge of the said A. B., particularly all money, bank bills, or other circular mediums be- longing to the deceased, and all just claims of the deceased against said A. B. or other persons, according to the best of his knowledge. Sign. Sworn to and subscribed before me this .... day of Upon the filing of such a statement, if tlie Court thinks proper, it may accept the same. The acceptance of such a state- ment, being somewhat irregular, would not preclude the order- ing of a regular appraisement at some future time/" FORM OF ENTRY. (Title.) This day came A. B., executor (or administrator) of the estate of C. D., and filed in this court his detailed statement of all the personal property of the deceased under oath ; and asks the Court that the same may be accepted in lieu of a regular appraisement of the said personal estate, and that no further appraisement of said estate be required; and it appearing to the Court that said statement is a reasonable and fair exhibit of all the personal property of the deceased. The same is accepted in lieu of a regular appraisement, unless the same shall be required by future order of the Court; and it is further ordered that said statement be filed and re- corded in the book of inventories. 10 As to the forms and procedure to be used in compelling the making of an inventory. § 303. 237 APPRAISERS — APPOINTED § 284 § 284. Appraiser, how appointed. The question whether or not an inventory shall be filed, ought to be determined at the time the letters are issued, if that be possible, for it is a usual practice to designate the names of the appraisers in the entry making the appointment ; and also desig- nate them in the letters of appointment. The statute in relation thereto is as follows : "The estate and effects comprised in the inventory, unless an appraisement thereof has been dispensed with by an order of the court, shall be appraised by three suitable disinterested per- sons, appointed by the court, and sworn to a faithful discharge of their trust. If part of such estate or effects be in any other county, any disinterested justice of such county may ap- point the appraisers of the estate and effects therein." [R S § 6028.]" The question sometimes arises under this section whether they should be freeholders or not. If the appraisement is only to in- clude personal property, unquestionably they need not be free- holders. If it is also expected to appraise real estate, it being a requirement of the law to have real estate appraised by three disinterested freeholders of the vicinity, it might be well in such cases to appoint men as appraisers who are qualified under the statute to appraise real estate, although an appraisement of real estate with the personal property by a non-freeholder would probably not be void. The Court, in appointing the appraisers, takes the suggestions of the administrator or executor. But care should be taken to ascertain that the persons appointed are satisfactory to the heirs and widow, as well as to the executor or administrator, for they are all interested parties. Another question that sometimes arises in practice is, whether the ap- praisers can act for personal property situated in another county. I am of the opinion that they can, and that it is not the purpose of the statute to exclude the appraisers appointed by the Court making the appointmput of the administrators, from appraising personal assets of the estate whenever they are found. The pro- 11 § 10644 G. C. Ree § 860. In appraisement of Tlic appraisers need not be resi- mal estate, they must be "of the dents of the county of the adminis- vicinity" and "freeholders." See trator's appointment: the only re- § 857. quirement beinjj that they be "three suitable disinterested persons." § 285 INVENTORY 238 vision that a justice of the peace may appoint appraisers for property in another county is one of convenience, and not neces- sarily followed. Of course, if there is real estate to be sold, then a different rule might apply. ^" § 285. If appraisers fail to act justice may appoint. The general practice is for the administrator to notify the persons appointed appraisers, of their appointment and the day and place where they are expected to act. If the administrator ascertains in time to communicate with the Court that some one of the appraisers will be unable to at- tend, he should notify the Court and permit the judge to substi- tute another. If such is greatly inconvenient a justice may ap- point under the following provisions of our statute: "If by neglect, sickness, or other cause, appraisers fail to attend to the performance of their duty, any justice of the peace in the county in which the property to be appraised is situated, may appoint others to supplv the place of such delinquents." [R. S. §6029.]" § 286. Form of appointment of appraisers by justice. "When a justice appoints appraisers he shall make a certificate of the appointment which shall be returned by the executor or administrator with the inventory, and which in substance shall be as follows : To , of county : You are hereby appointed to appraise, on oath, the estate and effects of , late of ' county, de- ceased. Given under my hand this day of [R. S. § 6030. ] 1* justice" of the peace. ' ' § 287. Inventory to be made and by whom. ' ' After giving the notice required in the next following section, the executor or administrator, with the aid of the appraisers, if an appraise- rs See § 1595, Assignment. A justice of the peace is entitled 13 § 10645 G. C. to a fee of 40 cents for making the 14 § 10646 G. C. ' appointment. § 1746 G. C. 239 NOTICE, ETC. § 288 ment is made, shall make the inventory herein directed." [R. S. §6031.] ^5 The law contemplates that an administrator will be expedi- tious in the settlement of the estate. It requires a sale to be made within three months ; likewise requires the inventory to be filed within 30 days. And, in addition to these matters, there may be notes to collect, legal rights to be enforced, the claims of the widow and children to be protected, that require an inven- tory to be made at the earliest possible convenience, so that no rights will suffer. In order that the various articles in the sale bill and inventory will correspond in number and position, it may be an advantage to have the inventory made a few days before the sale. § 288. How and when notice to be given. Before an appraisement can be had, a notice provided for in the following section must be made: "Not less than five days previous thereto, a written notice, stating the time and place of making such inventory, must be served on the widow, legatees, and next of kin residing in the county where the property may be, by the executor or admin- istrator, and also be posted in two of the most public places in the township where the decedent last dwelt, and, in every such notice, the time and place at which .such appraisement will be made, shall be specified." [R. S. § 6032.] i« § 289. Service and form of notice. It is absolutely essential to a valid appraisement that notice be given as required in the above section. It must be given to the widow, legatees and next of kin who reside in the county, and it must be put up in two public places in the township. The statute says in the most public places. It may be a matter of some, difficulty to determine what are the two most public places. However, it would seem that the spirit of the law would be com- plied with if the notice be posted in such places that it would 15 § 10647 G. C. le § 10648 G. C. § 290 INVENTORY 240 likely notify creditors and other interested persons of the time and place of the inventory. "Wliere there is a doubt on this subject it would be well to put up more notices than the law requires. A usual practice is to put up one notice at or near the residence of the deceased. This notice should be put up or served by the administrator. It would be legal if served by any- one else. An affidavit as to the manner of serv^ice and place w^here the notices were put up should be filed in court. The usual practice is to have it made on the inventory. The form of notice may be as follows: NOTICE OF APPRAISEMENT. Estate of , deceased. Notice is hereby given that an inventory and apraisement of the estate and property of , late of county, de- ceased, will be taken at , late residence in township, on the day of , A. D. 190.., commencing at o'clock. . . .M., and ccmtinuing from day to day until completed. • Dated this day of 190. .. Administrator, — Executor. FORM OF AFFIDAVIT OF SERVICE. (Title.) A. B., administrator of the estate of C. D., deceased, being duly sworn says that copies of the annexed notice were posted up as follows: (Hera mention where they were posted.) In the township of the late residence of the deceased; and that on the day of the same were served by (here mention manner of service) , to , the widow, , the next of kin of the deceased. Sign. Sworn to and subscribed before me this day of § 290. Appraisers ' oath ; by whom administered. ' ' Before proceeding to the execution of their duty, the appraisers must take and subscribe an oath, to be inserted in or annexed to the inventory, before an officer authorized to administer oaths, that they will truly, honestly and impartially appraise the estate and property exhibited to them, and perform the other duties re- quired by law in the premises according to the best of their knowledge and ability. In the absence of such officer, the ad- ministrator or executor may administer the oath." fR. S. §6033.]!' 17 § 10649 G. C. 241 OATH, ETC. § 291 § 291. Form of oath, etc. Any person authorized by law to administer oaths or the admin- istrator or executor, may administer the oath. The following may be used as a form in which the oath can be administered: You and each of you do solemnly swear that you will truly, honestly and impartially appraise all the estate of said A. B., deceased, which may be exhibited to you; and that you will perform the other duties required of you by law as appraisers of the said estate, according to the best of your knowledge and ability. This you do as you shall answer unto God. This oatli is veiy often given in the form of an affidavit at- tached to the inventory as follows : State of Ohio, County, ss. E. F., G. H. and I. J., appraisers of the personal estate of C. D., de- ceased, being sworn say that they will truly, honestly and impartially ap- praise the estate and property of the said deceased which may be exhibited to them and perform the other duties required of them by law in the premises as appraisers, according to the best of their knowledge and ability. Sign. Sworn to and subscribed before me this day of i8 § 292. In whose presence and in what manner the articles shall be appraised. "In the presence of such of the next of kin, legatees, or creditors of the testator or intestate, as attend, and the widow if there be one, the appraisers shall proceed to estimate and appraise the property and estate. Each article or item must be set down separately, with its value in dollars and cents, distinctly in figures, opposite to the articles or items, re- spectively." [R. S. §6034.]!^ § 293. Detailed statement required. The statute is plain in reference to the persons who are en- titled to be present, and further says that they shall appraise the property and estate. This does not mean real estate unless spe- cially ordered. As to what will constitute assets to be appraised 18 This applies to real estate as See § 1505, Assignments well as personalty. 19 § 10650 G. C. See § 10798 G. C. § 293 INVENTOEY 242 will be found treated of in a subsequent chapter, § 363 et seq. Each item shall be set down separately with the value, in dollars and cents, distinctly in figures opposite. Verj' great difficulty is sometimes experienced by a failure to properly comply with the law. A distinguished author says : ^° " It may be assumed as the experience of courts and judges that a large proportion of the litigation arising in the settlement of estates is due to inat- tention and inaccuracy in making inventories and keeping the ac- counts, under tlie mischievous delusion that honesty and good faith are sufficient to accomplish the ends of administration. But this is not only a question of policy addressing itself to the judgment of parties managing the estate ; it is a legal obligation. The statute in nearly every State requires not only a full and true inventory, etc., but also directs tliat each article of property shall be separately appraised and its value noted. It is the duty of the Court to which an inventory is returned to reject it if not made in compliance with law, and require a new one which shall be in due form." When the statute says that it shall be made out in detail it does not mean or allow that articles shall be grouped together and ap- praised as a whole, but it means just what it says. Thus in one case where items were put do^\'n as " Cash, bonds, notes, etc., $13,993.06," " Household goods and kitchen furniture, $298,^' " Horses, cows and swine, $268," it was held that this did not, strictly spealcing, constitute an inventory. ^^ 20 Woerner on Admin. 668. the rights of parties, impose upon 21 Vanmeter vs. Jones, 3 N. J. 520. courts the painful duty of groping " The whole difficulty," says the for the truth in the dark, or of de- Ordinary, in delivering the opinion ciding by uncertain and unreliable of the prerogative court, " has grown tests of truth. The court below was out of the defective character of the misled entirely by the defects and inventory, and exhibits in a striking virtual misrepresentations of the in- point of view the impropriety of ventory and this court was saved suffering such inventories to be filed. from falling into the same error They do not answer to the design of mainly by exhibits offered on the the law. They fail to furnish to part of the exceptant. In this case, parties interested the very informa- it is true, the loss of the mistake tion which they were designed to would have fallen where it justly be- supply. They often lead, as in this longed, on the head of the party case, to useless litigation, imperil guilty of the negligence that occa- 243 VALUE, ETC. § 294 The inventory of an administrator of a deceased partner should only refer to his interest in the partnership as of a certain character, and where located, without undertaking to give the items of property belonging to such partnership, since the ad- ministrator cannot have control of it until the partnership affairs are settled."" § 294. Value to be given articles. The three subsequent sections "^ specifically provide how bonds, mortgages, notes and securities for the payment of money shall be appraised, and how moneys in bank or on hand shall be set down. The above section applies more particularly to tangible personal property. It is very important that a fair value be returned in the appraisement, for such value is prima facie evidence as to its value against the administrator, although it is not conclusive. It is one means of ascertaining the value of an article to consider its cost. But this should not govern its value alone. As a general rule, it may be said that the ap- praisers are to fix a value on the property which in their judg- ment it will bring at a public sale. This might sometimes be an inequitable value, but it is the best rule probably that can be formed.^* The whole matter is left to the judgment of the appraisers, and they should not consider the fact that the widow may take it at its appraised value, but should give to each article that value which they believe it will bring when put upon the market. It is said that an administrator is not obliged to have articles in- ventoried that are in anotlier State, or those that are due from sioned it. But it falls, it is to be source of litigation, and as opening feared, too often upon unsuspecting a wide door to fraud and injustice, heirs and confiding relatives, who Justice requires that in all cases are made the victims of the careless- the requirements of the statute ness or fraud which covers up the should be strictly complied with." real truth under the shelter of gen- (p. 518 et seq.) eral and unintelligible inventories. 22 Loomis vs. Armstrong, 29 N. W. I feel it my duty to protest earnest- Rep. 867; S. C, 63 Mich. 355; § ly against the practice, not only 416, Partnership assets. from the embarrassment it has occa- 23 §§ G035, 6036, 6037 R. S. sioned in this particular case, but ' 24 See Woerner on Admin. 670. because I regard it as a fruitful 23 §§ 10651, 10052, 1CC53 G. C. 2i See Woerner on Admin. 070. § 295 INVENTORY 244 parties in another State. -^ But no harm would result in having them included. Where any article is in litigation, or its title questioned, or where any bond, note or judgment is doubtful, it should be so designated in the inventory. § 295. How bonds and other securities to be inventoried and appraised. "The inventory must contain a particular state- ment of all bonds, mortgages, notes, and other securities for the payment of money, belonging to the deceased, known to such executor or administrator, specifying the name of the debtor in each security, the date, the sum originally payable, the indorse- ments thereon, if any, with their dates, and the sum which, in the judgment of the appraisers, can be collected on each claim." [R. S. §6035.]-^« § 296. How other debts shall be inventoried and appraised. "The inventory also must contain a statement of all debts and accounts belonging to the deceased, known to such executor or administrator, specifying the name of the debtor, the date, the balance or thing due, and the value or sum which can be col- lected thereon, in the judgment of the appraisers." [R. S. §603 6.] 27 § 297. How inventory of money and bank bills to be stated. "The inventory also must contain an account of all moneys, w^hether in specie or bank bills, or other circulating medium, belonging to the deceased, wliich have come to the hands of the executor or administrator. If none has come to his hands, the fact must be so stated in the inventory." [R. S. § 6037.]-^ The form furnished by Probate Judges will show in just what manner bonds, notes and moneys should be stated in the in- ventory. § 298. What it shall include. The inventory shall include an appraisement of all the per- sonal property belonging to the testator (some articles are not 25 See § 298, What it shall in- 27 § 10632 G. C. elude; Redf. Surr. Prac. 334. 2s § 10653 G. C. 26 § 10651 G. C. , 245 WHAT IT SHALL INCLUDE § 298 to be deemed as assets),"'* whether such property is in his pos- session or in the possession of another.^" But property belonging to another, and clearly distinguishable from the mass of the property of the estate, need not be inven- toried." He must inventory his own indebtedness to the estate/^ and all property within his knowledge, whether in this or another State.'' It is not his duty, however, to inventory property fraudu- lently conveyed.'* It is his duty to inventory all property of the estate in an- other's possession.'^ Property claimed by another, but found among the assets of the estate, must be inventoried unless it clearly appear that such property does not belong to the de- ceased.'® He cannot be compelled by Court, however, to include prop- erty belonging to another, though in his possession as adminis- trator. ''^ A leasehold estate for less than life is a chattel real, is per- sonal property, and should be inicluded in the inventory.'^ Where testator had executed an oil lease of his lands in con- 29 See §10654 G. C. under chap- 751; S. C, 24 Atl. Rep. 785; Snod- ter on widow's allowance, § 320. As grass vs. Andrews, 30 Miss. 472. to what will constitute assets, see ss Turner vs. Ellis, 24 Miss. 173; subsequent chapter. § 363. Williams vs. Morehouse, 9 Conn. so Vanmeter vs. Jones, 3 N. J. Eq. 470. See Hignutt vs. Cranor, 62 520; Pursel vs. Pursel, 14 N. J. Eq. Md. 216; Silverbrandt vs. Widmay- 514; McNeel's Estate, 68 Pa. St. er, 2 Dem. 263. See Appeal of 412; Bourne vs. Stevenson, 58 Me. Weiss, 133 Pa. St. 84; S. C, 19 Atl. 499. Rep. 311. 31 Trecothick vs. Austin, 4 Mason 36 Bourne vs. Stevenson, 58 Me. 16 ; Farrelly vs. Ladd, 10 Allen 127 ; 504 ; Waterhouse vs. Bourke, 14 lia. Prescott vs. Ward, 10 Allen 203. Ann. 358 ; Mulford vs. Mulford, 40 3-' § 390; Weems vs. Bryan, 21 N. J. Eq. 163; Washburn vs. Hale, Ala. 302; Gregory vs. State, 119 Ind. 10 Pick. 429; Speakman's Appeal, 503; Kealhofer vs. Emmert (Md.), 71 Pa. St. 25; Gold's Case, Kirby 29 Atl. Rep. 68. 100; Robbins vs. Robbins (Ky.) I 33 This is not a universal rule; S. W. Rep. 152. Woerner on Admin. 665. Butler's 37 Snodgrass vs. Andrews, 30 Misa, Estate, 38 N. Y. 397; Sherman vs. 472. Page, 85 N. Y. 123. 38 § 942; McCarty vs. Burnet, 84 34 Gardner vs. Gardner, 17 R. I. Ind. 23. § 299 INVENTORY 246 sideration of a royalty of part of the oil, the oil produced after his death, and accruing as such royalty, is not of the corpus, but a part of the income of the estate.^® Animals ferw naturw which are confined or in the immediate possession of man, such as tame pigeons, deer, rabbits, pheasants, partridges, or animals kept in a room or cage, or fish in a box, tank or net.'*" And d'oves in a dove house ^^ belong to the admin- istrator; while animals feroR naturce in a park, not tame or re- claimed from their wild state, fish in a pond, and the like, go to the heir if the decedent left them upon his own freehold estate ; but if he left them on leased premises, being less than a freehold estate, then to the administrator.*- § 299. When real estate should be included. There are advantages and disadvantages attached to the ap- praisement of real estate with the personal property. It is an advantage that it saves expense and trouble. It is a disadvan- tage that the appraisers are not selected for that purpose; and that the proceedings in the action to sell real estate do not con- tain this jurisdictional fact of a proper appraisement other than by mere reference. If there is a widow who is entitled to dower, the appraisement made with the personal property should never be made to answer the appraisement contemplated by a proceed- ings to sell real estata In very many cases, however, it will do no harm where there is a probability that the real estate will have to be sold, to include an appraisement of it with the per- sonal property. The section of our statute providing for such appraisement is as follows: "If, at the time of granting letters testamentary or letters of administration, the court deems fit, it may order the executor or administrator also to include in the inventory an appraisement of all the real estate of the deceased." [R. s! § 6025.]*^ 39 In re Woodburu's Estate, 138 4i Com. vs. Cliace, 9 Pick. 15. Pa. St. 606; S. C, 27 W. N. C. 305; « Ferguson vs. IVfiller, 1 Cow. 243. 21 Atl. Rep. 16. See §294. 40 Buster vs. Newkirk, 20 Johas. 43 § 10641 G. C. 75; Pierson vs. Post, 3 Caine 175. 247 SIGNING AND FILING § 300 § 300. Sigiiiiig' and filing inventory. ' ' Upon the completion of the inventory it shall be signed by the appraisers at the end thereof and said appraisers shall certify that the foregoing in- ventory is a true and correct appraisement of the property exhibited to them and it shall not be necessary for the appraisers to sign each schedule thereof. A copy of the inventory shall be retained by the executor or administrator, who shall return the original to the probate court." [R. S. §6044; 107 v. 548.]^* § 300a. Monthly statement of probate court to county au- ditor. "At the end of each month the court shall deliver to the county auditor, a statement showing as to each inventory the aggregate value of each class of property other than real, as shown by the inventories filed during that month, for his use and the use of the proper board of equalization in the perform- ance of their respective duties in relation to returns for taxation of personal property, moneys, rights and credits, and the equali- zation and correction thereof." [R. S. § 6044.]*'** § 300b. Taxes and penalty, "Taxes or penalty lawfully placed on a duplicate or added by the county auditor or board of equalization because of a failure to make a true return, or of making a false return for taxation, shall be a debt of the de- cedent, to have the same priority and be paid as other taxes, and collectable out of the property of the estate either before or after distribution, by any means provided bv law for collecting other taxes. No distribution, or payment of inferior debts or claims shall defeat such collection ; but no such tax or penalty can be added before notice to the executor or administrator, and an opportunity is given him to be heard. All taxes omitted by the deceased must be charged on the tax lists and duplicate in his name." [R. S. § 6044. ]*«* § 300c. Beginning of each succeeding tax year. "In all ad- ditions to the personal tax lists and duplicate made by a county auditor, each succeeding tax year shall be considered as begin- ning at the time of the completion of the annual settlement with the county treasurer, of the duplicate for the previous year." [R. S. § 6b44.]^''t § 300d. Compensation of probate judge. ' ' The probate judge shall be entitled to the same compensation as for other like services, to be taxed as a part of the costs of administering such estate." [R. S. §6044.] ^^j 4* § 10G60 G. C. 44»* § 10062 G. C. *** § 10G61 G. C. -4 § 10GG3 G. C. •tJt § 10GG4 G. C. § 300e INVENTORY 248 §300e. No allowance of tax inquisitors. "No percentage, nor part of any iiicreased tax on the property of such estate, covered by such inventory, for the years which it is required to be listed in the name of the executor or administrator, shall be allowed or paid to a person under a contract for securing for taxation, or putting on the tax list or duplicate property improp- erly or otherwise omitted, or not listed or returned for taxation. ' * [R. S. §6044.]^^! § 301. Appraisers' fees. "Each appraiser shall be paid two dollars per day, or such amount as the probate judge may allow for his services." [R. S. § 6045.] « Experience has demonstrated in many instances this amount to be an inadequate compensation. If the appraisement is only a few moments' work you may get competent men to attend to it. But if it is a day's wx^rk, difficulty will be experienced in getting any person to perform the duties, unless he does it as a matter of accommodation ; and this should not be, for the statute expressly provides that the ap- praiser should be a disinterested person ; that is, one Avho is en- tirely free from any iniluence from either the heir, widow, legatee or administrator. The difficulty in leaving the matter entirely to the discretion of the Court is that very often ap- praisers will ask a larger sum than the estate ought to be taxed with. If the administrator cannot procure competent men for the amount allowed by statute he ought to procure the consent of the heirs to pay them an additional sum or else give them such a sum as he thinks just, and assume the responsibility that it may ultimately be allow^ed to him in his account.*® § 302. Inventory to be sworn to by the executor or admin- istrator. Form of oath, etc. "Before such inventory is re- ceived by the probate court, the executor or administrator shall take and subscribe an oath or affirmation before the judge, his deputy, or other officer authorized to administer oaths, stating that the inventory is in all respects just and true ; that it con- tains a true statement of all the estate and property of the de- ceased which has come to his knowledge, and particularly of all money, bank bills, or other circulating medium belonging to the deceased, and of all just claims of the deceased against such 44i §§ 10664, 10665 G. 0. 46 See § 1595, Assignments. 44 See § 663, Taxes. Former statute allowed $1. 46 § 10666 G. C. 249 COMPULSORY RETURN § 303 executor or administrator, or other persons, according to the best of his knowledge. Such oath must be endorsed upon or annexed to the inventory." [R. S. § 6046.]*^ § 303. Compulsory return of inventory. "If an executor or administrator neglects or refuses to return such inventory within thirty days after his appointment, the probate court shall issue an order requiring him, at an early day therein named to return an inventory according to law." [R. S. § 6047; 102 v. 201.] *^ § 304. Application for citation, etc. The order provided for in this statute (10668, G. C), is not an order to compel an inventory to be taken, but it is to compel an inventory to be returned after it has been ordered that one be made. While it may be said that it is the duty of the Court to enforce returns of an inventory without motion, yet it is per- haps the general practice that such things are done upon the application of some one. And the statutes of some States *" specifically provide that a creditor or party in interest may file such an application ; and therein has been held that the appli- cation must show that the applicant is a creditor or otherwise interested in the estate. ^'^ *" § 10G67 G. C. clfes exceed a few in number, no at- The same form of oath may be tempt should be made to fill out the used as is given in a previous sec- inventory as the work progresses, tion of this chapter in the filing of a But first the work should be done, statement in lieu of a i account. § rough notes taken, then transcribed 283. The form of a general inven- to the paper which is to be filed as tory is always provided by tlie Pro- an invcntoiy in the Probate Court, bate Court upon an application; and It is very trying on the patience of as it is of considerable length in its the probate judges to accept the in- entirety, it will be omitted from ventories that are sometimes pre- this volume. These forms are usual- sented to him, in the discharge of ly gotten up in such a manner that his duties. A copy must be retained if a fair degree of intelligence be by the administrator, exercised on the part of the apprais- 4S § 10GG8 G. C. See § 283, State- ers and the administrator, no mis- jnent fur inventory; §491, Sale bill; take need be made in properly filling § 741^ Account; § 1597, Assignment. them out. They ought to be filled 49 X. Y. §2716 Civil Code, out in ink, transcribed from rough so Redf, Sur. Prac. 390. notes taken by the appraisers in the Query: Is right ever barred, performance of their duties. Where Gilbert vs. Marsh, 4 N. P. 338; 7 the estate is of any size or the arti- Dec. 23U. § 305 INVENTORY 250 But even there it is within the power of the Court to compel a return of its own motion. ^^ The application may be in the following form : ( Title. ) The undersigned respectfully represents that , late of said county, died on or about the day of , leaving an estate to be administered, worth about dollars. That on or about the day of was appointed administrator ( or executor) of the estate of the said , deceased; and has neglected and failed to return an inventory of said estate, as required by law. Your petitioner further represents that he is interested in the said estate (here state the manner in which the person claims an interest in the estate), and prays that a citation may be issued, requiring said to appear before said court on the day of at o'clock. Then and there to show cause, if any he may have, why he should not return an inventory of said estate. Sign. § 305. Entry and writ of citation. The order granting tlie writ will be made without any other evidence of the failure to return the inventory than that which the application and the records of the court show. The entry may be in the following form : On this day came A. B. and filed herein his application for a writ of citation against C. D., administrator (or executor) of the estate of E. F., alleging that the said C. D. has failed and neglected to return his inventory as required by law. Wherefore it is ordered that a writ of citation be issued requiring said A. B. to return said inventory to this court on day of , or show cause before this court on that day why the same has not been done ; and if he fails to do so he will be removed from his said trust. FORM OF WRIT OF CITATION. ( Title. ) State of Ohio. County, Probate Court, ss. To F. R., sheriff: You are commanded to cite and give notice to A. B. to appear before the Probate Court at the court house in the city of of said county and show cause why he should not return an inventory; and that if he fails to return the inventory or to show cause 51 Thompson vs. Thompson, 21 Barb. 107. 251 REMOVAL FOR FAILURE TO FILE § 306 for not so doing, he may be removed from his said trust as provided by law and of this writ make due return. Witness my hand and seal of said court, this day of Sign. Probate Judge. § 306. Removal for failure, etc., and granting- of new letters. "After personal service of such order by an officer or person authorized to make the service, if such executor or administrator, by the day appointed, does not return such inventory under oath or fails to obtain further time from the court to return it, or if such order can not be served personally by reason of his ab- sconding: or concealing himself, the court may remove him and new letters shall be granted, as provided by law. [R. S. S 6049.1" § 307. Excuse for failure to return an inventory. After an inventory has been once ordered under the provisions of our law, which seem to contemplate the filing of an inventory in the administration of every estate, it could only be a want of assets that would give a sufficient excuse. It is not the mere filing of a paper purporting to be an inventory tliat will satisfy the law, and therefore the writ might issue to compel the filing of a proper inventory. It might also be issued where tliere were new assets which came into the hands of the administrator or executor after a former inventory had been filed. ^^ Since one of the reasons for filing an inventory is to ascertain what the as- sets of the deceased were, for the purpose of taxation, the fact that tlie estate has been settled by agreement and all the debts paid would not be a sufficient excuse ; and it is no excuse for a failure to make and return an inventory that the assets have no present existence, that is, have been disposed of by the repre- sentative.^* Nor is it an answer to the application to compel the return of an inventory that the administrator has assets largely in excess of the debts of the testator, and that he offers to give security 52§ inonn Cx. C. »* Ri]vo,-hrnndt vs. Widmayer, 2 53 Sec § 10683 G. C, § 311. Dem. 203. § 308 INVENTORY 252 for tlie payment of all debts, or that it would be troublesome and expensive to make an inventory, or to allege that the petitioner is actuated by curiosity and a design to abuse the process of the court/^ It is very doubtful if it were shown that the applicant was not an interested party that it would be a sufficient excuse -to dis- pense with the order. ^^ § 308. Entry, form, etc. If before the time set for the administrator or executor to file the inventory or show cause why he should not be removed, the administrator appears and files an inventory, one that is satis- factory to tlie Court, a very short entry of dismissal is sufficient. If, however, he fails to make a proper retuni, then the entry may be in the following form : (Title.) This day this matter came on to be further heard upon the application of A. B., requiring C. D. to make return of an inventory in the matter of the administration of the estate of E. F., as required by law; and it appearing to the court that said C. D. has had due and legal notice of the order heretofore made (here if the administrator has absconded or conceals himself so that the order could not be served, so state in the entry), it further appearing to the court that said administrator (or executor) has failed to return said inventory. It is hereby ordered that he be removed as administrator of said estate; and that whithin days from this date he file in this court an account of his trust; and that the costs of these proceedings, amounting to dollars, be taxed against said C. D., and judgment be rendered therefor. § 309. Effect of such revocation. "Such letters shall super- sede all former letters testamentary or of administration, deprive the former executor or administrator of all power, authority, or control, over the estate of the deceased, and entitle the person appointed, to take, demand, and receive his goods and effects wherever they are found." [R. S. § 6050.]^^ § 310. Prosecution of former bond by administrator de bonis non. "In every case of revocation, the bond given by the 55 Forsyth vs. Burr, .37 Barb. 540. 57 § 10670 G. C. 56 See Redf. Sur. Prac. 398. 253 NEW ASSETS § 311 former executor or administrator, must be prosecuted, and a recovery had thereon, to the full extent of any injury sustained by the estate of the deceased, by his acts or omissions, and to the full value of all the property of the deceased, received and not duly administered by him." [R. S. § 6051.] ^« § 311. New assets after return of first inventory. It very often happens that after an inventory has been taken it will be ascertained that some articles have been overlooked. This is the rule. It is hardly to be expected that you will get every article. If in such cases they are of considerable amount the inventory should be amended by either again calling together the original appraisers and notifying the persons entitled to be ]iresent, or the administrator may assume the risk, if any tliere be, and return the articles in his possession in his account. If uew assets come into the possession of an administrator or execu- tor after he has filed his inventory, a new inventory may be made. The same rules will apply to the new inventory as to the orig-inal. It is provided for in the following section of the Gen- eral Code: "Wlienever personal property, or assets of any kind, not men- tioned in any inventory that has been made, come to the knowl- edge or possession of an executor or administrator, he must cause them to be appraised in manner aforesaid, and an in- ventory to be returned, within, two months after discovery thereof. The making of such inventory and return may be enforced in the same manner as in the case of the first inven- tory." [R. S. §6061.1^9 ^ 312. Exceptions to inventory and proceedings thereon. Appeal to Common Pleas. "Within six months after the re- turn of an inventory a person interested in the estate may file exceptions to it. Thereupon, the court shall set a day for their 58 § 10671 G. C. § 260. Also for proceedings by at- As to comment applicable to the tachment, see chapter on Special Ad- above section, see chapters on Ad- ministrator, § 128 ct seq. ministrator de bonis non, § 151 ; "Re^ 59 § 10683 G. C. moval and resignation, § 208; Bonds, § 312a in\t:ntqry 254 hearing, and cause written notice of such filing and of the time for the hearing to be given to the executor or administrator, not less than five days before that time. For good cause the hearing may be continued for such time as the court deems reasonable. At the hearing the executor or administrator, and any witness may be examined under oath. The court must enter its finding on the journal and tax the costs as may be equitable." [R. S. §6024; 102 V. 201.] «o § 312a. Appeal on exceptions to inventory. ''Wlien a per- son interested in an estate which is in the course of adininistra-^ tion, files exceptions to an inventory thereof, in the probate court, either party may appeal from its finding, order, or Judgment or hearing thereof, to the court of common pleas." [R. S. § 6024.] sf"* § 313. Form of exceptions, etc. The above section of the General Code seems to contain the entire proceedings for exceptions to an inventory. First, it pro- vides that any interested person may file it ; second, that it may be done within six months after the return of the inventory, and that a day shall be set for hearing when a trial may be had ; costs taxed as may be equitable and that an appeal may be taken by an aggrieved party. The following may be used as a form for exceptions : {Title.) Now comes A. B., one of the creditors of said estate of (or here insert other capacity), and files an exception to the inventory of the estate of C. D. filed in this court on the day of by E. F., executor (or administrator). In this to- wit: (Here set out in detail whatever the fault may be to the inventory, whether it be the omission of the assets or the improper statement of one.) Wherefore the said A. B. prays that a hearing may be had thereon and the court make such an order as the facts and the law require. § 314. Form of entry ordering notice. The above exceptions having been filed, the statute directs that notice thereof be given to the administrator, which may be pro- vided for by the following entry : 60 § 10639, G. C. The question as to an allowance 60* § 10640, G. C. of a widow may be raised on excep- A creditor of an heir at law, or tions. In re Est. of Scott, 19 Dec. distributee of a decedent, whose es- 577. tate is being administered upon, is The Court of Common Pleas can not an interestetl person witliin the not dismiss an appeal from an order meaning of the statute. In re overruling exceptions to an ap- Stursis 6 X. P. (X.S.) 331: 18 Dec. praisement on the ground that the 344 '^ ' executor filed exceptions to his own And the question n^av be raised inventory. Sprankle vs. Odell 22 where the matter has been appealed, O. C. C. (X.S.) 480; affirmed, /8 0. in the Court of Common Pleas. Id. S. 404. 255 EXCEPTIONS, ETC. § 315 (Title.) This day came A. B. and filed in this court his exceptions to the inven- tory herein filed by C. D. as administrator (or executor) of the estate of E. F. Wherefore it is ordered that notice thereof be given to the said C. D. as required by law and that the hearing of said exceptions is set for the day of , at o'clock. And that said notice be served or delivered to said executor (or admin- istrator ) by not less than 5 days before said day of bearing. § 315. Notice, etc. The notice may be served by anyone. If served by a private individual it should contain an affidavit of its manner of service. If by a sheriff, the usual return ; it may be in the following form: (Title.) To (here insert person to make the service) : You are hereby commanded to notify C. D. that on the day of A. B. filed in this court exceptions to his inventory of the personal prop- erty of the estate of E. F. Exceptions thereto are as follows: (Here state the exceptions to the inventory). And you further take notice that the court has fixed the day of , at o'clock, as the time for hearing said exceptions. § 316. Hearing and order. The Court will order subpoenas issued on application of any interested party for witnesses to appear and testify in the mat- ter of such exceptions on the day set for hearing, and the or- dinary course of a trial will be pursued ; whatever the finding may be, it should be entered upon the journal. The following may be used as a form of entry : This day this matter came on to be heard on the exception of A. B. to the inventory of C. D., administrator (or executor) of the estate of E. F., and was submitted to the court by testimony of witnesses. The said C. D., administrator, being present (or if the administrator is not present, say that the court furher finds that the said C. D. has had due and legal notice of said hearing). Whereupon the court finds (here state whatever the finding may be) and the court orders (here state what orders may be made as to the costs and if the administrator desires to appeal and add to the entry), and thereupon said administrator gives notice of appeal. § 317 INVENTORY 256 § 317. Appeal. The law specifically provides that from any judgment, order or decision of the Probate Court, on the hearing of such excep- tions, an appeal may be taken to the Court of Common Pleas.*'^ I presume the matter could also be taken up on error, but on this question I have no distinct authority other than the general provision of our statute, which provides for error. Upon an order made to direct the return of the inventory the statute makes no provision. Therefore there would be no right of ap- peal, neither is there any right of appeal when the administra- tor is removed for failure to make a return of the inventory, and it may be questionable if there is a remedy by proceedings in error.^^ § 318. Effect of inventory as evidence. The inventeiy is prima facie evidence both as to extent and value of the personal property left by the decedent, and casts the burden upon one seeking to impeach it to show that articles were deemed of greater value than the appraised value was.®^ The administrator is prima facie liable for the amount of money at which the articles have been inventoried.®* If it is shown that assets were disposed of for more than the inventory price, the administrator of course is liable for that amount. Where assets are taken by the administrator at the in- ventory price, and it is showm that they are of greater value than the price, he must answer for tlie same.®* It is only where a \\ddow occupies the position of administra- tor or executor that an administrator, etc., could rightfully take the property at its appraised value. The unexplained omission of an administrator to make any claim of set-off or defense to a 61 §S 10630-40 G C, § 312. of appeal from the Common Pleas No provision is made for the man- Court to the Court of Appeals. In ner in which an appeal may be per- re Christman Est., 13 O. App. fected and therefore as to bond, (1920). , „ ^ ,-o x- ^' transcript the general provisions. 63 Matter of Eodgers, la3 .\. \. gee §§ 41 to 60 316. See In re Estate of Scott, 19 Dec. 6 4 Ames vs. Downing, 1 Bradf. 577 321. 62 See § 39, § 52, Monger vs. Jef- J'^ Zilkin vs. Carhart, 3 Bradf. fries, 62 0. S. 155. There is no right 376. 257 AS EVIDENCE § 318 demand against himself in the inventory', is evidence against the validity of such a defense."" And where an executor, in preparing the inventory of an es- tate, includes therein a promissory note given by him to the tes- tator, which note was then out-lawed, this was held a sufficient acknowledgment in writing to remove the bar of the statute of limitation."^ Where a bank deposit is inventoried as cash, but the money is not collected before the bank fails, the administrator is not abso- lutely concluded, but the inventory may be shown to be incorrect upon a final accounting.®* Where upon the subsequent accounting it appears that certain items have realized much less than their inventory value, the executor or administrator, in order to avail himself of the rule that he should sustain no loss or decrease Avithout his fault in part of the estate, but shall be allowed for such property or loss without his fault upon the settlement of his account, must show affirmatively the facts in regard to tlie alleged depreciation or loss.'" 36 Lloyd vs. Lloyd, 1 Redf. 399. e^ Underbill vs. Newburger, 4 67 Ross vs. Ross, 6 Hun 80 ; Mat- Redf. 499. See Redf. Surr. Prac. ter of Daggett, 22 N. Y. Supp. 911. 406; Jess. Surr. Prac. 898. 88 Sheerin vs. Public Admin., 2 Kedf. 421. §319 WIDOW S ALLOWANCE 258 CHAPTER XIX. WIDOWS' AND CHILDREN'S ALLOWANCE. § 319 Introductory. § 320 What shall not be deemed as- sets, etc. § 320a Assets not to be adminis- tered on in certain cases. § 321 Comments. — Wearing apparel, etc. § 322 Disposition of such property. § 323 Right to, under § 10654, G. C. § 324 Year's allowance. § 325 Money to be set-off if neces- sary. § 326 Persons entitled to, etc. § 327 Right barred by will or con- tract. § 328" Nature of the claim. § 329 When appraisers fail to make allowance. 330 Apportionment between wid- ow and children. 331 Amoimt of, etc. 332 When and to whom payable. 333 Allowance may be increased or diminished by the Court. 334 Petition for, etc. 335 Who may file petition. 336 Form of petition for increase or decrease allowance. 337 Form of entry, etc. 33S Notice, etc. 339 Entry en hearing to increase or decrease. 340 Error and appeal, etc. 341 Widow's and widower's quar- antine. § 319. Introductory. When a man dies with an existing marriage relation between himself and his wife, or leaving children, the law gives to such snr\"iving wife and children certain rights in his property. Since the statnte has placed man and woman on an equality in reference to tlieir property rights, it is Cfuestionable whether the law onght not to be the same in reference to the rights of a sur- viving husband and children in the property of a deceased wife as it is in reference to a suiwiving ^vife and children in the prop- erty of a deceased husband. But it is not so in this State,^ ex- 1 Hance, Gdn., vs. Cliappell, 20 C. C. 214; 11 C. D. 139. Reversed where mother was a widow and held that her children were entitled to al lowance out of her estate. Matter of Estate of Hinton, 4.5 Bull. 423 Same doctrine approved, 3 C. C (N.S.) 608; In re Glenn, 23 0. C C. 397; 13 Cir. D. 39S; columns 171, 732. See chapter 41, § 14, as to Home- stead rights. See § 903 et scq. De- scent and Distribution. The widow's allowance is exempt from inlieritance tax to the extent of $3000.00. See chapter 106. 259 NOT DEEMED ASSETS § 320 cept as to the dower interest,' and the distributive share of the personal property,^ Upon these two the law has been amended so as to place them on an equality. The various ways in which a widow is inter- ested in the property of the deceased husband may be said to be the following: First, the interest of the wife in the husband's real estate; second, the interest in his personal property on dis- tribution ; third, the property which is ordered to be set aside to her and the children, and which are not to be deemed assets of the estate; fourth, an allowance made to support the widow and the children for one year; fifth, what is known as tJie widow's quarantine. The first of the above mentioned wiJ be more properly considered when we deal in the sale of real estate (§ 943 et seq. Dower). Or when tlie subject of election under will is considered (§ 121-i, et seq.). The sec- ond will be considered when treating of the distribution to be made by an administrator or executor. The other three will be considered in this chapter.* § 320. What shall not be deemed assets, etc. There is certain specified property which, according to the statute, is not to be deemed assets of the estate. The only au- 2 §§ 860G-7 G. C, § 944. nearly all the homestead and exemp- 3 § 8592 G. C, §938. tion laws; the immunities enacted 4 These provisions, like the kin- by these statutes are extended to dred subject of the homestead ex- this association of persons, or to the emption laws, are of purely Ameri- head thereof, for the benefit of all can origin. They owe their exist- its members." " The relation of hus- ence to a humane and benevolent band and wife, parent and child, is consideration for the distress and the unit of civilization, and the helplessness of widows and orphans State has thought to encourage that newly bereft of their protector and relation by protecting it from ab- supporter, and to a wise public pol- solute want, arising from the vicissi- icy, recognizing the true relation of tudes of life." Wocrner on Admin. the State to the family as its organ- 160. ic, constituent element. " The protec- See § 661, Payment of; § 939, lion of the family," says Thompson Distribution of personal property; in his valuable works on Homesteads § 944, Of what estate endowed; § and Exemptions, " from dependence 1026, Property under will. and want is the expressed object of § 320a WIDOW 's allowance 260 tliority and control which the administrator may have over such property is that he may have access to it in order that the appraisers may view the same and set it apart to the use of the wife and children. The section relating thereto is as follows: § 320a. Assets not to be administered on in certain cases. "When a person dies leaving a widow, or minor child, or chil- dren, under the age of fifteen years, the following property shall not be deemed assets or administered as such, but must be in- cluded and stated in the inventory of the estate, and signed by the appraisers, without appraising it : 1. One family sewing machine, to be retained by the ^^ddow absolutely as her own property, and all stoves set up and kept in use by the family; 2. The family bible, family pictures, and school books used by or in the family of the deceased, and books, not exceeding one hundred dollars in value, which were kept and used as part of the family library before his death ; 3. One cow, or if there be no cow, household goods, to be selected by the widow, or if there be no widow, by the guardian or next friend of such minor child or children, not exceeding forty dollars in value, or if there be no household goods such as the widow or guardian or next friend desires to select, then forty dollars in money ; all sheep to the number of twelve, their valuation not to be greater than seventy-five dollars, and the wool shorn from them ; 4. All the wearing apparel and ornaments of the family and of the deceased, all the beds, bedsteads, and bedding, cooking utensils, and table-ware necessary for the use of the family, one clock, and any other articles of personal property not to exceed one hundred dollars in value, which the widow, or if there be no widow, the guardian or next friend of such minor child or children, may select, to be valued by the appraisers." [R. S. §6038.]^ § 321. Comments. Wearing- apparel, etc. It may be obserA^ed that several conditions are requisite in order that property may be set off. First, there must be a wndow, or if there be no widow, there must be a minor child or children under the age of fifteen years. The widow here means, as elsewhere, the sur\'iving consort of a deceased husband who sustained a family relation with her husband, or if she did not, it was not the result of any fault of her own.^ 5 §10654 G. C 6 In re Estate of Eotli, 6 N. P. 498. 261 DEFINITION, ETC. § 321 Children, as a matter of course, means legitimate children, and would include adopted children as well as those of his own blood ; but not his step-children. It seems from tlie wording of the first division of the section relating to the property that should be set off, that it becomes the property of the widow ab- solutely. Under the second division it is a general practice where the estate is not large to set all such property apart to the use of the widow or children, for generally it takes a large number of such articles to exceed $100 in value ; and if there are no creditors whose interests may be affected, even. if the amount is above $100, it may he proper to give it to the widow and children at once. Under the third division, if there is a cow it should be set off. Or if there is no cow, household goods may be selected, not exceeding $40 in value. If there is neither cow nor household goods, then $40 is to be allow^ed in money, and in addition twelve sheep, etc. Under the fourth division the articles therein mentioned not to exceed $100 in value. A watch, watch chain, key and seals, a finger ring usually worn by the deceased during his life, a sword and sword belt of an officer in the United States army or navy, worn according to militar)' rules and regulations, cannot be regarded as " wear- ing apparel " ; but it is otherwise as to such officer's epaulets, which are a part of his coat; and a bosom pin, which is attached to his shirt.^ So jeweliy and rings may be wearing apparel.* To entitle the widow to the possession of articles enumer- ated (e. g., sheep and swine), the deceased husband must have had, or his personal representative must have, such an ownership 7 Sawyer vs. Sawyer, 28 Vt. 249. luxuries are not within the meaning In tlie case of Socket vs. Wishon, of the term. A gold watch may be 6 N. P. 155, the above case is cited included, but not a diamond ring. and reviewed, and the Court ar- In i-e Henry, 14 Fed. Dec. 353 rives at the conclusion that a watch (1905). and chain of reasonable value, ha- See in a recent case where a oon- bitually worn by a person, is wear- ductor's watch was held not to be ing apparel. included within the term "wearing Tlie term "wearing apparel" in- apparel" nor "ornament." In re eludes that which is worn for com- Est. of A. G. Post, 8 0. L. R. 492; fort and convenience. It may be 55 Bull. 382. cheap or expensive, according to s Frazier vs. Barnum, 19 N. J. Eq. mode of life and business, and the 316; Becket vs. Wishon, 5 N. P. social, business and professional re- 155. quirements of the wearer. But mere § 322 widow's allowance 262 and possession of them at the time of the making of the inven- tory, as will permit of their delivery to the widow. When he had but half interest therein, they cannot be delivered to her, nor can any allowance be made therefor.^ § 322. Disposition of such property. ' ' Sneh articles, except the wearing apparel of the deceased, shall remain in the pos- session of the widow, if there be one, during the time she lives with and provides for such minor child or children, when she ceases to do so, she must be allowed to retain as her own her wearing apparel, ornanients, and one bed, bedstead, and the bedding for it. The other articles so exempted, and not con- sumed, shall then belong to such minor child or children. If there be a widow, and no minor child or children, then such articles shall belong to the widow." [R. S. § 6039.] i<> § 323. Right to under § 10654 G. C. (§ 320). Immediately upon the death of the husband and father the goods enumerated in this section vest in the widow and chil- dren," and they may sell them.^^ They pass to her admin- istrator as against her husband's heirs, other than his children, or administrator.^^ This allowance is made regardless of the fact that the decea.sed has left a will,^* unless the will made special provision as to the rights of the widow or the property. The administrator can not sell 't'hem, even under an order of court ; and if he do will be liable.^^ A widow who has been divorced is not entitled to any of the property specified under this statute,^® nor one who has deserted her husband for years.^^ 9 Baueus vs. Stover, 24 Hun, 109. Graves vs. Graves, 10 B. Mon. 31; An engagement ring, a brooch, ^lorris vs. Morris, 9 Heisk. 814. finger rings and earrings are wear- is Dobson vs. Butler, 17 Mo. 87 ; ing apparel. In re Hannab Levy, Hettrick vs. Hettrick, 55 Pa. St. 47 Bull. 186. 290. 10 § 10655 G. C. 1' Tozer vs. Tozer, 2 Amer. L. Reg. 11 Hastings vs. Meyer, 21 Mo. (0. S.) 510; In re Rotb, 6 N. P. 519; Kellogg vs. Graves, 5 Ind. 509. 496: 9 Dec. 429; see §§226, 227, 12 McFarland vs. Paze, 24 Mo. 156. Removal of Admin. 13 Cummings vs. Cummings, 51 See In re McMillan, 8 C. C. (N.S.) Mo. 261; Estate of Moore, 57 Cal. 294; 28 0. C. C. 645. as to widow 446. living separate from her husband, 14 Nelson vs. Wilson, 61 Ind. 255. holding widow is entitled to same. 15 Carter vs. Hinkle, 13 Ala. 529; 263 PERSONS ENTITLED § 324 § 324. Year's allowance. "The appraisers also must set off and allow to the widow, and children under the age of fifteen years, if any there be, or if there be no widow, then to such children, sufficient provisions or other property to support them for twelve months from the decedent's death. Tf the mdow or such children, since then, and previous to such allowance, have consumed any part of the estate for their support, the appraisers shall take that into consideration in determining the amount of the allowance." [R. S. §6.040.]^^ ^ 325. Money to be set-ofiP if necessary. "When there is not sufficient personal property, or property of a suitable kind, to set off to the widow or children, as provided in the next pre- ceding section, the appraisers must certify what sum or further sum, in money, is necessary for the support of such widow or children." [R. S. § 6041. l'^^ § 326. Persons entitled to, etc. The same persons are entitled to what is known in law as a widow's year's allowance, as are entitled to the property directed to be set apart under § 10654, G. C.-*^ As a general rule it may be said that so long as an absolute divorce has not been procured, the wife is entitled to the allowance. Thus where a wife living separate and apart from her husband brought an action for alimony and obtained a decree requiring the husband to pay her a definite sum semi-annually during her life, it was held that this would not deprive her of the right to have set aside to her a year's allowance, provided there were assets be- longing to the estate.'^^ In another case where a husband had deserted his wife in 18 § 10656 G. C. C. 575.] § 6042 R. S.; § 10658 G. The question whether the person C; 107 v. 547. is in fact the widow can be raised i^ § 10357 G. C. by exceptions to the inventory and 20 Children under 15 years of age the judgment of the Probate Court are entitled to allowance out of can be appealed from to the Com- mother's estate. In re Hinton, mon Pleas Court under §6024 R, (Sup. Ct.) ; 45 Bull. 423; 64 0. S. S. In re Est. of Scott, 19 Dec. 485; In re Glenn, 23 C. C. 397. 577. When the widow has consumed "The appraisers shall not include property of a greater value than in the inventory the provisions, the allowance made to her, slie will property, or money set off and al- be presumed to have been paid. Est. lowed by them to the widow or of ^IcDermott, 13 Dec. 390. children, but these must be stated It can be allowed out of a in a separate schedule and re- mother's estate. Hinton, In re, 64 turned, with the inventory, to the O. S. 485. court, by tlie executor, or adminis- 21 Lockwood vs. Krum, 34 0. S. 1. trator."' [38 v. 146, §47; S. & § 326 widow's allowance 264 Germany and afterwards came to the United States and with- out being divorced from the wife in Germany married in the United States, and for a period of more than 20 years lived with his American wife who remained in entire ignorance of the wife in Germany, the wife in Germany making no effort to locate her husband until after she discovered his death. In this case it was held that the right of the widow to the year's allowance rests upon the existence of the family rela- tion ; that the establishment of the mere fact that the marriage relation once existed and was never legally severed will not be sufficient to establish the widow's claim to the year's allow- ance. The claimant must show that the marriage relation existed at the time of the decedent's death, or if it did not, that it w^as against her wish and ■v\dthout her fault.'" In another case it was held, that where a husband aban- doned his wife and she thereafter committed adultery, that she would not be barred of either her dower right, or her year's allowance, and that if the administrator, knowing the fact that the marriage relation with the deceased was not dissolved, paid the allowance to the supposed widow, that such action on the part of the administrator was fraudulent and the real widow might recover. ^^ The courts of other States are not in accord as to the right where the marriage had never been legally dis- solved. Thus in Iowa it was held that where the wife and hus- band lived apart for seven years, he boarding with others and neither contributing, or being asked to contribute, to her sup- port, that she was not entitled to an allowance,^* while under somewhat similar circumstances a ISTew York court declined to follow the construction given by the Iowa court. ^^ However, it seems that the true rule is, that, if the wife deserts the husband without any fault of his; although a legal separation has not been had, that she is not entitled to the allowance."^ Whether or not a non-resident widow and chil- 22 In re Roth, 6 X. P. 498 -. 9 Dee. Agreement of separation will not 429. bar riglit. Knese vs. Hake, 16 Dec 23Gwinner vs. Gwinner, Dayton, 466: s" 0. L. R. 610. 155, 156, 157. -'4 Linton vs. Crossbr, 56 Iowa 386. The mere fact that they live apart 25 :Matter of Shedd, 6 Hun 367 ; will not bar right of widow in hus- 133 N. Y. 601. bend's estate. In re JNIclMillen, 8 C. 26 Tozer vs. Tozer, 2 Am. L. Reg. C. (N.S.) 294; 28 0. C. C. 645. 510. 265 PERSONS ENTITLED § 326 dren are entitled to have set apart to them property as provided in the sections of the G. C. refen-ed to in this chapter, is a question upon which the courts of various States are not in ac- cord. It has never come directly before our courts.^''* In a recent case in Tennessee in which all of the decisions were re- viewed, it was held that a non-resident widow was not entitled to receive such property.^^ It seems that the decision of the Tennessee court is followed by the majority of cases. ^® Likewise it has been held that the children of a non-resident are not entitled to the allowance, where there is no widow, al- though the deceased had been living in the State some time prior to his deatli, but had expressed the intention of returning to his home in another State, as the provisions of the statute were intended for residents."^ Our Circuit Court, however, has held in a case where a deceased died leaving a divorced wife and one son in Germany, and a second wife and children in this country, that the child in Germany was entitled to have an allowance made to him out of the estate of his father.^" The widow must be a resident at the time of the deeedent's death. It will not be sufficient if she has changed her resi- dence to the State of the decedent's death at the time the appraisement is made.^^ Some of the courts make a distinc- tion where the husband died a resident of another State and where he died resident in this State.^" Generally, however, they hold that regardless of the fact where the husband died, 26* See recent case, McCalla vs. App. 26 Pa. 233 ; Odiornes App. 80 McCalla, 46 Bull. 230. Pa. 504. Courts holding contrary, 27 Grayham vs. Stull, 21 L. R. A. Kapp vs. Admin., 2 Bradf. 258; 241. Case is fully annotated by giv- Mitchell vs. Word, 64 Ga. 208; Shaf- ing reference to decisions and also fer vs. Richardson, 27 Ind. 122 ; In gives statutory provisions of various re Gill's Estate, 79 Iowa 296. States. 29 Veil vs. Koch, 27 HI. 129. 28 The cases holding in accord with 3o Banse vs. Muhne, 13 C. C. 501; the Tennessee court are, Talma.lge 7 C. D. 224. The author doubts the vs. Talniadge, 6G Ala 199 ; Auerbach soundness of this decision. vs. Pritcher, 58 Ala. 451. Person 3i Medley vs. Dunlap, 90 N. C. ex parte, 76 Ala. 521 ; Shannon vs. 527. White. 109 Mass. 146; Richardson 32 Succession of Christie, 20 La vs. Lewis, 21 Mo. App. 531 ; Medley Ann. 383. vs. Dunlap, 90 N. C. 527; Spiers §327 WIDOW S ALLOWANCE 266 if the widow is a non-resident she is entitled to the allow- ance. Especially would this be true where the making of such allowance would inflict injury upon the rights of residents of our State.^^ If the claimant was never married to the deceased, she is not entitled to the allowance, though he treated her as his wife and they intended to marry."* A wife left her husband because her children by a former marriage did not get along well with him, and it was agreed that in future the hus- band and wife should not "bother" each other. He subse- quently had a woman of bad reputation keep house for him, to which the wife made no objection. It was held that the wife was not entitled on his death to the $300 exemption,^^ Her remarriage before claiming her allowance does not bar her claim.^*^ § 327. Right barred by will or contract. A good deal of controversy has arisen over the question whether or not a widow may bar her right to the statutory year's allowance by contract or by election to take under the will of her deceased husband. So far as it concerns the right to the allowance, if there be children living, it is settled, I think, beyond question. In such cases no contract ante-nuptial or post-nuptial, or election under the will, can bar the right. But it seems to be the rule now in Ohio, that where there are no children, the widow can by ante-nuptial contract or post- nuptial contract or election under will bar the right. ^^ 33 Since the text was written the Supreme Court has decitled that it can not be allowed to a widow, in an ancillary administration. Mc- Calla vs. McCalla, 46 Bull. 280. She may waive her allowance, as where she administers the estate and does not claim it. Est. of John Mc- Dermott. 13 Dec. 390. She need not make a demand, but is probably barred if she does not do so within six years from the time the estate is administered Tipon. Esther vs. Darby, 17 Dec. 780; 5 O. L. R. 102. She may also be estopped bv her conduct. 40 Bull. 8.5. Waived, etc. In re. Patterson, 58 Bull. 305; 11 O. !L. W. 373. The following was held did not constitute a waiver of the widow who was also executrix: "That no claim is made for expenses or com- pensation on account of said trust. bv affiant, other than the amount found due her bv her last account and her year's allowance, which she is content to leave in the farm." However, if the widow makes dis- tribution without paying herself, it may be held to be a waiver. 34 Appeal of Grimm. 131 Pa. St. 199; S. C, 25: W. N. Cas. 180; 18 Atl. Rep. § 1061: State vs. Lichten- berg (Wash.), 29 Pac. Rep. 999. 35 In re Ross' Estate (Pa. Orph. Ct.), 6 Kulp. 521. 36 jfi. fp Diller's Application, 5 N. P. 255: 6 Dec. 182: Bacon vs. Per- kins (Mich.1. 58 N. W. Rep. 835; Jn re Ross' Estate. 6 Kulp. 521. held that the widow was entitled to stat- utory allowance although her late husband had left her on account of her bad character, and nothing but divorce would deprive her of the statutorv vear's allowance. The Court decides this case without ref- erence to anv authoritv. See § 323, Riirht under S 10624 G. C. 37 Perhaps the most recent case on this subject is that of Broadstone vs. Baldwin, reported in the 5th N". P. 39: 8 Dec. 236. This was under an antenuptial contract wherein it was provided that the widow should 267 BARKED BY WILL OR CONTRACT § 327 However, a widow will not be barred even if there be no children, unless the will or contract indicates beyond question, that it was the intention to bar such a right; and if a will merely contained provisions for her, expressed to be in lieu of dower and all other claims on the estate of the decedent, this would not bar her right^^ This case (Collier vs. Collier) might be broad enough to hold that there could be no provi- sions made in the will to bar her year's allowance. However, it has been held, although by an inferior court, that if the will fairly construed showed it to have been the intention of the testator in making a bequest to a wife that the same should be in lieu of the statutory allowance, that it would be a ban^"* No ante-nuptial contract making provision for a wife in case of her survivorship, and expressed to be in bar and full satisfaction of all such part or share of the personal estate of her husband which she may claim or be entitled to by law, will operate as a bar in equity to her claim under the statute, unless it appears that the provisions of the contract in favor of the wife have been fairly performed.*" Under cases where it is not shown that the post or ante-nuptial agreement was fair, reasonable or just under all the circumstances of the case, but merely that an agreed price had been paid, it was held that it was not a bar.*^ It may be said then that the rule in Ohio is that where a fair contract is made, either post-nuptial or ante- nuptial, and which is carried into execution, which if fairly construed show an intention to exclude the statutory year's al- lowance, and there be no children, it will be held to bar the right; or if the provision made in a will for the widow be such that if a fair construction be given to the intention of release all her interest in her hus- bar to her year's allowance. Thia band's property, and also agreed case was affirmed by the Supreme never to set up any claim for dower Court without report. for herself in any real estate, or for, 38 Collier vs. Collier, 3 O. S. 369. or to any distributive share of his 39 /n re Estate of Witner, 7 N. P. personal property, or for a year's al- 143. lowance to her support as widow. ^o Phillips vs. Phillips, 14 0. S. In quite an extended opinion, in 308. which Judge Smith reviews a great ^i Garetson vs. Garetson, 4 C. C. number of cases, he holds that such 336; Affirmed, 29 Bull. 220; See a contract is not opposed to any rule Spanjiler vs. Dukes, 39 O. S. 642; of public policy; and that it is good Woerner on Admin. 174. § 328 WIDOW 'S ALLOWANCE 268 tlie testator, it is meant to exclude the statutory year's allow- ance, and if the widow elects to take under the will and there be no children, it will bar her right. If there be children, how- ever, as hereinbefore stated, no act of 'the widow will bar the right.*- § 328. Nature of the claim. After the decease of the husband, the claim for year's allow- ance becomes a debt of the estate ; such an one as may authorize, if there be not sufficient personal property to meet the same, the executor to sell real estate.*^ But it is not such a debt that will prevent the husband while living from disposing of his property. Therefore no right would exist to set aside a conveyance if fraudulently made, even if such conveyance had been made to defeat such allowance.** If, however, a fraudu- lent conveyance of property was made with the intent to de- fraud creditors and it was set aside, such property would then become assets of the estate, and the widoVs allowance would be a debt to be paid therefrom.*^ When the allowance is once made it becomes a vested right, and if tbe widow dies her executor may collect the same.*® In some States it ha-s been held that the right vests at the hus- band's death.*^ It is further held by our Supreme Court that tlie right vests whether the allowance has been set off by the appraisers or not; and that if the widow died before the appraisers act, it will still be their duty to make the allowance and that her executor can collect the same.*^ It has been made a query whether or not the amount allowed could be increased or diminished in case the widow died after its allowance, and 42 See § 323, Right under § 6038; ceased, it was superior to the mort- §1026, wills; also §947. gage, and therefore she did not In a recent case it was held that waive her right to a year's allow- a widow can not by any act of her ance by giving a mortgage on the own excuse the appraisers from set- real estate. See 49 Bull. 85. ting off her year's allowance. Neely Unless it be fair and the husband vs. Neely, 1 N. P. (N.S.) 97; 48 has revealed the extent of his prop- Bull. 929. erty to his wife, an ante nuptial It seems to me this is too broad. contract will not bar her right, etc. The facts in the case need to be ex- Stotler vs. Stotler. 27 Dec. 303. amined. It accords with the text in 43 Allen vs. Allen, 18 O. S. 235; that there was an unmarried daugh- Dorah vs. Dorah, 4 O. S. 293. ter, but not a minor. But it seems 4-* Lockwood vs. Krum, 34 O. S. I. to me the decision could be justified 45 Allen vs. Allen, 18 O. S. 235, on an entirely different ground. The ^6 Dorah vs. Dorah, 4 O. S. 292. right to have the real estate of de- ■»" See Kellog vs. Gregg, 5 Ind. ceased sold to pay debts, was supe- 509; And case cited in Woerner on rior to any mortgage the widow Admin. 177. could place thereon; and her year's 4 s Bane vs. Wick, 14 0. S. 514; allowance, being a debt of the de- Dorah vs. Dorah, 4 0. S. 297. 269 WHEN APPRAISKES FAIL, ETC. § 329 before payment, or whether the court would be confined to that allowed by appraisers. Our courts would probably hold that the death, of the widow would make no difference in the allowance to be made, and that if she died the Court would have the same right to review the same as if she were living and make the same order, as if she were alive, and that her death would not alone be sufficient cause to increase or decrease the amount allowed by the appraisers.** § 329. When appraisers fail to make allowance. The widow and minor children are not required to make a demand. It is the duty of the appraisers to make this allow- ance without demand.^" It may be said that the mere lapse of time would not bar such right and tliat the right to have an allowance made where the same was omitted by the appraisers exists as long as there are assets of the estate to be administered. In one case it was held that a delay of two years would not be fatal to the right.^^ If one set of appraisers do not make the allowance, the Court may appoint another set.^^ The property is to be set off out of the personal estate of the deceased, but if there is not sufficient personal property to set it off in kind, then it is allowed in money ; and if the assets in the hands of the administrator derived from the personal property be not sufiicient to pay the allowance, real estate may b,e used and applied for that purpose.^^ 49 The year's support after the 53 See Woerner on Admin. 186. same is allowed to a widow may be The appraisers are not to judge barred within the two years provided upon the fact whether the widow is for in § 6113. In re Glenn, 23 C. C. entitled to an allowance or not; this 397. is a matter for the court. The Pro- 50 In re Estate of Rierdon, 5 N. P. bate Court might pass upon the 516; S. C. 5 Dec. 606; Bane vs. question where appraisers fail to Wick, 14 0. S. 514; Neely vs. Neely, allow anything. But after an allow- 1 X. P. (N.S.) 97; 48 Bull. 929. ance has been made the administra- The settlement of an adniinistra- tor may have the Common Pleas to tor will not be opened up after forty pass upon the question. § 34. years in order to let in the claim If a stated sum is set off to the of a widow to her year's support, widow, and likewise a stated sum where no such claim was asserted to each of the minor children unless at the time the estate was closed. the widow supports tlie children, Evans vs. Evans, 13 C. C. (N.S.) and thev are supported elsewliere, 62; 31 O. C. C, 635; affirmed 83 she is not entitled to receive it. It 0. R. — . must be applied to the cliildren's 51 Lisk vs. Lisk, 155 Mass. 153. support. In re Patterson, 58 Bull. S2Heck vs. Heck, 34 0. S. 369. 312; 11 O. L. Pv. 373. § 330 WIDOW 'S ALLOWANCE 270 §330. Apportionnient between widow and children."^ The statute provides that the allowance shall be made 'to the widow and children. It is also held that the widow is entitled to receive the same from the administrator or executor. But this only applies where the widow has charge and provides for the children. If for any reason the children and widow do not live together the Court or the appraisers may apportion the same, and if they fail to do so, the Court may make such order as is just and proper in the case. A need of apportion- ment may exist under different circumstances ; thus if the wife and husband have lived apart and the custody of the child was given to the husband, or if the child has a guardian, or in case where there are two sets of children. While not specifically provided that either the appraisers or the Court may make such apportionment the right has been upheld.^* JSTo rule can be given where an apportionment is to be made as to the amount to be given each. Thus the only case found reported in Ohio, the Probate Court and the Common Pleas Court did not agree in their opinion. Each case will depend upon its own individual circumstances. Under the provisions of § 10655, G. C, in reference to the property specifically set apart under § 10654, G. C, it is specifically provided that if the widow ceases to live with the children what property she may re- tain as her own and what shall be delivered over to the children. § 331. Amount of, etc. There is no rule which can be given to fix the amount that should be set apart to the widow and the children for their year's allowance. Each case will in some respects differ from every other, but in making the provision it should be remem- bered that it is made for the purpose of supporting the widow and children for a period of one year after the decease of the husband, father or mother. The amount allowed should be in such sum as will maintain them in the same condition that they enjoyed during the lifetime of the husband. If there are no creditors whose rights will be affected, it should be liberal in amount. But if the estate is insolvent, then the amount al- 53a Cited /n re Patterson, 58 Bull. ^i In re Pollard Estate, Goebel 312; 11 0. L. E. 373. 214; Womaek vs. Boyde, 31 Miss. 443 ; Davis vs. Ganse, 85 Me. 167. 271 AMOUNT OF §331 lowed should only be such as will give to the wife and children a year's maintainance, taking in consideration the manner in which they had heretofore lived.^^ In some States the fact that the wife had separate property has been taken into consid- eration. I am not aware of any adjudication upon this ques- tion in Ohio; the general practice is to make the allowance re- gardless of the wife's separate estate.^*' This allowance is made for temporary support and not to furnish the wife with capital for business purposes, or establish a fund from which a perma- nent income may be derived.^'^ Whether or not the amount should draw interest depends upon additional facts.^^^ 55 In re Estate of Mullen, 5 N. P. 392; 6 Dec. 134. An allowance is excessive when it is more tlian twice as much as the family have lived on previously, par- ticularly when so large an allowance will prevent a payment of debts, etc. $2,200 cut down to $1,200. In re Eahe, 12 Dec. 590. 56 See Woerner on Admin. 180. If the wife's means enabled the husband to live in a style beyond that which he could have given his family Avithout such aid such fact might be considered. 57 3 Hollenbeck vs. Pixley, 3 Gray 521. In this case Chief Justice Shaw speaks as follows, as to the right and object of the year's allowance. "Though no general rules have or can be established regulating this judicial discretion, yet, to some ex- tent, the consideration of justice and expediency on which the law is founded are plain and obvious, and from them we may infer the inten- tion of the legislature. The case supposes the death of a husband leaving a widow. In the great ma- jority of cases he will have had a housekeeper; in many, a parent; in many, leaving children helpless and dependent. In many cases the wid- ow, by the decease of her husband, may become the head of the house- hold and family; new duties and ob- ligations may rest upon her, causing an immediate demand for neces- saries, sometimes even before letters of administration can be granted. The purpose of the statute, we think, is to make a personal allow- ance to her to meet these necessi- ties. But no one of these circum- stances constitutes a condition to this allowance, or a decisive test of its fitness. The parties may not have been housekeepers, or even liv- ing together at the time of the hus- band's decease. She may have been absent at a hospital or infirmary, for the recovery of her health, bodily or mentally, and stand in immediate need; or she may be on a visit to her friends; or by mutual consent and for their common benefit they may seek employment in different places — as, for instance, the husband at sea, the wife in a school or factory. But these are all 'circumstances' — and they are often numerous and various — to be taken into considera- tion by the judge to determine whether any allowance shall be made and, if any, what. The amount of money left by the husband, and the amount of the separate estate and means of the wife are also important circumstances bearing upon the question of her necessities." 57a See Palmer vs. Robinson, 24 0. C. C. 125. § 331 widow's allowance 272 The allowance must be made with reference to the state of the family at the time of the decedent's death and not at the time that the appraisement is made.^^ Of course if some mem- ber of the family has died or if there was a child born after the decease of the father, this might make a difference in the amount to be allowed. While if the estate be insolvent, the amount should not proceed on a liberal basis ; yet the fact that there is an insolvent estate, will in no measure deprive the widow and children of their right to have such an amount as will properly sustain them. Of course Avhere there are valid liens on the real or personal property an allowance will not affect them.^^ Experience demonstrates that the amount is variable ; de- pending often on the different ideas of the appraisers as well as the varied conditions of different families and their mode of living. Likewise there is a difference between city and country, and between large cities and small cities. Where the estate is small and there are no children, the allowance is some- times as low as two hundred dollars. Generally, I think, in small estates it is somewhere around four or five hundred dol- lars, in larger estates it is more. It is obvious that, while statutes with respect to the widov/ award should be liberally construed, yet the allowance should be within the bounds of rea- son, and the construction given them should be reasonable.^" In a note will be appended a number of selections made by J. Woerner of the amounts allowed.''^ 58 /m re Hayes, 112 X. C. 76; Por- Thompson, in his valuable Treatise ter vs. Porter, 165 Mass. 157. on Plomesteads and Exemptions. 59 Jones vs. Allen, G X. P. 518. Thus it was held in a late Illinois 60 Boyer vs. Boyer, 21 111. App. case, Boyer vs. Boyer, 21 III. App. 5.34, 537. ' 534, 537. 61 Woerner Admin. 167-169. That the Court would not be jus- It may be of assistance to widows, tified in approving the report of executors and administrators, and to commissioners sho^ving on its face attorneys and Courts, to collate the attempt to force results and to some of the cases illustrative of make up to the widow an amount what Appellate Courts deem reason- not warranted by a proper valuation able, and what unreasonable allow- of the property allowed her by the ance, in the method observed by Mr. 273 WHEN AND TO WHOM PAYABLE 832 § 332. When and to whom payable. The statute is silent as to when the amount set apart to the widow in money is payable. She is entitled to have possession statute. In this case the deceased left an estate in personalty of over $135,000 in value; the commission- ers appraised the personalty secured by state to the widow at $806.50 and estimated the amount to be allowed her at $7,075, which award was re- jected by the County Court to whom the report was made ; whereupon the widow, administratrix, appealed to the Circuit Court, and asked leave to substitute a new estimate of the commissioners, awarding her $6,629, which the Circuit Court refused, and affirmed the action of the County Court in rejecting the original re- port. On appeal to the Appellate Court, the action of the Circuit was confirmed in both respects, on the ground that, whether the Circuit had power to act upon a new report from the commissioners or not, the new report must be rejected as well as the original one, as being unrea- sonable and excessive. Several cases from New Hamp- shire indicate the unwillingness of its court of last resort to allow un- due partiality to be shown to the widow at the cost of either creditors, children or collateral distributees. Thus, where an estate amounted to $2,250, the debts to $575, and there were no lineal descendants, an allow- ance of $600 to the widow was on appeal cut down to $200. Foster vs. Foster, 36 N. H. 437. WHiere the whole estate was worth $11,000 and that out of which the widow was entitled to dower .$2,000, an allowance of $2,000 was on ap- peal reduced to $300. Duncan vs. Eaton, 17 N. H. 441. Out of an estate worth $25,000 there being no debts except volun- tary bonds to two sons, disputed, and without valuable consideration, the land assigned as dower yielding a net income of $200 per year, $1,250 allowed by the Probate Court was reduced to $750. Kingman vs. Kingman, 31 N. H. 182. So in an insolvent estate, amount- ing to $6,400, in which the widow had been allowed $600, and her dower was worth $643, besides own- ing a house in her own right worth $566, a further allowance was held unreasonable, and set aside. Cum- mings vs. Allen, 34 N. H. 194, 197. In Massachusetts an allowance of $895, beside her wearing apparel, was deemed reasonable for a widow of " elevated quality and degree." (Her husband had been sheriff of the county at the time of his death, and for many years a major-general of militia, " an office of much distinc- tion and trust.") Crane vs. Crane, 17 Pick. 422, 428. In another case, where the real es- tate amounted to $4,000, the per- sonal estate to $6,000, and the only heir was the intestate's father, an allowance of $3,000 was cut down to .$1,000, considering that the widow would get $500 on distribution, as the one-fourth of the residue after paying debts. Washburn vs. Wash- burn, 10 Pick. 374. And in a later case, where it ap- peared that an intestate's estate, wholly personalty, amounted to over $163,000, but was insolvent; that the widow had a private income of $1,200 a year; that there were no §332 widow's allowance 274 at once of the specific articles set aside to her and her children. Taking the object and the purpose of this year's allowance it should be given to her just as soon as the administrator or exec- utor can do so.*'^^ Therefore it may be said 'that it is payable at children, and that she and her hus- band had been living without charge with her father; and that they were persons of high social standing, ac- customed to a costly mode of living — an allowance of $5,000 by the Pro- bate Judge was reduced on appeal to $500. Dale vs. Bank, 155 Mass. 141. In Maine the widows seem to fare better. Out of an estate in which the personalty was insufficient to pay the debts, leaving $700 to be paid out of the proceeds of real es- tate valued at $2,000. the widow (of a packet master sailing between Eastport and Belfast) was allowed $500. Brown vs. Hodgdon, 31 Me. G5, 70. In another instance the widow of one whose estate amounted to be- tween $500,000 and $600,000 was al- lowed by the Probate Judge $75,000, which sum, on appeal by one of the executors, was by the Appellate Court increased to $85,000. Gil- man vs. Gilman, 53 Me. 184, 191. More liberal views are entertained in some other States. Tlius it is held in Georgia that " the wise and liberal policy of our legislation cer- tainly designed to include in the years' support something more than a bare subsistence, with clothes and shelter, and perhaps the means of lo- comotion for the family." Hence it is error, in passing upon the report of the commissioners setting aside the year's support to reject evidence to show the amount of outlay made by the decedent in the maintenance and education of his adult children, the gifts made to them upon attain- ing their majority and the advances made to some of them for which they were not required to account. Cheney vs. Cheney, 73 Ga. 66, 70. An allowance of $5,000 made by the Ordinaiy in addition to certain household and kitchen furniture and other personal property was on ap- peal to the Superior Court reduced by the verdict of a jury to $2,500; and it was held by the Supreme Court that the rejection of the evi- dence above alluded to and of the ex- pense of keeping minors at school and college, unduly restricted the jury and a new trial was ordered. Cheney vs. Cheney, supra. In California the widow of a de- cedent whose estate was valued at $10,000,000, mainly community prop- erty and free of debt, Avas allowed $2,500 per month out of the estate and the Supreme Court refused to disturb the allowance. In Illinois the "family" for which provisions is to be made by the al- lowance is held to include not only the widow and minor children but also adult children living with her, a woman who had been raised in the family, the superintendent of the farm under the widow's control, the housekeeper, cook and other house servants. An allowance of $400 for beds and bedding, of $1,600 for fur- niture, and of $1,642 for a year's provisions, was held reasonable out of an estate valued at $500,000. Strawn vs. Strawn, 53 111. 263, 272; Bover vs. Boyer, 21 111. App. 534. 6ia See Steward vs. Barry, 102 0. S. — (1921), where this doctrine is followed. 275 INCREASED OR DIMINISHED § 333 once upon its allowance, unless the matter be brought to the Probate Court, increased or decreased, and there be^ appealed. I have ho doubt where the administrator has funds in his hands applicable to the payment of such allowance, and refuses or neglects to do so. that an order of the Probate Court might be had, compelling him to make such application ; whether a suit might be had on the bond before an order of the Probate Court is made (§ 266) is not clear, but it is a liquidated de- mand and the action might lie. The better course to proceed, however, would be to file an application in the Probate Court to compel the administrator to pay the amount. Our statute does not say to whom it is payable, whether it is payable to the widow alone or to the children, or to both of them. Undoubted- ly unless the Court sees fit to make an apportionment of the allowance, it should be paid to the widow for the heirs are minors and unable to receipt or account for any part thereof, without the appointment of a guardian, which tlie law does not contemplate.^^ § 333. Allowance may be increased or diminished by the Court. "On petition of the widow, or other person interested, the probate court may review the allowance made to the widow or children, and increase or diminish it, and make such order in the premises as it deems right." [R. S. § 6043.]''^ 62 Says Strong, J.: "It was as- curse." (p. 232.) To the same ef- sumed her affection for the children feet Johnson vs. Corbett, 11 Paige, would be a sufficient safeguard for 265. their interests. In most cases the See § 661, payment of debts, etc. widow is the motiier of the children. If the administrator has doubts he If she be but a stepmother, they are may file a petition in the Court of generally safe in her regard, not Common Pleas. Under §§ 10857-8 only for them, but for the deceased. G. C, S 34. Certainly it would not tend to the 63 § 10659 G. C. promotion of domestic harmony to Our Supreme Court recognizes the invite the children (or relatives of fact that the administrator sliould the first wife using the names of the have one year to ascertain condition children) to assail the cliaracter of of estate and collect assets. Gray their father's widow, though but a vs. Case School, 62 O. S. 1. stepmother, and contest her right to Allowance made in a proceeding administer a bounty given by the to sell i-eal estate, lx;longing to her law for herself and her deceased hus- deceased husband, to pay debts, to band's family. Were such a door which no error was prosecuted, can open tliere is reason to believe it not be collaterally attacked by ex- would not unfrequently call forth ceptions to her account as ad- some of the worst passions, and the ministratrix. In re Hess, 14 0. C. bounty of the legislature, instead of C. (N.S.) 463; 23 0. C. C. 449. being a blessing, would prove a § 334 WIDOW'S ALLOWANCE 276 § 334. Petition for, etc. This section contemplates that the appraisers have acted and set aside some portion of the husband's estate to the sup- port of the mdow or children. If the i.ppraisers have failed to malve any allowance, the application should not be made under this section. The Court should call, back and instruct the original appraisers to attend to their duties. If that were unable to be done, the Court might order a new appraisement,^* The allowance is to be increased or decreased on the petition of the widow or other- interested person. This petition should set out sufficient facts to make out a prima facie case, and it should be sworn to.^^ It should be made at as early a date as the same can be done. Whether or not the provisions of § 10639 (§ 312), G. C, which provide that exceptions may be filed any time within six months, applies to this application for review, is very questionable. If the allowance made to the widow and chil dren is to be made on a separate schedule and merely returned with the inventory it would rather seem that this for the purpose of review, etc., is to be considered separate and apart from the inventory. A reasonable time should be allowed in which to file this petition for review, as to the time within which the petition should be filed, the statute does not expressly provide, and there is none implied.'"' It is said that it is the duty of the Appellate Court to hear and determine the question anew, and make such allowance in lieu of the allowance made by the appraisers as may appear reasonable and proper.^" In one case A paper styled a motion that sets "In exercising the discretion vest- forth sufiicient facts is sufficient. ed in Probate Courts, and coinmis- In re Ralie, 12 Dec. 590. sioners appointed by them to desig- 64 Heck vs. Heck, 34 O. S. 369. nate and set apart the property and 65 In re Rahc, 12 Dec. 590. money allowed for the provisional 66 Sherman vs. Sherman, 21 0. S. support of the family, they are not 631. to proceed in an arbitrary or capri- If the administrator should pay cious manner, setting up their own over the money to the widow in fanciful views or unsupported indi- good faith, it would, in the opinion vidual opinions as the criterion by of tlie author, be too late for any which to measure the rights of the person to file an application to re- family on the one hand; and of the view thereafter, at least so far as creditors, heirs or legatees, on the to hold the administrator respon- otlier; but tliey exercise a sound ju- sible. This is approved in Steward dicial discretion subject to be re- vs. Barry, 102 O. S. — (1021). viewed and corrected on appeal. 67 Cnmmings vs. Allen, 34 X. H, Piper vs. Piper, 34 N. H. 563, 566; 194; Oilman vs. Oilman, 53 Me. 191. 277 WHO MAY FILE PETITION ' § 335 it was held proper to entertain a petition for review although, it was not filed until after the expiration of twelve months from the death of the widow.^^ If filed after payment how should alfect administrator, etc.*'*^ § 335. Who may file petition. The widow or other interested person may bring the action to review tlie allowance made by the appraisers. A person with whom the widow lived during the twelve months and until her death and who supported and took care of her and incurred expenses for her in sickness, and who has a valid claim against her estate, " is a person interested," and within the meaning if this section may file a petition for review.^'' Of course an executor or administrator of a deceased, widow, or a guardian of a minor child or possibly a person acting as next friend of the minor child might file a petition to have the allowance reviewed. § 336. Form of petition to increase or decrease allowance. A form of petition herein given is by a widow in behalf of herself and her children for increase. {Title.) Now comes A. B., widow of C. D., and respectfully represents that the appraisers of the personal estate of the said decedent allowed the sum of dollars in money in addition to the articles specifically set apart for the support of herself and E. F. and G. H., minor children, under fifteen years of age, of said decedent, for one year from the time of his death. That said sum is wholly insufficient to support herself and her said children and that she will require an additional sum of dollars. Wherefore she prays that said allowance may be increased by the said sum of dollars and that the executors or administrators of said estate be directed to pay said additional sum to her as provided by statute. Applegate vs. Cameron, 2 Bradf. 119. §§10857-8 G. C, pass upon the Cited, VV oern. Admin. § 7U. question whether the widow is enti- «» Sherman vs. Sherman, 21 O. S. tied to any allowance. iUcCalla vs. 634. AicCalla, 40 Bull. 280. As to evi- An application to review must be dence, etc., see In re Bahe, 12 Dec. filed in tlie I'robate Court that made 5'JU. tlie appointment, it having original ''^^ Steward vs. Barry, 102 0. S. and exclusive jurisdiction. Moore — (1!J21). vs. Idler, 6 C. C. (N.S.) 19; 2U O. e 9 Sherman vs. Sherman, 21 0. S. C. C. 502. 631. The administrator may have the The administrator should have Court of Common Pleas, under notice. Heck vs. lleck, 34 O. S. 369. § 337 widow's allowance 278 State of Ohio, Clark County, ss. A. B., being first duly sworn, says that the allegations of the above petition are true, as she verily believes. Sign. Sworn to before me and subscribed in my presence this day of , 190... FORM FOR DECREASE OF ALLOWANCE. (Title.) Now comes A. B., a creditor of the estate of C. D., and respectfully repre- sents that the appraisers of the personal estate of said decedent allowed to the said E. F. for the support of herself and the minor children of the said C. D., under fifteen years of age, the sum of dollars. He further alleges that the said sum is in excess of the amount required to support said widow and children for one year in the manner and condi- tion that the deceased was accustomed to support them during his life, and further alleges that the said estate is insolvent and that under the cir- cumstances the allowance made by the appraisers is unjust and not such as the law contemplates. (He further alleges that the said widow has had, during the lifetime of her husband a very large estate of her own and that she contributed during the lifetime of her husband from her own separate estate the sum of dollars annually in support of her- self and the family of her husband. )'70 Wherefore the said A. B. prays that the said allowance be reduced to the sum of dollars and that the administrator (or executor) of the estate of said C. D. may be directed to pay said widow as an allowance made for her year's support, the sum of dollars, instead of dollars allowed by the appraisers.'^fi § 337. Form of entry, etc. (Title.) This day came and filed herein her application fo.* increase (or decrease) of the allowance made to the widow and children of said C. D. by the appraisers of the personal property, and the said cause is set for hearing on the day of , at o'clock and it is ordered that notice of the filing of said petition and the time of hearing thereon be given to the (here insert, if the application is filed by the widow, the name of the administrator; and if filed by a creditor insert 70 It has been heretofore said that far beyond that which the husband the widow is entitled to the allow- would have been enabled to furnish ance made to her regardless of her them from his own efforts or estate, separate estate, yet if her separate it seems that this fact should be estate was used to maintain herself taken in consideration, and her children during the life time '^i Verified as the preceding form, of her husband and probably enabled etc. them to live in a style and condition 279 NOTICE OF HEARING § 388 the name of the administrator and the widow), at least days before said hearing. § 338. Notice, etc. The statute does not provide tliat notice should be given of this kind of a proceeding, but the executor or administrator represents the estate and, in a sense, the creditors ; upon the plainest principles of justice he is entitled to notice of these pro- ceedings.^^ Likewise it may be said that for the same reason the widow ought to be notified; and the proceeding without such notice would be very justly set aside in a higher court. Form of notice may be in the follovdng: To (here insert the name of the person who is to make the service) : You are hereby commanded to notify that on the day of one A. B. (here state whether a creditor or widow, etc.,) filed in the Probate Court of County, Ohio, an applica- tion to increase (or diminish) the allowance made to the widow and children of said C. D. deceased, and said application is set for hearing on the day of , at o'clock, and that the said (here insert the name of the person to be notified) will take notice of said hearing. § 339. Entry on hearing to increase or decrease. (Title.) This day this cause came on to be heard on the petition of A. B. to review the allowance made to the widow and children of C. D., deceased, for an increase (or decrease) of the amount allowed to them by the appraisers of the personal property; and the same was heard upon the testimony of witnesses and was submitted to the court. Whereupon the court finds that all the parties interested therein had due and legal notice of said proceeding in conformity to law and the form or orders of the court. The court further finds that the allowance made to the said widow and children of C. D., deceased, ought to be increased (or decreased), wherefore it is ordered and adjudged that said allowance as fixed by the appraisers be, and it is hereby set aside. And the court finds that the sum of dollars is necessary for the support of said widow and children, and fixes her said allowance at said sum ; and orders that the sum be paid to her by the administrator from and out of the first money of the estate coming into his hands, applicable to that purpose. The court further orders that the costs of this action, amounting to dollars, be paid by , and a judgment is hereby rendered for the same. To all of which orders and decisions of the court the said excepts and hereby gives notice to appeal the same and asks the court to fix the amount of the appeal bond. 72 Heck vs. Heck, 34 0. S. 370. § 340 widow's allowance 280 As a general rule it may be said that the costs of such actions are taxed against the estate. But if it appears to the Court that justice demands otherwise, the order should be made ac- cordingly. § 340. Error and appeal, etc. Section 11206 (§ 39), G. C, specifically provides for appeal in such cases ; and no doubt the same can be reviewed on proceed- ings in error. But the order of the Probate Court in overruling an application of the widow for a review of the allowance made her by the appraisers for a year's support from the estate of her deceased husband, is an adjudi-cation of the rights of the widow and other persons interested as to the question of allowance, and unless such order is vacated by appeal or other proceeding, is a final determination between them ; and a second application for review cannot be entertained by the Court.''^ Like other orders made by the Probate Court, such order cannot be ques- tioned collaterally, however unjust and disproportionate it may seem to be.^* §341. Widow's and widower's quarantine. " The widow or widower may remain in the mansion house of the deceased consort free of charge for one year, if dower is Ts Moore vs. Moore, 46 0. S. 89. expected to take into account the The question as to whether she is age of the widow, her condition and the widow may be reviewed on prospect as to health, and all sur- , • J. Ji " • i. 1 ti, roundinff circumstances. It the exceptions to the inventory, and the . , *' ■i.j. j ^. • ,. „„ . ^ , , 'l r widow was permitted to review as action may he appealed from, hi ^^^^^ ^^ ^^^^ ^-^^^^^ ^^g-j.^^ ^1^^ q^e^. re Scott Est., 19 Dec. 577. tion involved, because of a changed The duty of the Court was to re- condition of health, it would follow view the proceedings of the apprais- that, in a case where the widow was ers. That duty it performed in the ill at the time tlie appraisers acted, case first brought, and made a final and recovered later, the administra- order and its power over the ques- ^'or- or any interested person, might ,. ' J.1 u , 1 „i„j Ti •„ seek such continued reviews bv the tion was thereby exhausted, ihis j. r j.i Xt •' i • 1 same court for the purpose oi re- conclusion may seem to involve ^^^^.^^^ ^^^^ allowance, and thus the hardship, but a contrary one would question of allowance be kept open, involve the most perplexing uncer- to the unreasonable embarrassment tainties as to the rights of widows and injury of those interested in the and the duties of administrators. settlement of the estate. If a widow may have such a ques- See In re Hess, 14 O. C. C. (N.S.) tion again reviewed by the same 463 ; 23 O. C. C. 449. Court, an administrator or other '^^l}'^^'^"^ ^ ''^- ^.'v ""T I'i v\ . , , , rr^i . Pick. 23 : Bovden vs. v\ ard. 38 Vt. person interested may. Ihe apprais- ers, in making their allowance, are 28i widow's quaeantine § 341 not sooner assigned." This provision made by statute of our State in reference to dqwer in law is a widow's quarantine.'^ At common law this was fixed at the period of forty days, from which fact it derived its name of quarantine. It might more properly be treated of when speaking about dower in real estate. For if for any reason the dower right has been for- feited or does not attach, the right of quarantine will fail. As the widow has no right to any part of the real estate until the same is set aside and at common law there being no pro- vision made for a year's allowance as the laws now generally provide, this provision was made for her temporary support until she could have dower set aside to her. It is a personal right attaching to her alone and not to the children.'^ The right of a widow to remain in the mansion house of her deceased husband, as provided by statute, is not restricted to a personal continuance in the house merely, but she is entitled to a reasonable enjoyment of the possession of the premises, and may therefore either personally occupy them or she may rent them, as she may deem best promotive of her comfort. If the administrator of her husband's estate assumes to con- trol the mansion house of the decedent, and denying the widow's right to the possession thereof, rents it to another person, the widow is entitled to remain in the premises. If the admin- istrator has collected the rents to which the widow is so entitled, and has appropriated them to the payment of debts due from his intestate, she may elect to charge him in either his personal or representative character, and he can not defeat a recovery by her in an action against him in his representative capacity, on the ground that he is personally liable therefor. An administrator who, without authority, collects rents of his intestate's real estate', and uses them as assets in paying the debts of the estate, is liable to the party entitled to such rents and he may recover the amount thereof of the administrator or in his representative character. '^^ 628; Drew vs. Gordon, 13 Allen 120; 76 Johnson vs. Corbett, 11 Paige, Richardson vs. Merrill, 32 Vt. 27. 26.5. 76 §§ 8606-7 G. C, §944. ■?■? Conger. Admin.; Atwood. 28 0. S. 134. §342 ADMINISTRATION BY TRUST COMPANIES 282 CHAPTER XX. ADMINISTRATION BY TRUST COMPANIES. i 342 Trust companies acting as § 351 executor. 343 (§710-150 G. C.) Trust com- §352 panies may accept business when. § 353 1344 (§710-151 G. C.) Foreign trust companies may when. § 354 i345 (§710-152 G. C.) File certifi- cate of compliance with tax commission. § 355 346 (§710-153 G. C.) Examina- tion of trust company — Ex- pense. § 356 ,347 (§710-154 G. C.) Compliance with law before qualifying § 357 as executor, etc. 1348 (§710-155 G. C.) Retirement §358 from state must give notice. 349 (§710-156 G. C.) From whom §359 moneys may be received. 350 (§710-157 G. C.) Court may §360 order money deposited with company. §710-158 G. C.) Empowered to act as agent. §710-1.59 G. C.) Management of trusts. § 710-160 G. C.) May accept trusts of executorship, etc. §710-161 G. C.) Capital and deposits with state treas- urer. §710-162 G. C.) Court may order investigation of com- panr. §710-163 G. C.) AVho may sign papers in court. §710-164 G. C.) Investment of monev held in trust. § 710-165' G. C.) iUngling of securities proliibited. §710-166 G. C.) Investment of trust funds. §710-167 G. C.) Reserve fund required. §342. Trust companies acting as executor, etc. Leading text-book writers say : ''Whether a corporation aggregate can be an executor has long been doubted. ' ' ^ In some parts of the United States this point is decided ad- versely as to aggregate corporations in general,- although com- panies may now be found whose charters permit the exercise of 1 Schouler Executors, 3rd ed. § 32. Citing Williams Executors, 7th ed. 228-229. ~ Georgetown College vs. Brown. 34 Md. 450; Thompson's Estate, 33 Bait. 334. 283 ADMINISTRATION BY TRUST COMPANIES § 342 such functions in connection with the care and investment of trust funds.^ "In the United States the prevalence for authority, once ■against the competency of corporations aggregate to act as exec- utors, seems now to turn the other way. ' ' * But it is held that a corporation can not lawfully be appointed unless the right to administer has been conferred by the charter.' The first law granting to safe, deposit and trust companies power to act as executors was passed in 1891 and limited the ^ appoint- ment to counties having a city of the first grade of the first class. This was amended in 1894 to make it apply- to cities of the first or second grade of the first class,'' and in 1896 it was amended to apply to a city of the first or second grade of the first class, or third grade of the second class,'' and again amended in 1897 to apply to the foregoing and all counties containing a city, which by the preceding federal census had a population of 33,000 or more, except cities of the second grade of the second class," again amended in 1898 to apply only to counties containing a city of the first class and counties containing a city of the second class of 33,000 population.^" In 1904 the law was declared un- constitutional, as being a statute of general nature and not of uniform operation throughout the state.^^ The statute was again under consideration by the Supreme Court in 1908, and while the question was then made as to the legal capacity of the corporation to act, the case was decided on another question, i. e., the right to, in a collateral action, set aside the appointment made by the Probate Court, and it was 3 Schouler Executors, 3rd ed. § 33. 6 88 vs. 407. 4 Woerner Admin. § 233. See Rice 7 91 vs. 255, Cincinnati and Cleve- Pro. Prac. 328. land. 5 18 Cyc. 95; Henry Pro. Prac. 8 92 vs. 62. §32; Thornton & Blackledge, Ad- 9 93 vs. 337. ministration, 47; a large number of 10 94 vs. 132. the states now authorize by statute H Schumaker vs. McCallip, 69 0. certain corporations to serve as S. 500; Telegraph Co. vs. Savings executors, etc. Co., 30 C. C. 380. § 343 ADMINISTRATION BY TRUST COMPANIES 284 held that even though the corporation was legally incompetent to act, the order of the Probate Court could not be set aside/- While I suspect there were some attempts, no law was passed until 1819, when as a part of the general ^^ codification of the banking laws, the present statute was enacted into law. The fact that the matter was left in abeyance for 15 years, and then not enacted as a separate law, indicates that there was no crying demand for the law. Wliile it may in some instances work well, in the administration of estates, it becomes machine work, and the individuality, a thing often of much value and desir- ability, is lost. That follows when an artificial and not a natural person assumes the execution of the matters connected with the administration of estates. The trust company looks at the matter from a cold business standpoint. Of course where it is named in the will, there is nothing to do but make the appointment ; but in other instances the court should be well satisfied, that Jhe best interests of the estate, and the beneficiaries, will be better secured by the ap- pointment of the corporation than of an individual, before the corporation will be preferred. Note: The Federal Reserve Act provides that the Federal Reserve Board, may by special permit to National Banks apply- ing therefor, when not in contravention of state or local law, the right to act as trustee, executor, administrator or registrar of stocks and bonds. Whether banks could so act, unless also so authorized by the laws of the state, may be questioned. My own judgment would be that if not permitted by some statute of the state, they could not so act.^* §343. Trust companies may accept business — when. § 710-150. No trust company, or corporation, either foreign or domestic, doing a trust business shall accept trusts which may be vested in, transferred or committed to it by a person, firm, asso- 12 Bank vs. Telegraph, 70 0. S. 89. attack of the orders of the Probate This is a very interesting deci- Court, sion on the question of collateral i^ 108 vs. 80-129. 14 See 63 Bull. 7. 285 ADMINISTRATION BY TRUST COMPANIES § 344 ciation, corporation, court or other authority, of property within this state, until its paid in capital is at least one hundred thousand dollars, and until such corporation has deposited with the treasurei of state in cash the sum of one hundred thousand dollars, except that the full amount of such deposit by such corporation may be in bonds of the United States, or of this state or any municipality or county therein, or of any other state or any municipality or county therein, or in the first mort- gage bonds of any railroad corporation that for five years last past has earned at least five per cent, net on its issued and out- standing capital stock, which securities and the sufficiency thereof shall be approved by the superintendent of banks. From time to time said treasurer shall, with the approval of the super- intendent of banks, permit withdrawals of such securities or cash, or part thereof, upon deposit with him and approval of the superintendent of banks, of cash or other securities of the kind heretofore named, so as to maintain the value of such de- posits as herein provided, and so long as it continues solvent he shall permit it to collect the interest on its securities so deposited. [108 V. 118.]^^ § 344. Foreign trust company may do business — when. § 710-151. Every foreign trust company shall, upon being admitted to do business within this state as otherwise provided, by law, file a certified copy of its certificate of admission with the superintendent of banks, together with a certified copy of the last published statement made by it and filed with the proper department of the state in which it is organized and doing business, and upon approval thereof and of the funds and se- curities to be deposited as in the preceding section provided, he shall certify that fact to the treasurer of state, and upon deposit 15 If any trust company seeks the there should be filed in such court appointment of executor, adminis- a statement from the proper au- trator or trustee in any court, or thorities that the provisions of this the deposit of any trust funds, section have been complied with. § 345 ADMINISTRATION BY TRUST COMPANIES 286 of such funds and securities with the treasurer of state the superintendent of banks shall thereupon, and upon the payment of a license fee of one hundred dollars therefor, license said trust company to transact business within this state for the period of one year thereafter. [108 v. 118.] § 345. File certificate of compliance with tax commission. § 710-152. Every foreign trust company doing a trust business in this state shall annually within thirty days after complying with all the provisions of law in relation to foreign corporations transacting business within this state, file with the superintend- ent of banks a certificate of the Tax Commission of Ohio as to such compliance together with a copy of the last published state- ment of said corporation, and if such trust company is not in default as; to any trust matter or estate within this state, the superintendent of banks shall thereupon, and upon payment of a fee of one hundred dollars therefor, license said corporation to transact business within this state for a further period of one year. [108 v. 119.] § 346. Examination of trust company — expense. § 710-153. The superintendent of banks shall have the right to examine, by any deputy, examiner or person especially appointed for that purpose, the books or affairs of any foreign trust company, or any corporation doing a trust business, as to any and all matters relating to any trust, estate or property within this state and concerning which such trust company is acting in a trust or representative capacity, the expense of which shall be charged to and paid by such trust company. [108 v. 119.] § 347. Compliance with law before qualifying as executor, etc. § 710-154. No such trust company, foreign or domestic, authorized to accept and execute trusts, either directly or in- directly through any officer, agent or employe thereof, shall certify to any bond, note or other obligation to evidence debt, secured by any trust deed or mortgage upon or accept any trust 287 ADMINISTRATION BY TRUST COMPANIES § 348 concerning property located wholly or in part in this state, with- out complying with the provisions of sections 150, 151 and 152 of this act. But nothing herein contained shall prevent a for- eign corporation from qualifying as executor or administrator of property in this state, after appointment as executor or ad- ministrator by the courts of any other state as provided hy law, when the decendent was a resident of such state at the time of his death, or from acquiring, holding or transferring title to lands or other property within this state as trustee to secure any bond, note or other obligation aforesaid, or from certifying thereto, but provided always, that by the laws of such other state a trust company organized and doing business under the laws of this state shall have equal privileges as to any similar estate, deed or trust of property in such other state. [108 v. 119.] § 348. Retirement from state must give notice. § 710-155. Upon the retirement from this state of any foreign trust com- pany, notice of such proposed retirement shall be published once each week for four consecutive weeks in a newspaper of general circulation in the city or village in which the principal place of business of such company is located within this state and proof of such publication shall be filed with the superintendent of banks. Such company shall within thirty days after -the expiration of the period provided for in such notice, file its application in the court of common pleas of the county in which its principal place of business is located within the state, for authority to withdraw from the treasurer of state the securities or fund deposited with him under the provisions of section 150 of this act; and said court, if satisfied that such company has fulfilled and met all of its obligatioi^s may so find and may authorize the withdrawal of such securities by such trust com- pany; and upon receipt of a certified copy of such order, the superintendent of banks shall so certify to the treasurer of state and thereupon .such treasurer of state shall deliver and sur- § 349 ADMINISTRATION BY TRUST COMPANIES 288 render to such trust company the securities or funds heretofore •deposited with him for the faithful performance of the trusts assumed by such trust company. [108 v. 119.] § 349. From whom moneys may be received. § 710-156. A trust company may receive and hold moneys, or property in trust, or on deposit from executors, administrators, assignees, guardians, trustees, corporations or individuals upon such terms and conditions as may be agreed upon between the parties. [108 V. 120.y^ §350. Court may order money deposited with company. § 710-157. Any court in this state, including probate courts, may by order, decree or otherwise, direct moneys or property under its control, or paid into court by parties to an action or legal proceedings, or which are brought into court by reason of an order, judgment or decree, in equity or otherwise, to be deposited with a trust company, by such court designated upon such terms and subject to such instructions as are expedient. [108 V. 120.]" § 351. Empowered to act as agent, etc. § 710-158. A trust company may act as agent or trustee for the purpose of reg- istering, countersigning or transferring the certificates of stock, bonds, or other evidences of indebtedness of a corporation, asso- ciation, municipality, state or public authority, upon such terms as may be agreed upon, and act as trustee under any mortgage or deed of trust to secure bonds issued by any corporation, asso- ciation, municipality or body politic, and may accept and exe- 16 Executors, etc., before they of funds generally. Before the make deposits in any such company, court sliould order or approve the should be assured, in some satis- investment of any funds in any factory manner that the trust com- trust company, it should, require a pany is authorized as required by showing to be made, that the com- law to do business in this state. pany has complied with the law re- 17 If an investment is sought quired from it, before it can do busi- under this section, application ness in this state. should be made as for investment 289 ADMINISTRATION BY TRUST COMPANIES § 352 cute any other corporate or municipal trusts not inconsistent with the laws of the state. [108 v. 120.] §352. Management of trusts, etc.. § 710-159. A trust com- pany may act as agent, and take, accept and execute any and all trusts, duties and powers in regard to the holding, manage- ment and disposition of any property or estate, real or personal, which may be committed or transferred to, or vested in said trust estate, and the rents and profits thereof or the sale thereof, as may be granted or confined to it by any person, association, corporation, municipal or other authority ; and may act as trustee under any will or deed or other instrument creating a trust for the care and management of property under the same circum- stances and in the same manner, and subject to the same con- trol by the court having jurisdiction of the same as in the case of a legally qualified person. [108 v. 120.] § 353. May accept trusts of executorship, etc. § 710-160. A trust company may take, accept and execute all such trusts which may be committed to it by order of any court of record or probate court of this or any other state or of the United States, to act as executor, administrator, assignee, guardian, receiver, or trustee, or in any other trust capacity, and receive and take title to any real estate which may be the subject of any such trust ; and such courts of record and probate courts may appoint .such trust company to act as executor, administrator, assignee, guardian, receiver, trustee or in any other trust capacity, pro- vided that any such appointment as guardian shall apply to the estate only and not to the person. But no such trust company shall be required to assume or execute a trust without its con- sent thereto. [108 v. 120.y^ 18 Before the trust company can file a certificate of its admission to receive such appointment it must do business with the superintendent have deposited the bond required of banl-:s, G. C. S 710-151. Also by G. C. §710-150 (§343). If it with the tax commission, G. C. is a foreign corporation it should § 710-152. An exception is made § 354 ADMINISTRATION BY TRUST COMPANIES 290 § 354. Capital and deposits with state treasurer held as security. § 710-161. The capital stock of such trust company, with the liabilities of the stockholders existing thereunder, and the fund deposited with the treasurer of state as provided by law shall be held as security for the faithful discharge of the duties undertaken by .such trust company in respect to any trust, and no bond or other security, except as hereinafter pro- vided, shall be required from any such trust company for or in respect to any trust, nor when appointed executor, administrator, guardian, trustee, receiver, assignee, or depositary; except that the court or officer making such appointment may, upon proper application, require any trust company which shall have been so appointed to give such security for the faithful performance of its duties as to the court or officer shall seem proper, and upon failure of such trust company to give security as required may remove such trust company and revoke such appointment. [108 v. 121.] ^« § 355. Court may order investigation of company. § 710-162. Any judge of a court in which such trust company is acting in such trust capacity, if he deems it necessary, or upon the written application of any party interested in the estate which it holds in a trust capacity, at any time, may appoint a suitable person where the appointment is made in order bond on the mere asking of a foreign jurisdiction, G. C. § 710- the same by some person in inter- 154. And before such appointment est, and I am inclined to believe it is made the court should have was the intention to apply the same knowledge that these conditions have rule here. If no application for been complied with. bond is made none will be required 19 This section gives the court by the court, the assumption being power to require bond, if any inter- that a proper or sufficient bond has ested person makes a proper appli- been filed with the state officials, cation. .Just what showing is re- There may be instances where, quired before the court will require however, the bond Avill not be such bond is not clear. Must some sufficient, and the court would be cause be shown, or will the mere justified on its own motion in re- asking suffice? Generally, when bond quiring a bond. is dispensed with, the court will 291 ADMINISTRATION BY TRUST COMPANIES § 356 or persons, who shall investigate the affairs and management of such trust company concerning such trust and make sworn re- port to the court of such investigation. The expense thereof shall be taxed as costs against the party asking for such exami- nation, or the trust fund of such trust company as the court decrees. Such court at any time may examine any officers of such trust company, under oath or affirmation, as to its trust matters in the court, or as to its affairs and management while considering its appointment in such capacity ,• and for any cause, applicable to natural persons in the same capacity, order that such trust company forthwith settle its trust. [108 v. 121.] § 356. Who may sign papers in court. § 710-163. In pro- ceedings in the probate court or any court of record, connected with any authority exercised under this act, all accounts, returns and other papers may be signed and sworn to in behalf of such trust company by a duly authorized officer thereof. The exami- nation and answers of such officer under oath shall be received as the examination and answers of the trust company. The court may order and compel any of its officers to attend such examinations and to answer such questions as may be put to him relating to any such proceeding, in all .respects as other- wise provided by law. [108 v. 121.] § 357. Investment of money, etc., held in trust. § 710-164. In the management of money and property held by it as trustee, such trust company may invest such money and property in a general trust fund of the trust company. But it shall be com- petent for the authority making the appointment to direct whether such money and property shall be held separately or any part thereof invested in a general trust fund of the trust company. The trust company always shall follow and be en- tirely governed by the directions contained in any will or instru- ment under which it acts. [108 v. 122 "" § 358 ADMINISTRATION BY TRUST COMPANIES 292 § 358. Mingling- of securities prohibited. § 710-165. No property or securities received or held by any trust company in trust shall be mingled with the investments of the capital stock or other properties belonging to such trust company or be liable for its debts or obligations. Moneys pending distribution or investment may be treated as a deposit in the trust depart- ment, or may be deposited in any other department of the bank, subject in other respects to the provisions of law relating to deposit of trust funds by trustees and others. [108 v. 122.] § 359. Investment of trust funds. § 710-166. A trust com- pany may invest in or loan its trust funds upon the securities, bonds and other interest-bearing obligations enumerated in sec- tions 111, 112 and 140 of this act, but subject to all limitations as to the amount of the investment or loan therein or thereon as provided by law, and in stocks and bonds of corporations when authorized by the affirmative vote of the board of direc- tors, or of the executive committee of such trust company. [108 V. 122.] § 360. Reserve fund required. § 710-167. A trust company shall keep the same reserve as is required of savings banks, and shall be governed by the same provisions of law in all respects relating thereto, but shall not be required to keep a reserve on trust funds or property held in trust. [108 v. 122.] 293 ASSETS GENEIUXLY DEFINITION ^363 CHAPTER XXI. ASSETS GENERALLY. § 363 Definition. § 364 Personal property, definition. § 365 Fixture. § 366 Trees, wood, etc. § 367 Manure. § 368 Emblements, definition. § 369 When emblements shall be as- sets. § 370 Power to cultivate and gather crops. § 371 Rent of farm land. § 372 Rents generally. § 373 Leases or chattels real. § 374 Annuities. Dividends. § 375 Copyrights and patents. § 376 Pension money. § 377 Trust property. § 378 Money on deposit. § 379 Fire insurance money. § 380 Life insurance money, § 381 Mutual benefit insurance. § 382 Good-will of business. § 383 Property conveyed by dece- dent to defraud creditors, § 384 Proceeds of real estate. § 385 Choses in action^ etc. § 386 Mortgaged premises to be considered personal assets. Executors, etc., may take possession. § 387 Executor or administrator may discharge mortgage. Possession before redemp- tion. § 388 How executor or administra- tor to foreclose mortgage. § 389 Naming a person as executor not to discharge a debt. § 390 Debt of an executor or admin- istrator becomes assets. § 391 Discharge of debt in a will against an executor, etc., how construed. § 392 A debt due from an heir or legatee is assets. § 393 Assets not possessed by de- ceased.i § 363. Definition. The word assets is derived from the French word assez, meaning sufficient, and originally signified a sufficiency of prop- erty to pay the decedent's debts. In a course of time the idea of sufficiency gave way to that of applicability ; and in modern usage the term means property applicable to the payments of the decedent's debts, and includes every kind of property owned by a decedent, tangible or intangible, legal or equitable.^ This definition is a general one and there may be, if not real, ap- parent exceptions. Unless otherwise provided by will the real estate of a decedent passes to his heirs directly and the personal 1 See Chap. 20, § 506 et seq. care and manage of estate. 2 11 Am. & Eng. p]ncy. of Law, 2d. ed. 829, § 364 ASSETS GENERALLY 294 property to the administrator. Over the real estate the admin- istrator has no control whatever ; other than when the personal projierty is insufficient to pay the debts. He may file his peti- tion in Probate Court and have the land sold for that purpose. The proceeds of such sale are assets in his hands for payment of debts and if more is sold than is required, to distribute the re- mainder. He has no right to collect the rents even when the estate may probably be insolvent.^ The powers of an adminis- trator or executor in reference to real estate will be discussed in a subsequent chapter under the title of sale of real estate, etc. What we wish more particularly to deal with in this chapter is personal property.* § 364. Personal property, definition. Under the name of things personal are included all sorts of things movable which attend a man's person wherever he goes. Chattels are real, or personal chattels. Real are such concern- ing the realty as a term for years, etc. Chattels personal are cattle, foAvl, deer, fish in a tank, tithes severed from the nine parts, trees sold or reserved upon sale. The terms, goods, and chattels include choses in action as well as those in possession.^ It is sometimes very difficult to determine the dividing line between certain classes of property, as to whether it is real or personal. That kind of property which if it stood by itself would be personal property ; and which when connected to real estate would be real property is known as a fixture. It there- fore follows that personal property which were it not attached to the real estate would go to the administrator, by reason of its connection with real estate goes to the heir. 3 Overturf vs. Dugan, 29 O. S. 230. mortgagor, belongs to his adminis- 4 See § 470, Sale of Personal Prop- trator, and the mortgagee lias no ■erty; §712, Adm's accounting; right to replevin the same. Lighter § 1549, What property may be as- vs. Kraft, IG Dec. 474. signed; ch. 29, §506 ct scq., care Unfiled chattel mortgage is void and management of assets. as to creditors, a"d administrator 5 Cooley's Blackstonfe, vol. 2, 283. takes charge of such propertv. con- Advancements are not assets in verts it into money, and distributes the sense that the administrator the proceeds to creditors as provided must look after them, but they must by law. Kilbourne vs. Fay, 29 0. S. be considered in the distribution of 264. the estate. Tobias vs. Richardson, Growing crops are sometimes con- 5 C. C. (N.S.) 74; 26 O. C. C. 81; sidered as personal property and affirmed, 72 0. S. 626. sometimes as partaking of the value Personal property covered by a of realty. ]\Iiller vs. Miller, 24 Dec. mortgage if in the possession of the 1. F 296 FixTUKE § 365 § 365. Fixture. All courts and text book writers have recognized a difficulty in giving the definition of a fixture. A distinguished author says: " The old notion of physical attachment is said by some courts to be exploded ; the true criterion to deteraiine whether the fixture constitute a part of the realty or not, or rather where property treated as personal becomes annexed to and goes with realty as fixtures, must depend upon the circumstances of each case viewed in the light of the policy of the law and of the in- tention of parties." " In an early case in Ohio it is said a fixture " Is an article which was a chattel, but which being affixed to the realty be- came accessory to it and parcel of it. The true criterion of a fixture is the united application of the following requisites, to wit: First. Actual annexation to the realty or something ap- purtenant thereto. Second. Application to the use, or pur- pose, to which that part of the realty with which it is con- nected is appropriated. Third. The intention of the party making the annexation to make a permanent accession to the freehold." ' There are several rules pertaining to persons in different relations in reference to fixtures, that is, as between vendor and vendee, mortgagor and mortgagee, the law favors the grantee. As between the heir and administrator the general rule is that nothing, after having been annexed to the freehold , can be severed and removed by the executor or administrator, « Woerner on Admin. 601. tinction not merely artificial, but 7 Teaflf vs. Hewitt, 1 0. S. 511. founded on reason and the nature of The difficulty which has always things— regarding not only the nat- perplexed investigation upon this ural qualities of immobility on the subject has been the want of some one hand and mobility on the other, certain, settled and unvarying stand- but also the legal constitution and ard, by which it could be determined incidents to which each class respec- what amounts to a fixture, or what tively is subject. In the great or- connection with the land will deprive der of nature, when we compare a a chattel of its peculiar legal quali- thing at the extremity of one class ties as such, and make it accessory with a thing at the extremity of an- te the freehold. Fixtures belong to other, the difTerence is glaring; but that class of property which stands when we approach the connecting upon the boundary line between the link between the two great divisions, two grand divisions of things real it is often difficult to discover the and things personal, into which the precise point where the dividing line law has classified property; a din- is drawn. § 365 ASSETS GENERALLY 296 unless some good and sufficient reason should appear why that which has been made a part of the inheritance should be con' verted into realty contrary to the design of the freehold, as it would appear from the annexation.^ When the question of the removal of a fixture arises between a landlord and tenant, it is well established that the tenant may sever and remove all fixtures of a chattel nature erected by him upon the leased premises for the purpose of ornament or domestic convenience and to carry on the trade,** but the removal must be made with- out serious injury to the freehold and while the tenant is still in possession. There are several kinds of fixtures depending largely upon the manner and purpose for which they are attached to the real estate. Thus agricultural fixtures, which include things placed on realty in the farming of the land, seem to be placed upon the same footing as trade fixtures. Trade fixtures are those erected by a tenant on leased premises for the purpose of carrying on a trade or manufactory and removable by him. Such fixtures include buildings, machinery, store fixtures, steam engines, boilers, gas fixtures, bowling alleys and appurten- ances.^° In a recent Ohio case it was held that the machinery of a manufactory that supplies the motive power, as the engine, boiler, and their usual attachments, as contradistinguished from that propelled by it, where permanently annexed to foundations resting upon the freehold, is generally held to be a fixture, though susceptible of being removed without any material in- jury to the same or the freehold, and while by the agreement of parties the property may be made to preserve the character of realty, yet when it is attached, but for the agreement it would be a fixture, such agreement will be of no avail against subse- quent mortgagee of the realty.^^ Domestic fixtures are annexations made by tenant to the dwelling house which he occupies to render his occupation more 8 Am. & Eng. Ency. of Law 47. nCase Mamifacturing Co. VB. » Am. & Eng. Ency. of Law. 48. Garven, 45 O. S. 289. 10 Am. & Eng. Ency. of Law, 61. 297 FIXTURE 365 favorable or more convenient. They are divided intxD two classes, useful and ornamental. They are removable by the tenant where tlieir removal does not materially injure the dwelling.^" A house, fence, or other erection on the land of another, with the mutual intention that it is to be held as the builder's property, continues to be personal property, and may be removed at the end of the license.^^ So the road-bed of a railway and the 'rails fastened to it may be trade fixtures removable as personal property.^* Hay scales, annexed to the realty in the usual manner, go to the heir as real estate, al- though they had been included in the inventory as personalty.^^ So water-wheels, millstones, running gear, and bolting appara- tus of a grist and flouring mill, and other fixtures of a like nature, are constituent parts of the mill, descending with the real estate,^® while carding machines, looms and other machin- ery used in manufacturing cloth, which are complete in them- selves and capable of being used in one place as well as in 12 8 Am. & Eng. Ency. of Law, 54. A temporary fence built by a les- see is not a fixture and a renewal of the lease without mention of the right to remove the fence did not constitute the fence a fixture. Chaf- fee vs. Fish, 2 Dec. 89; IN. P. 211. A building constituting a trade fixture, erected upon a contingency over which the lessee has no control upon lands leased for a term may, in the absence of an express agreement, be removed before or within a rea- sonable time after the expiration of the term. Wittenmeyer vs. Bd. of Ed., 6 C. D. 258; 10 C. C. 119. A boiler standing upright on a good foundation and used to spray oil on the brick kilns, is not as be- tween landlord and tenant a fixture. Com. Barker vs. Brick Co., 4 Dee. 270; 3 N. P. 230. A pressed brick iron machine placed on a brick foundation, set four feet in the ground, and fast- ened to it by bolts to keep it firm. erected in its place before the wall of the building was completed, and such size that it could not be taken out of the house, without taking it apart, or taking out a part of the wall, is a fixture. Barker vs. Brick Co., 4 Dec. 270; 3 N. P. 230. A reservoir constructed for an elec- tric light plant, for the purpose of storing water sufficient to supply the steam engines operating such plant, is a part of the main structure of such plant and is, therefore, an ap- purtenance to the property. Brush El. Co. vs. Warwick, 6 Dec. 475; 4 N. P. 279. 13 Chaffee vs. Fish, 1 N. P. 211; Brown vs. Turner, 113 Mo. 27. 14 Northern R. R. vs. Canton, 30 Md. 347, 352; R. R. vs. Deal, 90 N. C. 110; Wagner vs. Cleveland, etc., R. R. Co., 22 0. S. 563. 15 Dudley vs. Foote, 63 N. H. 57. 10 House vs. House, 10 Paige, 158; Lapham vs. Norton, 71 Me. 83. § 366 ' ASSETS GENEEALLY 298 another, not requiring to be fitted in the building and fixed to it only to give stability to the machinery, are held to be person- alty/^ But if machinery, though so constructed as to be port- able and easily conveyed from place to place as may be de- sired, is affixed with the intention and for the purpose of being used as a permanent stiiicture in connection with the building, it becomes part of the realty/^ So with pictures, glasses, etc., taking the place of wainscoting ; for " the house ought not to come to the heir maimed and disfigured." ^^ § 366. Trees, wood, etc. Somewhat similar in the fact that the property in question may under certain circumstances be real estate and go to the heir, and under other conditions be personal property and go to the executor or administrator, is that of trees, bushes, vines, etc As a general rule so long as they are not severed from the soil, they go to the heir."° But even growing timber if it has been sold by the deceased, the title passes away and his heir will be bound, and such property is then personal property ; and should the person to whom it is sold die, his executor will be entitled to it. In reference to a nursery, that is, trees that have been grown for the purpose of removal, will also go to the executor. Likewise coal, petroleum, building stone and many other substances are until detached, a part of the realty and go to the heir. However, when timber is detached, or coal, building stone, etc., sold and moved away, they become personal property and belong to the administrator."^ 17 Tobias vs. Francis, 3 Vt. 425; Ward vs. Kilpatrick, 85 N. Y. 413. Gale vs. Ward, 14 Mass. 352 ; Walk- 20 7 An-. & Eng. Ency. of Law. er vs. Sherman, 20 Wend. 636; 3 241; Williams on Exr's 708; Price Redf. on Wills 161, pi. 4; Hill vs. vs. Brayton, 19 Iowa 309; Maples Wentworth, 28 Vt. 428, 432. vs. Millon, 31 Conn. 59S; Jones vs. 18 Potter vs. Cromwell, 40 N. Y. Timmons, 21 O. S. 596. 287. 21 Hirth vs. Graham, 50 O. S. 57. And such intention maj be pre- Where the intestate may have in- sumed from the circumstances. tended to construct a building for Voorhees vs. McGinnis, 48 N. Y. 278. the improvement of his real estate 19 Cave vs. Cave, 2 Vern. 508 ; and furnished building materials for Guthrie vs. Jones, 108 Mass. 191; consummating the work, and died 299 TREES WOOD, ETC. § 366 Somewhat akin to the subject of trees is that of their fruit, such a production is known as a diattel vegetable, unless it has been severed. Trees and the fruit and products therefrom, follow the title of the soil upon which they grow; and when the owner of the land dies, they descend to the heir.^^ This, however, only applies so long as the fruit remains on the trees unripe and unready for harvesting. If it is ripe and sold, or even if unripe and sold, under certain circumstances it might be considered personal property."^ In a recent case in Ohio it was held that grapes, even before they were severed, were not real estate, but were personalty ; ^* but in a recent case in Minnesota it was held that blackberries while growing on the bushes were real estate."^ Where land is sold and the trees are reserved, they likewise become personal property and go to the administrator of the person reserving them.^® It is said, however, that if trees are sold to be cut in some future indefinite time, they retain their character as real estate. Likewise hops have been held to be personal property.'^ A fence enclosing a field, of what- ever material or construction, whether having posts inserted in the ground or not, is part of the freehold."® Nor does it cease to be so, though accidentally or temporarily detached therefrom without intent on the part of the owner to divert it permanently before completing the same, the ma- sale of an interest in land Purner terials furnished ujjon the ground vs. Piercy, 40 Md. 212, S. C. 17 Am. for the completion of the building, Rep. 591 ; Compare Rodwell vs. Phil- although personal chattels merely, lips, 9 M. & W. 502. may be regarded as belonging to, and 24 Mason vs. Lemmon, .3 N. P. 116; a part of the realty, as well as the affirmed 56 0. S. 793; See 38 Bull. unfinished structure upon the land. 197; 4 Dec. 322. Pence vs. Pence, 11 O. S. 296; See 25 See Sipe vs. Murphy, 28 Bull. Fletcher vs. Ashburner, 1 Bro. C. C. 212. 497; Gray vs. Hawkins, 8 O. S. 449. 2r 3 Redf. on Wills 151. See Miller vs. Miller, 24 Dec. 1, 27 See 28 Bull. 211. as to nursery stock. „_, _, . " _ n ^ /-i 22 Woerner on Admin. 596. ^^ Smith vs. Carroll, 4 Green 23 The sale of a crop of peaches (Towa) 146 ; Glidden vs. Bennett, 43 then growing in the seller's orchard, ]<[_ h. 306; Kimball vs. Adams, 52 the buyer to gatlier and remove tlie ^. . peaclies as tliey mature, held not '• • o- • within the Statute of Frauds as a § 367 ASSETS GENERALLY 300 from its use."" But rails in stacks, not having been used for a fence, are personalty.^*' On the same principle, hop poles, nec- essary in cultivating hops, are part of the real estate, though taken do^vn for the purpose of gathering the crop, and piled in the yard with the intention of being replaced in the season of hop-raising.^^ That keys, doors, windows, bolts, rings, etc., belonging to a house, though temporarily detached therefrom, belong to the realty, is self-evident.^^ § 367. Manure. Manure made upon a farm by a tenant, in the absence of a special contract or custom, belongs to the lands, and cannot be sold separately on an execution against him.^^ Manure from the barn-yard of a homestead, although neither rotten nor incorporated with the ground, but in a pile for future use, belongs to the realty.^* But manure made in a livery stable, or in any manner not connected with agriculture or husbandry, is personalty, and goes to the executor.^^ Likewise if manure is made from hay, purchased and brought upon the farm by a tenant.^® Manure in heaps is held to be personalty.^®* § 368. Emblements, definition. This term is defined by the Century Dictionary as follows: '^f Those annual agricultural products which demand culture, as distinguished from those which grow spontaneously; crops 29 Goodrich vs. Jones, 2 Hill (N. Plumer a^s. Plumer, 30 N. H. 558, Y.) 142. 568: Kittredge vs. Woods, 3 N. H. Oil extracted from the land be- 503; Lassell vs. Reed, 6 Me. 22; comes personal propertv. Digbv vs. Snow vs. Perkins, 6ft N. H. 493; Difjbv. 5 C. C. (N.S.) 130; 26 0. C. Norton vs. Crai«r. 68 M. 275. C. 417. 3 5 Snow vs. Perkins. 60 N. H. 493; 30 Clark vs. Burnside. 15 111. 62. Daniels vs. Pond. 21 Pick. 367; 31 Bishop vs. Bishop, 11 N. Y. 123. Xeedham vs. Allison, 24 N. H. 355. 32 Cave vs. Cave, 2 Vern. SOS ; 36 Corey vs. Bishop, 48 N. H. 146. Gvithrie vs. Jones, 108 Mass. 191; 36* Parson vs. Camp, 11 Conn. Ward vs. Kilpatrick. 85 N. Y. 413. 525. 33 Sawyer vs. Twiss, 6 Post, (N. ]\Ianure is a fixtvire made on a H.) 345; ]\Iiddlehrooke vs. Corwin. farm; but hay and straw are not, 15 Wend. (N. Y.) 169; Wetherbe and may be removed by a tenant at vs. Ellison, 19 Vt. 379; Lassell vs. the close of his term. Garrett vs. Reed. 6 Me. 222: Daniels vs. Pond, Brent, 6 C. C. (N.S.) 509; 27 0. C. 21 Pick. (Mass.) 367. C. 463. Compare Staples vs. Emery, 7 Me. Sfif An administrator is entitled 201. to costs for taking care of a crop. 34 Fay vs. Muzzey, 13 Gray 53 ; See § 660. 301 EMBLEMENTS, ETC. § 368 which require annual planting, or, like hops, annuul training and culture. Emblements thus include corn, potatoes, and most garden vegetables, but not fruits and generally not grass. They are deemed personal property and pass as such to the executor or administrator of the occupier, instead of going to the heir, if he die before he has cut, reaped or harvested them. The term includes every product of the earth yielding an annual profit, as the result of labor, as corn, vpheat, grain, hops, saffron, flax, melons and the like.^^ But it is said that parsnips, turnips, etc., belong to the realty because it is not right that the executor should take products from the soil, except potatoes which are held to come within the description of emblements.^® This exception as to roots may be questionable, and the rule at this day would rather be that all such roots that grow annually, the result of labor, would also be emblements. The general exception is made as to grass, but I can conceive that certain kinds of grass would also be emblements, such perhaps as clover, millet, etc. There may be some difficulty as to clover, but it is a crop that rarely ex- tends more than two years, and requires labor and expense ; and it seems to me ought to be included as an emblement going to the administrator. Especially is this true, if the matter rests upon the fact that when tlie estate may be terminated by an event, the time whereof is uncertain, he has a right to reap that which he has sown.^^ 37 § 476, Emblements. tion of an estate is uncertain, it 38 Woerner on Admin. 598. would greatly discourage the culti- 3& Noble vs. Tyler, 61 O. S. 438. vation of the land, if every such In this case it is said that although tenant must sow at his peril. Hence this may to some extent, trench it is that the right to harvest grow- upon the occupancy of the tenant of ing crops, sown and cultivated be- the next estate in remainder or re- fore the termination of the partic- version, this, however, cannot be ular estate, in no legal sense in- said to impair the next estate; for fringes upon the next estate in pos- it is an incident, created by law, of session. Every such estate is cre- every estate in reversion or remain- ated subject to such contingency; der — a burden, if it be one, imposed, and the right is an incident to every as we have said, in the interest of estate whose termination is not fixed agriculture; for, when the termina- by some definite time. When the § 369 ASSETS GENERALLY 302 Of course the executor's or administrator's right to the crops, extends only to such as were planted before the death of the deceased. The selling of the real estate hv an administrator thereafter to pay debts would malce no difference as to crops that might have been planted subsequently thereon, for under our law the purchaser at a judicial sale acquires no right to the landlord's share of a tenant's growing crop/** In such cases the heirs would receive such crops.*^ It is said that the widow is entitled to the crop growing on land assigned to her as dower, but she is not entitled to the grass or fruits on her husband's land not assigned for dower,*^ If she as dowress, sow the land and marr j, the crop will go to her, on the husband's death in preference to his executor or administrator. But if she marry, and her husband sow the land and die, the crop will go to his executor, for it is well established upon the termina- tion of a freehold estate held by the husband in right of his wife, the emblements will go to the husband or bis represen- tative. § 369. When emblements shall be assets. "The emblements or annual crops raised by labor, whether severed or not from the land of the deceased, at the time of his death, shall be assets m the hands of the executor or administrator, and be iucluded in the mventory." [R. S. § 6026.] ^^ § 370. Power to cultivate and gather crops. ' ' The executor or administrator, or the person to whom he sells such emble- ments, at all reasonable times, may enter upon the lands to cul- tivate, sever, and gather them." [R. S. § 6027.]" § 371. Rent of farm land. As a general rule there is not much difficulty for the execu- tor to determine the property of which he should take charge, time of the termination of an estate -ta Woerner on Admin. 599. is definitely known, the reason 43 § 10642 G. C. ceases, and no such right exists. See §476, Emblements. 40Albin vs. Riegel, 40 0. S. 339; 44 § 10643 G. C. Seybolt vs. Burtner, 4 W. L. J. 551. See § 1393, Rents, Gdn. 41 Millikin vs. Wellive, 37 0. S. See § 801, Power to mortgage or 468. trade. 303 RENT OF FARM LAND 371 where the land is fanned by a deceased or by a tenant on shares, but when the farm is rented out for cash rent tliere is 'some trouble. It has been stated that rent due and payable at the time of the death of the decedent, goes to the administrator. But in a recent case our Supreme Court held this was not true, that if the rent had been earned, although by the terms of an agreement it was not payable until a future date, that fact did not prevent the administrator from recovering the rent!*^ In another case it was held that where farm lands are leased for a term made up of calendar years, with the rent payable at a fixed period therein, in* the absence of other testi- mony, the mere fact, tliat the land is to be farmed will not convert the rent into emblements, and give the right thereto to the administrator.*® In another case where the landlord rent- 45 Noble vs. Tyler, 61 0. S. 438. In this case the deceased was the owner of a life estate. On the 15th of August, 1892, she leased her farm to be seeded in the fall 1892, and farmed for the year 1893. That the tenant seeded about 36 acres in the fall 1892 in wheat, which was har- vested in June, 1893, fifteen acres of timothy harvested July, 1893, and that in the spring of 1893, he plant- ed forty-two acres in corn on said farm and it was all laid by as early as July, 1893, but was not gathered and harvested until November, 1893; that at the date of said lease said tenant gave his note for Eight Hun- dred Dollars for said rent, payable to the deceased on or about the 1st of March, 1894. That said deceased died in August, 1893. It was held that the administrator could recover on this note upon the death of the administrator's decedent. The per- son entitled to the possession, went into immediate possession. See § 1393. 46 Dye vs. Dimick, 4 N. P. 185. In this case the decedent on October 24th, 1894, leased to Dimick the farm for a period of three years from March 1st, 1895, upon the con- dition that the rent should be Nine Hundred Dollars, payable in two payments oi Four Hundred and Fifty Dollars each on Nov. 1st, 1896, and March 1st, 1897. The first in- stallment of rent due November 1st, 1896, was paid. The landlord died November 18th, 1896. The question was, who was entitled to the rent that was due March, 1897. It was shown that the tenant farmed the premises in 1896 in wheat, corn and other products, that the crops were all gathered, or at least matured be- fore the landlord's death, and that no crops were or could be raised on the said farm for the balance of said year ending March 1st, 1897, the Court held that this rent went to the devisee and not to the executor. Under the principle laid down in the case of Noble vs. Tyler, supra, that where the rent has been earned, al- though it is not payable, it should go to the executor, this decision seems to be questionable. § 371 ASSETS ge:nerally 304 ed a farm for the sum of Three Hundred Dollars cash to raise thereon a crop of corn, and after the corn was planted and gath- ered in July, the landlord died, the tenant paid the rent to the executor. The Court held that the remainderman could not recover any portion of it from tlie executor.*' Whether or not rents may be apportioned between the executor and the remain- derman in the absence of statute may be questionable.*^ But it seems that the true rule ought to be where a farm is rented for cash rent for a definite period, and the tenant for life dies before the rent is paid, that it ought to be apportioned between the executor and the remainderman, giving to the executor such portion of the rent as would have gone to him if the dece- dent had planted the farm in annual crops, or had rented it on share rent, as the statute gives the executor the emble- ments or annual crops, raised by labor, whether severed or not. If such use of the farm exliausts its value for the entire period, then the entire rent should go to the executor. If it does not exhaust its value, then whatever is the proportionate value of the farm from the time that the landlord died until the end of the term, subject to the right of the tenant to remove the em- blements or annual crops, under the same conditions that the administrator could have removed them, if they would have been planted by the deceased, should be apportioned to the remaindemian.*^ 47 Van Hayes vs. West, 3 C. C. disturbed. Capallo ts. Weiman, 9 64; 2 C. D. 37. C. C. (X.S.) 412; 29 0. C. C. 542. The Court seems to have held that *^ Woerner on Admin. 637. neither the administrator nor the o The above is not given as a remainderman could have collected rule established by court, but one this money, but as it was volunta- which would oe fair and just. The rily paid to the administrator, the rules of good husbandry require, remainderman could not recover. that certain times be fixed for enter- But in the opinion the Court seems ing and leaving under farm leases, to justify the payment of the rent These periods are generally fixed in to the administrator because if the the spring and fall. Thus if a ten- landlord had lived and planted the ant goes into possession on the 1st crop, his executors would have been of IMarch, for one year under cash entitled to recover it. rent, he is entitled to the use of all Where a life tenant dies during parts of the land for one crop, and the term, an equitable distribution if there is wheat on the land when among claimants of rent due after he goes into possession, he is entitled the death of the tenant will not be to put out as much wheat as there 305 RENTS GENERALLY §372 In considering tliis matter of rent it should not be forgotten that the owner of the fee can make a lease of his premises for any time that he sees fit, and if he dies it will not affect the termination of such lease. But if the owner is only tenant for life, he can not make a valid lease for a longer time than the termination of his estate. Another matter that should be remem- bered is that where real estate is devised, it is' very often con- sidered that the rights of the devisee are superior to either that of the heir or the administrator. An administrator would not be responsible for failure to collect rent between the time the property is ordered for sale and the date of sale.*^^ § 372. Rents generally. As before herein stated, real estate descends to the heir and not to the administrator. The rule follows that all the rent which accrued at the death of the testator would go to the administrator and that which would accrue thereafter becomes the property of the heir.^" was when he went into possession; and for the purpose of reaping and gathering this grain he can go onto the farm after his lease is termin- ated. Likewise good liusbandry and custom takes the buildings with the land for the period of the lease. Therefore, whether or not, where a tenant for life, leases real estate for a period of one year, as is the cus- tom of the country, and dies before the expiration of the year, the ten- ant can remain until the end of his period, is a matter T am not sure about. Tf the above rule is adopted, he could hold to the end of his tenancy without affecting injuri- ously, the interests of any one. 49a 7n re McCary, 22 Dec. 697. 50 7 Am. & Eng. Encv. of Law 278. Rent accruing after the death of the testator under a lease made by him, passes to the devisee of the premises leased, vinless otherwise disposed of by the will, and if to the executor, he becomes liable to the devisee for money bad and re- ceived. Loveless vs. Erie R. R., 35 O. C. C. 87. The Probate Court does not neces- sarily have any jurisdiction over the rents. The administrator neither has the right against the consent of the heirs, nor is he required to accept the estate or collect the rents therefrom. He may receive the in- come of the real estate by the re- quest of the heirs, or with their acquiescence. He would not be re- garded as a trespasser in so doing, unless done in opposition to their interests, or in defiance of their wishes. It is often convenient, and sometimes of decided advantage for him to do so; as where the heirs are minors without guardians; or are abroad, or unacquainted with the management of affairs and where the administrator may be himself an heir, or have intimate business or family relations with the estate, and in other cases. In many cases, there is an understanding or agree- ment, that the administrator shall take the rents, and account for them as assets for the benefit of the es- tate, where such a course may save a sale of the real estate for debts, or where the heirs get the advantage of them in the general distribution. In such case the administrator would account in the Probate Court for such rents with the general assets according to such agreement, but not necessarily by force of any re- § 372 ASSETS GENERALLY 306 To this general rule there may be some exceptions as re- ferred to in the previous section. Likewise when the rent has been paid in advance for a tenn. Rent that is payable in ad- vance accrues at the time specified for its payment ; and on the death of the lessor after that time, within the period for which the rent is reserved, it passes to tlie administrator.^^ Rent accrues at the time it is earned and the mere fact that it is payable in the future -udll not give it to the heir.^- If the term for which the rent was to be paid is passed, and the rent is unpaid, it belongs to the administrator. If the term is not passed, and the rent remains unpaid, it belongs to the heir. If the rent for the term has been paid in advance and the owner dies during the term, the money so collected Avould belong to the administrator. A tenant for life cannot lease the premises for a longer period than until his death, unless it might be in the case of farm lands under and by virtue of the provisions of sees. 10642 and 10643, G. C. (§§ 369 and 370). If the o\\Tier rents a piece of property and receives therefore a note, such note, although it might not be due until after the death of the owner, passes to the administrator. ^Vhere the will directs the sale of land by the executors after a period named, it effects a conversion from that time and the executors are thereafter entitled to the rents. ^^ But before execution of the power, they have no authority to collect the rents and profits ; if they do so collect, they are accountable therefor, in the interest of the beneficiaries, and the insertion quirements of the statute. Such we Griswold vs. Chandler, 5 X. H. 492 ; believe to be a somewhat common Jones' Appeal, 3 Grant (Pa.) 250; practice. Conger vs. Atwood, LS Ohio St. 134. Peters, J., in Kimball vs. Sumner, si n Am. & Eng. Ency. of Law 62 Me. 305, 310. 841, 2nd-ed; Matter of Weeks, 5 See also Stearns vs. Stearns, 1 Dem. (X. Y.) 194; Miller vs. Craw- Pick. (Mass.) 157. ford. 26 Abb. X\ Cas. (X. Y. Su- Shaw, C. J., in Wilson vs. Shearer, prenie Court) 376, disapproving 9 Met. (Mass.) 504; Xewcomb vs. Matter of Eddy. 10 Abb. X. Cas. (N. Stebbins, 9 Met. (Mass.) 540; Pal- Y. Supreme Ct.) 396. mer vs. Palmer, 13 Gray (Mass.) 52 Xoble vs. Tyler. 61 O. S. 432. 326; Gibson vs. Farley, 16 Mass. ss Shumway vs. Harmon, 4 Hun 280; Almy vs. Crapo, 100 Mass. 221, 411. 218; Taylor, Landl. & Ten. § 390; *§ 3G9, §370. I 307 RENTS GENERALLY §372 of the items in their account is properly made/* The rent is due at midnight of the last day of the term, unless other- wise fixed by the lease. ^^ The rent of the lands of an insolvent intestate accruing between the death of the intestate and a sale of the lands for the payment of the debts by an administrator, belong to the heir and not to the administrator.^® The administrator has no right to collect the rent of the mansion house, and if he does collect the same, he is liable to the widow for the amount so collected.'^^ Where the administrator has taken possession of real estate other than has been set aside for the payment of debts, collects the rents and accounts for them and applies them to discharge of the debts due from the estate, he is entitled to be credited for money paid for taxes and repairs.^^ Likewise where an administrator by the advice of a family and infant heir receives rents from the real estate and applies them in the payment of debts of the ancestor's estate instead of selling lands for that purpose and the ar- rangement is beneficial to the heir, the heir's administrator 54 Matter of Boyd, 4 Redf. 154. A general devise to executors to sell and distribute, in a specified way, the proceeds of real estate, does not convert it into personalty, so as to make them accountable for such as has not been sold, as personalty, upon their final accounting, and, if a sale is not made within a proper time, the remedy is by application to the Court to compel them. Mat- ter of Hunter, 3 Redf. 175. 55 Although the time of sunset is the time appointed by law to demand rent, to take advantage of a condi- tion of re-entry, or to tender it to save a forfeiture, yet the rent is not due till midnight of the rent-day. If the lessor dies after sunset, and before midnight, the rent belongs to the heir ; for, the lessor dying before it was completely due, the personal representative can take no title to it. If, however, the tenant had vol- untarily paid the rent on the rent- day, and then after it was paid, and before midnight, the lessor had died, such payment would be a good sat- isfaction against the heir or re- mainderman, and the executor would not be liable to refund to him. Wms. Exrs. (7th Eng. ed.) 823. Lord Kenyon's judgment in Left- ley vs. Mills, 4 Term Reps. (Eng.) 170. Blackstone, J., in Cutting vs. Der- by, 2 W. Bl. (Eng.) 1075; Clun's Case, 10 Coke 127 ; Duppa vs. Mayo, I Saund. (Eng.) 275, note 17; Norris vs. Harrison, 2 Madd. (Eng.) 268; Rockingham vs. Penrice, 1 P. Wms. 177 s. c; 2 Salk. (Eng.) 578. 56 0verturf vs. Dugan, 29 0. S. 230. 57 Conger vs. Atwood, 28 O. S. 134 (§341). 58 /n re Turpin's Estate, 7 N. P. 569. § 373 ASSETS GENERALLY 308 cannot afterward recover such rents from the administrator of the ancestor, ahhough the arrangement has the effect to change the distribution of the infant's estate to the extent of the rents so applied.^" If an administrator receives rents which he is not entitled to and receives that which properly belong to the heirs, he may be required to account for the same.®° At common law, rent was not portionable.^^ Some States as well as England have statutes in relation to the appor- tionment of rents, but none exists in Ohio. Whether under certain circumstances a Court of Equity might, like an English court in the case of an annuity apportion the rent, is a new question in Ohio.®' § 373. Leases or chattels, real. The estate of a deceased person may occupy either the posi- tion of lessor or lessee of certain real estate. When the de- ceased's estate occupies the position of lessor, then the duty of the • administrator in reference thereto, would be for the collection of the rents due therefrom. This has been spoken of in the preceding section. If the deceased was the lessee, then such a lease would become assets in the hands of the adminis- trator. Ordinary leases are considered when speaking of the different kinds of property as chattels real. It is generally 59 White vs. Turpin, 16 O. S. 270. could not be recovered either in law 60 Campbell vs. McCormick. 1 C. or equity. C. 504; 1 C. D. 281. Jenner vs. Morgan, 1 P. Wms. 61 Noble vs. Tyler, 61 0. S. 432; (Eng.) 392; Hay vs. Palmer, 2 P. Van Hayes vs. West, 3 C. C. 66; 2 Wms. (Eng.) 502; 3 Kent 471. C. D. 38. See also Cutter vs. Powell, 6 T. At common law rent could not be R. (Eng.) 320; Stillwell vs. Dough- apportioned with respect to time. ty, 3 Bradf. (N. Y. ) 359; Marshall Hence, if a tenant for life made a vs. Moseley, 21 X. Y. 280. lease for years, reserving rent, and 627 Am. & Eng. Ency of Law 280. died between two rent-days, the ac- See § 1393, Gdns. crued rent was lost, both to the ex- Rents of lands occurring after an ecutor and the remainderman, or assignment, as between general cred- reversioner, however great the frac- itor, and a mortgage which pledges tional portion of the year might be such rent, etc.. should be applied on since the last day of payment, and the mortgage. Hutchinson vs. Straub, 45 Bull. 390. 309 LEASES CHATTEL AND REAL § o73 considered to be an interest in real estate and less than a free- hold.^^ In the absence of statutory provisions, no matter what would be the length of time, were it for one year or a thousand years, it would be a chattel real and become assets in the hands of the administrator. In Ohio, however, permanent leasehold estates renewal forever, shall be subject to the same law of descent as estates in fee/'* A lease made to a man " and to his heirs," or " and to his heirs forever," etc., is not changed in its character by introduc- ing these words of inheritance, but remains a chattel none the less; and so of a lease from year to year, so long as both parties please — the interest of the tenant being personal assets after his death.*'^ An estate granted to A., which is to exist during the lifetime of B., and then cease, has not a definite space of time to exist, measured by years, months or days, for it is uncertain how long B. may live. This estate of A. is therefore not a chattel, but a freehold estate ; and, as estates of freehold go to the heir or devisee, this estate, upon the death of A., goes to his heirs and not his administrator, if B. be still alive.®*^ If an estate be limited to A. and his assigns during his life, it is a freehold estate ; but if it be limited to A. and his assigns 63 Real chattels are chattels which A ground rent is a freehold estate. are annexed to or concern real es- McCarmon vs. Cooper, 1 N. P. tate, as a lease for years of land. (N.S.) 154; 12 Cir. D. 677; afRrni- And the duration of the lease is im- ing 09 0. S. 366. material, whether it be for one or a Bouv. Law Die, Art. "Chattels." thousand years, provided there be a o4 § 8507 G. C, § 942. certainty about it, and a reversion Perpetual leasehold estates are to or remainder in some other person. be treated as estates in fee simple, A leas", to continue until a certain only in being subject to judgment sum of money can be raised out of liens and execution the same as real the rents is of the same description ; estate, and are not considered as and so in fact will be found to be estates of inheritance, within the any other interest in real estate meaning of the dower act. whose duration is limited to a time '''■' Murdock vs. Eadcliff, 7 Ohio certain beyond which it can not sub- 119. sist .and which is, therefore, some- «<> Bank vs. Roosa, 13 Ohio 334, thing less than a freehold. § 373 ASSETS GENERALLY 310 for one hundred, or any oiner certain number of years, if A. shall so long live, it is a chattel.*'^ The duties of an administrator in reference to a leasehold interest is very well set forth in the opinion of Judge Spear in Becker vs. Walworth (45 O. S. 169), which is as follows: " That a leasehold interest in a term for years passes, upon the death of the lessee, to the personal representative, and not to the heir, and that such, representative thereby becomes an assignee of tlie lease by operation of law, is elementary. He may dispose of the unexpired term by sale, as of other assets, and by assignment, and thus avoid personal liability for rents coming due, though the estate would remain liable to the lessor upon the covenants in the lease. But if the representative enters into possession of the leased premises, he thereby incurs liability, in his personal character, to tlie extent of profits actual- ly received. If the rent be of less value than the profits of the land, as the law prima facie supposes, so much of the profits as suffice to make up the rent belongs equitably to the lessor, and cannot lawfully be otherwise applied; hence the personal liability to the extent stated. It may be charges against the representative Avho refuses to so pay over that he owes and un-- lawfully detains. So that, while his personal liability does not exceed what the property yields, nevertheless the rents re- ceived by him, being treated not so much as assets as profits of the land, the law specifically appropriates them to the benefit of the landlord to an amount equal to the rents reserved in the 6T Murdock vs. RadclifT, 7 Ohio an estate in lands as is conveyed 119. by livery of seizin, or in tenements " An estate of freehold, liherum of any incorporeal nature, by what tenementum, frank-tenement, is de- is equivalent thereto. As. therefore, fined by Britton to be ' the posses- estates of inheritance and estates sion of the soil by freeman.' And for life could not by common law be St. Germyn tells us that ' the pos- conveyed without livery of seizin, session of the land is called in the these are properly estates of free- law of England the frank-tenement hold; and as no other estates are or freehold.' Such estate, therefore, conveyed with the same solemnity, and no other, as requires actual pos- therefore no others are properly session of the land, is legally speak- freehold estates." ing, freehold." Hence, " It is such 2 Bl. Com. 104. 311 ANNUITIES DIVIDENDS §374 lease. The representative takes the lease as assignee by virtue of his office, as he takes other chattel interests of the deceased. The term is assets in his hands, and he is none the less an as- signee because the liability incurred is not in all respects as onerous as that of an assignee in fact. The rule is not a hard one. It but enjoins good faith, and a proper discharge of duty." '' As such a lease is binding on the estate of the decedent, it must be disposed of in some manner. If the administrator continues to occupy the same, he must pay the rent, and see that it is fulfilled according to the contract made with the de- cedent. The estate is liable for this rent, whether it is occu- pied or not, unless released by the owner. Such a lease should be disposed of by sale or otherwise, as will be to the best in- terests of the estate. If it is sold according to law at public sale or otherwise, the administrator will be relieved from fur- ther personal responsibilities. No rule can be given to guide an administrator or executor in such a case. In some instances it might be to the advantage of the estate to retain the leasehold interest, and in others it would be to the advantage of the estate to dispose of it speedily. The safer plan would be to apply to the Court for an order to sell the same where the landlord refuses to allow a surrender of the lease. An administrator of the assignee of a perpetual leasehold is not personally liable for the rent and taxes to the owner of the fee covenanted in the lease."^ § 374. Annuities. Dividends. An annuity is defined to be a yearly payment of a certain sum of money granted to another for life, or for a term of years, and when charged upon the real estate it is called a 68 Citing Taylor's Landlord and on Pleadings 383 ; Howard vs. Hei- Tenant, § 434, 461; 3 Williams on nersehit, 16 Hun 177. Exr's, 1854; Suttliff vs. Atwood, 15 69 Gausen vs. Moosmann, 5 N. P. O. S. 186; Jevens vs. Harridge, 1 254. Saundprs 1; Tremeere vs. Morison, See § 799, Sale of real estate. $ 1 Bingham New Cases 89; 1 Chitty 801, Mortgage, etc. §375 ASSETS GENERALLY 312 rent charge. As personal property, an annuity passes to the personal representative ; but if granted with words of inheri- tance, it is descendable and goes to the heir to the exclusion of the executor.^'' Shares of stock in a corporation, owned by the decedent at the time of his death, are personal property and pass to the administrator.'^ And the same is true of dividends declared after, but for a period that expired before, the decedent's death, eveoi though the stock be given by will to a legatee.^^ § 375. Copyrights and patents. All copyrights pass to the administrator.^^ The adminis- trator has also the right to all patents, and may apply for and take out a patent for the benefit of the estate.^* So he may 70 Woerner on Admin. 632. ''I Citizens' street K. W. Co. vs. Robbins, 128 Ind. 441); W eyer vs. Second National iianlv, 57 Ind. 198. How sold, see § 572. 72 Jolinson vs. Bridgewater Mfg. Co., 14 Gray 274; Wells vs. Cowles, 4 Conn. 182. An annuity may be assigned the same as other personal property. Trust Co. vs. Kirby, 17 Dec. 194; 40 L. R. 304. See Wilberding vs. Miller, 90 0. S. 28, where the matter is very fully discussed as to whether the surplus accumulated from earnings belongs to the life tenant or remainderman. Also see Worthington, Trustee, vs. McAlpin, IS X. P. 436. See § 1289, as to Dividends. 73 Wilson vs. Rousseau. 4 How. 646; Dudley vs. Mayhew, 3 N. J. 9. The right of an author to the ex- clusive sale or use of his intellectual productions, including books, maps, charts, pamphlets, magazines, en- gravings, prints, dramatic and mvisi- cal compositions, paintings, draw- ings, photographs, sculpture, models, busts, designs, and the right of in- ventors, originating any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement therein, are species of property uiiKnowu at com- mon law, and of purely statutory origin, both in England and America. For the encouragement and de- velopment of learning and literature, and to promote the progress of use- ful arts and sciences, Congress has secured to the autiior or inventor the absolute and indefeasible inter- est and property in his literary production, or the subject of his invention, for a specified time, which, upon certain conditions, may be extended for a further term of years. During tliis period it has impressed upon these productions all the qualities and characteristics of property, has enabled the author or inventor to hold and deal with the same as property of any other description, and on his death it passes with the rest of his personal estate, to his lesal representatives, becoming part of his assets. Citing Wilson vs. Rousseau, 4 How. (U. S.) 646, 674; Dudley vs. :Nrayhew. 3 X. Y, 9. 74 Stimpson vs. Rogers, 4 Blatchf. 333. 313 PATENTS PENSIONS COPYRIGHTS § 376 take out an extension of either a patent or a copyright.^'* He may sell it.''^ For all infringements of a patent or a copyright, the admin- istrator may sue, even joining with the holder of a moiety thereof in anotlier State, and without taking out letters of ad- ministration in such StateJ^ But in the case of trade-marks, the heir and not the administrator seems to be entitled to them/* § 376. Pension money. By the pension laws of Congress and United States statutes (sec. 4718), an accrued pension is declared not to be considered as a part of the assets of the pensioner's estate, nor liable to be applied to the payment of his debts, but shall inure to the sole benefit of the widow and children. This law of exemption is said to be founded on just views of human generosity, and should be liberally construed in favor of the debtor and his family.^** Hence pension moneys received by a widow, and passing unexchanged for other property to her executor, are not liable for her debts where she leaves children under sixteen years of age.**' But, otlierwise, where the pensioner received his pension in his lifetime, and deposited it in a bank, taking a certificate of deposit, which he had at the time of his death, the money collected on such certificate by the executor is assets applicable to the payment of debts.*^ 75 Washburn vs. Gould, 3 Story 79 Wilcox vs. Hawley, 31 N. Y. 122; Brooks vs. Bicknell, 3 McLean 648; Shaw vs. Davis, 55 Barb. 389; 250, 432. Lockwood vs. Younglove, 27 Id. 505; 76 Wintermute vs. Reding, 1 Fish- Van Buren vs. Loper, 29 Id. 388. er Pat. Cases 239; Brooks vs. Bick- so Hodge vs. Leaning, 2 Dem. 553. nell. supra.; Pitts vs. Jameson, 15 si Beecher vs. Barber, 6 Dem, 129. Barb. 310. In the case of Fulwiler vs. In- 77 Whittemore vs. Cutter, 1 Gall. field's Guardian 3 C. D. 338; 6 C. C. 429; Smith vs. Mercer, 3 Pa. L. 36; affirmed, 32 Bull. 374, it Jour. Eep. 529; Kirk vs. Du Bois, is held that pension money is not 28 Fed. Rep. 460. exempt from liability for the pen- 78Kidd vs. Johnson, 100 U. S. sioner's debts after it has come into 617, 620; Leather Cloth Co. vs. his hands. Pension that a widov? American Co., 11 H. L. 523: Pratt's receives on account of her child, is Appeal, 117 Pa. St. 401; Woerner hers, and she is not required, after on Admin. 634. such child has attained its majority § 377 ASSETS GENERALLY 314 § 377. Trust property. If there was any specific personal property in the hands of a decedent belonging to others, which he held in trust or other- wise, and it can be clearly distinguished from the decedent's own property, it is not assets in tlie hands of his personal rep- resentative; but if such property has no earmarks and is not distinguishable from the mass of the decedent's own property, the person owning it must come in as a general creditor of the estate, and the property itself is assets in the hands of tbe ex- ecutor or administrator,^^ In this category are moneys or securities received by a pub- lic officer in his official capacity, or by an agent or attorney, and n'ot mingled with his individual funds. *^ But money held iu a fiduciary capacity has been decided not to lose its distinctive character merely because it is so inter- mingled with other funds that the particular coins or bills cannot be identified. It is enough if the fund can be substan- tially followed, and the recent tendency seems not to require the same strictness of proof as formerly.^* to pay over the amount so received. to an officer in his own name for It would therefore be assets in the the purpose of satisfying an execu- hands of her executor. See Creek- tion in the hands of the officer, be- baum vs. Sohner, 1 N. P. 34. See long to the execution creditor, and article on pensions, 18 Am. & Eng. do not go to the- executor or admin- Ency. of Law, 294. istrator of the officer as assets of the 82 Trecothick vs. Austin, 4 Mason estate. Child vs. Jordan, 106 Mass. (U. S.) 16; U. S. vs. Cutts, 1 Sumn. 321. (U. S.) 133; 25 Fed. Cas. No. 14, S4 Wocrner on Admin. 646. 912. Where a testator, at the time of 83 Moneys received by a public of- his death, held certain bonds in {>er- ficer in his official capacity are not sonal trust for the sole benefit of assets in the hands of his adminis- others and was in no default as to trator, but are trust funds for his the duties of his trust; and said successor in office, if they have been bo.nds were afterward collected by kept separate as an official fund, or his executor, with the knowledge can be traced and identified as such. and apparent acquiescence of the People vs. Houghtaling, 7 Cal. 348 ; beneficiaries, and the proceeds were State vs. Corey, 4 West L. Month. not paid to the parties entitled (0.) .563; 2 Ohio Dec. (Reprint) thereto under the triist. TieM.- That 669. the trust funds were not assets of And the proceeds of a note given the estate of the testator; and there- 315 TRUST PROPERTY § 378 If notes be delivered to an executor to ind-emnify the estate against a liability where the testator was a surety, such notes and tlie money collected on them are not the property of the estate, and the estate is not liable for the misconduct of such executor in respect to such notes and money. Under such cir- stances the executor is a trustee for the person delivering the notes, and he alone is responsible for a faithful application of the money collected. ^^ It is no part of the duty of executors, acting for the benefit of creditors of the estate, to account to the Court for trust funds tliat, when collected, should be distributed to heirs and devisees, and not paid as assets of the estate to creditors t)re- senting claims, ^*^ § 378. Money on deposit. Deposits in banks and in savings bauks pass to the adminis- trator, and he is authorized to drav/ out the same.^^ Money in hands of tlie decedent belonging to another, but which has no eannarks and is not distinguishable from the mass of his own property, is assets in tlie hands of the admin- istrator.®^ But it is otherwise where such money has been left separate and distinct.^'' Money received from the government by the administrator constitutes assets of the estate."" Post office money orders un- delivered are assets in the hands of the administrator.'*"^ fore, an action could not be main- 90 Grant vs. Bodwell, 78 Me. 460; tained by one of tlie beneficiaries Rogers vs. Hosack, 18 Wend. 319. against tlie sureties in the execu- ^oa JNIcKelvey vs. McKelvey, 33 0. tor's bond, for a misappropriation C. C. 117. of the trust funds so collected. Money or property found on de- Quinby vs. Walker, 14 0. S. 193. ceased persons: §S'2862 and 2863 85 Arbuckle vs. Tracy, 15 O. 432. G. C, provides in substance, that if 86 In re Estate of Gallagher, 5 N. any property is found upon a de- P. 518. ceased person the Probate Court 87 Schluter vs. Bowery, etc., Bank, .siiall make an order for its preserva- 1 N. Y. Supp. 65.5. tion until further identification, and 88 Trccothick vs. Austin, 4 Mason money found shall be applied to 16; Matter of O'Brien, 45 Hun 284; the payment of burial expenses, etc., Attorney-General vs. Bigham, 142 and tlie remainder turned in the Mass. 248. public treasury, but that the pro- 89 Fowler vs. Rice, 31 Ind. 258. visions of this section do not inter- J § 379 ASSETS GENERALLY 316 § 379. Fire insurance money. Fire insurance policies on which moneys had become due by the loss before the decedent's death, are assets. If the loss occurs after the death of the insured, the insui-ance money, while perhaps collectible by the administrator, is to be distrib- uted as real estate, and the widow is entitled to dower in such money in the same manner as she would have been in the real estate."^ Whether or not the administrator is entitled to collect such. insurance in the absence of a creditor's or mortgagee's interest in the real estate, is questionable. As the real estate descends to the heir, whatever losses result to it after the death of the ancestor would be collectible by the heir.®" If the loss occurs before the death of the assurer, but is not paid, the better opinion seems to be that it is assets in the hands of the administrator. § 380. Life insurance money. "Wliere the decedent had an insurance policy upon his life, payable to his executor or administrator, the fund is of course assets. ^^ So is an interest in a policy in the life of another.^* But if the policy is made payable to a third person, as to a fere with the rights of an adminis- mortgagee: and if paid to the mort- trator or executor to administer gagor he holds the same in trust for thereon as upon other property. See such mortgagee, and may be com- § 718. pelled to pay the same over to him. 91 Flemming vs. Jordan, 28 Bull. James vs. West. 47 Bull. 750. 332. 93 Webb vs. Roetinger, 12 C. C. See § 1292, as to trustee's insur- 730, 10 Dec. 12; Affirmed 37 Bull, ance and life tenure. 56, 4 C. D. 270. 92 In the case of Flemming vs. 94 .Johnson vs. Smith, 25 Hun 171. Jordan, supra, the administrator Policies of insurance which are had the property insured for the the property of the deceased, are benefit of the estate. Here it was part of her estate whether men- verv properlv held that he had a tioned in her will or not. Plant vs. right to collect the insurance, as Mutual Life, 4 C. C. fN.S.') 94: 16 the insurance was made to protect Cir. D. 400: 26 0. C. C. 409: af- mortgagee's interests in the real es- firmed, 65 0. S. 586. Where a life tate. insurance policy on the life of the Winman vs. Winman, 26 N. Y. husband is payable to the wife, her 253: Culberson vs. Cox, 29 Minn. executors or assisrns, she has such 300. interest therein as she can pass bv When insured property is mort- her will, and a devise to him will gasred. and a loss bv fire occurs, pass the proceeds to him. Teepon the insurance monev, beinsT the pro- vs. Pchlacter. 18 N. P. 33: Schlacter ceeds of the property, belongs to the vs. Teepon, 23 O. C. C. (N.S.) — . 317 LIFE INSURANCE MONEY §3S0 widow or children, the proceeds belong to the person or persons so named, and are not assets of the estate of the insured.^" Where a policy is made payable to his widow or children, it is exempted from all claims of his creditors and goes direct to the widow or children.^" If the assured takes out a policy upon which the annual pre- mium is over $150, and he dies insolvent, the administrator is entitled to all of the insurance in excess of what $150 carried." If the beneficiary died before the person whose life is in- sured, the policy goes to the assured and becomes assets in the hands of the administrator,^^ The wife may insure the life of the husband, and if surviv- ing, it shall be payable to her free from the claim of his cred- itors, etc.^'* 95 11 Am. & Eng. Ency. of Law 846, 2d ed. 96 Who may be beneficiary. § 9393. Any person may affect an insurance on his life, for any definite period of time, or for the term of his natural life, to inure to the sole benefit of his wife and children, or of either or other relative or rela- tives dependent upon such person or any creditor or creditors as he may cause to be appointed and provided in the policy. Exemption from claims of credi- tors. § 9394. All policies of life insurance upon the life of any per- son, which may hereafter mature, and which have been or shall be taken out for tlie benefit of, or bona fide assifjned t-o the Avife or children, or any relative dependent upon such person, or any creditor, shall be held subject to a chanse of beneficiary if desired, for the benefit of such wife or children, or other relative or creditor, free and clear from all claims of the creditors of such in- sured person : and the proceeds or avails of all such life insurance shall be exempt from all liabilities from any debt, or debts, of such insured person. Premiums paid in fraud of credi- tor. § 939.'). Subject to the stat- ute of limitations, the amount of any premiums for insurance for the benefit of wife and cliildron, or of either, or other relatives dependent upon aiich person or any creditor, paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy. [103 v. 558.] 9^38 Bull. 239; Trane vs. St. of Ohio. 98 Ryan vs. Rothweiler, 50 0. S. 595; Frank vs. Bauman, 35 Bull. 59. 99 §§9397-8-9 G. C. 100 Cross vs. Armstrong, 44 0. S. 613. Insurance was procured by a hus- band on his own life for his wife's benefit, the annual premium being $630, and the statute in force pro- vided that insurance for wife or chil- dren should be exempt from claims of representatives or creditors, pro- vided the annual premium did not exceed $150, and if in excess of that only such proportion as $150 bears to the whole annual premium. The husband having died, and it being uncertain whether his estate is in- solvent or not: Held, that the ad- ministrator was entitled, out of the proceeds of the insurance, to the amount of the last four years' pre- miums, with interest — four years beins? the period of the statute of limitation in cases of property jriven in fraud of creditors — and the bal- ance should pro to the widow. U. S. Life Insurance Co. vs. Eckert. 6 Rec. 452. The proceeds of life insurance pol- icies, taken out by a man on bis own life, also for the benefit of his wife and three children, in excess of the amount protected from creditors by § 381 ASSETS GENERALLY 318 If suit be brought by any creditor in relation to sucli policy in wliicli the administrator or executor is made a party, it must be brought in the county in which the administrator is ap- pointed/"° A voluntary transfer by an insolvent debtor to his wife and daughter of an insurance policy on his own life, taken out by him for the benefit of his estate before incurring debts, is void as to his creditors, and is not protected by the act which allows one to insure his life for the benefit of his wife and children free from the claims of creditors.^-^ A divorced wife is entitled to proceeds of a policy of insur- ance, she having been named as beneficiary and subsequently divorced.^-- Where each of two partners had his life insured for the bene- fit of the other, and assigned the policies to the insurance com- pany as security' for a partnership loan, but not as a condition of such loan, and one dies, the proceeds of such policy will go to the surviving partner, and not to the executrix of the deceased.^"^ §381. Mutual benefit insurance. Moneys received on a certificate of membership in a mutual benefit association, the constitution and by-laws of which pro- vide for insurance for the benefit of the member's family, or act of 1847, § 737, and another for panics or beneficiary associations in the benefit of liis wife and four favor of his wife and children, and children; there having been born a after his decease an action is brought later born child, can not be dis- by a creditor of said person to re- posed of by his will; but the earlier cover from the funds the amounts policy goes to exhaust the statutory allowed creditors under § 9393 G. C. exemption, and will, to that extent, and § 11722 G. C, each policy must go to its beneficiaries, and the bal- stand and be considered alone, and ance of such policy and the proceeds the amounts resulting on the diff'er- of the latter policy, will go to the ent policies can not be added to- administrator to pay debts, costs of gether in determining the amounts administration and year's allowance that may belong to creditors under to widow, the balance after which said section. 1894. Com. Hinsch will go to the widow and the four vs. d'l^tassy. 1 Dec. 372. children, according to the statute of A life insurance policy on the life descents. Wagner vs. Karman, 7 of one leaving a widow and one child Rec. 670. which was payable to his heirs, 101 I. Co. Savings Bank vs. Mc- means those who would be his dis- Lean (Mich.), 25 Bull. 235. tributees under §S 4163. 6194. R. S., 102 Com. Insurance Policy, In re 5 and the widow and child divide the Dec. 561. fund in the proportion of descent of 103 Com. Dvas vs. O'Neil, 3 Dec. the estate and not equally. Young 309: 2 N. P. '81. M. M. L. Assn. vs. Pollard, 2 C. D. Where a person procures insur- 333 ; 3 C. C. 577. ance on his life in two or more com- 319 MUTUAL BENEFIT IISrSURANCE §381 for such persons as the member may designate, go on the death of the member, to his family, or the person designated by him, and are not assets subject to the payment of his debts/"* It is provided by statute for the organization of mutual asso- ciations ; ^°^ and it is. held under such statute that no one can be a beneficiary unless he is of the family of the assured, or may, upon his death, become an heir/"" Likewise the assured cannot transfer his policy to anyone but a member of his family/"' A change of the beneficiary can only be made in accordance with the mode appointed by the by-laws of the association/"'^ '^ Legal heirs," as beneficiaries in a policy of a national accident insurance company, issued to one having no wife and children, means next of kin as distributees under the statute of descents, and the insurance money is not subject to the claims of the creditors of the assured/"'' Money paid to an employer by an employers' liability insur- 104 Worley vs. Northwestern Ma- sonic Aid Assoc, 10 Fed Rep. 227 ; 3 McCrary (U. S.) 53; 14 Cent. L. J. 154; 11 Ins. L. J. 141; 16 West Jur. 85 ; Kentucky Masonic Mut. L. Ins. Co. vs. Miller, 13 Bush (Ky.) 489; Duvall vs. Goodson, 79 Ky. 224; Maryland Mut. Benev. Soc. vs. Clendenen, 44 Md. 429; Catholic Mut. Ben. Assoc, vs. Priest, 46 Mich. 429; Catholic Mut. Ben. As- soc, vs. Firnane, 50 Mich. 83; Brown vs. Catholic Mut. Ben. Assoc, 33 Hun (N. Y.) 263; Hellenberg vs. District No. 1, !y4 N. Y. 580; Matter of Wendell, 3 How. Pr. N. S, (N. Y. Surrogate Ct.) 68; Brummer vs. Cohn, 86 N. Y. 11; Matter of Palmer, 3 Dem. (N. Y.) 216; Mat- ter of Brooks, 5 Dem. (N. Y.) 326; Greeno vs. Greeno, 23 Hun (N. Y.) 478; Hodge's Appeal, 8 W. N. C. (Pa.) 209. lo" §§9393-4-5-0 G. C. 106 Mutual Aid Association vs. Gonser, 43 0. S. 1. 107 Odd Fellow's Assoc, vs. Die- bert, 2 C. C. 462; 1 C. D. 589. losCharch vs. Charch, 57 0. S. 561. P. became a member of a mu- tual life association and received a policy which on his death entitled his " heirs " to receive a certain sum from the association. He died leaving a widow and one child sur- viving him. Held: That his wid- ow and child were his heirs as to said sum and took it as tenants in common and in the proportions fixed by the statute of descent and dis- tribution when the intestate has died, leaving a widow and a child or children. Young Men's Mut. Life Ass'n vs. Pollard, 3 C. C. 577; 2 C. D. 333. ■">" Tn re Estate of Andress, 5 N. P. 253; 6 Dec 174. § 382 ASSETS GENfiEALLY 320 ance company on a policy indemnifying him against loss by reason of injuries to employees, is not assets of the estate of the employee on account of whose injury payment is made.^^° § 382. Goodwill of business. The goodwill of a decedent's business passes as an asset to his representative, and on his appropriating the business to his own use he will be chargeable upon his accounting with the value thereof, but the right to use testator's name is not an asset for which a personal representative is accountable.^^^ § 383. Property conveyed by decedent to defraud creditors. The administrator or executor has no authority over real es- tate that has been conveyed with the intent to defraud creditors, unless it is necessary to sell the real estate of the deceased in order to pay debts. Therefore it may be said that in Ohio such property does not come within the general term of assets going to the administrator.^^^ § 384. Proceeds of real estate. When real estate is sold either under a provision of the will or by order of Court, the proceeds of such sale are assets in the 110 Hawkins vs. McCalla, 95 Ga. § 416, § 425. ^ r- , , , . , Without attempting an accurate Where the deceased is a member . ^. , ^ .^. . ^, j of a mutual fire insurance company, °^ exhaustive definition of the good the administrator should collect all will of a business it may be said the assessments due at the time of that it practically consists of that decedents death altliough the estate f^^,^^^^^^ reputation it has estab- IS liable until the policy is cancelled. ,. , , . .... 111 Matter of Randell, 8 N. Y. Wished creating a disposition or m- Supp. 652. clination of persons to extend their It is very difficult to determine patronage to the business on that the value of the good will of any ^^ . ^j^^ ^^^ ^^..^^ ^^ ^ business. For it is nothing but the *= chance of being able to keep the partnership is an asset, business which has been established: Snyder Manf. Co., 54 O. S. 9; the sale of a mere chance which gj.^gg ^ jj.on Works vs. Pavne, 50 vests in the purchaser nothing but n g n - the possibility, but the preference ^- ^- l^^- which has been usually extended 112 See 11 Am. & Eng. Ency. of may continue. Law S47 2d ed. ; § 10778 G. C, See Art. Goodwill, 8 Am. & Eng. ^ §03 Ency. of Law; Chapter on Partner- ship. 321 CHOSES m ACTION § 385 hajids of the executor or administrator, for wliicli his sureties on his bond will be held accountable.^^" Likewise if real estate is sold on partition, and part of the proceeds comes into the hands of the administrator, it will be held to be assets."^* Such proceeds are to be considered and disposed of as real estate.^^^ And if an executor fraudulently sold property for less than its true value, the difference be- tween its true value and that which he actually received would also be assets."® Of course all notes held by the decedent, whether arising from the sale of real estate or other property, are considered assets in the hands of the administrator.^^^ § 385. Choses in action, etc^^^^ All choses in action are assets in the hands of the adminis- trator.^^^ Likewise are judgments."® Damages assessed during the lifetime of the deceased, al- though not payable until after his death, for a right of way through land, go to the administrator.^^" Otherwise if he re- ceived money from a railroad for a release of right of way.^^^ 113 Wade vs. Grayham, 4 0. 126. executor to sell, although they are ,,,,, , ,, 7^ ,.', „T . ,, not expressly named as the donees 114 Campbell vs. English, Wright ^^ ^^^^ l^^^^J^ j^ ^^^^.^^ ^^^^^ ^^^^^ 119; Stiver vs. Stiver, 8 O. 217. a power the executor acts in his 115 Grisswold vs. Frink, 22 0. S. character as such, and not as trus- yg tee, and is accountable for the pro- i,^T>j T. ir>i~.n^^ ceeds of any sale made bv him, as 116 Reed vs. Bro^^na, 10 C. C. 44; ^^^ -^ ^^^^ ^^^ ^^^ ^^^^^ ^„d profits. 6 C. D. 15; Affirmed 56 O. S. 264. Redf. Prac. 426. A devise of realty to an execu- H'^ Coldron vs. Rhode, 7 Ind. 151. tor in trust to sell will, of course, . '"f p,«L^ ^.l^^O; Gifts causa mor- , ,, ,.,, . , . , , tis; ^ 329, Gifts inter vovis. vest the title in him. And as ii 8 Hayes vs. Hayes, 45 N. J. Eq. equity Mill consider as actually done 461. that which ought to be done, land is. See Ambler vs. Administrator. under some circumstances, regarded ^oone 34 C C 512, where a note , " was claimed to be a gift, yet the as money, and money as land — as ^.^^^.^ j^^l^ j^ ^^,g^^ not and was an •where the will directs that the land asset. shall be sold, or that money shall See § 442, Dilisence in collecting. be laid out in land. A devise di- "^ Morris vs. Buckeye Engine Co., 78 Inn. 86. recting lands to be sold and the pro- 120 Welles vs. Cowles, 4 Conn. 182; ceeds to be divided, etc., is therefore Goodwin vs. Milton, 25 N. H. 458: a disposition of money and not of Neal^vs. Knox, etc., R. R. Co., 61 land, and is good, as a power to the tn^JTankins vs. Kimball, 57 Ind. 42. § 385 ASSETS GENERALLY 322 So a salary voted deceased, even after his death/" So money received on an appeal bond given to the administrator/'^ So a surplus arising from a trustee's sale of real estate after the death of the grantor, after discharging the debts/^* Shares of stock of any railroad company are assets. The general rule is that with respect to such personal actions as are founded upon any obligation, contract, debt, covenant or other duty, the right of action, on which the testator or in- testate might have sued in his lifetime, sundves his death, and is transmitted to his executor or administrator, whether the breach occurred in the lifetime or after the death of the de- cedent/"^ A right of action founded on the tort of a decedent does not survive. Death from a wrongful act is provided for by special statute, and that which is recovered goes to the Avidow and chil- dren, and is assets in the hands of the administrator to be ac- counted- for, but such is not liable to the creditors of a decedent. If a covenant is broken in the lifetime of an ancestor, it be- comes a mere chose in action, and does not descend to the heir, but the administrator alone can sue on it.^"® i22Loring vs. Cunningham, 9 40 Barb. 425; Smith vs. Gage, 41 Cush. 87. Id. 60. 123 Sasscer vs. Walker, 5 G. & J But the interest of a purchaser in 102. an executory contract of sale of land 124 Jones vs. Lackland, 2 Gratt. does not pass to his executor. Grif- 81. fith vs. Beecher, 10 Barb. 432. 125 Holbrook vs. White, 13 Wend. The personal representative may 591. sue on a demand against a co-tenant Thus, an administrator may have in common of the decedent for his an action in his own name for an in- share of rents and profits. Hannan jury to personal property interme- vs. Osborn, 4 Paige 336. diate the granting of letters and the i26 Tapscott vs. Williams, 10 O. death of the mtestate. His title 444. takes effect by relation. Valentine See § 713, Accounting, etc. vs. Jackson, 9 Wend. 302; Babcock Where alimony is allowed, and vs. Booth, 2 Hill 181. pending an appeal both parties died, The administrator has a right to the action may be carried on by the recover the purchase money due on a administrators. Coffman vs. Fin- contract for the sale of land, made ney, 65 0. S. 61. by the intestate in his lifetime, and An action will not lie against a may, it seems, extend the time of grantee in possession of real estate, payment. Schroeppel vs. Hopper, conveyed with intent to defraud. 323 MORTGAGED PREMISES § 386 ^ 386. Mortgaged premises to be considered personal assets. Executor, etc., may take possession. " Wlien a mortgagee of real estate, or an a.ssignee of such mortgagee, dies without fore- closing the mortgage, the mortgaged premises, and the debts secured thereby, shall be considered as personal assets in the hands of his executor or administrator, and be administered and accounted for as such." [R. S. §6070.]i=^ Possession. "If the mortgagee or assignee did not obtain possession of the mortgaged premises in his lifetime, his executor or administrator may take possession by open and peaceable entry, or by action, as the deceased might have done if living.'* [R. "S. §6070.]!"* § 387. Executor or administrator may discharge mortgage. Possession before redemption. "In case of the redemption of a mortgage, the money paid thereon must be received by the ex- ecutor or administrator and thereupon he shall release and dis- charge the mortgage. Until such redemption, the executor or administrator, if possession has been taken, either by himself or by the deceased, shall be seized of the mortgaged premises, in trust for the same persons, whether creditors, next of kin, or others who would be entitled to the money, if the premises had been redeemed." [R. S. § 6071.]^-* § 388. How executor or administrator to foreclose mortgage. "A mortgage belonging to the estate may be foreclosed by the executor or administrator." [R. S. § 6072.]^-'' ]\Iortgages, as well as deeds of trust, always go to the execu- tor or administrator,^^" even though foreclosure proceedings were pending when the decedent died,^^^ and although the heirs etc., to recover the vahie of the real isi Fay vs. Cheney, 14 Pick. 399; estate. Doiiey vs. Demmick, 8 C. C. Stevenson vs. Polk, 71 la. 278. 16.3; 4 C. D. 380. A morto'as;or dying in possession, Lnless the grantee has conveyed hjg administrator has a right to them to an innocent purchaser. Id. „„„„„,.v^ +i,„ „ i. • i. 5.5 S 294 convert the property into money ' 127 § io692 G C. ^^^ P^^ *^® mortgage claim thereon The' Probate 'Coiirt can not com- °"* °^ *'^f proceeds. The mortgagee pel an administrator to cancel an ^^^ "^ right to replevin the same. uncancelled mortgage. -Jones vs. Linghler vs. Kraft, 3 N. P. (N.S.) Green, 21 0. C. C. 96; 11 C. D. 548. 653; 16 Dec. 474; affirmed 79 0. S. 127* § 10693 G. C. 225. See §521. Highway vs. Pendle- The interest of the mortgagee is 1-8^8 I?,'rn4 r r transferred to the fund. Id. 129 I 10605 G C ^ chattel mortgage unfiled at the 130 Smith vs.' Dyer, 16 Mass. 18; J™*' ^,^ decedent's death, is void as Taft vs. Stevens, 3 Gray, 504; iLong ^^ creditors, even though it be after- vs. O'Fallon, 19 How. 116; Clark vs. wards placed on record. Kilbourne Blackington, 110 Mass. 316; Wil- vs. Fay, 29 0, S. 264. liams vs. Ely, 13 Wis. 1. § 389 ASSETS GENERALLY 324 obtain possession before the appointment of an administrator/^^ So real estate purchased by the administrator upon a sale on a judgment of the estate belongs to him until it is determined whether it will be necessary to use it to pay debts.^^^ A vendor's lien for purchase-money goes to the adminis- trator."* If lands be devised to an executor in trust for certain pur- poses, he is the proper plaintiff in a suit for trespass thereto after the death of the testator."^ And if deceased held land as tnastee, and some one else has succeeded to the estate as suc- ceeding trustee, that person must bring the action."** If land of the decedent be sold on a mortgage, the surplus goes to the heirs, and not to executor or administrator,^^' unless the administrator needs the same to pay debts. If an executor convey land and is compelled to take it back under the mortgage given by the purchaser, such lands belong to him as assets."® § 389. Naming a person executor not to discharge a debt. It was a rule of common law that, if a person was named executor in a will, that this extinguished any debt that he might have owed to the decedent. This was on the theory that, in order to collect the debt, the executor would be compelled to bring action against himself, which could not be done. It is very questionable whether such was ever the rule in Ohio.^^" But whatever may have been the rule at common law, the same is settled now to be extinguished by the following statute : "The naming of a person executor, in a will, shall not operate as a discharge or bequest of a just claim which the testator had against such executor. It shall be included among the credits and effects of the deceased in the inventory. The executor shall i32Haskins a's. Hawkes, 108 Mass. is? Cox vs. Burney, 2 Sandf. 561; 379; Demarest vs. Wynkoop. 3 Johns Dunning vs. Ocean Bank, 61 X. Y. Ch. 129. -497; Vincent vs. Piatt, 5 Harr. 13?. Webber vs. Webber, 6 Me. 127; (Del.) 164; Varnum vs. Meservc. 8 Boylston vs. Carver, 4 Mass. 598; Allen 158. Gibson vs. Bailey, 9 N. H. 168. i^s Yonkers Savings Bank vs. 13 1 Evans vs. Enloe, 70 Wis. 345. Kinsley, 78 Hun. 186: S. C. 28 N. 135 Pittsburg, etc., Ry. Co. vs. Y. Supp. 925. Swinney, 97 Ind. 586. i39 Tracy vs. Card. 2 0. S. 450. 136 Benoit vs. Schneider, 39 Ind. 591. 325 DEBT OP EX 'T 'r BECOMES ASSETS § 390 be liable for it as for so much money in liis hands at the time such debt or demand becomes due, and must apply and dis- tribute it in the payment of debts and legacies, and among the next or kin, a.s part of the personal estate of the deceased." [R. S. §6069.]^^'^ §390. Debt of an executor or admimsiraior becomes assets. The effect of the above section is, that if a person owing a debt to the decedent is appointed and qualified as executor ^*^ or administrator/'*^ such debt becomes assets at once in the hands of the executor or administrator, for which he must ac- count to the estate. Hence an administrator de bonis non can sue a former administrator for such a debt.^'*^ But appointing a debtor administrator does not convert the debts into assets in his hands, where his liability is only a con- tingent one, as where a surety on a defaulting executor's bond is made administrator de bonis non.^** Likewise where one of several joint and several debtors is made administrator, the debt is not assets.^*^ If a surviving partner becomes administrator, the balance that may be found against him, on settlement of the firm, be- comes assets, although the partners do not owe each other; and it was unliquidated, and not left uncollected by fault of the administrator."® And this applies though the debt was cre- ated after the decedent's death, as where a person to whom ex- ecutors loaned money of the estate, taking his note, afterwards became administrator de bonis non.^" 140 § 10601 G. C. paid, this should be charged against See § 689, Legacy to debtor. the administrator as an asset of the 141 Bigelow vs. Bigelow, 4 0. 138; estate, and he is liable on his bond. Collard vs. Donahlson, 17 0. 264; Yal^ev vs. Stninl-:. 18 Dec. 726; af- Tracy vs. Card, 2 O. S. 431; Mitch- firmed, 81 0. S. 568. ell vs. Towner, 7 W. L. J. .581; 143 Tracy vs. Card, 2 O. S. 431; Raab's Estate, 16 0. S. 273, 282. Mitchell vs. Towner, 7 W. L. J. 481; 142 Bigelow vs. Bigelow, 4 0. 138. Collard vs. Donaldson. 17 O. 264. That where one of two administra- 144 Shields vs. Odell, 27 O. S. 398. tors is indebted to an estate and Where the surety on an unpaid gives a joint bond, such indebtedness note dies and the principal of the will be treated as an asset for which note is appointed administrator, the their joint bond is liable. Dormer debt represented by said note is not A^s. Woodward. 4 C. C. (IST.S.) 623; chargeable as an asset of the estate, 27 0. C, C. 123; affirmed, 74 0. S. esneciallv before the estate is re- .502. nnired to pav the note. Urpham vs. If the executor does not inventory TTrnham. 1 0. Anp. 476; 21 C. C. the debt and dies, vet his estate will (^s^.S.) 600: 3.5 C. C. 442. he charcred with the same, and the 14^' T?ossman vs. McFarland, 9 O. Probate Court has jurisdictinn over S. 3f>0. such matter. Jones vs. Willis, 72 14^ Coebel, 233. O. S. ISO. 147 Martin vs. Train, 6 C. C. 49; Where the administrator was 3 C. D. 344. principal, and the deceased surety Appointing a debtor as executor on a note, which the administrator 390 ASSETS GENERALLY 326 There has been a good deal of controversy, from the seeming injustice of the matter, whether in the absence of fraud, the debt of an insolvent executor becomes assets of the estate, so as to charge his co-executor or sureties. Three cases appeared in tlie ninth C. C. Report. The first case is Brown vs. Harsh- man.^*® In this case it was held that the joint executor would not be liable for the debts of his insolvent co-executor. In Perkins vs. Scott,^*^ it was held that the sureties upon an administrator's bond are liable for the debt of the administra- tor, due the decedent regardless of the solvency or insolvency of said administrator. And in the case of McCoy vs. Allen,^^° it was held that if it appeared to the Court that the administrator was insolvent at the time of his appointment, and continued so during the whole period of his administratorship, he should not be held account- I able for the amount of such debt. This matter was set at rest, however, by the Supreme Court, holding that the indebtedness of an executor to his testator is assets with which he is chargeable at its maturity, as so much I money in his hands ; and the sureties on his bond are liable for his failure to administer and distribute the same according to will not extinguish his liability and it is sufficient consideration after his resignation to support a mort- gage given by him to one entitled to the debts under a will. Collins vs. Nugent, 1 Cleve. 190; 3 B. 519. But it is said that this doctrine cannot be resorted to to work a fraud. Thiis, where the only per- son interested in the estate, the sole asset of which was due by J. who was insolvent, procured J. to be ad- ministrator, and by fraud induced the defendant to go on his bond for the sole purpose of making him liable for J.'s worthless debt. It was held that the fraud was a good defense. Campbell vs. Johnson, 41 O. S. 5S8. An administrator is chargeable in his accounts as money in his hands, with all debts which he owes in- dividually and unconditionally to the estate. A debt which he owes as principal, and which is evidenced by his note, signed also by another person who is in fact only surety, is his indi- vidual and unconditional debt, and chargeable to him as money in his hands. Debts owing to the estate by a firm of which he is a member, are not individual unconditional debts, and are not chargeable to him as money in his hands. James vs. West, 47 Bull. Sup. Ct. 750. 1*8 9 C. C. 1 ; 6 C. P. 10. 149 9 C. C. 207; 6 C. P. 226. 150 9 C. C. 607; 6 C. P. 659. 327 DEBT DUE FKOM HEIR ASSETS § 391 law and the will, although he was insolvent at the time of his appointment and continued to be so until the settlement of his final account. And the sureties will not be discharged from such liability by fraud of tlie executor in procuring their execu- tion of the bond, where the beneficiaries of the estate, in whose interest the liability is sought to be enforced, are themselves in- nocent of the fraud.^^^ A debt existing in the lifetime of the testator against one who becomes executor of his last will, is transmuted into money in the hands of such executor by the force of sec. 10691, G. C, § 389 ; and no act of the executor can turn it again into the char- acter of a mere demand or obligation. It could not be classed as an uncollectible or desperate claim, by reason of the insolvency of the executor; and the Probate Court has no jurisdiction to order the sale of an asset of this character as a desperate claim. If a sale is made under order of the Court, it carries to the pur- chaser no title. ^■^- § 391. Discharge of debt in a will against an executor, etc., how construed. "The discharge or bequest, in a will, of a debt or demand of a testator, against an executor named therein, or against any other person, shall not be valid as against the decedent's creditors, but shall be construed only as a specific bequest of such debt or demand. The amount thereof must be included in the inventory of the credits and effects of the deceased, and, if necessary, be applied in the payment of his debts. If not necessary for that purpose, it shall be paid in the same manner and proportion as other specific legacies." [R. S. §6068.]^^=' § 392. A debt due from an heir or legatee is assets. A debt due from an heir or legatee to an estate is an asset of such estate, and where the distributive portion of such heir or legatee is equal to, or greater, than such a debt, the administra- iBi McGaughey vs. Jacoby, 54 0. 1^2 Cheney \s. Powell, 20 C. C. S. 487; The rase of Allen vs. Me- 398; 11 C. P. 279. Coy, 9 C. C. 607; 6 C. P. 6.59. was See §713, Accounting, etc. reversed on the authority of the iss § 10690 G. CL above case. 57 O. S. 641. See § 457. § 392 ASSETS GENERALLY 328 tor or executor should charge himself with the full amount of the same. This right exists whether the heir or legatee was indebted to the deceased before his death, or contracted a lia- bility to the estate thereafter, or became in any way, indebted to the estate at any time before final settlements^* Substantiating the above are two recent cases of the Supreme Court. In Martin vs. Martin,^^^ it was held that the personal property of an intestate, who leaves neither wife nor children; passes to such of his brothers and sisters as survive him, and to the legal representatives of those who died before him, and children of a pre-deceased brother, take in a representative char- acter and subject to the indebtedness of their principal to the intestate. In Keever vs. Hunterj^^** it was held when lands of an intes- tate descend to his children, there being no personal estate for distribution, the interest of each child in the lands is subject to his indebtedness to the intestate. It has recently been further held that a debt due an estate by a son is superior to a mortgage given by him, and will be de- ducted from his legacy, unless his interest in the lands comes by way of specific devise.^^^ 154 /„ re Ellis, 5 N. P. 207. Carpenter, 48 Bull. 907; 69 0. S. — . 155 56 O. S. 333. A note from son to father, which 156 62 O. S. 616. the father directs in his will shall 157 Woodruff vs. Woodruff, 23 C. be charged to the son. is an asset C. 408. of the estate. In re Bullock, 3 N. An heir indebted to an estate P. (N.S.) 190; 15 Dec. 783; affirmed need not, when he is also adminis- 75 O. S. — . trator, turn it over to the estate. Generally before such a debt can The amount due tlie heir should be be an asset it must not be barred treated as a credit on the amount by the statute of limitations. See due the administrator. Dorger vs. § 760. Woodward, 4 C. C. (X.S.) 623; An inherited title to a share in 27 0. C. C. 123. Approved by Su- ancestral real estate is not divested preme Court in Lambright vs. Lam- by the fact that such heir is in- bright, 74 0. S. — . d'ebted to the ancestral estate. In this case the debt did not There must be some proceeding in mature until after the death of de- court to have such debt applied on cedent. the heir's interest, either on ad- Where a devisee died before the ministration of the estate or a suit testator, it is likewise held that a in partition. Lockwood vs. W^hit- debt due from the devisee to the lery, 23 Dec. 107. estate must be deducted. Baker vs. { yijy ASSETS NOT TOSSESSEU BY DECEASED § 393 § 393. Assets not possessed by deceased. Property may be assets in the hands of the executor or ad- ministrator, though never owned by the decedent. Within this principle is everything acquired by an executor or admin- istrator by his use of or dealing with the estate. Everything acquired under contracts made by the decedent in his lifetime, or accruing after his death, by pre-existing contingencies or conditions, all increases or profits of the personal estate after the decedent's death,^^^ such as money received from the United States government by an executor or administrator in conse- quence of a treaty with a foreign nation as indemnity for loss of property taken from the deceased,^^** damages assessed dur- ing the lifetime of a decedent for laying out a highway through his land, but not payable until one day after his death, is assets.^*^" In the same line include all rents and all profits derived from any use of the property of the decedent, such as continu- ing the business under a will ; ^^^ or if money was loaned out, or put in bank, the interest therefrom would be assets.^®^ The right to a widow's allowance is an asset in the hands of her administrator.^"^ Until liquidation the interest of a de- ceased partner does not become assets of his estate.^** 15S11 Am. & Eng. Encj^ of Law isiGondolfo vs. Walker, 15 O. S. 836 2 ed. 2.51. 159 Grant vs. Bodwell, 78 Me. 460; losDiehl vs. Diehl, 3 Bull. 298. Rogers vs. Hossack, 18 Wend. 319. i63 Bain vs. Wick, 14 0. S. 50.^; 160 See 11 Am. & Eng. Ency. of Dorah vs. Dorah, 4 0. S. 292. Law 84.5 2d ed.; Woerner on Admin. ig4 n Am. & Eng. Ency. of Law, 646. 837 2d ed. §394 ASSETS CONCEALED OB EMBEZZLED 330 CHAPTER XXII. ASSETS CONCEALED OR EMBEZZLED. ! 394 Nature of proceedings. 395 Proceedings when property of estate concealed or embez- zled. i 395a When probate may reserve case to common pleas. i 396 Kind and scope of proceeding. i 397 Jurisdiction of court, etc. i 398 Complaint, etc. i 399 Parties. i 400 Form of complaint. i 401 Entry ordering citation, etc. i 402 Imprisonment for disobeying citation. i 403 Party failing to appear or re- fusing to answer. i 404 Form of commitment to jail. : 405 Examination to be in writing. 1 406 Examination of witnesses to be in writing, etc. §407 §408 §409 §410 §411 §412 §413 §414 §415 Comments, Form of examina- tion. Judgment of Court thereon. Lien. Trial. Jury. Trial issues. Verdict, etc. Judgment. Transcript to be filed in Com- mon Pleas and execution is- sued. If judgment in favor of the State, when prosecuting at- torney to attend to it. Conveyances to evade these proceedings void. § 394. Nature of proceedings. In addition to the ordinaiy remedies given to an administra- tor or executor to recover assets belonging to the estate of a deceased person, the legislatures of the various States have provided summaiy proceedings. They do not take away tlie ordinary remedies, but are intended to provide a more speedy and less expensive mode than by the original remedies, of bill of discovery, replevin, and other actions at law. The statutes of no two States seem to be exactly similar, ex- cept that they are made to apply where the party conceals or embezzles, or wrongfully conveys away, property that belongs to the estate of a deceased. The statutes of our State have un- dergone a considerable change from their original wording. 331 NATURE OF PROCEEDINGS 394 At first ^ it was only contemplated that the party should be called before the Court and his evidence reduced to writing, evidently preparatory to some other proceeding. This section was extended by the act of 1853,^ to provide for a regular hearing, and if the party was found to have concealed or em- bezzled, or conveyed away, assets, to render a judgment for the amount of the same, and the Court afterwards,^ having found that the law was unconstitutional, it providing for a judgment to be taken without a right to trial by jury, the statute was amend- ed, permitting the question raised to be tried by a jury. And later,* the Court having held that an action could not be brought against an administrator or executor, the statute was again amended to include and permit the action to be brought against an embezzling administrator. The reported decisions upon this kind of proceeding are very meager in Ohio.^ 1 See § 239 of the act of March 23, 1840; Curwen Statutes 755. 2 0. L. vol. 51, 354. 3 Howell vs. Fry, 19 O. S. 556. * Meinzer vs. Bevington, 42 0. S. 325. 5 The object of the proceeding is two fold, — a discovery of personal property to the end that the repre- sentative may obtain immediate poa- session; or to the end that it may be included in the inventory, but cannot be so included because the party proceeded against refuses to impart knowledge or information concerning the same. It is certain- ly not the object of the proceeding to enable the representative to collect debts due the decedent, and was not intended as a substitute for ordi- nary civil remedies in cases where the latter are appropriate. Redf. Sur. Prac. 463. In Illinois the statute was con- strued as including property of the estate coming into the hands of the party charged since the death of the decedent; such as money collected on securities of the deceased when the securities themselves were taken during his lifetime. Blair vs. Sen- nett, 134 111. 78. But in a later case the Court said that the " doctrine of that case should be limited to the facts there- of, and its language should be quali- fied so as to conform to such facts; " and it was held that the statute was inapplicable to compel the pro- duction of proceeds of collections made by an attorney for the admin- istrator. Dinsmoor vs. Bressler, 104 111. 211. " The remedy was cumulative to these, and the only change it intend- ed to introduce from an ordinary trial involving the ownership of property was to enable the Court to compel the person charged with hav- ing the property to discover on oath whether he had property in posses- sion." Per Walker, J., in Wade vs. Pritchard, 69 111. 279. See also Martin vs. Martin, 170 111. 18, 27. The object is a discovery to the end that measures may be taken in § 395 ASSETS CONCEALED OR EMBEZZLED 332 § 395. Proceeding's when property of estate concealed or em- bezzled. ' ' Upon complaint made to the probate court or the common pleas court of any county, by the executor, administra- tor, creditor, devisee, legatee, heir or other pereon interested in the estate of a deceased person, or by the creditor of any devisee, legatee, heir or other person interested in such estate, against the executor or administrator of such deceased person, or against any person suspected of having concealed, embezzled or con- veyed away moneys, goods, chattels, things in action, or effects of such decedent the court shall cite such executor, administrator, or other person suspected, forthwith to appear before it to be examined, on oath, touching the matter of the complaint." [R. S. §6053.]« 395a. When probate may reserve case to common pleas. "When complaint is made to the probate court and a jury is demanded by either party, the court may forthwith reserve the case to the court of common pleas for hearing and determina- tion, and it thereupon shall proceed in all respects as though the complaint had been originally made therein." [R, S. 6053.J«* § 396. Kind and scope of proceeding. It is generally held that it was not the intention of the legis- lature to confer upon the court in the way of a proceeding brought under the above section, the power to try the right of title to property or recover a money judgment therefore, except where the party charged in a complaint made, is guilty of hav- ing concealed, embezzled or conveyed away some property be- longing to the estate of the deceased. If it can not be ascer- tained that the party is guilty of one of these three things, no judgment can be rendered. Therefore if the party charged with having concealed, embezzled or conveyed away the prop- erty, produces such property and claims an ownership therein, no judgment could be rendered against him in this kind of the proper court for its recovery; plaintiff. Leonard vs. State, 20 0. the Probate Court is not such a C. C. (N.S.) 340; 3 O. App. 313. court. Dodge vs. ^leXeil, 62 N. H. It is now held that the statutes 168. See § 1586, Assignments. of Ohio, as thev now stand, provide 6 § 10673 G. C. for the trial of 'the right of property The purpose of this section is to in the Probate Court, and proceed- provide a speedy remed}\ 'Leonard ings before that court pursuant vs. State, 3 0. App. 313; 20 C. C. thereto may be pleaded in bar to an (N.S.) 340. action in another court to try title 6* § 10674 G. C. to or riglit of possession of the prop- This section does not authorize erty involved in the proceedings. proceedings against an administra- Tibbott vs. Cadish, 28 0. C. A. 48L tor or executor by a creditor of Motion to certify overruled in Su- heir. ]\Iemzer vs. JBevington, 42 O. preme Court May 18, 1916. The S. 325. court bases its decision on In re The burden of proof is on the Huffman, 132 Mo. App. 44. 333 JUKISDICTION^ ETC. § 397 proceedings. The administrator or executor would be com- pelled to resort to other remedies provided by law.^ If, however, the party charged is found guilty of having con- cealed, embezzled or carried away property of the deceased, then a judgment may be rendered for its full value. The pro- ceedings is somewhat similar to a bill of discovery, wherein it provides tliat the party charged may be brought before the Court, both to answer concerning the property which he is charged to have had, and to siiffer imprisonment if he refuse to answer. It is much more expeditious than some of the or- dinary and usual proceedings, and is int-ended no doubt to be used where the party charged is wrongfully eluding the vigi- lance of an interested person in ascertaining the wherabouts and value of the property of the deceased. And so the power is given to order the party to appear and answer at once with- out giving him notice, for by having notice he may further con- ceal or put away property which it is sought to recover for the benefit of the estate.* § 397. Jurisdiction of court, etc. The action may be brought in either the Probate Court or the Common Pleas Court of any county in the State in which the defendant can be served with process. There are no lim- itations as to what county in the State action shall be brought. There might often exist good reasons for permitting the action to be brought wherever a person charged might be found. The nature of the act is such that it may be presumed that the party will endeavor to elude any process which may be brought to compel him to divulge the sought for information, and that if he is base enough to embezzle or defraud the estate, he will also endeavor to keep out of the reach of the law. And for that reason the statute no doubt purposely has permitted the action to be brought in any county of the State; and there being no other limitation, we may presume that it may be brought in any county where the defendant can be served. If a jury is demanded ~ fSee Woerner on Admin. 679. * See Jennie Tibbott, Admr., vs. All personal property vests in the Cadish, 32 O. C. A. 161, where it administrator from the time of the is held that the court has the right death of decedent. Sullivan vs. to try the title to the property, and Sullivan, 12 0. L. R. 224. the judgment rendered is binding No action will lie in equity to upon any other court on the ques- recover heirlooms, etc. Ireland vs. tion as to title to the property. Loomis, 17 C. C. 37; 9 C. D. 393. § 398 ASSETS CONCEALED OR EMBEZZLED 334 and the action is brought in Probate Court, the Court may re- serve it, to the Common Pleas, where the same proceeding shall be had as if it were originally brought there; and it seems that if a judgment is rendered in the Probate Court, a tran- script shall be filed in order to make the finding effective in the Court of Common Pleas. § 398. Complaint, etc. The statute does not prescribe in what manner the complaint shall be made or what it shall contain. But as it is expected that the Court will act upon the filing of this complaint, it should set forth sufficient facts to make out a prima facie case of the matter charged. While the proceedings might not be fatally defective for want of proper allegations in the com- plaint, yet no case is such that the complaint really ought not to contain all the substantial allegations required to sustain the action. It ought to set out, in addition to the names of the parties, the kind, nature, character and value of the property that the person charged with having concealed, embezzled or conveyed away, has had in his possession. It also ought to state, if possible, whether he is charged with having concealed, or with having embezzled, or with having conveyed away such property. In other words, the defendant ought to be able to ascertain from the complaint just what he is charged with. It ought to be sworn to. Of course the affidavit need only be upon information and belief. It ought to set out the character and the interest of the person making it.* In Harris vs. Westervelt,^'^ it was held that it was not im- proper to join in one proceeding an application for the recovery 8 If the affidavit alleging conceal- trial de novo, it is too late to file an ment or embezzlement do not affir- amended affidavit by the administra- matively show that the party mak- tor, who has not before appealed. ir)g it has an interest in the estate But the affidavit may be amended in it is defective and gi\^s the Court the Probate Court. Woerner citing, no jurisdiction of the person com- Shaw vs. Groomer, 60 Mo. 495 ; plained of; and where the defendant Wade vs. Pritchard., 69 111. 279; in such case appeals to the Common Blaid vs. Sennett, 134 111. 78. Pleas Court, in which there is a lo 15 c. C. 534; 8 C. D. 367. 335 PARTIES IN PROCEEDING § 399 of assets of an estate and for the removal of the administrator of such estate. It seems to me, from the reading of that case, that it was not in fact a joinder of two causes of action, hut that it might very properly have been considered to have been an action brought to recover concealed assets. The matter of removing the administrator, follows, by virtue of the statute, which provides that if he is found guilty of such charge, he must be removed by the Probate Court. § 399. Parties. The statutes providing for these proceedings being penal as well as summary, are to be strictly construed. Therefore no one can bring the proceedings who does not come within its terms. Neither can they be brought against any one not speci- fically mentioned therein. Therefore, before the section was amended in its present form, the Supreme Court held no such action could be maintained against an executor or adminis- trator.'' And, in another case, it was held that a party was not liable who merely assisted another to get possession of the property, and who did not then have any control over it.^^ It would seem therefore, before a judgment could be ren- dered against anyone, the person must have at some time held the property subject to his own control.'^ It will be observed that the statute gives to the executor, ad- ministrator, creditor, devisee, legatee, heir or other person in- terested in the estate, the right to maintain the action. That it may be brought against the executor or administrator, or any person or persons suspected of having concealed, embezzled 11 Meinzer vs. Bevington, 42 O. S. do. It was held that the mere fact 325. that the other heirs anticipated in 12 Jn re Sattler, Goebel 183. the division of the bonds, did not 13 In the case of In re Sattler's make them liable for the amount of supra the deceased divided certain the bonds they had agreed might be bonds among his children; they met turned over to the heir who refused and divided them. Afterwards a ci- to surrender them to the adminis- tation was brought to compel them trator. The Court rendered judg- to turn them over to the administra- ment, however, against such refus- tor. One of the heirs refused so to ing heir. § 400 ASSETS CONCEALET) OR EMBEZZLED - 336 or conveyed away the property. The proceedings cannot be maintained by one of two administrators against the other, for the reason that each of them has full control of the assets. Where the action is brought by two or more administrators, all of them should be made parties. § 400. Form of complaint. {Title.) The undersigned A. B. (here state whether the party making the com- plaint is executor, administrator, creditor, devisee, legatee, heir of the deceased, or if he is interested in any manner, he should set out in what manner he is interested). And respectfully represents that he has good cause to suspect and does verily believe that C. D. of said county has (here state whether he has concealed, embezzled, or conveyed away) certain goods, chattels, and effects of said deceased. The same being to the best of his knowledge and belief is as follows: (Here describe the article or whatever it may be that is charged to have been concealed, embezzled, or carried away.) In fraud of the rights of the undersigned and others interested in said estate. Wherefore he asks that a writ of citation may issue against said C. D. that he may be compelled to answer under oath, touching the matters of this complaint, that such other proceeding may be had in the premises as is authorized by law. Sign. State of Ohio, County, ss. A. B. being duly sworn says that the allegations of the above complaint are true, as he verily believes. Sign. Sworn to and subscribed before me and in my presence, this day of § 401. Entry ordering citation, etc. While the statute does not contemplate a hearing upon this complaint before a citation is issued, and while there is nothing said as to the evidence required before the judge is to act, yet the statute being analogous to the one in New York, in which it is required that before the judge issues a citation, he must be satisfied of the truth of the complaint ; it may be said that a safe rule to be followed in our State would be, that the Court should be satisfied that there is good cause for issuing the cita- tion before it is done. ISTo one in this summary manner should be dragged into court without at least some evidence of a cause 337 CITATION, ETC. § 402 against liira.^* The Court having determined to issue a cita- tion, the following may be used as an entry : FORM OF ENTRY. (Title.) This day came A. B. and filed herein his complaint, praying that a cita- tion be ordered against C. D. to appear in this court to be examined, touching his alleged (here state what the charge is) of certain effects of the estate described in said complaint; and it appearing to the court that a citation should issue thereon; therefore it is ordered that a citation be issued and directed to the sheriff of county, ordering the said C. D. to appear before this court for (here mention a day) to be examined, touching his alleged concealment (or other matters charged). FORM OF CITATION. (Title.) To the Sheriff of said County, greeting: Whereas complaint has been made to the Probate Court of said county against C. D., charging him with having concealed (embezzled or conveyed away) the assets of the estate of E. F., deceased. You are, therefore, required to summon the said C. D. to appear before said court forthwitb (or if special time fixed by the court, so state )to be examined on oath, touching the matter of said complaint. Hereof fail not; and of this writ make legal and due returns. Witness my signature and seal of the Probate Court. Probate Judge.is §402. Imprisonment for disobeying citation. ''If a per- son so cited, refuses or neglects to appear and submit to an examination, or refuses to answer interrogatories lawfully pro- pounded, the court issuing the citation shall commit such person to the jail of the county, there to remain in close custody until he submits to its order and direction in that behalf." [R. S. §6054.]" 1* It is said that the allegations lief, without disclosing any fact, is on the part of the petitioner may be fatally defective. Delay in making exclusively on information and be- the application, e. g., eleven years lief, without disclosing the sources after decedent's death, will defeat or grounds thereof; the only pre- it; especially where the application requisite to the issuing of a cita- is apparently for inquisitorial pur- tion being the satisfaction of the poses only. Redf. Sur. Prac. 465. Surrogate that there are reasonable is This citation must be served grounds for the inquiry. But a pe- and returned, the same as summons, tition only stating petitioner's be- le § 10675 G, C. § 403 ASSETS CONCEALED OR EMBEZZLED 338 § 403. Party failing to appear or refusing to answer. If a party fail to appear, tlie Court may, by attachment, order him to appear,^' or it may proceed and order his impris- onment. If he appears and refuses to answer, he may be im- prisoned. The entry may be as follows: {Title.} This day came E. F. before the court upon a citation heretofore issued, and the following interrogatories were propounded to him, touching the charge against him (here state the interrogatories) and the said E. F. refuses to answer the same. Therefore it is adjudged by the Court, that the said E. F. be committed to the jail, and there to remain in close custody until he shall submit to answer or otherwise be legally discharged. § 404. Form of commitment to jail. State of Ohio. County, ss. In Probate Court. To the Keeper of the Jail of said County, Greeting: Whereas the day of , C. D. having been legally brought before said court for examination touching, an alleged (here statb them ) by him of certain goods, moneys and things, in action of the deceased late of said county. The following interrogatories were propounded to him (here state which he refuses and still refuses to answer, contrary to the statute in such cases made and provided ) . Wherefore he has been ordered by said court to be committed to the jail of said county, there to remain in close custody until he shall submit to the order and direction of the court in that behalf. You are therefore commanded to receive the said E. F. in your custody in the jail of the county aforesaid, there to remain until he shall submit to the order and direction of the court aforesaid, or till he be discharged by due course of law. Given under my hand and seal of said court, on this .... day of Sign.i8 § 405. Examinations to be in writing. ' ' Such examinations, including questions and answers, shall be reduced to writing, signed by the party examined, and filed in the court before which they were taken." [R. S. § 6055.] ^^ § 406. Examination of witnesses to be in writing, etc. ' ' If required by either party, the probate court shall swear such 17 If he fails to appear he is guilty is See § 5648 R. S., As to release of contempt and may be proceeded from imprisonment, against accordingly. i9 § 10676 G. C. 339 EXAMINATION, ETC. § 407 other witness or witnesses as may be offered by either party touching the matter of such complaint, and cause the examina- tion of every such witness, including questions and answers, to be reduced to writing, signed by the witness, and filed as afore- said." [R. S. §6056.] 20 § 407. Comments. Form of examination. Under the present fonn of the statute, which provides that the matter in controversy may be tried by the Court, or by the jury, the utility of the provisions of the above sections requir- ing examination to be reduced to writing, are not very ap- pai'ent, but when we consider the two-fold character of the pro- ceeding, that is, one as an action for discovery and the other as one to recover a judgment for the value of the property, it becomes clearer. Our administration laws were taken from the statutes of Massachusetts, and in that State the proceeding is treated niore in the nature of an auxiliary one, and therefore evidence in a case of this character might justify the adminis- trator or other party to pursue an action at law to recover the articles or the value of the articles embezzled. And so, when testimony is reduced to writing, the administrator might, if the discovery is sufficient, find it more to the interest of the es- tate to proceed in an action at law, and recover the specific ar- ticles by an action of replevin, than to proceed and get a judg- ment against an offending party. It is provided in some States that the Court may make an order directing the turning over of the specific articles found in the possession of the of- fending party. But our statute contains no such provision. ^^ 20 § 10677 G. C. to render the judgment. If the ex- 2t Welch, J. We think the Court aminations showed that the defend- of Common Pleas erred in ordering ant assented to the truth and jus- the written examination to be strick- tice of the charges, the court had au- en from the transcript. They are a thority to render the judgment. very important part of the proceed- Howell vs. Fry, 19 O. S. 556. ing, and, indeed, the only part which The following are comments upon the statute directly requires to be the Massachusetts statute: "The recorded. Without them it is im- authority given to the Probate Court possible to say whether the court by the above provisions, extends only had jurisdiction, it is impossible to to an examination for the pxirpose find anything which gave it power of discovery. No other power is giv- § 408 ASSETS CONCEALED OK EMBEZZLED 340 FORM OF EXAMINATION. State of Ohio, County, ss. In matter of the Estate of E. F., deceased. C. D., being first duly sworn by me to make true answer to such questions as may be legally propounded to him, touching the matter of the complaint in the case, deposes and says: Question ? Answer Signed. § 408. Judgment of Court thereon. Lien. ' ' By the verdict of a jury, if either party requires it, or without, if not required, the court shall determine whether the person or persons accused is or are guilty of either having concealed, embezzled or con- veyed away moneys, goods, chattels, things in action or effects of such deceased persons, and if found guilty, the amount of damages to be recovered on account thereof. In all cases except when the person so found guilty is the executor or administrator of such deceased person, the court forthwith shall render judg- ment in favor of the executor or administrator, or if there be no executor or administrator in this state, in favor of the state, against the person or persons so found guilty for the amount of the moneys or the value of the goods, chattels, things in action, or effects so concealed, embezzled or conveyed away, together vnih ten per cent, penalty and all costs of such proceedings or complaint, which judgment shall be a lien upon the real estate of the person or persons against whom it is rendered within the county from the rendition thereof. If the person so found guilty is the executor or administrator of such deceased person, the court forthwith shall render like judgment in favor of the state against him for such amount or value, together with penalty and costs as aforesaid." [R. S. § 6057.]-^ Judgment a lien. "Such judgment shall be a lien upon the real estate of the executor or administrator, within the county from the rendition thereof. The probate court must forthwith remove such executor or administrator and commit the administration of the estate, not already administered, to en. The examination is not to be Smith Probate law 157. controlled by other evidence, nor can Under our statute the Probate relief be directly granted upon it Court can render judgment and by any decree of the Probate Court. grant full relief. Tibbott vs. The process can only result in a Cadish, 2S 0. C. A. 481. disclosure of facts to serve as the basis of the proceedings." 341 TKIAL JUKY, ETC. §409 some other person or persons. The executor or administrator so removed, shall not receive compensation for acting as such, and must be charged in his account with the amount of such judgment. His property also shall be liable for the satisfaction of the judgment on execution issued thereon by his successor, who, when the judgment is rendered by the probate court, must file a transcript with the clerk of the common pleas court and cause such proceedings to be had as are contemplated in the next following section." [R. S. § 6057.] -^3* § 409. Trial. Jury. If the party appearing before the Court desires the matter to be tried by a jury, then it would b© the duty of the Court to order tiie empanelling of a jury ; and the trial would then pro- ceed as an ordinary jury trial or the court may reserve the case to the Court of Common Pleas. Section 10174 G. C. (§395a). If no such jury is demanded, the court will proceed to hear the case. Whether or not where a cause is being tried by the court or jury, on the issue of guilty or not guilty of the charges made in the complaint, the testimony must be reduced to writing and signed by the party, is a very serious question. But as most courts are now provided with official stenographers, or if not so provided, the testimony can easily be reduced to writing; it would be the safer course to have it reduced to writing. The entry ordering a trial by jury may be as fellows: (Title.) This day this cause came on to be heard and E. F, having demanded a jury to try the issue thereon, it is ordered that a notice issue to the clerk of the Court of Common Pleas, and the sheriff of county, to draw 12 names from the jury box to serve as a jury herein as provided by law; that said clerk certify the names of the list so drawn in the order in which they are drawn to this court, and that venire issue for said jurors, returnable as required by law that they appear in this court on the day of , at o'clock, for the trial of said cause.24 ORDER TO DRAW JURY. Probate Court County, Ohio. vs To the Clerk of the Court of Common Pleas and the Sheriff of County: 23 § 10678 G. C. Tt Avould be unconstitutional not 23* § 10679 G. C. to pive opportunity to have a jury 24 As to jury proceedings, etc., trial. Howell vs. Fry, 19 0. S. 556, §§ 1702, 1761. § 409 ASSETS CONCEALED OR EMBEZZLED 342 You are hereby notified and directed, forthwith on the receipt hereof, to draw .... names from the box containing the names of persons selected as jurors for the county, to serve as jurors in the Probate Court of said County, and the clerk aforesaid will return to me this writ with a list of the names so drawn endorsed thereon. Witness my hand and the seal of said Probate Court, this day of A. D. 190... Probate Judge. CERTIFICATE OF JURORS. The State of Ohio, County, ss. Court of Common Pleas. To the Honorable Probate Judge of said County, Greeting: Pursuant to your notice of 190. ., I have with the sheriff of said county, on this day of 190 . . , drawn, according to law, the following names from the box containing the names of persons selected as jurors for the County, to-wit: (Here insert names and residences of jurors drawn). Witness my signature and the seal of the Court of Common Pleas of said county, this day of 190 .. . Clerk. By Deputy Clerk.* VENIRE FOR JURY, IN PROBATE COURT. The State of Ohio, County, ss. Probate Court. To the Sheriff of said County, Greeting: We command you that, without delay, you summon (here insert names and residences of jurors summoned) to be and appear before the Probate Court of said County of at the court house within and for said county, on , the day of A. D. 190. ., at o'clock. . .M., and so from day to day until discharged, then and there to serve as jurors; and how you shall execute this writ make appear to our said court on the day above named, and have you then and there this writ. *(a) In Municipal Appropria- (d) In Criminal case, §§ 6466, tion case. Sec. 2240, or Municipal 5167, twelve are to be drawn. Damages case, § 2317, twelve, or Note. — After the clerk of Corn- such less number as may be agreed mon Pleas Court has certified the upon by the parties are to be drawn. above list to the Probate Judge the (b) In Drift removal case, § venire for them is to be issued by 4577, or Road case, §§ 4628 and the Probate Judge. (§§ 4465, 4700, twelve are to be drawn. 6466.) (c) In County Ditch case, § 4465, sixteen are to be drawn. 343 TRIAL ISSUES § 410 Witness my signature as judge and ex-offieio clerk of said court, at this day of 190 .. . Probate Judge and ex-officio Clerk of the Probate Court. By Deputy Clerk. The State of Ohio, County, ss. Sheriff's Office, 190. , On the day of 190 . . , I received this venire and served the same on the several persons therein named, at the times and in the manner placed opposite their names endorsed hereon. (Here insert tames of jurors drawn, when served, how served, and number of miles dis- tant from court house.) , Sheriff. § 410. Trial issues. The issue in a trial of a matter provided for under sections of the General Code commented on, in this chapter is, was the party who' has been cited to appear before the Court guilty of having concealed, embezzled or conveyed away any of the money, goods, chattels, things in action, or effects of the de- cedent ? If the party is not guilty of having either concealed, or embezzled, or conveyed away any such property, then no judgment can be rendered against him, and the proceedings should be dismissed. The statutes of IsTew York provide that, if the party files an answer duly verified, claiming to own the property or have a lien thereon, that it would be a good defense to the action. Our statute does not so provide, but if on trial it be shown that the party offending holds the property by vir- tue of a claim of ownership, or some other legal cause for so doing, he cannot be found giiilty of charges made, of conceal- ing, embezzling or conveying away, etc. The exceptions might be in the case where the party charged had conveyed away the property ; then it would be no defense to merely claim an own- ership. But if he proved an ownership, he could not be found guilty of having conveyed away property of the deceased ; and in this way the title of the property might be tried in these proceedings. But where it is sliown that the defendant still holds the property unconcealed and unappropriated to his own use, the action should be dismissed and the administrator pro- § 411 ASSETS CONCEALED OR EMBEZZLED 344 eeed at law to recover the property. If the verdict of the court or jury be that the offending partj^ is guilty, then the court should render up judgment as provided in the statute. In such case they should then also find the value of the property concealed, embezzled or conveyed away. The burden of proof is on the plaintiff.-*^ § 411. Verdict, etc. If the case is submitted to a jury, the usual proceedings per- taining to a jury trial can be followed; and the general practice applicable to such trials would be applicable to a proceeding under this chapter. Form of verdict may be as follows : (Title.) And the said jury being empaneled in this cause, do upon their oath aforesaid, say that said C. D. is guilty as charged in the complaint filed herein; and the said jury do assess the value of the property so concealed (embezzled or conveyed away) at dollars. , foreman. The entry upon the return of such verdict may be as follows : (Title.) Now comes the said parties by their attorneys, and thereupon came the jury, to-wit: (here insert names of jury) who being empanelled and sworn the truth to speak, upon the issue joined between the parties, having heard the evidence and arguments of counsel upon their oath aforesaid say (here copy the verdict). (If the motion for a new trial is filed, nothing further should be dene until that is disposed of. If the court is informed that no motion for a new trial will be filed it may proceed to render judgment as provided in the following section. ) § 412. Judgment. If the verdict of the Court or of the jury be that the offend- ing party is guilty, then the Court shall forthwith render judg- ment for the amount or value of the goods concealed, embezzled or conveyed away. If the case is tried by a jury, undoubtedly the jury should find the value of such property. The Court will add the penalty. If the application is filed against an ex- ecutor or administrator in the same court which made the ap- pointment, the judgment should also be entered removing the executor or administrator ; for, if he is found guilty, the statute 24a Leonard vs. State, 3 0. App. 31.3; 20 0. C. C. (X.S.) 340. 345 JUDGMENT, ETC. § 412 seems to be mandatory in requiring his removal. The follow- ing may be used as forms of entries: FORM OF ENTRY WHEN SUBMITTED TO COURT. (Title.) This day this cause came on to be heard upon the complaint of A. B., charging C. D. of having concealed (embezzled or conveyed away) the property, goods and cliattcls belonging to the estate of E. F., no jury having been demanded by eitlier party; and the same was submitted to the Court upon the testimony of the said C. D. and other witnesses, and the arguments of counsel. Whereupon Court finds that the said C. D. is guilty of having concealed (embezzled or conveyed away) the following described goods and chattels belonging to the estate of the said E. F. (here describe the same). And the Court further finds the value of said property to be dollars.* It is therefore considered and adjudged by the Court that the said G. H., administrator of the estate of E. F., deceased, recover against C. D. said sum of dollars, with 10 per cent, penalty thereon, amounting to dollars, costs of this proceeding taxed at dollars. If the judgment be against an administrator or executor, it may be in the following form, commencing from the star in the above : It is further considered and adjudged by the Court, that the State of Ohio, for the use of the estate of E. F., deceased, recover against the said A. B. the sum of . . dollars, and the cost of this proceeding taxed at dollars. And it is further ordered by the Court that the said C. D., administrator, be removed from his said trust, and that he be required to file an account herein within days. If the case was submitted to a jury and the verdict rendered by them, the following form of entry may be used : (Title.) This cause having been submitted to a jury, the same having been demanded by , and the jury having found the defendant guilty, and assessed the value of the property by him concealed (embezzled or conveyed away) at dollars, and the said defendant hav- ing filed his motion for a new trial, which was submitted to the Court and by the Court overruled, it is now further considered and adjudged by the Court that the said C. D., administrator of the estate of G. II., recover against the said A. B. the said sum of dollars, witli 10 per cent, penalty thereon, amounting to dollars, costs of this proceeding taxed at dollars. § 413 ASSETS CONCEALED OR EMBEZZLED 346 If the administrator or executor is an offending party, then beginning from the star down should be changed in the preced- ing form. § 413. Transcript to be filed in Common Pleas and execution issued. "The executor or administrator in whose favor such a judgment has been rendered by the probate court, may forth- with deliver to the clerk of the common pleas court in the county, an authenticated transcript which the probate judge on demand of such personal representative shall make out and deliver to him. On such transcript the clerk forthmth must issue an execution of the common pleas court for the amount of the judgment and costs, and the costs accrued, or that may accrue thereon. Thenceforth proceedings on execution shall be the same as if the judgment had been rendered in such court." [R. S. §6058.]'^ ^ 414. If judgment in favor of the State, when prosecuting attorney attend to it. "If such judgment is rendered in the name of the state, and there is no executor or administrator ■wdthin this state, the prosecuting attorney of the county must cause the transcript to be filed in the clerk's office, and proceed thereon to execution as before provided. He shall pay the money realized upon such execution to the treasurer of the county, for the use of such estate, reserving such compensation only to him- self as the probate court allows/' [R. S. § 6059.] -« § 415. Conveyances to evade these proceedings void. "All gifts, grants or conveyances of land, tenements, hereditaments, rents, goods or chattels, and all bonds, judgments or executions, made or obtained with intent to avoid the purposes of these pro- ceedings, or in contemplation of anv such examination or com- plaint, shall be void and of no effect." [R. S. § 6060.]-* 25 § 10080 G. C. 27 § 10682 G. C. 26 § 10681 G. C. 347 PARTNERSHIP ASSETS .§416 CHAPTER XXIII. PARTNERSHIP ASSETS. § 416 Hight at common law. § § 417 Duties of surviving partners. § 417a Foreign executor or admin- istrator. § § 417b When surviving partners may make application. § § 418 Where and by whom ap- plication to be made. § § 419 Application. § § 420 Entry ordering notice, etc. § § 421 Form of notice of hearing § application for appointment of appraisers. § § 422 Form of entry ordering ap- praisement. § § 423 Form of inventory and ap- praisement. § 424 Entry confirming appraise- ment, etc. § 425 Oath. Inventory, how made, etc. § 426 When executor, etc., to have appraisement made. § 427 When survivor may purchase partnership property. § 427a Bond of surviving partner. § 427b When survivor refuses to purchase. § 427c Will may define manner of settlement. 428 Application of surviving partner to take at an ap- praisement. 429 Form of bond of surviving partner. 430 Entry of court approving election, etc. 430a When bond to be filed. 430b Evidence of notice. 430c Presentment of claims. § 430d Account of surviving part- ner. § 430e Discharge of surviving part- ner and sureties. § 430f Where surviving partner elects •'•> take after giving bond. § 431 When partner fails to take. § 432 When statu^ does not ap- § 433 Right of surviving partner. § 434 Where executor is surviving partner. § 435 Executor continuing the business. § 436 Administrator carrying on business. § 437 How partnership real estate to be conveyed. § 438 What is partnership real estate. § 439 Form of executor's deed. §416. Right at common law. At common law the surviving partner, in the absence of a contract to continue the partnership after the death of a de- ceased partner, has the sole right to wind up the business and whatever remains in his hands after the partnership is clased up, and nothing more, is an asset which could be collected by an administrator. Unless the contract so provided, the admin- istrator had no authority whatever over partner.ship assets. Neither has the administrator now any right, even by consent of the surviving partner, to participate in the business of the partnership, unless the contract of partnership gives such a right, or the will of the decedent so provided.^ The common law is still in force in Ohio unless abrogated by statute.*' In Applies to both the professional and commercial partnership. Cham- pion vs. Williams, 2 N. P. 329; 2 Dec. 388. Does not abolish right of sur- viving partner when so directed by will to continue partnership. Cov- inpton Bank vs. Wight, 4 N. P. 173: 6 Dec. 3.52. Surviving partner does not become owner until statute is complied with. Phoenix Ins. Co. vs. Callahan, 63 0. S. 265. a See § 8092 G. C: S 427c. b Insurance vs. Callahan, 19 O. C. C. 97; 11 C. D. 225; .Tones vs. DeCamp, 2 N. P. (N.S.) 169. § 417 PAETNERSHIP ASSETS 348 order to protect the estates of deceased persons and give to its legal representative the power to speedily settle up the affairs of the partnership, as well as to protect the rights of the surviving partner, the sections of the General Code in this chapter were passed by our legislature. It was for the benefit of the deceased person's estate, rather than for the remaining partner, that these laws were enacted/ These provisions, probably, do not oust the jurisdiction of a court of equity to wind up a partnership which has been dis- solved by death. Neither do they deprive the surviving part- ner of his right over the partnership property until a receiver is appointed, or he accepts the privileges of the statutes and takes the property at the appraisement.- It will not be within the scope of this work to enter into an extended discussion of the rights of a surviving partner of a deceased.^ §417. Duties of surviving partners. "When a member of any partnership in this state dies, the surviving partner or part- ners, upon the appointment of an executor or administrator of the estate of such deceased partner, shall, forthwith, make appli- cation to the probate court of the county in which the partner- ship existed, upon first giving notice of the time of the hearing of such application to the executor or administrator, for the appointment of three judicious disinterested appraisers, who shall make out, under oath, a full and complete inventory and appraisement of the entire assets of the partnership, including any real estate, together with a schedule of the debts and lia- bilities thereof, and deliver it to the surviving partner or part- ners, to be by him or them forthwith filed in the probate court of the county in which such appraisers were appointed. ' ' [R. S. §3167.]* 1 Remmelsberg vs. Mitchell, 29 0. In re Estate of Crane, 29 Bull. S. 22. 93: 4 Dec. 398. 2 In Ohio the statute is entirely ^ See Champion vs. William, 2 N. silent as to what shall be done with P. 329 ; 2 Dec. 388. the firm's property between the See § 382, As to what constitutes death of the partner and the ap- good will, etc. pointment of a receiver. At com- ^ § 808.5 G. C. This and the fol- mon law, the right of the surviving lowing sections provide the method partner to administer upon the part- wherebj^ partnerships are to be nership estate, is not taken away wound up when one partner dies, from him except upon one contin- and it is exclusive of any rights gency, that is. when he offers to buy which the partner may have had at the interest of the deceased partner. common law. Insurance vs. Carna- Until that contingency happens, the ban, 19 0. C. C. 97: 11 C. D. 225, surviving partner, and no one else, and the rights of decedent's estate has the possession and control of and of surviving partners are de- . the partnership property, subiect, of fined in this and the following course, to equitable rights of the rep- sections. Jones vs. DeCamp. 2 N. resentatives of the deceased partner P. (X.S.) 169. But just bow far and of the firm's creditors to see the will of a deceased partner con- that the duties of the surviving part- trols has never been judicially de- ner are properly performed. Pugs- termined. lev. J. 349 APPLICATION FOlt xVPPR.\ISEMEJSrT § 417a § 417a. Foreign executor or administrator. "When the executor or administrator is ai)pointed in a county other than that in which the partnership existed, a certified copy of such inventory and appraisement must be forthwith filed by such surviving partner or partners in the probate court of thac county, and it shall be docketed under the settlement of the estate of the deceased partner. When the whole, or a part of the assets of such partnership consists of real estate, it shall be inventoried and appraised upon a separate schedule, which schedule must be recorded in the record of inventories in such court." [R. S. §3167.]'* § 417b. When surviving- partners may make application. If the person or persons entitled to administer upon the estate of such deceased partner, fails or neglects for thirty days after his death, to take out letters testamentary or of administration, such surviving partner or the partners may make application to the proper court and cause the estate of the deceased to be admin- istered upon." [R. S. § 3167.] ^t § 418. Where and by whom application to be made. It will be observed that the preceding sections make it the duty of the surviving partner to at once,^ upon the appoint- ment of an administrator of the estate of the deceased partner, to make application to a Probate Court of the county in which the partnership is situated, to have an appraisement. This power of asking for an appraisement does not exist until there is an administrator or executor appointed. If no other inter- ested party procures the appointment of an administrator or ex- ecutor, the surviving partner may make such application and have some one appointed, provided thirty days have elapsed since the death of the deceased partner. 'No such appraisement can be had without notice to the executor or administrator. While the notice might be given before the application is filed, yet if the executor is unwilling to enter his appearance, it might be 4* § S08G G. C. It has been held that if no person 4t 80S7 G. C. entitled by law appears Avithin B The former statute allowed thir- thirty days, and takes out letters, ty days. that after that time, the court may Remmelsberg vs. Mitchell, 20 0. make an appointment without notice S. 22. to the next of kin. In re Est. of This section only gives the surviv- John W. Warnock, 1 N. P. (N.S.) ing partner the right to hasten tlie 287 (1903) ; 20 L. H. 528; 15 Cir. administration; it does not autho- D. 695. rize the same to make an appoint- It would not give him the richt ment otherwise than is provided by to be appointed administrator. see §10617 G. C. §114. Page vs. Page vs. Warnock, 1 N, P. (N.S.) Warnock, 25 O. C. C. 695. 287; 14 Dec. 278. § 419 PAKT2vEES:ilP ASSETS 350 better to file the application, and let the Court order notice to be given and set a day for hearing. If the administrator or executor makes application for the appraisement, like notice should be given the surviving partner.® The title of a surviving partner, who takes the assets of a partnership in proceedings had in the Probate Court under this act, is not vitiated by the fact that tlie appraisers were ap- pointed by the Probate Court upon the recommendation of the parties, and that the appraisers returned under oath, as their report, an inventory and appraisement previously made by tJiem at the request of the surviving partner, and the personal repre- sentative of the deceased partner.' § 419. Application. The statute does not indicate what the application should contain. But it should show the jurisdictional facts upon which the authority of the Court rests to make the order, which would be, first, that the party making the application is the sun'iving partner of the partnership existing at the deadi of the deceased ; and, second, that there has been an executor or ad- ministrator appointed. The application can be in the follow- ing form : {Title.) The undersigned, I. J., respectfully represents that he is the surviving partner of the late firm of I. J. & Co., composed of the said I. J. and A. B., 8 The first question arisincj under and accomplished by its application, this act is, do its provisions apply if the case be one in \vhich the es- in a case where the surviving part- tate is represented by an executor ner is one of the personal represen- or administrator who is not the siir- tatives of the estate of the deceased viving partner, although the sur- partner? \\'hether they would or vivor may also stand in the relation not, where the survivor is the sole of personal representative to the es- representativc. we need not now in- tate. Under our system of admin- quire. It would seem, however, istering estates, where the trust is that the statute only contemplates confided to two or more persons, any a case where a person, other than one of them may bind the estate the surviving partner, represents the without the concurrence of his co- estate. But we think, nevertheless, representatives. that the terms as well as the pur- '^ Remmelsberg vs. ^Mitchell. 29 O pose of the act may be fully satisfied S. 22; see 44 O. S. 69. 351 NOTICE, ETC. § 420 deceased, which firm were doing business in county, State of Ohio, at the time of the death of the said A. B.; and on the day of , the said A. B. died intestate (or testate) and the said C. D. has been duly appointed and qualified as administrator (or executor) of his estate and is still acting as such. Wherefore the undersigned mak^a application for the appointment of three judicious disinterested persons to act as appraisers to make a full and complete inventory and appraise- ment of the entire assets of the said partnership, including real estate, if there be any, together with the schedule debts and liabilities thereon, according to the statute in such cases made and provided; and respectfully suggest M. N., 0. P., and Q. R. as suitable persons for such appraisers. Sign. Sworn to and subscribed before me and in my presence this day f>{ ENTRY OF APPEARANCE. The undersigned, administrator of the estate of A. B., deceased, hereby enters his appearance and consents to the appointment of the appraisers, as suggested in the above application. § 420. Entry ordering notice, etc. If the administrator or executor refuses to endorse the peti- tion as suggested in the above form, or the surviving partner where the administrator makes the application, and the appli- cation is filed in the Probate Court without proof of notice having beeoi given, the following would be a suitable entry: {Title.) On this day came I. J., surviving partner of the firm of I. J. & Co., of which A. B., deceased, was a member, and filed his application in this court to have an appraisement of the partnership of the property and assets of said firm. Wherefore it is ordered that said matter be set for hearing on the day of , and that notice thereof be given to C. D., administrator (or executor) of the said A. B., of the time of hearing of said application. § 421. Form of notice of hearing application for appointment of appraisers. To You mil take Notice, That the application of "the undersigned of the late partnership of , do- ing business at in the county of , Ohio, for the appointment of three judicious, disinterested appraisers, to make out under oath a full and complete inventory and appraisement of the entire assets of such partnership, including real estate, together with a § 422 PARTNERSHIP ASSETS 352 schedule of the debts and liabilities thereof; will be for hearing before the Probate Court of County, Ohio, on , the day of , A. D. 190. . ., at o'clock. . .M. The State of Ohio, County, ss. , being duly sworn, says that on the day of A. D. 190.., he delivered to a true copy of the above notice. Sworn to before me, and signed in my presence, this day of . , A. D. 190... § 422. Form of entry ordering appraisement. ' (Title.) This day this matter came on to be further heard upon the application of I. J., the surviving partner of the firm of I. J. & Co., and it appearing to the Court that C. D., the duly appointed and qualified administrator (or executor) of t4ie estate of said A. B., has been notified of this proceed- ing, and that the said M. N., O. P., Q. R.. three judicious, disinterested persons, are suitable persons, it is ordered that they make, under oath, a full and complete inventory and appraisement of the entire assets of the said partnership, to include real estate, if there be any, together vvlth a schedule of debts and liabilities thereon, and deliver the same to the surviving partner, to be by him forthwith filed in this court. § 423. Form of inventory and appraisement. PARTNERSHIP ASSETS, ETC. Probate Court, County, Ohio. In the matter of the Estate of , deceased. No Inventory and Appraisement. Partnership of ORDER TO APPRAISERS. To..... You have been, by the Probate Court of said county, appointed appraisers to make out, under oath, a full and complete inventory and appraisement of the entire assets of the partnership of , includ- ing real estate, if there be any. together with a schedule of the debts and liabilities thereof, and deliver the same to the surviving partner or part- ners, to be by him or them forthwith filed in the Probate Court of this county in which you are appointed. 353 INVENTORY, ETC. § 423 Witness my hand and the seal of the Probate Court of said County, this day of , A. D. 190... Probate Judge. OATH OF APPRAISERS. The State of Ohio, County, &s. We, the undersigned, do make solemn oath that we will truly, honestly and impartially, make out a fu" and complete inventory and appraisement of the entire assets and liabilities of the partnership of in obedience to the foregoing ; and perform the other duties required by law of us in the premises, as such appraisers, to the best of our knowledge and ability. Sworn to before me, and subscribed in my presence this day of 190... REPORT OF APPRAISERS. To the Probate Court of County, Ohio: We, the undersigned appraisers, appointed by order of said court, have made out under oath, a full and complete inventory of the assets and liabilities of the partnership of , and return the same herewith, together with said order. Dated this day of 190... Appraisers. INVENTORY AND APPRAISEMENT. Partnership of Schedule A. Personal Goods and Chattels. SCHEDULE B. Moneys belonging to said partnership: N. B. If there is no money, state " No Money of any kind." SCHEDULE C. The fo-llowing is a particular statement of all bonds, mortgages, notes and all other securities for the paymont of money belonging to said partner- ship (which are known to the surviving partner or to the administrator or executor ) . SCHEDULE D. The following is a statement of all other debts and accounts, rights and credits belonging to said partnership (which are known to the surviving partner or partners, administrator or executor). § 423 partnership' assets 354 SCHEDULE E. REAL ESTATE. We, the undersigned appraisers, do on our oaths, and upon actual view, appraise the real estate, used in whole or in part in the transaction of the business of said partnership, hereinafter described, as follows, to-wit: Dated 190.. .. Appraisers. The following is a statement of all liabilities, debts and accounts, owing by said partnership : SCHEDULE F. partners' accounts with the partnership. INDIVIDUAL BALANCES. Due to $ Due to $ Total . Due from Due from Total STATEMENT. Appraised value of assets Add total charged partners Total Appraised liabilities Add total credited partners Add expenses of this appraisement. Total Net assets — liabilities Decedent's full share Decedent's individual balance added — de- ducted -^ we determine his net inter- est to be Date 190 Appraisers. ATFIDAVIT. The state of Ohio, County, ss. The undersigned of , late of said county, being duly sworn according to law, deposes and says that the foregoing inven- tory is in all respects just and true, that it contains a true statement of the entire assets of the late partnership of including real estate, which has come to the knowledge of said affiant, and particularly of all moneys, bank bills, or other circulating medium belonging to the said partnership; and of all just claims of the said partnership against the said affiant.., or other persons, according to the best of affiant's knowledge; together with a sched- ule of the debts and liabilities of said partnership. A. D. 190.... Sworn to before me and signed in my presence, this day of Probate Judge. 355 INVENTORY HOW MADE § 424 CERTIFICATE TO COPY FOR FOREIGN COUNTY. The state of Ohio, County. Probate Court. To the Probate Court of County, Ohio : Whereas, The executor or administrator of the within named decedent has been appointed in your said county, and whereas, the within described partnership of which said deceased was a member, existed in this county of , Ohio, therefore, in accordance with tlie laws of Ohio, requiring a certified copy of the appraisement to be filed in your court, I, , sole judge and ex-officio clerk of the Probate Court within and for said county of do hereby certify that the within is a true copy of the original inventory and appraisement now on file in this court. In witness whereof, I have hereunto set my hand and affixed the seal of said Probate Court this day of 190 .... Judge and ex-officio clerk. § 424. Entry confirming appraisement, etc. {Title.) This day came I. J. and filed herein an appraisement of the property belonging to the partnership of I. J. & Co., of which A. B., deceased, was a member, and the same appearing regular and correct is approved and confirmed. (And if the administrator or executor was appointed in the Probate Court of another county, add the following:) And it appearing to the Court that C. D., executor (or administrator) of the estate of the late A. B., was appointed as such executor (or administrator) in the Probate Court of county, and it is ordered that a certified copy of this appraisement be filed in Ihat court forthwitti, by said surviving partner.^a § 425. Oath. Inventory, how made, etc. It is very questionable whether the administrator can admin- ister the oath to appraisers of a partnership as provided by sec. 10649 G. C. (§209). Such oath may be administered by any person authorized to administer oaths in general. Whatever was said in the chapter on inventories is generally applicable to the manner in which the appraisement should be made — that is, in making out the schedule. The appraisers will often en- counter great difficulty in determining the value of the good- will of a partnership. The value of the goodwill of a business is always difficult to determine. But when the valuation is to be made, taking into consideration the rights of a surviving partner, it is still more difficult to ascertain. The surviving partner is not compelled to give up the business and may 7a The practice is not uniform as estate of decedent that it is done; to whom should bo charged the ex- others that it is a contingency penses attaching to partnership ap- known at the time the partnership praisement, etc. Some courts tax is created, to occur and it being them to the partnership, and others formed with that knowledge, the tax them against tlie estate of the costs should be assessed against the decedent on the theory that it is to partnership, the interest of the settlement of the § 425 PARTNEKSHIP ASSETS 356 continue in the same kind of trade, and the value of the in- terest of the deceased partner is limited by this fact, and the sale of the business and good will by the Court are upon the understanding that the survivor can so> continue, the purchaser getting the right of a chance of retaining the old customers.^ With this right existing in an active surviving partner, the good will of the deceased partner is of very little value. If the transfer of the interest of a partner is involuntary or Ijis retirement enforced, he may solicit the old customers. The reason is that the duty not to solicit them arises from his implied contract not to detract from what he has sold, which is a personal obligation and not an incident to the transfer of property ; and hence does not apply to compulsory alienation, as by a sale of his interest in bankruptcy, or at sherifi's sale, or in case of his expulsion from the firm under a provision in the articles permitting it for misconduct, and has been repaid his share of the capital.^ The value of the good will of such copartnership is the esti- mate of advantage secured by succeeding to its business, with- out reference to the exclusion of any person from engaging in a like business. There is no implied agreement between part- ners, that upon the dissolution of the firm by the death of a mem- ber, that the survivor will not engage in and carry on a like business on his own account. The value of such good will is based on the mere probability that the customers of the firm, and others induced by its reputation, will deal and trade with its successor ; the advantage of succeeding is not an asset for dis- tinct and independent valuation, but it is an element in the value of the tangible property of the partnership, and should be considered by the appraisers in making the appraisement of the partnership assets.^" 8 Bates Partnership, § 665. tinuing business ; the estate of the Ante § 382, Goodwill of business. decedent is not hazarded by such use 9 Bates Partnership, § 667. as a holding out. A surviving partner can use the Bates Partnership, § 673. name of the deceased partner in con- lo See § 382, As to good will, etc. 357 EXECUTOR HAVE APPRAISEMENT § 426 § 426. When executor, etc., to have appraisement made. "If the surviving partner or partners neglect or refuse to have such inventory and appraisement mfide, the administrator or executor of the deceased partner must have it made, in accordance with the provisions of the next three preceding sections." [R. S. §3168.]^! The method of procedure by an executor to make the appli- cation for an appraisement of the personal assets, is similar to that of a surviving partner, and the fonns suggested in the preceding sections can with little alteration be made applicable if the administrator or executor malces the application under this section. The executor or administrator it seems is not bound to wait any particular length of time. Such matters ought to be speedily adjusted, and if the surviving partner does not make the application in a very short time, the statute says forthivith, the executor or administrator should proceed to make the application quite soon after his qualification. 5 427. When survivor may purchase partnership property. "With the consent of the executor or administrator of the de- ceased partner, and the approval of the probate court by which such executor or administrator was appointed, the surviving partner or partners may take the interest of such deceased part- ner in the partnership assets, at the appraised value thereof, first deducting therefrom the debts and liabilities of the part- nership, upon giving to the executor or administrator his or their promissory note or notes, with good and approved security, for the payment of the interest of the deceased partner in the partnership assets. Such note or notes shall be payable with interest, in not to exceed nine mon+hs from the time the sur- viving partner or partners elect to take such as«:ets, which elec- tion must ])e made within thirty days from the date of filing the inventory and appraisement, or a certified copy thereof in such court." [R. S. §3169.] ^2 ? 427a. Bond of surviving- partner. ' ' Such surviving part- ner or partners shall give bond to the executor or administrator, with surety or sureties to the approval of the court for the payment of the partnership debts and liabilities, and for the performance of all contracts for which the partnership is liable." [R. S. §3169.]"* " § 8088 G. C. 12* § 8000 G. C. 12 § 8089 G. C. See § 430a. § 427b PARTNERSHIP' ASSETS 358 § 427b. When survivor refuses to purchase. ' ' In the event that such surviving partner or partners refuse or neglect to take the interest of the deceased partner in the partnership assets within the time, and in the manner above provided, such execu- tor or administrator forthwith shall apply to a court of com- petent jurisdiction for the appointment of a receiver for the partnership, who thereupon must proceed to wind it up and dispose of its assets, in accordance wdth the statutes governing receivers. The probate court shall be a court of competent juris- diction in the appointment and control of the receiver herein provided for." [R. S. § 3169.] ^^-j- ? 427c. Will may define manner of settlement. "When the original articles of a partnership in force at the death of a part- ner, or the will of a deceased partner dispenses vdth an inven- tory and appraisement of the partnership assets, and vath a sale of the deceased partner's interest therein, and such article or will provides for a different mode for the settlement of such interest, and for a disposition thereof different from that pro- vided for herein, such interest shall be settled and disposed of in accordance with the provisions of such articles or wall." [R. S. §3169.] 12$ § 428. Application of surviving' partner to take at an appraisement. The surviving partner has thirty days from the date of the filing of the inventory, or certified copy thereof, within which to make his election to take the property at its appraised value. This application can only be filed in the court in which the administrator or executor was appointed. It can not be made in any other county, although an appraisement may be had in any county in which the partnership existed. It seems that the surviving partner has not an absolute right of election, but that it is dependent on the consent of the administrator and with the approval of the Probate Court. The application should set out all these facts, and may be in the following form: (Title.) Xow comes said I. J., surviving partner of the firm of I. J. & Co., lately composed of I. J. and A. B., deceased, doing business (here state place), under the firm name of I. J. &. Co., and hereby elects to take tlie assets of said firm at dollars, the same being the appraised value I2t § 8091 G. C. doubt the partnership interest of the I2t § 8092 G. C. Of course the deceased can be disposed of as pro- surviving partner would be bound vided in the will, but if they are by the partnership agreement, but not and a good reason can be shown, how far his rights, as provided in I am inclined to believe the surviv- the previous sections, might be con- ing partner could liave the partner- trolled by the provisions of a will ship assets disposed of as provided of the deceased partner raises an in the preceding sections. See also, interesting question. If the pro- Bank vs. Wight, 4 N. P. 173; 6 visions made in the will are satis- Dec. 350. factory to the surviving partner no 359 APPLICATION TO TAKE PROPERTY § 429 thereof as fixed by the appraisers heretofore appointed by this court, after deducting the amount of the debts and liabilities of said firm. He further represents that C. D., executor (or administrator) of the said A. B., con- sents to his said election and the said I. J. offers to give said C. D., ex- ecutor (or administrator) his promissory note for dollars, the balance due after deducting debts and liabilities of the said partnership as returned by said appraisers. Said note being dated . day of , 23ayable (here insert cash or any time within nine months) to the order of said C. D., administrator (or executor) with U. V. and X. Y. as securities thereon, and also offers his bond in the sum of dollars with U. V. and X. Y. as securities for the payment of said debts. Wherefore said I. J. respectfully asks that the Probate Court approve the said election made by him as above herein stated. Sign. The administrator (or executor) should, in writing, enter his approval, and it may be as follows: I hereby consent to the election of I. J. to take assets of the late firm of I. J. & Co., as stated above, and ask the court to approve the same. Sign. § 429. Form of bond of surviving partner. Whereas, late of county, Ohio, deceased, was at the time of his death, a member of a part- nership, existing in said county, under the firm name of . . . •. , and composed of said de- cedent and of surviving partner . . — and whereas, said surviving partner . . , as aforesaid, h , after inventory and appraisement of the entire assets and liabilities of said partnership in the Probate Court of said county, and with the consent of the administrator .. .executor .. .of said decedent, and the approval of said Probate Court, elected to take the assets of said partnership at their appraised value and upon the terms prescribed by statute, and to give the bond required by law for the payment of the debts and liabilities of the said partnership. — Now, therefore, we , as principal, and as sureties, bind ourselves to administrator. . .executor. . .of the said deceased, in the sum of dollars, that the said surviving partner... as aforesaid, will pay the debts and liabilities of the said part- nership of and if no default be made therein, then this obligation to be void; other- wise to be and remain in full force and virtue in law. Given under our hands, this day of A. D. 190. . . § 430. Entry of Court approving election, etc. (Title.) This day this matter came on to be further heard upon the election of 1. J., surviving partner of the late firm of I. J. & Co., to take the assets of said firm as heretofore returned to this court by appraisers appointed, which appraisement and inventory was duly confirmed by this Court. It having been found by said appraisement that the value of said assets was dollars, after deducting the liabilities; and the said I. J. having tendered his promissory note therefor, according to the statute, with U. V. and X. Y. as sureties thereon, and also having tendered his § 431 PARTNERSHIP ASSETS 360b "Wliether or not the surviving partner would be relieved from an individual liability of the payment of the claim that was not presented within one year, would be questionable, and there- fore he may be interested in his individual capacity, in knowing that all the claims have been paid or accounted for. The Probate Court should examine the account and vouchers the same as an administrator's account, and he could call the surviving partner before him to enlighten him on anything that the account did show clearly. This account should show the assets collected and disbursements made as well as the list of creditors who have presented claims. § 431. When partner fails to take. If an appraisement has been made either upon application of a surviving partner, or the executor, and the surviving partner fails and neglects to take the interest of the deceased partner according to the provisions of the statute, than it is the duty of the executor or administrator to forthwith apply to a court, of competent jurisdiction, and the Probate Court is a court of competent jurisdiction, for the appointment of a receiver to wind up the partnership in the maimer that part- nerships are usually settled.^* While the statute says that " if the surviving partner refuses or neglects to take," I have no doubt that a receiver might be asked for by an administrator when the administrator did not give his consent, or where the Probate Court did not give its approval to the application of the sundving partner to take the assets. Whether or not the Probate Court could compel an administrator to give his con- sent, has never been determined, but it would rather seem to be the purpose of the statutes that if the appraisement was a fair one, that the administrator or executor could not captiously prevent the surviving partner from taking the assets ; and that if he refuses without good cause, the Court might make an order directing him to consent to such sale. *to § 432. When statute does not apply. Statute itself makes some exceptions to its owm provisions. One is where the articles of copartnership provide for a mode 14 Bates Part, § 740. 361 EIGHTS OF SURVIVING PAKTNEB S 433 of settlement, and the other is where the will of a deceased part- ner provides for another method of adjustment. In these eases the interest of the deceased partner is to be settled in accordance with the provisions of the articles of partnership, or of the will of the deceased. The statute does not oust a court of equity of its jurisdiction upon the application of creditors to wind up the partnership in such a court and in a proceeding for that purpose/^ § 433. Rights of surviving partner. At common law the siu'viving partner had the right upon the death of a member of the firm, to collect the assets, pay the debts and account to the representatives of the estate for the balance. As the common law controls where not supplemented by statute, there may be some question as to the extent of the surviving partner's powers under our law. Unquestionably imtil an appraisement is made, he may exercise the common law powers of a surviving partner ; he could make any con- tract that would come within the proper scope of the partner- ship business. If the firm was insolvent he could make an assignment, or he could throw the matter into a court of equity and have the partnership affairs settled in that manner, he might even do tliis any time before he accepts to take the firm property as provided by statute. If the partnership is insolvent, or the deceased partner was indebted to the 15 Horsey vs. Heath, 5 O. 353; The deceased member may provide See McKee vs. Hamilton, 33 0. S. 7; by will that the partnership shall Wise vs. Miller, 4.5 0. S. 388. continue; and if his co-partners as- Tho articles of co-partnership may sent, the partnership will continue, provide that the partnership shall and he may specify to what extent be continued by the administrator his estate shall be liable for the post- of the deceased, or by any one in mortuary debts. Rand vs. Wright, the interest of the estate; and in (Ind.) 40 X. E. Rep. 447; Burwell such an event death will not work a vs. Cawood, 2 How. 560; Davis vs. dissolution of the co-partnership. Christian, 15 Graft. 11: E.xchange Rand vs. Wright, (Tnd.) 30 N. E. Bank vs. Tracy, 77 Mo. 504. Rep. 447; Schmidt vs. Archer, 113 I am not sure that a Court of Ind. 295; Scholefield vs. Eichel- Equity can take away the jurisdic- berger, 7 Pet. 586; Laughlin vs. tion of the Probate Court. See Lorenz, 48 Pa. St. 275: Cratz vs. Insurance vs. Carnahan, 19 O. C. C. Bavard, 11 S. & R. 41 : Edwards vs. 07; 11 C. D. 225: Jones vs. De- Thomas, 66 Mo. 468; Espy vs. Camp, 2 N. P. (N.S.) 133; 15 Dec. Comer, 76 Ala. 501; Leaf's Appeal, 160. 105 Pa. St. 505. § 434 PAKTNEKSIIIP ASSETS 362 surviving partner, the better course to pursue would be to have a court of equity wind up the partnership affairs and find what was due the surviving partner. For the surviving partner could have no right of action against the administrator or executor of the deceased partner until the amount which the deceased partner owed the survivor is ascertained.^^ § 434. Where executor is surviving partner. Upon this matter Bates very justly says^"*: "Although it may be improper to appoint the surviving partner administra- tor of the deceased partner, by reason of the conflict of incon- sistent duties, yet his appointinent as executor by the deceased often occurs. The advantage in this is, that resort to a sudden and forced winding up is unlikely, and its disadvantage is that settlement between the estate and the surviving partners in any way other than by an accounting and winding up is greatly embarrassed, as will be seen." If a surviving partner has been made executor or adminis- trator he must necessarily be both buyer and seller, and it seems in such case to be impossible to make any arrangement that cannot be successfully attacked by heirs or distributees, unles? they also assented to it; and neither good faith, adequacy of consideration, or the advice of counsel, will protect the title of a trustee buying at his own sale, the policy of the law being to deem such transaction fraudulent pe?* se and not sustainable by explanations when objected to by a party in interest. It is the duty of an executor or administrator of a surviving partner who dies with partnership assets in his possession while he is engaged in settling the partnership business to complete such settlement unless relieved by a competent court.^' 16 See Bates Partnership, §§ 735, Bank vs. Wright, 4 N. P. 173; 6 736, 732. Dec. 350; In re Crane, 29 Bull. 93; These matters can only be casual- Leach vs. Church, 15 O. S. 169. ly discussed here and reference must See § 518, Carrying on business of be had to general works on that spe- deceased, cific subject. le* Partnership, §§ 742, 744. See Lockwood vs. Mitchell, 7 O. S. " Dayton vs. Bartlet, 38 O. S. 387; Kries vs. Gorton, 23 O. S. 468; 357; In re Crane, 4 N. P. 173. 363 EXECUTOK CONTINUING BUSINESS § 435 The two members of a firm agree in their partnership articles that, in case of the death of either, the business should be settled up as soon as the survivor and the legal representa- tives of the deceased partner should deem expedient, and that the business should be continued or sold, as might be agreed. One of the partners died, and the only one of his executors who qualified was the surviving partner. It was held that he could not, as executor, agree with himself as sur- viving partner concerning the matters referred to in the uart- nership articles.^^ § 435. Executor continuing the business. There is, possibly, a distinction between an executor contin- uing the partnership under the directions of a will, and an administrator permitting the partnership to continue. In ei- ther case it is not a desirable position for an executor or ad- ministrator to occupy. For he incurs a personal liability for the obligations, in eflect, of the new firm. If the business is conducted successfully, he must account to the estate ; if unsuc- cessful, he runs the danger of being made personally to suffer the loss.^® Where good faith and good judgment have been exercised, the courts will always favor the administrator or executor in such matters, and allow him to charge up against the estate whatever debts may be incurred. As a partner cannot possibly continue to be a member of a firm after his death, any agreement with his executor or other person having a beneficial interest in the share of the assets which belonged to him, for the continuation of the business thereafter with the surviving partner, is, necessarily, the for- mation of another partnership, the terms of which when not otherwise expressly agreed upon, may be implied, from tlie manner of conducting the business, to be the same as those of 18 In re Knubley, 20 N. Y. Supp. is See Woerner on Admin. 282, § 58; S. C. 28 Abb. N. C. 457. 506 et seq.j P. C. & St. L. Ry. Co. See Remmelsberg vs. Mitchell, 29 vs. Schneider, 8 C. C. 355; 4 C. D. O. S. 22. 535; Lucht vs. Behrens, 28 O. S. 231. See § 518. §435 PARTNERSHIP ASSETS 364 the former partnership.*" The extent of the liability of the deceased's estate for debts created after his death, depends on the articles of agreement or tlie directions in the will.^^ If the provision in the partnership article is that the deceased part- ner's capital shall remain in the business, his personal repre- sentative is not entitled to be admitted into the management of such business." As to past indebtedness, created during his lifetime, his whole estate is liable for its payment, whether all of it be invested in the business or not.^^ Wliere the will of the deceased partner provides that the survivor shall continue the business for joint benefit, only so much of the estate as is embarked in the business is hazarded.^* To render the estate liable beyond the amount invested in the partnership, the language of the article or will, continuing the partnership must be unequivocally to that effect, showing a positive intention that it should be so liable."® zoMcGrath vs. Covven, 57 0. S. Id. McGrath vs. Cowen, 57 O. S. 385. 401. " What is inaccurately called pro- visions against the dissolution of the partnership is an agreement that, if either party dies his property shall remain in the firm and in the busi- ness for the benefit of his children; or that his children, or some of them, or some other person, shall immediately on his death take his place in the firm and become a part- ner in his stead. All these agree- ments and arrangements and all that can be made for a similar pur- pose, are in fact only bargains for the creation of a new partnership when the old one ceases to exist. And so, too, all arrangements or contracts which may be made be- tween the surviving partners and the representatives or appointees of the deceased have for their effect only the formation of a new partnership, which, upon same terms or other takes the stock, and carries on the business of the old one." 21 Blodgett vs. American Nat. Rink, 49 Conn. 9; Schofield vs. Eichelberger, 7 Pet. 586; Davis vs. Christian, 15 Gratt. 11. 22 Wild vs. Davenport, 48 N. J. L. 129. 23 Tompkins vs. Tompkins, 18 S. C. I; In re Clapp, 2 Lowell 168. 21 Bank vs. Wight, 4 N. P. 173; 6 Dec. 350; See Dair's Estate, 2 Dec. 360; 7 N. P. 309. 26 Band vs. Wright, (Ind.) 40 N. E. Rep. 447 ; Burwell vs. Cawocd, 2 How. 560; Jacquin vs. Buisson, 11 How. Pr. 385 ; Brasfield vs. French, 59 Miss. 632; Smith vs. Ayer, 101 U. S. 320; Hart vs. Anger, 38 La. Ann. 341. If the partnership is continued ac- cording to the terms of a will, the effect is to create a new partnership, and the creditors of the new firm have no claim upon the general es- tate of the deceased — only on so much of it as is invested in the partnership business. 365 ADMINISTRATOR CONTINUING BUSINESS §436 § 436. Administrator carrying on business. The administrator has no right whatever to continue the partnership business. Even in a case where a will so directs, an executor may exercise his judgment whether or not he will continue the business, but if an administrator does continue the business, he must do so accepting the full responsibility and assuming a personal liability for all the debts of the new firm, and running the risk whether the same will be allowed as a proper charge in his settlement of tlie estate. It ought as a rule never to be allowed. If the administrator of the deceased partner consent that the surviving partner shall carry on the business, then the latter will be liable only for the profits and not for the losses, unless he be negligent and thereby a loss is occasioned.^" In such an instance the personal representative has no lien upon the property as against subsequent creditors of the concern. ^^ Pitkin vs. Pitkin, 7 Conn. 307; Stanwood vs. Owen, 14 Gray 195; Vincent vs. Martin, 79 Ala. 540. It is optional with eitlier tiie ex- ecutor or administrator to carry on tlie business even wliere an appar- ent duty is imposed by tlie will. Edgar vs. Cook, 4 Ala. 588; Wild vs. Davenport, 48 X. J. L. 129; Berry vs. Folker, 60 Miss. 576; Louisiana Bank vs. Kenner, 1 La. 384; Jacquin vs. Buisson, 11 How. Pr. 385. For if he does carry on the busi- ness he will be personally liable to all transacting business with the firm. Alsop vs. Mather, 8 Conn. 584; Citizen's M. Ins. Co. vs. Ligon, 59 Miss. 305; Wild vs. Davenport, 48 N. J. L. 129. To escape liability to the heirs he must conduct the business as the will directs; or, if there are no di- rections, as his testate did and he is not bound to take security for sales on credit as an administrator is usu- ally required to do. Cline's Appeal. 106 Pa. St. 617. If a partner's will provided for a continuation of his interest in the firm name, the residue of his estate is not thereby implicated in lia- bility for future debts, nor is the settlement of his estate suspended. Peters vs. Campbell, 3 W. L. M. 587. The will of a partner, providing for continuing his capital in a firm, does not autliorize the executors to invest further funds therein, nor does it implicate the rest of his es- tate for subsequent business debts. And their consent to a change of the articles by admitting new partners and increasing the capital will not implicate the estate beyond the amount vested. See § 518; See Covington, etc., vs. W'ight, 4 N. P. 173; 6 Dec. 350. 27 See § 506 et seq.j Millard vs. Ramsdell, Harr. (Mich.) Ch. 373; also previous section. 28 Hoyt vs. Sprague, 13 Otto. 613. Wliere a going concern passes into the hands of an administrator the court will rely upon his ability to handle the business to the advant- age of the estate and will not scruti- nize acts of a discretionary character in the absence of any showing of bad faith or incapacity. In re Kohangi, 16 N. P. (N.S.) 337. § 437 PARTNERSHIP .ASSETS 366 By merely consenting to the continuance of the partnership business the administrator does not become personally liable.^^ If the deceased partner has withdrawn as much or more of the assets than his share, the survivor is not liable to account for profits.^'^ If some of the interested parties consent, and some do not, to the carrying on of the business of the survivor, the earnings must be divided according to the capital to which each is entitled, after deducting such share of them as is attributable to the service and skill of the surviving partner.''^ § 437. How partnership real estate to be conveyed. ' ' When the real estate of a partnership is appraised and elected to be taken by the surviving partner or partners, upon the execution and delivery of the note, or notes, and the bond hereinbefore provided for, the probate court shall order the executor or ad- ministrator to execute and deliver to the purchaser or pur- chasers, a deed for the deceased partner's interest in such real estate, which deed shall pass the title thereto. Tlie real estate of such a partnership shall be held to include only such lots, tracts, or parcels of real estate as are used in whole or in part in the transaction of its business." [R. S. § 3170.] ^- § 438. What is partnership real estate. At common law a partnership was incapable of holding the title to real estate. This doctrine, however, has been very much impaired if not entirely abrogated by the decisions of our State. It is now held that real estate purchased for partner- ship purposes, paid for with partnership funds and actually used in the partnership business, should be regarded as part- nership assets, within the meaning and operation of this stat- ute. But real estate not needed or used for a partnership pur- pose, though paid for with partnership means, is not assets of the firm within the meaning of this act. Notwithstanding 29 Richter vs. Poppenhusen, 39 real estate, the court would be act- How. Pr. 82; Lauglilin vs. Lorenz, ing without jurisdiction, and the 48 Pa. St. 275; Avery vs. Myers. acts could be attacked and set aside 60 Miss. 367. in a collateral proceeding brought in 30 Hyde vs. Easter, 4 Md. Ch. 80; the Court of Common Pleas. It is Taylor vs. Hutchinson, 25 Gratt, therefore very essential to first de- 536. termine that it is in fact partner- si Eobinsnn vs. Simmons (Mass.), ship real estate, and in determining 15 N. E. Rep. 558. this question it would be well to See §518. examine Jones vs. De Camp, 2 N. P. 32 § 8098 G. C. (N.S.) 133: 15 Low. D. 169; af- If the court should assume to firmed by Circuit Court, June 26, act under tliis section, and it should 1903. Affirmed by Supreme Court turn out tliat tlie partnership real without report. Delaplain et al. estate was not in fact partnership (DeCamp) v. Jones, 72 0. S. 616. 367 PARTNERSHIP REAL ESTATE 438 the rents and profits thereon should be applied to partnership use.^^ Land purchased with partnership funds and occupied and used by the firm conducting its business, is partnership proper- ty, although conveyance is made to the individual members of the firm.^* In another case it is intimated that a partnership name is an improper one for the grantee, but while the title ought to be taken in the name of the individual partners, yet it would not be invalid to take the title of the name of the firm.^^ A partnership is capable of holding a mortgage to secure a debt due the firm.^*^ There seems to be yet an element of uncertainty whether or not partnership real estate is a com- plete conversion into personalty, snch as will bar the widow's right of dower in the proceeds remaining after the payment of the debt ; and whether such proceeds are to be regarded as real estate or personal property for all purposes. In several 33 Remmelsberg vs. ^Mitchell, 29 0. S. 23. It must be conceded that a co- partnership is incapable of taking or holding the legal title to real es- tate, yet it is equally certain that it may acquire an equitable csbate therein. It is well settled that whenever real estate is purchased with partnership funds, an equitable estate accrues to the partnership, whether the legal title be conveyed to the partners as individuals, or to either of them, or to a stranger; and in such case, upon the death of the person holding the legal title, it descends to his heirs at law in trust for the benefit of the partnership — - at least to the extent that it may be needed to satisfy demands against the partnership, whether such de- mands exist in favor of a stranger or a member of the copartnership. This doctrine is quite familiar, as is also the doctrine that in such case the realty is regarded and treated as personal property in tlie hands of the partnersliip to the extent it may be needed for partnersliij) liabilities. And we may go a step further. There is no doubt that if, by the terms of the partnei-sliij) articles, real estate be purchased with part- nership fundSj or be put otherwise into the partnership stock, to be used and held solely for partnei-ship purposes, it is to be regarded as con- verted out and out into personalty, so that the heir at law takes no beneficial interest tlierein in anv event, but the proceeds not needed for partnership purposes passes to the personal representatives of the copartners. Remmelsberg vs. Mitch- ell, 29 0. S. 52. In Jones vs. De Camp, 2 N P. (KS.) 1,33; 15 Dec. 169; affirmed by Supreme Court without report, Delaplain et al. (DeCamp) v. Jones, 72 0. S. 616, the question- is gone into fully as to what consti- tutes partnership real estate, and it is tliere held that one of the essen- tials is that before real estate can bcome firm assets and be in /act personal property, it must be pur- chased with partnership funds. On pages 170 and 177 twelve funda- mental principles are given controll- ing such matters. 3 1 T?ank vs. Sawyer. 38 0. S. 339. 3r. Teare vs. Cain, 7 C. C. 375; 4 C. P. 643. 36 Bank vs. Johnson, 47 0. S. 306. 438 PAKT^^^EESIIIP ASSETS 368 cases ^^ it is held that the widow is not entitled to dower. But in these cases it appears that the question arose whether she was entitled to dower in partnership property, when it was neces- sary to use the partnership property for partnership purposes and pay partnership debts. But there is a tendency towards the doctrine that such property is personal property and the widow is not entitled to dower in any instance.^* In a more recent case it was held that real estate property purchased \\ath partnership funds and used for partnership purposes, is there- by equitably converted into personalty, and continues to be such after the death of one of the partners and the discontinu- ance of the business, and until there has been a complete set- tlement of the affairs of the firm and final division of assets.^* 37 Green vs. Green, 1 0. 535; Sum- ner vs. Hampson, 8 0. 328 ; Johns vs. Johns, 1 O. S. 357. 38 " Thus, the old doctrine seems to have been that there could be no partnership, properly so called, in land, bat the contrary doctrine is now universally held ; and that a widow of a deceased partner is not dowable in lands Avhich the firm owned and regarded as partnership stock, is settled by numerous decis- ions, among which are the cases in the 1 O. 535, and 8 0. 328. 39 Fisher vs. Lang, 19 Bull. 139. This case was one in which an heir brought suit in partition, and the court held such suit could not be brought. Judge Peck in an opinion says, " There is a good deal of con- flict in the authorities on this sub- ject of conversion. In the majority of States of the Union the doctrine of conversion out and out does not prevail, but it obtains in England and in the States of Virginia and Kentucky, and as we understand the decisions, it is the law of Ohio. The case of Green vs. Green, 1 0. 535, seems to announce the doctrine of total conversion into personalty, and though there is a case in the 5 0. 264. Green vs. Graham, which seems to look the other way, yet in that case it simply appears that the property was purchased with part- nership funds ; it does not appear to have been purchased for partnership purposes; and it was there held that the interest of the deceased partner descended to his heirs. But in a case in the 8 O. 364^ Sumner vs. Hampson. there is a very clear opin- ion by Judge Lane, where a widow claimed dower in property which had been purchased and used for partnership purposes, and the Court denied her claim, saying that it con- tinved to be personalty notwith- standing the death of the partner." " Speaking for myself. — 1 do not know that I should speak for the court on this point — but speaking for myself, the reasoning seems to be in favor of conversion out and out, for that doctrine seems better adapted to the preservation of the business and good will of the firm, whereas if the heirs may come in the moment one of the partners dies and apart the realty upon which the business is situated, the latter may 369 FORM OF DEED § 439 The courts would probably now bold that the proceeds of partnership real estate after the payment of all debts ajid lia- bilities of the firm, are personalty, and as such belong to the administrator. This idea is strengthened by the provisions of the sections of the General Code treated of in this chapter, giving to the administrator the power to sell real estate and receive the proceeds.*" § 439. Form of executor's deed. Know all Men by these Presents: That, whereas, on the day of 190 . . . , A. B. was duly appointed and qualified as administrator (or executor )of the estate of C. I)., deceased, late of said Clark County, by the Probate Court of said county, and afterwards, to-wit: On the day of , I. J. filed his application in the Court, to have an appraisement of the partnership property of the iate firm of I. J. & Co. And whereas, on the day of , said court ordered said property to be appraised, and thereafter, to-wit: On the day of , said I. J. filed his election in the said court to take the interest of the said A. B. in the nrm of I. J. & Co., at said appraisement. And thereafter on the day of , the court gave its approval to the election made by said I. J. to take the interest of the said C. D., deceased, in the said partnership property; and ordered that upon the payment of the appraised value of said interest and the liabilities of said firm, as the statute provides, that said A. B. should make and de- liver to said 1. J. a deed for the interest which the said A. B. owned in the be broken up, destroyed. At any performed all the functions to the rate, whether the reasons upon partnership, and thereby ceases to be which it rests are satisfactory or partnership capital; that the in- not, the doctrine is established in choate right of the wife of a partner Ohio, and for that reason, as well as in the real estate of her husband for the reason that in this case there only attaches to such of the real es- is an outstanding unsettled claim of tate as remains in specie unconvert- large amount against the firm which ed, after the partnership is termin- is not disputed, that is, it is not ated by judgment or agreement and disputed that there is such a claim, its afl'airs completely wound up and for both those reasons we all agree ended, that the petition of the plaintiff See § 949, Dower, will have to be dismissed." Peck, Holmes vs. Mudd, (Min. 1894) 27 Judge, in Fisher vs. Long, 19 Bull. L. R. A. 340. 139. When it becomes real estate. 40 It has been held that partner- Robinson vs. Miller, (111. 1894) 27 ship capital invested in land for the L. R. A. 449. With extended note, benefit of the company will be treat- Surviving partner. Galbraith vs. ed as personalty, and not subject to Tracy, 153 111. 54; 28 L. R. A. 129, dower or inheritance until it has 161, with extended note. §439 PAE.TNEK.SIIIP ASSETS 370 real estate belonging to said firm. All of which will more fully appear by records of said court, to which reference is made. l>jow, therefore, I, the said A. B., administrator (or executor) of the estate of C. D., deceased, aforesaid, by virtue of the said proceedings and of the statute in such cases made and provided, and of the power vested in me and for and in the consideration of the premises in the sum of dollars, paid by said I. J., the receipt whereof is here- by acknowledged, do hereby grant, bargain, sell and convey to said I. J., his heirs and assigns forever, all the right, title and interest that the said A. B. owned in the following real estate, situate in the county of '• • -, State of Ohio and in the township of find bounded and described as follows; To have and to hold said premises, with all the privileges and appur- tenances thereto belonging to the said I. J., his heirs and assigns forever, as fully and completely as he, the said A. B., as such administrator, by virtue of said order of court and of the statute made and provided for such cases might or should sell and convey the same. In witness whereof the said A. B., as such administrator, has hereunto set his hand, this day of A, D. 190 Signed and acknowledged in presence of The State of Ohio, County, ss. Be it remembered, that on this day of 190. . ., before me, the subscriber, a in and for said county, personally came the above named C. D., as administrator of A. B., the grantor in the foregoing deed, and acknowledged the signing of the same to be his voluntary act and deed as such owner for the uses and purposes therein mentioned. In testimony whereof I have hereunto subscribed my name and affixed my seal on the day of and year last aforesaid. Where the administrator or ex- there may be some qiiestion as to ecutor is the surviving partner and the propriety of his continuing as desires to take over the property, administrator or executor, etc. 371 COLLECTION OF ASSETS § 440 CHAPTER XXIV. COLLECTION OF ASSETS. I 440 General duty of administrator 5 446 Affidavits in such case. or executor to collect. § 447 When and how application for I 441 Duty to bring suits, etc. extension made, etc. S 442 Diligence required. § 448 When further time not allowed. { 443 Negligence in collecting. § 448a What further time will be i 444 Statute of limitations. allowed. § 445 When more than twelve J 449 Office of executor, etc., not to months allowed to collect assets. cease. § 440. General duty of administrator or executor to collect. One of the most important functions attaching to the office of an administrator or executor, is the collection of the assets belonging to the estate of the deceased. Such action precedes all manner of distribution, be it the payment of debts, legacies (?r distribution among heirs. The policy of the law invites and expects a speedy settlement of every estate. It therefore follows that it is incumbent upon the administrator or executor to proceed with diligence to convert the assets into money so that he can further perform the duties of his trust and speedily have it properly executed. Assets that are of a perishable character or known value, he need not wait for an inventory until he proceeds to collect them. It is not the duty of the ad- ministrator to wait to ascertain the amount of the debts or lia- bilities of the deceased. For aught that he may know all may be needed to meet such obligations, he should therefore proceed with diligence, and the law supplies him with the means ade- quate to that end. He must act at once of his own volition, and not wait for any one to request action on his part.* That our statute contemplates prompt, active and energetic action on the part of the administrator or executor, is evidenced by the statute limiting the time for such action, the first section of which is the following: 1 Schu. on Exrs. 269. § 441 COLLECTION OF ASSETS 372 "So far as he is able, the executor or administrator shall col- lect the assets of the estate, within one year after the date of the administration bond." [R. S. §6062.]- § 441, Duty to bring suits, etc. The duty of the executor or administrator to pursue and recover assets, depends upon the means at his command for so doing, and the same may be said vnth. reference to collecting demands due the estate. Whether slender assets shall be used in litigation for procuring personal property adversely held, or in realizing doubtful claims, a rule of prudence must decide ; but it is certain tJiat the representative of the estate is not bound to litigate or to undertake the enforcement of doubtful rights on behalf of the estate out of his own means. In such cases those entitled to tlie benefit of the estate should make an offer to indemnify the administrator if suit is brought. The duty to act depends also upon the character of the claim, whether the j>erson against whom it is keld is solvent or in- solvent. Likewise it depends upon the administrator's or exec- utor's means of knowledge. Thus an executor or administra- tor cannot be charged with a right of action of his decedent when knowledge of the right was never brought home to him- self, nor does he become chargeable except with reference to the claim, and the condition of the estate when such knowledge reaches him.^ It is for the administrator to determine what property belongs to the estate in his charge, and bring the necessary suit at law or in equity to recover the same without waiting for an order of the Probate Court to that effect.* 2 § 10684 G. C. It means all property which can See § 702 et seq., 718. be made available to pay debts, etc. § 1381, Gdn. collection of debts. Insurance Co. vs. Bank, 173 Fed. 3 Schu. on Exrs., §§ 273, 274, 275. 398. 4 Woerner on Admin. 672. An action lies by an executrix in An administrator or executor is her representative capacity in an not required to give security for indebtedness due the estate for de- cost in any case in a suit brought cedent, notwithstanding the note in the county where he is appoint- which now evidences the debt, was ed, etc. S 11614 G. C. given to the executrix individually, Collection of assets means reduc- in exchange for the original note tion of personal property into which was payable to decedent and money. Young vs. Roberts. 7 O. C. against which the statute of liraita- C. 105; 3 C. D. 685; affirmed 54 tions has run. Schildmeyer vs, O. S. 622. Schildmeyer, 27 Dec. 466. 373 DILIGENCE EEQUIKED § 442 § 442. Diligence required. The care, prudence and judgment which a man of fair average capacity and ability exercises in the transaction of his own business furnishes tlie standard to govern an adminis- trator in the discharge of his trust duties.^ An administrator must use diligence in the prosecution of actions to collect the assets of the estate, or he will be liable personally or upon his bond for any loss such estate may sustain by such neglect,* even though the debtor live in another State. ^ Thus a delay of two years has been held culpable negligence.® If he takes a bond of indemnity from wrong-doers, and neg- lect to seek redress against them, he will be liable for the amount lost to the estate.^ If the decedent has paid a debt as surety his administrator must use diligence in collecting the amount paid from the principal.^" If an administrator permit an attorney to retain money, collected for the estate, during a long period of time, he will be personally liable for the amount retained ; ^^ and so if he leaves the money in the hands of a commission merchant.^^ So he is liable if he employs an un- suitable person to collect a debt, and a loss is thus occasioned.^' And the same is true when he employs such person when there is no occasion for such employment, and a loss occurs-.^* He is not bound, however, to resort to an extraordinary, unusual or hazardous course,^^ nor to prosecute . claims of a 5 Miller vs. Proctor, 20 O. S. 442 ; 9 Holmes vs. Bridgman, 37 Vt. 28. Dundas vs. Chrisman, 25 Neb. 495; lo Tuggle vs. Gilbert, 1 Duv. 340; S. C. 41 N. W. Rep. 449. Chambers' Appeal, 11 Pa. St. 436. « Miller vs. Steele, 64 Ind. 79; n Abercrombie vs. Skinner, 42 Condit V3. Winslow, 106 Ind. 142; Ala. 633. State vs. Gregory, 88 Ind. 110. 12 Succession of Stone, 31 La. Ann. 7 Schultz vs. Pulver, 3 Paige 182; 311. S. C. 11 Wend. 363; Helme vs. San- i3 Wakeman vs. Hazleton, 3 Barb, ders, 3 Hawks 563; Brandon vs. Ch. 148; Earle vs. Earle, 93 N. Y. Judah, 7 Ind. 545; Brazeale vs. Bra- 104. zeale, 9 Ala. 491. iiMcCloskey vs. Gleason, 56 Vt. 8 Scarborough vs. Watkins, 9 B. 264. Mon. 540; Charlton's Appeal, 34 i5 Chamners' Appeal, 11 Pa. St, Pa. St. 473; Perry vs. Wooton, 5 436. Humph. 524. § 442 COLLECTION OF ASSETS 374 doubtful character,^® unless the person demanding their prose- cution tenders a bond to indemnify the estate against loss/^ on the request of the administrator.^^ IRor is he liable if he act in good faith upon the advice of counsel, after disclosing to him all the facts he knows/® jSTor is he liable for a mistake of law, whereby he delayed the collection until the debt was barred, if he act in good faith. "° ,If a creditor be indulged by the advice and request of a legatee, such legatee cannot complain of such indulgence, if loss be thereby occasioned. ^^ ISTor is he bound to defend against a just claim.'" But he is bound to plead the statute of limita- tions, however meritorious the claim may be, if he desire to escape personal liability."^ He must account for all the assets received from a foreign State.'* It is the duty of a domiciliary executor to collect foreign assets so far as he is able ; and he should be charged in his accounting with such assets when they were under his control, and might easily have been transferred to the domestic juris- diction before the filing of the account,"^ 18 Torrence vs. Davidson, 92 N. C. Littlefield vs. Eaton, 74 Me. 516; 437; Anderson vs. Piercy, 20 W. Va. Preston vs. Cutter, 13 Atl. Rep. (N. 282; Smith vs. Collanier, 2 Dem. H.) 874; Brown vs. Porter, 7 147. Humph. 373; Langham vs. Baker, 5 "Hepburn vs. Hepburn, 2 Bradf. gaxt. 701; Emerson vs. Thompson, 74; Griswold vs. Chandler, 5 N. H. iq Mass. 429. 492. 24McPike vs. McPike (Ala.), 20 18 Harrington vs. Keteltas, 92 N. g ^y j^gp ^2 ^- '^^- 25 In re Ortiz's Estate, 86 Cal. iflNeff's Appeal, 57 Pa. St. 91. 3^^. g ^^ 24 Pac. Rep. 1034. See § 385, Choses in action. An executor who knows of a con- version of property of the estate Tanner vs. Bennett, 33 Gratt. 251. 20 See next section. King vs. Morrison, 1 Pa. St. 189; Thompson vs. Brown, 4 Johns. Ch. 619; Thomas vs. White, 3 Litt. 177. ^^ ^^' residuary legatee, and of a 21 Perry vs. Wooton, 5 Humph. ^^^^ ^S^^"^* ^^^ ^^*^^^ °° ^'^'^"^ _„. iudsment is afterwards recovered, 524. •• *= " Sheldon vs. Warner, 59 Mich. ^"t makes no attempt to recover the A^^ value of the property so converted, 23 See next section. is liable for the value to the claim- Wiggins vs. Lovering, 9 Mo. 262 ; ant, though he had the belief, based Hodgdon vs. WTiite, 11 N. H. 208; on advice of counsel, that no such Woods vs. Elliott, 49 Miss. 168; judgment would be recovered. 375 NEGLIGENCE IN § 443 An executor who is liable to the testator for rent at the time of the hitter's death cannot on a bill against him for set- tlement of his account, plead that his liability accrued six years before the filing of the bill, as upon the acceptance of the execu- torship it was his duty to collect all debts due the estate, as well from himself as others, and his position in relation thereto is that of a trustee,"' Where an executor takes a judgment in his o^vTL name for a debt due the estate, he will not be per- mitted to question the judgment for the purpose of avoiding personal liability for the purchase price paid at a void sale under the judgment.^^ § 443. Negligence in collecting. An administrator should not be charged for uncollected notes where he does not know that such notes, although belong- ing to the estate, could, with proper diligence have been collected,^^ He is not chargeable with estimates made by him as to what may be collected, but only with the amounts he collects.^^ iSTor is he chargeable with the amount of insurance policies on the lives of debtors of deceased before he has real- ized on such policies,^^ The duties of an executor or administrator are active and 'not passive. He cannot be permitted to neglect to do those In re McAvoy's Estate, 6 Dem. 27 jjaines vs. Haines (N. J.), 15 Sur. 71; S. C, 3 N. Y. Supp. 207. Atl. Rep. 839. He is not liable for the loss of In our state such a debt becomes property before his qualification, un- ^.^^^^s upon the executor's qualifica- less he had such property in his pos- ' ^, , . „„ ^ _ , , v.. , ^ -^ Jones vs. Blumenstein, 77 la. session. Roberts vs. btewart (Tex.), ^r\. s C 4'> X W R "^^1 15 S. W. Rep. 1108. geg §1603, Duties of assignee: It is the duty of an administrator gee § 1287, as to Duties of trustee who is, or by the exerc-ise of prud- generally. ence should be, aware of the pen- 29 See §10828 G. C, §719. dency of proceedings for the sale of Cunningham vs. Cauthen, 37 S. C. lands in which his intestate had an 123; ^liller vs. Steele, 64 Ind. 79; . , . X • J .1 • ii i Condit vs. Winslow, 106 Ind. 142. interest, to intervene therein, so that „„ ,, , ^ , ,^-r . ^, 1 , , . -"rawber vs. Gentry (Va.), 15 the proceeds of such interest may c -j^ p ggn come to his hands for the payment 31 /,j re Richardson's Estate, 23 of the debts of the estate. Borders X. Y. Supp. 978; S. C. 2 Misc. Rep. vs. People, 31 111. App. 483. 288. § 443 COLLECTION OP' ASSETS 376 things which are plainly required at his hands by law or the order of the Court, and when complaint is made of such neglect, excuse himself by alleging that such delay or omission was for the benefit of the estate.^" An administrator who has instituted an action to recover in- surance on the life of his intestate is not negligent in failing to appear in an action, where the heirs have appeared by their attorneys, asserting their right to the money as against one claiming under an assignment by the intestate in his life-time ; and such administrator is not liable for the loss of the money to the estate by reason of the insolvency of the assignee, to whom it was paid under a judgment which was subsequently reversed on appeal.^^ Where an administrator, though acting in good faith, dis- poses of stock at an inconsiderable amount, which, with due diligence could have been collected in full, he would be liable to the beneficiary for its value.^* Wliere an, executor receives as assets the note of a person in another State, owning a farm worth $3,000, mortgaged for $1,200 only, and, instead of trying to collect it by reducing it to judgment or otherwise, he waits until other liens are acquired against the land, and it is sold, he should be charged with the amount of the note.^"* 32 In re Holladay's Estate, 22 Pac. They were, in fact, hopelessly in- Rep. 750; S. C. 18 Oreg. 168. solvent when the note matured; but 33 Meyer ingh vs. Wendt (Iowa), if payment had been insisted on, it 53 N. W. Rep. 414. would probably have been paid from 3* Tayloe vs. Tayloe (N. C), 12 the moneys of a bank of which one S. E. Rep. 836. was president. It was held that the 35 In re Milliard's Estate, 9 N. Y. executor was liable for the loss. Supp. 126; S. C. 2 Con. Sur. 91. Powell vs. Hurt, 31 Mo. App. 632. Executors were directed by will Where, at the hearing of the final to collect the debts as soon as it account of the executors of an es- could be done. Among them was a tate, one of them testifies, as the note due after they qualified. They reason for not collecting a debt, that spoke of it to the makers, who asked the debtor " is insolvent," the only them to wait awhile. No attempt fair inference is that the debtor has was made to collect for a year, been insolvent since the death of the when all the makers failed and the testator. Stone vs. Morgan, 3 So. debt was lost. Up to that time Rep. 580; S. C. 65 Miss. 247. their standing was of the best and On settlement of an account it their credit beyond all question. appeared that the executor sold, on 377 STATUTE OF LIMITATIONS §444 § 444. Statute of limitations. It becomes important for an administrator if for any reason a delay is had, in the collection of assets of the estate, to ac- quaint himself with the statute of limitations. For if the statute has begun to run in tlie life-time of the deceased it will continue to run.^*^ If, however, the statute did not begin to run during the life-time of the deceased, it would not com- mence until an administrator or executor was appointed.^^ Just what the responsibilities of the administrator or executor might be, where he permitted a debt to become uncollectible by reason of not bringing an action before it had been barred by the statute of limitation may depend upon the circumstances surrounding the case. But it is an exceedingly dangerous matter for the administrator or executor to trifle with. If he credit certain personal property of the estate to an irresponsible party, who was indebted to liim person- ally, and who failed to furnish se- curity as required by the terms of sale; that the executor took a mort- gage back on such property to se- cure his own debt and allowed the purchaser to retain it for some time, and that his mortgage was afterwards released and the prop- erty taken back and resold by the executor at a loss. It was held that the executor must account for the amount of the first sale. In re Beach's Instate, 22 N. Y. Supp. 1079; S. C. 1 Misc. Rep. 27. Where an . administrator accepts from his predecessor (a former ad- ministrator), a promissory note, ex- ecuted by the latter, payable to himself for money due from such predecessor to the estate of the de- cedent, and obtains judgment on such note in his own right, he can- not, as against a third party who purchases the real estate of the debtor, acquired by him after his discharge in bankruptcy, success- fully assert that sucli cause of ac- tion was one not barred by the bankrupt's discharge. Donald vs. Kell, 111 Ind. 1. Where mismanagement of a cer- tain part of the estate is shown, an agreement between the executors that one should attend to the busi- ness of that part will not relieve the other from liabilities thereof. Allen vs. Shanks, 90 lenn. 359; S. C. 13 S. W. Rep. 715. Where, on the presentation of an invalid claim against an estate, the administrator rejected it but agreed to refer it, and on proceedings be- fore the referee neglected to retain counsel to protect the interests of the estate, did not oppose a confirm- ation to the report allowing it, and took no appeal from a judgment entered thereon, he was guilty of such negligence as to make him personally liable to the estate for the amount of the claim. Iti re Saunders' Estate, 23 N. Y. Supp. 829 ; S. C. 4 IViisc. Rep. 28. See § 1603, Assignments. 36 Granger vs. Granger, 6 0. 35. 37 See 13 Am. & Eng. Ency. of Law 737. Where a note becomes due after the death of the payee, the right to enforce the same is in the admin- istrator, and the time begins to run from the date of his appointment. But if it falls due before the payee's denth the statute begins to run and will be barred in fifteen years from that time, irrespective of the fact when the administrator was ap- pointed. Tobias vs. Richardson, 5 C. C. (N.S.) 74; 26 0. €. C. 81; affirmed 72 O. S. 626. § 445 COLLECTION OF ASSETS 378 has had an opportunity by the use of ordinary care and dili- gence to have prevented the debt from being barred by the statute of limitation, and did not do so he would be liable. If a claim against the estate has become haired by the statute of limitation the executor has no power by a new promise to revive it or pay such a claim.^^ ^ 445. When more than tv^elve months allowed to collect assets. "If from the sitiiation of the assets belonging to the estate, more than twelve months from the date of the admin- istration bond is required for their collection, upon motion, and being satisfied thereof by the affidavit of the executor or admin- istrator, tlie court may extend the time for that purpose." [R. S. § 6063; 102 V. 201.] ■'» §446. Affidavit in such case. "The affidavit required by the next preceding section shall set forth the grounds of the application, the amount of money in the hands of the executor or administrator applicable on the debts of the deceased, and that he has used due diligence to collect the assets and pay the debts." [R. S. §6064.]" § 447. When and how application for extension made, etc. While the statute does not so say, yet no motion for an extension of time ought to be considered unless the adminis- trator or executor has filed an account, for it will be chiefly up- on the information gathered from the account that the Court will authorize an extension. It is, therefore, a general prac- tice that when an administrator or executor desires further time in which to administer tlie estate, no formal motion is made to that effect, but an affidavit containing the statutory requirements are made following the account and the Court in passing on the account makes the order for extension of time. The subsequent sections forbid an extension of time where there is more than one hundred dollars in money in the hands 38 Drouilliard vs. Wilson, W, L. so § ioG85 G. C. J., vol. 10, 385. 40 § lOfiSG G. C. See § 552, et seq., on Presentation of claims. 379 FURTHER TIME ALLOWED § 448 of the administrator or executor, which is subject to the claims of the creditors. This provision of the statute, practice has demonstrated, is exceedingly difficult to follow. There may be money in the hands of the administrator above one hundred dollars which he is not at liberty to apply on claims against the estate. Probably the application that should be given to this provision of the statute is, that no extension of time should be granted where claims of creditors remain unpaid and the administrator or executor has money in his hands which can be applied to this payment. The form of an affidavit under this section will be found in the form hereafter given for an account. Administrators and executors should be urged to make a speedy settlement of every estate and no application for an extension of time should be granted for a mere asking.*^ ^ 448. When such further time will not be allowed. "Further time shall not be allowed to collect the assets of an estate that is solvent, if the executor or administrator at the time of his application has in his hands more than one hundred dol- lars in money, subject to the claims of creditors." [R. S. §6065.]" § 448a. What further time will be allowed. ' ' Not more than six months from the date of the application shall be granted by the court at one time, for collecting assets of the estate; nor the time therefor be extended beyond three years from tlie date of the administration bond." [R. S. § 6066; 102 v. 202.]" § 449. Office of executor, etc., not to cease. "The office of the executor or administrator shall not cease with the time al- lowed by law, or the court, for the collection of the assets of the estate." [R. S. §6067.]" Notwithstanding the provisions of sec. 10688, G. C, that the time should not be extended beyond three years from the date of the administration ])ond, yet so long as the administrator or 41 See § 705, Accounting— time ex- ^ § 10688 G. C. tended. ** § 0067 R. S., 10689 G. C. 42 § 6005 R. S., § 10087 G. C. § 449 COLLECTION OF ASSETS 380 executor has net resigned, died, or been removed and assets re- main to be administered, he is still authorized to collect them. It is somewhat difficult to determine just exactly what is meant by the last clause of sec. 10688, G. C. (§ 448a). It prob- ably means that no extension of time shall be gi'anted where it is within the power of the administrator in the proper administra- tion of the estate to complete his trust within three years. No doubt the legislature intended that here should be an end to the trust and that three years was a reasonable time within which to complete it. But what the effect would be if the Probate Court granted an extension or permitted a continuation of the ad- ministration, adjudication gives no information. Why the statute should limit the time from the date of the bond is not easily perceived. In one ease it was held that where an admin- istrator collected all the assets that were then collectible and more than twenty years thereafter assets became collectible, he was still administrator of the estate and could collect the as- sets.*' In another case it was held that even where an administrator had filed what purported to be a final account, yet this fact did not prevent him from suing and collecting an uncollected note belonging to tlie estate.^^ ■*5 Taylor vs. Thorn, 29 0. S. 569. end at the becoming of age of all the The settlement in 1854, with the minor children, it might terminate Probate Court, by the administra- before by their death ; and upon its tor, of his account with the estate, termination the creditors would be and the distribution at that time of entitled to the further assets to be the assets in his liands. did not end derived from the sale of the prem- his powers, nor terminate his duties. ises which had been so occupied. The estate was not fully settled. The administrator had not resigned, As soon as the right to occupy the nor had he been removed. Neither premises set apart for a homestead his functions nor duties would cease ceased to exist, there would be other until the estate was fully settled. assets to be administered. When McAffee vs. Phillips, 25 O. S. 374. such would become available is, to ^s Weyer vs. Watt, 48 0. S. 545. some extent, uncertain; for, while See § 231, Termination of trust, the homestead right would certainly 381 AUTHOKITY TO COMPOUND § 450 CHAPTER XXV. ASSETS — COMPOUNDING CLAIMS. S 450 How executor, etc., may com- § 453 Hearing, etc. pound with debtor. § 454 Order of compromise. §451 Authority to compound. §455 Arbitration. § 452 Application for. § 450, How executor, etc., may compound with debtor. "When a debtor of a deceased person is unable to pay all his debts, with the approval of the probate court, the personal rep- resentative may compound with such debtor, and give him a discharge, upon receiving a fair and just dividend of his estate and effects, or such part of the debts, as the court deems bene- ficial to those interested in the estate of the decedent." [R. S. §6073.]*^ § 451. Authority to compound. Executors and administrators had not at common law the rijL^ht to compound and compromise with debtors of the estate; and if they released a debt due the testator, or cancelled or delivered to tJie obligor a bond, or released a cause of action 47 § 10696 G. C. treatment of the matter in this It will be observed that the pro- chapter Avill be intended to apply to visions of the above section are lira- any case where the administrator ited to a case where the debtor is wishes to compromise any claim unable to pay all of his debts. If that he holds as administrator it is sought for any other reason to against any debtor, be it for a rea- obtain the order of the Coui't to son mentioned in the preceding sec- compromise a claim, it must be by tion. or the provision of §§ 10689, virtue of the provisions of § 106S9 10702, 10703 G. C., made a part of p n A Ann ;„„„^+^i :« +i „ 4- the next chapter. Generally when Lr. C, s 451), inserted in the next i • • i. j. i - 1 ■ -i. . an administrator seeks authority to chapter. § 10689 G. C. in addition compound a claim, he does so with to the insolvency of the debtor ap- the understanding that tlie debtor plies to where the debtor is a bank- ^''^^^ accept tlie terms for wliich he „ , , , , ■, , , asks authority to make the settle- rupt, or has some legal or equitable ^.^^ y^^ g {^^.y. Gdns. If claims defense, or whore the claim is small can not be collected they may be and difficult of collection, etc. The compounded or sold. Weyer vs. Watt, 48 O. S. 545. §451 ASSETS COMPOUNDING CLAIMS 382 founded on a tort accniing to the testator or executor, or in an J manner forgave or indulged any part of the testator's or intestate's demand, or the demand of the executor or ad- ministrator, they were chargeable with the whole of such debt or demand, with interest.*^ A compromise with a man who has assets of the estate, so as to get possession of them, will be justified if a judicious mail looking alone to his worldly interest would so act.*^ An executrix who lias accounted for the full amount received by tlie compromise of a note belonging to the estate for less than its inventoried value, is not liable for more than is thus 48Woerner on Admin. 683. Cit- ing Wms. Ex. 1799. Another distinguished author in- clines to the opinion that executors and administrators had the power to compound with the debtors of their decedent. At common law Redfield in his surrogate practice, says, p. 511: "The common law power of executors and administrator to com- pound with debtors of their decedent has been coniirmed by statute which impowers the surrogate to authorize the executor or administrator to compromise or compound a debt or -claim on application and for good cause shown." Another says: "The executor or administrator who com- promises a debt so as to receive less than its full amount was stiil held answerable for the whole ; yet, if he could show, in exculpation that he accounted therein for the benefit of the estate, he stood excused. The universal test for modern times should he, whether, in compromising or submitting to arbitration, the representative acted with fidelity and due prudence. Schy. Ex. 386. In JeflYies vs. Mut. Ins. Co., 110 U. S. 305, the Court says, even where statutes exist providing for compromise with debtors with the approval of a Probate Court, it is held that the right to compromise which before existed is not taken away, but may be exercised subject to the burden of showing that the compromise was beneficial to the es- tate. In some states it is held that the administrator cannot bind the estate by compromise without the consent and approval of the Probate Court. .Etna Ins. Co. vs. Swayze, 30 Kans. 118; Yelton vs. R. R., 134 Ind. 414. In another State it was left unde- cided. Mulville vs. Ins. Co., 19 Mont. 95. Generally it may be said that if an administrator compounds or com- promises a claim without the sanc- tion of the Probate Court, he will be liable to the estate for the full amount of the claim, unless he can shoAV that the compromise \.'as for the best interest of the estate. I-Ioul- ton vs. Holmes, 57 Cal. 337. Wyman's Appeal, 13 N. H. 18 Alexander vs. Kelso, 3 Paxt. 311 Caldwell vs. MeVicar, 12 Ark. 746 Potter vs. Cummings, 18 Me. 55 Fridg vs. Buhler. 6 La. Ann. 272. 49Kee vs. Kee, 2 Graft. 116; Wilks vs. Slaughter, 49 Ark. 235. 383 APPLICATION FOE § 452 accounted for where it is shown that the compromise was made in good faith, and that more money was realized thereby than would have been by an attempt to enforce the payment of the note,^" The heirs or distributees, if all the debts and costs of ad- ministration are paid, can alone take advantage of his failure to procure an order to compromise,^^ To compromise or com- pound a debt means to accept a part in satisfaction of tlie whole.^" If he saves anything by reason of the compromise it is for the benefit of the estate and not for himself.^^ Exec- utors or administrators may not create a new cause of action against the estate whose interests they are charged with, nor revive an old one barred by the statute of limitation; but they may adjust any existing claim by a fair compromise, or ar- range the business in their hands so as to make the most of the assets.^* Whatever the law may be elsewhere, the above statute makes it mandatory upon an administrator or executor to get the approbation of the Probate Court before he could safely act in compounding a claim. § 452. Application for. The application should set out the nature and amount of the debt, the name of the debtor, and a fair statement as to his financial condition as well as other facts that may constitute a defense to the claim. If the authority for the compromise is sought under the provisions of sec. 10696, G. C. (§ 450), it will be sufficient to state the debtor's financial condition, but if the compromise is sought under sec. 10701, G. C. (§ 456), the appli- cation should set forth any of the statutory provisions of that section. The following may be used as a form : {Titlk.) Now comes A. B. as administrator (or executor) of the estate of C. D., and respectfully represents to the Court that among the assets in his hands belonging to the deceased estate, there is a claim against E. F. for the sum of dollars. That said claim is founded on a promissory note (or book account, or contract, etc.) that said E. F. is of doubtful solvency, or said E. F. claims to have a defense to the collection said claim, said defense being the following: (Here 50 Jacobs vs. Jacobs, 90 Mo. 427 ; 52 Matter of Loper, 2 Redf. 545. S. C. 12 S. W. Rep. 457. ^^ Woerner on Admin. 685. 51 Delabigarre vs. Second Munici- 54 Moore vs. O'Brannin, 14 0. S. pality, 3 La. Ann. 230. 177. § 453 ASSETS COMPOUNDING CLAIMS 384 state in substance whatever may be the reason for asking the Court for perinission to compound the claim), that the said E. F. has offered and agreed to pay in full thereof the sum of dollars. Wherefore the said A. B., as administrator, believing it is for the benefit of the estate and asks for authority to accept the same. Sworn to and subscribed before me and in my presence this day of 190 55 § 453. Hearing, etc. The statute does not indicate tlie course the Court ought to pursue in arriving at its conclusion, whether or not to grant thti application. If the claim is large and the Court has some question about granting the application, notice ought to be given to some one interested beneficially in the estate, so that he can be present at the hearing. One author says that if the executor asljs leave of the surrogate, he must upon the application give the surrogate the same evidnce to inform his mind as if tlie compromise had been made and were being attacked upon the accounting.*"* In the exercise of its discretion the Probate Court shall act exclusively for the interest of tlie estate. Neither the executor nor the Court can modify an existing obligation, and the Court will never interfere except where the debtor is insolvent or some doubt exists as to the validity of tha claim, or there is reason to apprehend that the pa^^nent can not be enforced. Even where the will authorizes the settlement of a claim by com- promise or otherwise, the executor will be^ responsible for the compromise of a claim tliat is not doubtful.®^ If the ground of authority for granting the compromise comes under the provisions of sec. 10701, G. C. (§ 456), notice must be given as provided in sec. 10702, G. C. (§ 459). Sometimes it is desired to get the Court 's sanction to compounding a claim when it is not desired to go to the expense of the notice required by sec. 10702, G. C. In such case the executor is not relieved by the order cf the Court, further than to throw the burden of proof 55 See § 1615, Assignments. ^i Buerhaus vs. De Saussure, 41- 60 Jessups Surr. Pract. 902, cit- S. C. 494; Woerner on Admin. 684. ing in re Richardson's Estate, 9 jS'. Y. Supp. 638. 385 ORDER OP COMPROMISE § 454 on the person taking exception to the compromise, if the same is attacked in his account. § 454. Order of compromise. The Court being satisfied that the interest of the estate will be best subserved by compounding the claim, an entry should be made to that effect. But whether or not such order of the Court can be attacked in filing exceptions to tlie administrator's ac- count is not clear. In some States ®* it is provided by statute that such order of the Surrogate Court does not prevent at- tacking the administratoi^'s actions in his account. If, however, the application had been made and notice given to the parties in interest and a- regular hearing had thereon, the question ought to be final, provided the administrator has acted fairly and in good faith. I rather think, however, that such action of the Probate Court will not prevent attacking the settlement in the administrator's account, but it will throw the burden of proving that the settlemenii was wrong and against the interest of the estate, on the person seeking to attack the account, and if it is shown that the administrator acted as a discreet and prudent man would act if the debt were his own, he should not be held further responsible.®^ The entry may be in the following form : (Title.) This day this matter came on to be heard upon the application of A. B., administrator (or executor) of the estate of C. D., deceased, for authority to compound a claim of dollars against E. F. ; and it appearing to the Court that the said E. F. is unable to pay his debts in full (or that said claim is doubtful and cannot be collected, etc.) said ad- ministrator (or executor is authorized to give a discharge of the debt afore- said upon receiving thereof dollars.ee § 455. Arbitration. There is no statutory provision authorizing an administra- tor or executor tx> submit to arbitration, a claim existing in 6* New York. • vs. Manning, 4 Hun 7; Murray va. «6Redf. Surr. 51], citing Leland Blatchford, 1 Wend. 585. 66 See § 1615, Assignments- § 455 ASSETS COMPOUNDING CLAIMS 386 favor of the estate, as there is in reference to a claim against the estate.*^" But I have no doubt that the rights existing at com- mon law in reference to the submission of such matters to arbi- tration still exist in Ohio.®* Our general statute provides that all persons who have any controversy except when the possession or title of real estate may come in question, may submit such controversy to the ar- bitrament or umpirage of any person or persons to be mutually agreed upon by the parties, and they may make such submis- sion a rule of record of this State.®® This would seem to be broad enough to include an administrator or executor.^" As incidental to the power to sue and collect, the executor or administrator ought to have a right to arbitrate or compromise any demand of the decedent whidi he represents, provided he act within the range of a reasonable discretion as to the true interests of the estate. Nevertheless, the responsibility is a perilous one, according to some authorities, unless sanctioned by express statute. ^^ Upon this matter a distinguished author says: " It seems never to have been doubted that executors and administrators have full authority at common law to submit any matter iu dispute, relating to the estate of a deceased person in their hands, to arbitration, and thereby bind himself to the extent of assets. But while the award is undoubtedly binding upon the parties, as well as upon those having any interest in the estate, it affords no protection to the executor or administrator, al- though acting in perfect good faith, against liability as for C7 § 6093 R. S. See § 594, et seq., the parties on .the same subject mat- on Arbitration of claims. ter. But no judicial action can 68 Child vs. Updyke, 9 0. S. 333. be had upon it without pleadings as The award rendered in such com- in other cases. mon-law arbitration, has no judicial 69 § 12148 G. C. force. It operates neither as a judg- to The estate of a decedent is a ment nor as the verdict of a jury. person in legal contemplation. Bil- The failure to pfrform it may con- ling vs. State, 107 Ind. 54; Taggart stitute a cause of action, or its per- vs. Teianney, 1 Ind. App. 339. formance may furnish a good de- ti gch. Ex. 299 ; 1 Am. & Ency. of fense in a subsequent suit between Law 653. 387 ARBITRATION 455 devastavit." ^^ It is questionable, therefore, whether executors or administrators should submit such claims to arbitration. But if they proceed as is provided by the general statutes, they certainly ought not to be held for any wrong doing. '^^ 72 Woerner on Admin. 685, citing Coffin vs. Cottle, 4 Pick. 454 ; Chad- bourn vs. Chadbourn, 9 Allen 173; Lyle vs. Rodgers, 5 Wheat. 394, 406, et seq.; Wood vs. TunnicliflF, 74 N. Y. 38; Strodes vs. Patton, 1 Brock. 228, 231; Eaton vs. Cole, 10 Me. 137; Kendal vs. Bates, 35 Me. 357; Ailing vs. Munson, 2 Conn. 691; Merchants' Bank of Macon vs. Tay- lor, 21 Ga. 334; Wamsley vs. Wams- ley, 26 W. Va. 45 ; Powers vs. Doug- lass, 53 Vt. 471, 474. 73 See Woerner 685. By conferring on courts of Pro- bate jurisdiction to authorize exec- utors or administrators to submit demands in favor of or against es- tates in their hands to arbitration,, or to compromise them, the Legisla- ture intended only to give security and protection to these officers in the exercise of that authority with which they were clothed by com- mon law. Chadburn vs. Chadburn, 9 Allen 173; Chouteau vs. Snydam, 21 N. Y. 179; Chase vs. Bradley, 26 Me. 631. 456 SALE DESPERATE CLAIMS 388 CHAPTER XXVI. ASSETS. SALE OF DESPEEATE CLAIMS. § 456 Disposition of desperate § 463 Public or private sales, terma claims. of compounding to be fixed in § 457 Jurisdiction. order. § 458 Application. § 464 Entry of public sale. § 459 When notice of application to § 465 Form of notice and return of court for their sale necessary, sale, publication of notice. § 466 Form of private sale, etc § 460 Entry ordering notice. § 46V Keturn of private sale. § 461 Form of notice, etc. § 468 Effect of order. f 462 Required proof. § 456. Disposition of desperate claims. "Upon proper proof by an executor or administrator to the probate court that any claim, debt, or demand belonging to the estate in his hands to be administered and accruing in the lifetime of the deceased, represented by such executor or administrator, is desperate : 1. On account of the doubtful solvency or actual insolvency of the debtor ; 2. On account of such debtor having availed him or herself of the bankrupt law of the United States ; 3. By reason of some legal or equitable defense which such debtor or debtors allege and make appear against it ; 4. On account of the smallness of such claim and difficulty in its collection, either from the remoteness of the debtor's resi- dence, or the ignorance of the executor or administrator, of such residence ; the court may order such claim, debt, or demand to be compounded or sold, or to be filed in court for the ])enefit of such heirs, devisees, or creditors of the decedent as will sue for or recover it, giving the creditors the preference, if they or any of them apply for it before the final settlement of the estate. Such order of the court shall be a sufficient voucher to the ex- ecutor or administrator." [R. S. § 6077.]^ 1 § 10701 G. C. notwithstanding the fact that the The mere fact that an administra- administrator has tiled, his final ac- tor files certain claims with his count. Pudcr vs. Agler, 242 Fed. account as being uneolieetible will 95; 62 Bull. 410. not confer a rignt upon the heirs to A claim owed by the executor, enforce collection tnereon. even though the executor is in- No heir can sue to recover on solvent, is not a desperate claim, bonds of the intestate unless they Sheney _vs. Powell, 20 C. C. 398; 11 have been legally distributed to him, C. D. 279. 389 JURISDICTION § 457 § 457. Jurisdiction. As a matter of course the application to be made for the sale of desperate claims must be made in the court making the appointment. But such court has no authority to authorize a sal© which is not permitted by law. Thus where an insolvent person who was indebted to the estate, was appointed adminis- trator of the estate, it was held that the court had no power to permit such administrator to sell the claim against himself as a desperate claim. The statute upon his qualification trans^ muted the claim into money, and if a sale was made, the pur- chaser received no title. ^ No administrator has a right to sell either at public or private sale any promissory note or claim, or demand, or right of action which he can collect, unless the Court finds as pro- vided in the above section, that it is what might be termed a desperate claim. ^ The claim or demand being one which ac- crued or was acciniing during the lifetime of th© deceased.^"* An administrator or executor can, however, sell a note and trans- mit a good title to the purchaser, if the note Avas taken by him in the usual course of administering the estate.* The validity of the sale as well as the protection afforded the administrator or executor, will depend upon a proper compliance with the provisions of the above and subsequent sections of the General Code. A claim is not presumed to be desperate until a finding of the Court is made to that effect, and the administrator has no authority to sell it, either at public or private sale. § 458. Application. The above section provides four sufficient reasons, the exist- ence of any one of which will be sufficient to authorize the Court to permit a sale. The application, therefore, must con- tain some one of such statutory causes, and it may be in the following form: 2 Chaney vs. Powell, 20 C. C. 399; 3* See § 1396 R. S. 11 C. D. 279. ■* Jelke vs. Goldsmith, 52 0. S. s See § 6074 R. S. § 470. 499. §459 SALE DESPERATE CLAIMS 390 {Title.) Now comes A. B., administrator (or executor) of the estate of C. D., and respectfuly represents to the Court that among the assets in his hands belonging to the deceased's estate and accruing during the lifetime of deceased, there are tlie following claims. (Here set out in detail each claim, describing it as given in the inventory, and also set out the reason why each claim cannot be collected, being careful to give as a reason for not being able to collect, one of the following: First, Doubtful or actual insolvency of the person owing the same. Second, That the debtor is a bankrupt. Third, That the debtor has some good legal or equitable defense. Fourth, That the claim is difficult to collect, either from the remoteness of the residence of the debtor or the ignorance of the executor or admin- istrator of such residence.) Wherefore the said A. B., as administrator, asks that said claim (or claims) may be compounded (or sold or be filed in the Probate Court) as provided by law. Sworn to and subscribed before me and in my presence this day of 190.... § 459. When notice of application to court for their sale necessary. Publication of notice. "^Yhen a claim or demand exceeds ten dollars, or in the aggregate exceed five hundred dollars, the executor or administrator must give notice of his intended application for such order, at least three consecutive weeks prerious to the day on which it is to be made. The notice shall be published in some newspaper having general circulation in such county. When the claims are numerous they need not be described in the notice." [R. S. § 6078.]** § 460. Entry ordering notice. If any one of the claims or demands exceed the simi of ten dollars, or if they all in the aggregate exceed five hundred dollars, there must be a notice given as provided in the pre- vious section. Where no notice is required, the Court may at once allow the application upon satisfactory evidence and may order the claims compoimded and sold at either public or private sale. (Title.) On this day came A. B., as administrator (or executor) of the estate of C. D., and filed herein his application, praying for an order of this court authorizing him to sell (compound or file) the claims therein described ** § 10702 G. C. 391 NOTICE PROOF, ETC. § 461 which he holds among the assets of the estate. And it appearing to the Court that the sum of said claims exceed ten dollars in value, it is ordered that said cause be set for hearing on the day of , at o'clock . . . M., 190 ... . And that notice thereof be given at least three consecutive weeks previous to said day for hearing, which notice shall be published in some newspaper of general circulation in this county. § 461. Form of notice, etc. If such claims are numerous they need not be described in the notice, otherwise they should be described. The following may be used as a form: {Title.) To whom it may concern: The undersigned, as administrator (or executor) of the estate of C. D., deceased, has this day filed in Probate Court of county, Ohio, his application praying for an order authorizing him to sell (or compound or file) the following claims belonging to the estate of C. D., and which have become desperate. (Here insert the name of each debtor, nature of the claim and amount due, if not too numerous, if numerous the principal ones, the others briefly.) Said application will be for hearing on the day of , at o'clock... M., 190 Administrator, etc., of C. D. § 462. Required proof. On the day set for hearing the Court should require a filing of the notice and an affidavit by the publisher, that it has been given as required by law. The statute does not indicate what proof is required, but simply says upon proper proof. By this we are led to believe that some evidence should be adduced and the Court should have a hearing and should find from the evi- dence that the claims set up in the application are of such a character as to bring them within the purview of the statute, and that some one of the statutory reasons exist for declaring the claims desperate. The Court may order that the claim or claims be sold either at public or private sale or that they be filed in court. § 463. Public or private sales. Terms of compounding to be fixed in order. "If the court orders a sale of such debts or demands, the executor or administrator must give public no- tice, as above provided, of the time and place of sale, three § 464 SALE DESPERATE CLAIMS 392 consecutive weeks previous to the day of sale, at which they shall be sold to the highest bidder. The court may order a pri- vate sale of such debts and demands, in like manner and for like reasons as provided for the private sale of goods and chattels. If the court authorized the compounding of such claims or any of them, in its order it shall fix the sum for which they may be compounded. " [ R. S. § 6079. ] ' § 464. Entry of public sale. (Title.) This day this cause came on to be heard upon the application of A. B., administrator (or executor) of the estate of C. D., deceased, for an oraer authorizing him to sell at public sale certain claims therein described belonging to the estate of said decedent. Which said claims were accruing (or had accrued) in the lifetime of the said decedent, and the same was submitted to the Court. Whereupon the Court finds that due and proper notice of said application and the time of hearing the same has been given as provided by law and that the allegations of said application are true and that said claims are desperate. Wherefore it is ordered that said admin- i.e void, but if the estate suffered any loss the administrator or executor would be lia- ble.'" As a general rule, the time ought not to be extended, and the statute means that it shall not be extended unless there is a good cause for it — that is, such a cause as will result bene- ficially to the welfare of the estate. For, generally, an ex- peditious settlement of an estate is more beneficial to those in- terested than one delayed. It should not be granted for the mere asking. The application may be in the following form : {Title.) A. B., executor (or administrator) of the estate of C. D., deceased, respect- fully represents to the court that three months' time has about elapsed from the date of his giving bond, and that he has not sold the perconal property belonging to the estate of said C. D., for the following reasons: (Here state reasons.) And that he believes, for the following reasons (here state reasons) that he should have an additional time of months in which to make such sale. Wherefore he prays the court that such extentsion may be granted to him. FORM OF ENTRY. (Title.) This day this matter come on to be heard upon the application of A. B., executor of C. D., for an order of the court extending the time for making the sale of the pei-sonal property belonging to said estate ; and the same was submitted to the court. Whereupon the court finds that there is good cause for granting such extension and it is hereby ordered that this time be extended days or months from this date. §479. How to be sold. "The sale of personal property- shall be made at public auction after at least fifteen days ' notice has been given in some newspaper in general circulation throughout the county, or by advertisement set up in at least five public places in the county where such sale is to take place, though for good cause the court may extend the time for sale. When, on sufficient proof, it is satisfied that it would be for the advantage of the estate to sell any part of the personalty 27a If this be an order to sell less price, and this should be in the notes, bonds, stocks, etc., that have entry. See § 10697 G. C, § 470. neither been collected or distributed 28 §§ 10697-8 G. C, §470, in kind, the Court must fix the price, 29 § 10700 G. C, § 475. and the same can not be sold for a 30 Hicks vs. Stone, 11 Bull. 67. § 480 PUBLIC SALE OF PERSONALTY 404 not taken by the widow at the appraisers' valuation at private sale, the court may authorize the executor or administrator so to sell any part thereof, either for cash or on such other terms as in its discretion, it directs, but not at less than its appraised value, unless by the affidavit of at least three disinterested persons the court is satisfied that such propertj^ can not be sold at its appraised value, and that it will be for the best interest of the estate to sell it at a less price, in which case it may authorize its sale for a less amount. Should any prop- erty thus ordered to be sold at private sale not be sold within six months from the time of such order, or within such other time as is fixed therefor, the court may order it to be sold at public auction in the same manner as though a private sale had not been ordered. [R. S. § 6076.] " § 480. Notice, etc. No order of court is necessary for an administrator or execu- tor to sell at public sale. The statute gives him all the order he needs. As to the exact time, manner, and place of the sale the administrator will often find it very much to his advantage if he consults those who are beneficially interested. "A little oil upon troubled waters often prevents a storm. "^- The first essential matter in proceeding to have a public sale is giving public notice. There is no statutory requirement of what the notice shall contain, but it must be given for at least fifteen days in a newspaper of general circulation throughout the county, or set up in at least five public places.^* The substantial compliance with this is all that is required. The administrator, however, should use his best endeavor to give the sale a wide degree of publicity, and should exercise the same judgment that a careful and prudent man would if he were offering his own property for public sale. The notice or sale hill may be in the following form : 31 § 10700 G. C. See § 1609, in ation of property were observed." part, § 495 for remainder of section. Per Davis, J., in Gaines vs. De La 32 The judgment of residuary le- Croix, 6 Wall. 719. gatees or distributees may be of im- See Kaiser's Succession, 48 La. portance in aiding the representa- Ann. 973, where the executors were tive's discretion as to the time, held justified in sel'in?" at private place, and manner of sale. He is sale in the interest of the estate, not bound to act upon the judgment apparently Avithout an order of of one or all of such parties; but to court. Wynns vs. Alexander. 2 Dev. ascertain and act upon the wishes of & B. Eq. .58: McDaniel vs. Johns, 8 the majority of beneficiaries in in- Jones L. 414; Hicks vs. Stone, 11 terest may often be convenient where Bull. 72. the fiduciary's own responsibility is An executor, acting in good faith a delicate one. See Marsden vs. and, as he believes, for the best Kent, 25 W. R. 522; Sch. Extr. 348. interests of the estate, and applies 34 "Executors could only sell at the proceeds to paying the debts of public auction after due advertise- the estate, unless it is shown the ment of the property, and the pur- estate suflPered, is entitled to full chaser at a forced sale did not ac- credit in his account. Hunter vs. quire a good title unl'^ss the formal- Yocuni, IS N. P. (N.S.) 14. ities prescribed by law for the alien- 405 CONDUCT OF SALE § 481 ADMINISTRATOR'S OR EXECUTOR'S SALE. The undersigned will offer for sale at public auction, at he late residence of , deceased, in county, Ohio, on the day of A. D. 190 . . . , the personal property of the said , deceased, consisting in part of Sale to commence at o'clock, . . . M. TERMS. — Purchases amounting to three dollars or less to be paid in cash, above that sum, notes on months time, with two or more approved sureties, will be taken. ,190.. .34a § 481. Conduct of sale. In the conduct of the sale, the administrator is authorized to secure such services and incur such obligations as is proper to make an effective sale. The sale must be made pursuant to the terms of the statute ; and in the absence of an order of the Court, the sale must be public.^*' Before selling the property must be appraised. ^^ The purchaser acquires the same title as the decedent held in his lifetime, although the sale may be v^^holly unnecessary; and such sale can only be avoided for fraud or collusion prac- ticed by the executor or administrator and the purchaser.^^ Mortgaged property is sold subject to the mortgage.^" Any one bidding off property must pay ifor it; and if he do not, and it is resold for less than his bid, he will be liable for the difference between his bid and the amount of the sale.*° The administrator cannot purchase at the sale.**'* He may employ an auctioneer.*^ The estate is not liable for the fraudulent representations of 34a One insertion if made fifteen 39 /^ re Haig's Estate, 6 Dem. days before the time of sale, would 4.54; S. C. 3 N. Y. Supp. 285; 14 be a sufficient compliance with the Civil Proc. Rep. 357. statute. Not in this State, as here the 35 Ppe § IfiOO, Assignments. mortgaaror's rip-hts merely follow 36 Citizens' St. Rv. Co. vs. Rob- the fund, see § 364. bins, 128 Tnd. 440;"Wever vs. Pec- 40 Meek vs. Spencer, 8 Ind. 118. end Nat. Rank, .^7 Tnd. 'lOS. 40* See subsequent §402. Martin 37Ramey vs. McCain, ?,\ Tnd. 406. vs. Wvncoop, 12 Tnd. 266. S^Wever vs. Second Nat. Bank, 41 Lewis vs. Reed, 11 Ind. 230; 57 -nd. 108. Sch. Ex. §341. § 482 PUBUC SALE OP PERSONALTY 406 the administrator wherel)y the sale was induced; nor for hig ■warranty.*- Bnt the administrator may by certain acts of his make himself liable.*-* To show good title in the purchaser, there being no question of fraud, it need not be shown positively that the executor as- sumed to sell the property as executor.*^ § 482. What credit to be given. ' ' In all sales of personal property when the amount bought exceeds three dollars, a credit shall be given by the executor or administrator, of not less than three and not more than six months, unless otherwise ordered by the court." [R. S. § 6081 ; 102 v. 202.] ** § 483. Security to be taken. "Notes or bonds, with two or more approved sureties, in all cases of sale on credit, must be taken by the executor or administrator." [R. S. § 6082.] " § 484. Sufficient surety, etc. Sec. 10219, G. C, provides for the qualifications of sureties, which is as follows: "Sureties must be residents of this State, and worth, in the aggregate, double the sum to be secured, be- yond the amount of their debts, and have property liable to execution in this State equal to the sum to be secured. ' ' * This applies to sureties given on a note at an administrator's sale.*® An administrator or executor has not an absolute right to de- cline a note if the surety thereon is sufficient under the statute; and at his pleasure reject the notes tendered him. But if his decision as to the qualification of the sureties is made in good faith, and with due • caution, it should stand.*' 42 Huffman vs. Hendry, 9 Ind. * ? ^40. App. 324; S. C. 36 X. E. Rep. 727. •»- The vital question then in the See Lockwood vs Gilson, 12 S. ^ase is, whether the administrator o26; Uunlap vs. Kobinson, 12 O. S. 53j_ can arbitrarily, and not in good He might be personally liable, faith, reject notes tendered to him, ^^^■>! r■^ T-- 1 oo /-k /-I /"« when the sureties in fact have all 42a Fisher vs. Fisher, 33 0. C. C. 325. of the qualifications required by the 43 Harvey vs. Van Cott, 71 Hun statute. We think that such ought 394; S. C. 25 X. Y. Supp. 25. x i. u ^ • ^ ^i i jt- i. d„ « i^nn \ • ™ i not to be, and is not the law. it is . bee s 1609, Assignments. ' 44 § 10705 G. C. true that the use of the words "ap- 45 § 10706 G. C. See § 1606. proved sureties" in § 6082 R. S., 46 Hamilton vs. Bonham, 20 C. C. . , x ., • -j i i. 252- 10 C. D 834 gives some color to this idea, but we are of the opinion that the meaning 407 SUFFICIENT SURETY § 485 When surety is to be given, if the administrator accept only the personal obligation of the purchaser, such administrator will be liable personally for the amount of the sale.*® If he accepts insufficient surety, he will be liable on his bond for both principal and interest, but he is entitled to have the notes turned over to him.*^ The omission to take surety does not vitiate the sale/" If the surety is good when taken, a subsequent failure or in- solvency of the surety will not render the administrator liable, but the loss will fall on the estate.^^ Where an administrator sold upon a few days' time, consid- ered in the vicinity as a cash sale, and the purchaser failed be- fore the time fixed for payment, it was held that this waa equivalent to a cash sale and that he was not liable/^ § 485. When executor or administrator not liable for loss. "An executor or administrator shall not be responsible for loss happening by the insolvency of the purchaser at such sale, or his sureties, if satisfactory evidence is adduced, that the execu- tor or administrator proceeded with due caution in taking of these words is to be ascertained brouck vs. Hasbrouck, 27 N. Y. 182; by reference to the language used in ^^%/^- ^^^^'^S' 2 Hill (S. C.) the other section of the statute to fhe administrator is liable if he which we have referred — that it was does not take proper security, not intended to confer upon the ad- White vs. Moe, 19 0. S. 37. ministrator the power, at his pleas- '" W vs. Lawson 23 Ala. 377. J . , , But in Indiana, where an order to ure, to deprive the person to whom ^^^ gt^pj, ^t private sale required the goods were struck oflf, of his good security, and the sale was made right to the property, if he fully and on the purchaser's individual note, clearly complied with the other pro- on ten years' credit, the statute per- . . . . , , , mitting but twelve months, the sale visions of the statute, for then he ^^s held void and to pass no title, furnishes sureties approved by the Citizens R. Co. vs. Robbins, 128 Ind. law, and which should be approved 449. by the administrator. Hamilton vs. ^ " , ' /lu . o c™ s tit •^ Gordon vs. Gibbs, 3 Sm. & M, Bonham, 20 C. C. 254; 10 C. D. 834. 473. Davis vs. Marcum, 4 Jones' But the purchaser could not main- Eq. 189. tain an action of replevin. Bonham ^^ Taveau vs. Ball, 1 McCord Ch. 456 vs. Hamilton, 66 O. S. 82. The administrator ought not *8 Parkham vs. Stith, 56 Miss. 465. permit the property to pass out of « White vs. Moe^ 19 0. S. 37; his possession until the terms pre- Lindky vs. State, 116 Ind. 235; scribed by statute have been com- Sherrell vs. Shepard, 19 Fla. 300; P^ Bowen vs. Shay, 105 111. 132; Has- § 486 PUBLIC SALE OF PERSONALTY 408 security, and has used due diligence to collect such notes and bonds." [R. S. §6083.]S3 § 486. Payment, etc. The administrator can, as a general rule, receive nothing in payment except money.^* The administrator cannot accept his own debt in payment and if he do, he will be liable on his bond, or the sale may be set aside; or, if the purchaser have knowledge of the misap- plication of the proceeds of his purchase by the administrator at the time, the purchase money may be recovered from him/* An administrator, if every element of fraud be absent and it be assigned to the administrator with the consent of all the parties to the transaction, may receive in satisfaction of a note payable to him as such administrator an account due the maker of the note from a third party.^® If he accepts payment in depreciated currency, he will be liable for the difference between its actual value at the time of acceptance and the amount for which he accepted it.^^ If sold on credit, he is liable for the scaled value of the money for which it was sold at the time of the sale, and not at the expiration of the credit.^^ The value of a decedent's personalty at the time of granting 53 § 10707 G.C. Jones vs. Graham, 36 Ark. 383; See § 711, Sale bill; § 719, Bad Campbell vs. Miller, 38 Ga. 304; debts; § 1616, Assignments. Succession of Herron, 32 La. Ann. 54 Chandler vs. Schoonover, 14 835; Williams vs. Campbell, 46 Ind. 324 ; Bevis vs. Heflin, 63 Ind. Miss. 57 ; Currie vs. McNeill, 83 N. 129; Alvord vs. Marsh, 12 Allen C 176; Koon vs. Munro, 11 S. C. 603; Woerner, admin. 698. 139; Rockhold vs. Blevins, 6 Baxt. 55ld. ; Austin vs. Willson, 21 Ind. 115; Staples vs. Staples, 24 Gratt. 252 ; Weir vs. Tate, 4 Ired. Eq. 264 ; 225 ; Jackson vs. Chase, 98 Mass. Wallace vs. Brown, 41 Ind. 436; 28C. Bass vs. Chambliss, 9 La. Ann. 376. 58 Depriest vs. Patterson, 92 N. 0. 66 Hancock' vs. Morgan, 34 Ind. 399 ; Granberry vs. Granberry 524; Morris vs. Whitmore, 27 Ind. (Va.), 1 W^ash. 246. 418. Our statute allows a credit of 57 Glenn vs. Glenn, 41 Ala. 571; nine months; he would only be U* Anderson vs. Wynne, 62 Ala. 329; able for a longer time. 409 PAYMENT RETURN, ETC. § 487 the letters of administration cannot be shown by the price it was sold for years afterwards by the administrator.^^ If the sale is on time, yet the administrator may accept cash down.'" A creditor of the estate cannot deduct from the price of the property sold to him by the administrator the amount of his demand against the estate, unless his claim has been adjudi- cated, and the amount to which he is entitled from tlie estate ascertained, in which case the smaller sum may be deducted from the larger.®^ § 487. Executor or administrator to make out list of articles liable to sale. Duty of clerk of such sale. "Before a public sale, the executor or administrator shall make out a list of all the articles mentioned in the inventory, which are liable to sale,' in the order they are set down in the inventory, whetlier they are destroyed, taken by the widow at the appraisement, or other- M'ise forthcoming or not. A suitable clerk, who is not interested in the estate, at the time of sale shall place opposite to each item upon the list the names of the purchaser or purchasers, and the amount for which the item mentioned, or any part of it was sold. If there be any article on the list not sold, the clerk must enter opposite to it the words 'not sold' or the words 'taken by the widow at the appraisement', or other statement, according to the fact. If articles are sold, which are not mentioned in the inventory, they shall be so designated on the sale bill by the clerk." [R." S. § 6084.] «- §488. Construction of preceding section. "Nothing con- tained in the next preceding section shall require the executor or administrator to sell each article in the order in which it is stated in the list taken from the inventory, nor require articles, which are mentioned in the list, under a single item, to be put up and sold together. The articles mentioned in the sale bill must be 59 Read vs. Patterson, 55 Hun munity sanctions a discount on caslx 60S; S. C. 8 N. Y. Supp. 826. payments, the administrator should tiO Gwynn vs. Dorsey, 4 Gill & J. not be made liable for such dis- 453. count, etc. A better way is to As our statute allows a sale to make all the notes draw interest be made on nine months' credit, from day of sale. Experience has where the payment is made in cash demonstrated that the articles bring a proper discount is allowed. just as good a price as where time This can not be done where there without interest is allowed, is no need for tlie money, and as a *'l Wocrner on Admin. 608. rule should not be done without the If the estate is known to be sol- sanction of the court, as the statute vent and tlie claim is known to be makes no provision for it. It sooms, correct, suah might with safety be however, if the same is a public done, sale and the custom of the com- 62 § 10708 G. C. §489 PUBLIC SALE OF PERSONALTY 410 stated in the same order in which they are entered upon the inventory." [R. S. §6085.]«=* § 489. Sale bill to be signed by clerk, sworn to by the execu- tor or administrator and filed. Returns of private sale. ' ' The sale-bill sliall be signed by the clerk, and the executor or ad- ministrator must make oath before an officer, authorized to administer oaths, that it is, in all respects, correct, to the best of his knowledge and belief. With a certificate of such oath annexed thereto, the sale-bill must be filed by the executor or administrator, in the probate court, within six weeks from the time of sale. All returns of private sales shall be sworn to by the executor or administrator." [R. S. § 6086.]^* §490. Form of sale bill, etc. The clerk of the sale should, in making out his sale bill, comply with the provisions of sec. 10710, G. C, and it should be returned at as early a time as convenient, and must be within six weeks from the time of sale. Practice has demonstrated that it is almost impossible to return the articles sold in the same order in which they were inventoried; and it is usual, while not complying with the statute, to make an ordinary re- port of each article sold, the name of the purchaser, and the price. It would also be advisable for the administrator to file, merely as an exhibit, a copy of the notice put up advertising the sale. To comply with the statute, the form should be somewhat in the following : , A. D. 190.... Sale bill of the personal property belonging to the estate of A. B., de- ceased, sold at public auction by C. D., administrator of the estate (or executor of the last will and testament) of said decedent, on the. .... .day of , A. D. 190.. .. NO. OF ITEM. PROPERTY AS IN- VENTORIED. VALfE AS INVENTORIED. Cts PURCHASER. Cts I hereby certify the foregoing sale bill to be correct. ., Clerk of sole. 63 § 10709 G. C. 64 § 10710 G. C. There is great difficulty experi- enced in getting all the articles in the sale bill in the order in which they are sold, and stating therein the inventory value, and it is per- haps oftener observed in its breach than observance and the court generally accepts the sale bill if it states the name of the purchaser and the price paid. 4:11 PUECHASE BY ADMINISTKATOK, ETC. § 491 State of Ohio, County, ss. Personally appeared before me, the undersigned, judge of the Probate Court of said county, C. D., administrator of the estate (or executor of the last will and testament) of A. B., deceased, who being sworn says that the foregoing sale bill of the personal property of the said deceased is in all respects correct according to the best of his knowledge and belief. Sworn to and subscribed before me this day of , 190.... Probate Judge.«o § 491. How return of sale bill enforced. ' ' If an executor or administrator refuses or neglects to return the sale-bill, or fails to make return of a private sale, within six weeks after the sale, the same proceedings may be had against him and his sureties, as are provided in cases of neglect or refusal to return an inventory. " [R. S. § 6087.] ^'^ § 492. Purchase by administrator or executor. " It is an ancient and very familiar doctrine," says Woer- ner,®^ " that the sale by an executor or administrator of prop- erty of the estate to himself, either directly or indirectly, whether at private or public auction, no matter how honest and fair, may be avoided at the option of the beneficial owner, or cestui que trust." While there does not appear to be any reported case upon the question in Ohio, as to personalty, the above rule has been un- qualifiedly followed as to real estate,®^ and the reasoning used in these cases makes the doctrine applicable to personal prop- erty as well as real estate.^® «5 See § 1614, Assignments. sonous in its consequences. The 68 § 10711 G. C. cestui que trust is not bound to See § 303, Compulsory return of prove, nor is the Court bound to Inventory. judge, that the trustee has made a 67 Woerner on Admin. 700. bargain advantageous to himself. 68 Barrington vs. Alexander, 6 0. The fact may be so, and yet the S. 198; Sheldon vs. Newton, 3 0. S. party not have it in his power, dis- 494; Piatt vs. Longworth, 27 O. S. tinctly and clearly to show it. 196; Caldwell vs. Caldwell, 45 0. S. There may be fraud, and the party 512. not able to prove it. It is to guard 69 Chancellor Kent arrives at this against this uncertainty and hazard conclusion, which he lays down as of abuse, and to remove the trustee i c p tvt m, ' ^ o J Crisman vs. Beasley, bm. & M. Ch. 14 Miss. 358. 561 ; Succession of Michel, 20 I^a. 80 Dunlap vs. Robinson, 12 O. S. Ann. 233; Becne vs. Collenberger, 33 530; Ramsey vs. Blalock, 32 Ga. ^^§. 647 „.,« -r ■, -r^ i rr, . „ 1 I^^G S 810, S 1616. 376; Lynch vs. Baxter, 4 Tex. 431. where in the sale of land it was 81 Williamson vs. Walker, 24 Ga. advertised as dry land when it in fact was wet, the pui held. Mechancs' S. & : O'Connor, 29 O. S. 652. 257; Crayton vs. Munger, 9 Tex. fact was wet, the purchaser was held. Mechancs' S. & B. Assn. vs 285. 82 Able vs. Chandler, 12 Tex. 88. § i94 PEOPEIITY UNSOLD 414 aoes not justify expenses attaching to an order of private sale. If tlie property is of very much value, the administrator ought to get an order to sell it at private sale. If of little value, he might sell it for the best price attainable and return it in his account. There are always a great many details sur- rounding the administration of the estate that a literal compli- ance with the statute will not beneficially affect the estate. In such cases the administrator should use his discretion, which, if fairly exercised, the Court vnW uphold. 415 PRIVATE SALE OF PEKSONALTY §495 CHAPTER XXVIII. PBIVATE SALE OF PERSONAL PROPERTY. § 495 Statutory provision. § 500 Return of private sale, § 496 Application. Essentials. § 501 Confirmation of sale § 497 Form of application for less § 502 How notes, claims, stocks, than appraised value. etc., sold. ,. . e no -c^ 4. • 4^ S 503 Forms of application, etc. § 498 F^ntries, etc. g 5Q4 ^^^^^ without order, etc. §499 When property is not sold § 505 Sale of perishable property, within six months. § 495. Statutory provision. ' ' When on sufficient proof, it is satisfied that it would be for the advantage of the estate to sell any part of the personalty not taken by the widow at the appraisers' valuation at private sale, the court may authorize the executor or administrator so to sell any part thereof, either for cash or on such other terms as in its discretion, it directs, but not at less than its appraised value, unless by the affidavit of at least three disinterested persons the court is satisfied that such property can not be sold at its appraised value, and that it will be for the best interest of the estate to sell it at a less price, in which case it may authorize its sale for a less amount. Should any property thus ordered to be sold at private sale not be sold within six months from the time of such order, or within such other time as is fixed therefor, the court may order it to be sold at public auction in the same manner as though a private sale had not been ordered." [R. S. § 6076.] ^ § 496. Application. Essentials. It will be observed in the above section (§ 10700), that there arc several essentials existing to authorize a private sale. First, 1 § 10700 G. C. in part. See § 479 See § 450, Compounding claims; for other part of section. § 456, Sale — desperate claims. § 497 PRIVATE SALE OF PERSONALTY 416 tlie Court must be satisfied, upon good and sufficient proof, that it will be for the advantage of tlie estate ; second, the property cannot be sold for less than its appraisal, unless the Court is satisfied by affidavits of at least three disinterested persons, that such property cannot be sold at its appraised value ; and a further provision is made that an order for private sale lasts six months, and then the property can be sold at public auction. The ordinary application may be in the following form: (Title.) The undersigned A. B. administrator (or executor )of the estate of C. D., deceased, respectfully represents to the court that it would be for the best interest of said estate to sell at private sale as provided by law, the fol- lowing described property belonging to the estate of said deceased: (Here describe as mentioned in the inventory.) He further asks the court for an order authorizing him to sell at private sale for cash (deferred payments) at the appraised value, the property above described. Sworn to before me and in my presence this day of 190.... § 497. Form of application for less than appraised value. (Title.) The undersigned, A. B., administrator (or executor) ot the estate of C. D., deceased, respectfully represents to the court, that it would be for the best advantage of said estate to sell at private sale at a price fixed by the Court, the following described articles belonging to the estate of the deceased: (Here describe.) He further represents to the court that in his judgment the sum of . . . dollars would be a fair price, and that he has filed herewith the affidavits of three disinterested persons, who say that such property cannot be sold at its appraised value, and that it would be for the best interest to sell the same at a less price. Wherefore he asks the Court for an order authorizing him to sell said property for a price to be fixed by the Court. Sworn to and subscribed before me and in mv presence thiS .day of 190..., The affidavits required to be filed with the foregoing petition may be in the following form : G. H., being duly sworn, says that he is familiar with the property described in the application filed by A. B., administrator of C. D.. for a gale ot personal property at less than its appraised value, and that in his opinion, said property cannot be sold for its appraised value, and that he has no interest whatever in the matters thereto referred, and that he 417 WHEN NOT SOLD, ETC. § 498 believes it will be for the interest of the estate to sell the same at a leas price than their appraisement. Sworn to and subscribed before me and in my presence this day of 190.. ..2 § 498. Entries, etc. The statute does not direct what the nature of proof shall be, but it must be sufficient to satisfy the Court. Neither does it say that notice should be given to any interested party. There may be cases when those beneficially interested should be notified. The form of entry for a private sale at its appraised value may be as follows: {Title.) This day this matter came on to be heard, upon the application of A. B., administrator (or executor) of C. D., deceased, for an order authorizing said administrator (or executor) to sell at private sale the property therein described, for not less than its appraised value, and the same was submitted to the Court. Whereupon the Court finds and is satisfied, upon good and sufficient proof, that it would be for the advantage of the estate of the decedent to sell the property in said application described at private sale at not less than its appraised value. Wherefore it is ordered that said A. B., administrator (or executor), be ordered to sell the property therein described at not less than its appraised value for cash (or other ^erms as the Court may fix) and the said administrator make return of his proceed- ings hereunder within months from this date. ENTRY FOR LESS THAN APPRAISED VALUE. (Title.) This day this matter came on to be heard upon the application of A. B., administrator (or executor) of C. D., deceased, for an order authorizing said administrator (or executor) to sell at private sale property therein de- scribed, for less than its appraised value, who at the same time filed in this court the affidavits of G. H., I. J. and K. L., three disinterested persons, that said property could not be sold at its appraised value, and the same was submitted to the Court upon said affidavits and the application. Whereupon the Court finds and is satisfied, upon good and sufficient proof, that it will be for the advantage of the estate of said decedent to sell the said property at less than its appraised value, and the Court further finds that a reasonable value for said property is as follows: (Here insert price fixed by the court upon each article.) And orders the same to be sold for not less than the price so fixed by the court; and that ~aid administrator be ordered to return within months from this date his proceedings herein. § 499. When property is not sold within six months. This matter may be brought to the attention of the Court by a report or motion. 2 See § 1614, § 500 PRIVATE SALE OF PERSONALTY 418 {Title.) Now comes A. B., administrator (or executor) of C. D., deceased, and represents to the Court that the following property (here describe) of the deceased has not been sold as heretofore ordered by the Court and more than six months has elapsed since said order was made. Wherefore he asks that said property may be sold at public auction (or if the administrat- or wants to continue the order for a certain length of time let the applica- tion so state) . Sworn to and subscribed before me and in my presence this day of 190.... The entry aiitliorizing sale of such property may be in the following form : {Title.) It appearing from the application filed herein by the administrator (or executor) of the estate of C. D., deceased, that certain personal property of said decedent designated in said motion and ordered sold at private sale more than six months ago has not been sold; and it is now ordered that the same may be sold at public auction as though no private sale had been ordered (here state, if such was the application, "that said order of private sale be extended months." ) § 500. Return of private sale. As soon as a sale is made, a return thereof should be filed in i Probate Court, and might be in the following form : ) (Title.) '[ Now comes A. B., administrator (or executor) of the estate of C. D., jj and respectfully represents to the Court that in pursuance of the order i of said court made on the day of , he has j sold at private sale at not less than its appraised value (here insert if \ the order be to sell at a price fixed by the court at " not less than the price fixed by the Court,") the following property: (Here insert prop- erty sold and the price of each.) Wherefore he asks the Court to confirm said sale. All private sales of property must have an affidavit attached to them. State of Ohio, County, ss. In Probate Court, A. B., administrator of the estate (or executor of the last will and testament) of C. D., deceased, being duly sworn, says that in obedience to the foregoing order, he sold said goods and chattels, com- mencing on the day of , A. D. 190 ... , and closing on the day of A. D. 190. . ., for the sum of dollars, said sum being the appraised value of the same, and the highest price he could get after having made diligent endeavor to obtain the best price for said property. A detailed schedule and list of said sale is herewith returned and filed. 419 CONFIRMATION OF SALE § 501 Sworn to and subscribed before me and in my presence this day of 190 Probate Judge.s § 501. Confirmation of sale. Wlien a report of a private sale has been filed, as well as a report of a public sale, it should be examined by the Court, and if found to be irregular, the administrator's or executor's attention ought to be called to such irregular matter and cor- rected, if possible. The Court should then confirm the sale. A confirmation of an irregular sale might act retroactively and make good that which was before deficient.* § 502. How notes, claims, stocks, etc., may be sold. ' ' The executor or administrator of an estate may sell either at public or private sale promissory notes, claims, demands, rights in action, bonds and stocks by first obtaining an order of the probate court therefor, but if he sells at private sale, it must be for not less than an amount previously fixed by the probate court." [R. S. §6080; 103 V. 265.] = § 503. Form of application, etc. (Title.) ") i'robate Court, Clark county, Ohio. In the Matter of the Estate of ^ Apjjlication for an order to sell J. W. P., deceased. } Bank Stock at Private Sale. The undersigned, L. A. and W. II. P., executors of the estate of J. W. P., deceased, respectfully represent that it will be necessary to sell the bank 5 See § 1614. Campbell, supra, citing numerous 4 Hicks vs. Stone, 11 Bull. 67, eit- Mississippi cases to the same effect, ing Schu. Ex. 316; 10 Vt. 120; 42 In Indiana, and other States where N. Y. 146. the order of court to sell at private Williams vs. Campbell, 46 Miss. sale does not require a confirmation 57, 62. A decree confirming the sale of the same, the title passes to the of personalty by the Probate Court purchaser at once upon his compli- is final. Bland vs. Muncaster, 24 ance with the terms of sale. Citi- Miss. 62; and can be set aside for ens R. Co. vs. Bobbins, 128 Ind. fraud in tlie Chancery Court only. 449, 457. See confirmation of sale Smith vs. Chew, 35 Miss. 153. The of real estate § 892. Probate Court may sot aside a sale 5 § 10704 G. C. which has never been confirmed, at Court may order stocks sold and any time before final settlement, proceeds reinvested. Guthrie vs. even after the lapse of twenty-one Electric Co., 2 N. P. (N.S.) 117; years; and until the Probate Court 15 Dec. 23. An order to sell for has acted upon such sale a chancery not less than the market price means court has no jurisdiction to set it the market price on the day the sale aside. Hart vs. Hart, 39 Miss. 221, is made. Bnsch vs. Buscli. 22 Dec. 224. But the Probate Court can 1; 12 N. P. (N.S.) 186: 33 0. C. not set aside its decree upon a re- C 358; 14 C. C. (N.S.) 346. See port of sale after the term at which also, § 10697 G. C, § 470. it was rendered. Williams vs. § 504 PRIVATE SALE OF PERSONALTY. 420 stock of the said deceased, for tlie purpose of paying debts of said deceased and making distribution of the assets thereof as provided in the will of said deceased. They, further represent to the Court that the said deceased was the owner of six (6) shares of stock in tlie First National Bank of Springfield, Ohio, of the face value of six hundred dollars ($600), and that the market value thereof is nine hundred dollars ($000). \Mierefore they ask that the Court may fix the price at which they may be sold and authorize them to sell them at not less than the price so fixed by the Court. Sworn to and subscribed before me and in my presence this 6th day of September, 19 — . I]NTRY AUTHORIZING SALE OF BANK STOCK AND FIXING VALUE. {Title.) Tliis day come I. A. and W. H. P., executors of the estate of J. W. P., deceased, and filed herein their application to sell certain bank stock belonging to the deceased ; and the same was submitted to the Court. Whereupon the Covirt finds th-^t it is nccess-M-y to sell said bank stock and fixes the value thereof to be nine hundred dollars ($900) and authorizes and directs said executors to sell and transfer to the purcliaser said stock at not less than the sum fixed by the Court, at private sale.s § 504. Sale without order, etc.*'* Whether or not a sale of stocks and bonds can be made by an executor or administrator in the absence of authority directing so to do in a will, when it is not necessary to sell such stocks and bonds to pay debts of the decedent, may be questionable. When sec. 10704, G. C, was first passed, the exceptions provided by sec. 10697-8, G. C, were not in that section, but after the passage of sec. 10704, G. C, sec. 10697, G. C. (§ 470), was changed, and now has an exception that bonds and stocks are not to be sold unless it is necessary for the payment of debts. This provision of sec. 10697, G. C., being passed subsequently to sec. 10704, G. C., and not being inconsistent therewith, it may now be said that bonds and stocks may be sold only when necessary to pay debts, except as now provided by sec. 10697, G. C. (§470), he may, when the same has not been disposed of within one year by distribu- tion in land sell them under order of court. It has, however, been held that an administrator or executor may sell such bonds or stocks and give a legal title without an order of court. '^ If there w^as a loss, however, he might be liable to the estate. 6 A regular way would be for the ^* Statute now provides notes administrator to file a report of sale may be sold by first getting order and ask its confirmation. Frequent- of court. See note IS, § 471. ly, however, no further report is ■? The title of personal property of made except in tlie accounts. See a deceased person, when not other- Distribution in kind, § 750, et seq. wise specifically bequeathed by will. 421 SALE WITHOUT ORDER OF COURT §504 Evidently the intention of the legislature was that, if it was not necessary to have a sale of bonds and stocks for the payment of debts of the deceased, that such bonds and stocks should be distributed in kind to those entitled to the estate. Where it is found proper that a sale should be made of stocks, those bene- ficially interested should consent to such sale. If, however, it is impossible to procure the consent of all beneficially inter- ested, and the nature of the distribution required is such that they can not be distributed in kind, an application should be made to the Probate Court setting forth such fact and other reasons, that a distribution can not be made in kind. The ap- plication should also state that it is necessary to sell such stocks or bonds to pay debt's, if the order is asked for that reason. The application and entries heretofore given may be made ap- plicable to the sale of stocks and bonds. It might be advisable to notify those beneficially interested before an application is granted. Especially is this true where it is not necessary to sell such stocks and bonds to pay debts of the deceased. vests in the personal representative. The statute directing that it may be sold under direction and order of the Probate Court, does not divest this title of the representative. What liability may attacli to him personally or arise upon his bond if he sells without the direction and order of the court, behind which tlie statute is designed to furnish him protection if he will avail himself thereof, we need not now inquire. It can not be tlie failing of the law to embarrass executors and admin- istrators in malving sales of personal property of their decedents, by ex- posing purchasers from them to lia- bility thereafter of being called so to account for the property pur- chased and paid for, because of some failure of the executor to follow the prescribed statutory steps in the sale. If this were so, no one could safely deal with an administrator or executor in the purchase of any of the personal estate, without first as- suring himself tliat all tliese prelim- inary steps had been carefully fol- lowed, as prescribed. Such a rule of law, rendering such sales wholly void for failure to follow the stat- utory forms by the executor, would render either j)ul)lic or private sales if not practically impossible, at least extremely diflicult and disadvan- tageous to the estate. Hicks vs. Stone, 11 Bull. 72. The decisions of the courts are not in accord as to the effect of a sale made by an administrator or executor without an order of the Probate Court. Some of them hold that the sale is void and no title passes. But generally it is held that where the purchaser is inno- cent he gets a good title, if the estate suil'ers any loss by reason of a wrong sale, the administrator or executor is held responsible. See Discussion of cases in Woer- ner 692, 697, and see Discussion in previous chapter; Sch., Ex. §362. Also Distribution in kind 750 et seq. An order of the Probate Court authorizing an executor to dis- pose of certain shares of the corporate stock at its market value for cash, complies with § 10704 G. C, and it is not essential that the stock should not be sold for less than the specified price. Busch vs. Busch, 22 Dec. 6; 12 N. P. (N.S.) 86. This case further holds a copy of the order of the court is sufficient protection for the corporation to transfer the stock. Affirmed, 33 O. C. C. 358; 14 O. C. C. (N.S.) 358. Such proceedings are defective but do not impair the title to the stock. § 505 PRIVATE SALE OF PERSONALTY 422 § 505. Sale of perishable property. Our statute makes no provision as to the sale of perishable property.* This is a kind of property that very often cannot be held until a sale can be had as provided by statute). Usu- ally it is not safe to keep it until an appraisement of the estate is had. The administrator or executor must make some kind of a disposition of it; if he did not, he might be liable. In the absence of any particular statute, the provisions of this chapter in reference to private sales should be used as far as applicable.® If the property which is of a perishable nat^ire is of small value — that is, twenty-five or fifty dollars — the administra- tor or executor might proceed to sell it without any formal order. But if it is of considerable value, he should file his petition in the Probate Court, setting forth the facts of the existence of such property, its perishable nature and its proba- ble value. If an administrator acts in good faith for the best interest of the estate in his opinion, without violating the law or order of the court having jurisdiction, and even permits property to remain unsold which is not likely to depreciate in value, he will not be held responsible for an unforseen loss arising. But he must act with diligence, and if he neglect to act within due time and tliere is a loss, he will be held re- sponsible." The forms and entries heretofore given in this chapter can easily be adopted to suit the application for a sale of perishable property. While in an unreported case Judgo ^ " The statute authorizing the Dempsey of the Cincinnati Superior private sale of personal property of Court held that bonds and stocks the decedent by an administrator is were not to be sold unless necessary most useful where the property is of to pay debts, the matter has been a nerishible nature, such as can best in considerable doubt in the mind of be disposed of in the public market, the author, see note to § 471 for or such as would probably be sacri- later opinion, etc. ficed at a public sale." 8 Perishable goods are those which Citizens, etc., Co. vs. Robbins, 128 are lessened in value and become Ind. 449. ft^orse by being kept. Bouvierg Diet. lo See Woerner on Admin. 330. See Sch. Extrs. 327, 349. 423 PKESEKVATION OF PROPERTY §506 CHAPTER XXIX. ASSETS. CARE AND MANAGEMENT. S 606 Preservation of property. § 519 Carrying out contract of de- 1 507 Notes, etc., given by adminis- ceased. trator. § 520 Contracts not binding, etc. § 608 Employment of attorney. § 521 Duty as to mortgages, etc. § 509 What counsel allowed. § 522 Stocks. §610 Amount of counsel fees al- § 523 Action by executor, etc., to lowed. complete contract for sale of 8 511 Taxation. land. §512 Custody of funds. § 524 Nature of proceedings. §513 Failure of bank where depos- § 525 Parties. ited. § 526 Petition. § 514 How executor, etc., guardian § 527 Notice, etc. and trustees may invest § 528 When court may order con- funds. veyance. Deed. §515 When investment to be made. § 529 Hearing, etc. §516 Application to invest, etc. § 530 Entry. § 517 Insurance. § 531 Form of deed. §518 Carrying on business of the § 532 Heirs of deceased purchaser deceased. may enforce specific perform- ance.! § 506. Preservation of property. The title of personal property, and sometimes real estate, devolves upon the administrator or executor. From the time that it goes into his hands he will be held to a reasonable degree of care with respect to such property, and he should adopt such precautions against loss by fire, flood, or waste of any kind, and exercise such forethought for the security of such property as prudent men are acciistomed to employ in reference to their own property.^ 1 See § 303, ct sec/., Assets gener- ally. § 02, for acts done before qualifying. 2 IMiller vs. Proctor, 22 0. S. 442; Rubottom vs. IVlorrow, 24 Ind. 202. Where executors held an estate under a will for a term of years to pay taxes, etc. They are owners, and a notice of an assessment should be sorvfd on them. Roberts vs. St. Bernard, 8 C. C. (N.S.) 422; 29 0. C. C. 725. Afrquicsconce on the part of a cestui que trust, in a wrongful con- version of trust funds, will operate as a release of the trustee as such, and his bondsmen from liability. In re Koehnken, 6 C. C. (in.S.) 359; 27 0. C. C. 840. An executor having the control and management of real estate has no right to make expensive perma- nent improvements. In re Uhlman, 19 Dec. 803. As for the simple care and cus- tody of the personal property re- duced to hiai corporeal possession and control, whether it be of things literally corporeal or of securities which represent incorporeal money § 506 ASSETS CARE AND MANAGEMENT 424 It becomes necessary in many cases, in order to avoid ma- terial loss and injury to the estate, to employ additional labor to take care of horses or other stock requiring attention, to tend and gather crops to protect property in danger of being lost, and to complete work in an unfinished state, or contracts binding upon the personal representative.^ As to some of these matters the administrator or executor should get the authority of the Probate Court, but there are other duties that are so incidental to the proper management of the estate that they necessarily follow with the proper ad- ministration of the estate, and no particular order of the Court is neceseary.* The care of real estate does not usually devolve upon an administrator, but when it is tlirown into his cutody it is his duty to take proper care of it. However, it must be under- stood that while the administrator, or executor is under obliga- tion to take care of tlie property, yet any contract that he may make with any person in reference to furnishing such care, is but the personal contract of the administrator or executor. And such person has no right of action against the estate, al- though the administrator or executor would be allowed for the rights, the executor or administra- 3 Woemer on Admin. 690. tor is certainly bound like a bailee * So it was held that it is the ad- in point of responsibility, according ministrator's duty to employ a phy- to the current of modern opinion. sician to attend upon a slave belong- Thus, if personal property belong- ing to the estate during his illness, ing to the estate be destroyed or cap- Bomford vs. Grimes, 17 Ark. 567; tured by a public enemy, or perish, Belfour vs. Raney, 8 Ark. 479, 482; or deteriorate from some internal and to retain hands employed in defect, or through the operation of agricultural pursuits until the crop natural causes, or in general because is gathered., Percival vs. Herbemont of inevitable accident, the executor 1 McMull. 59. Where an executrix or ad—.inistrator who has honestly carried on a brickyard after her exercised ordinary care and diligence intestate's death, and sold all the in averting or lessening the mischief bricks made before and after his escapes personal liability for the death indiscriminately, she was held loss. He is himself no insurer liable for the proceeds and entitled against accidents, though average to credit for the expenses. Ne-n'ton prudence as to certain kinds of prop- vs. Poole, 12 T^igh 112, 144. erty might perhaps have required See § 801, as to administrator's him to keep the property insured right to mortgage, § 645, debts due against loss by fire. Schu. Exrs. estate. §471, notes 502, Stocks. 314. 425 PRESERVATION OF PROPERTY § 506 same in his settlement of tlie estate. It has therefore been held that if an administrator buy in property mortgaged for the benefit of the estate, and make a promise in his capacity as ad- ministrator to pay the purchase money, no action, could he maintained thereon against the estate.^ If an executor or administrator permit a third person to man- age and control the estate, he adopts him as agent, and he is re- sponsible for the agent's conduct, and is liable for losses occa- sioned by his improper or negligent management of the affairs of the estate/ He cannot avoid liability for a loss of the fund, through the misconduct of the agent, on the ground that his co-executors were mainly active in the administration of the estate, and mainly instrumental in passing the fund into the hands of such agent, if he tacitly assented thereto when he had opportunity and reasonable cause to reject. It willbe the object and purpose of this chapter to treat of several specific instances of an administrator's care and responsi- bility in reference to the property placed in his charge.^ 5 Smith vs. Hayward, 5 N. P. 501, estate for purposes authorized by affirmed by Sup. Ct. ; West vs. Dean, law, but may not bind the estate by 15 C. C. 261; 8 C. D. 797. an executory contract, and thus cre- " Contracts of executors, although ate a liability not founded upon a made in the interest and for the contract or obligation of the testa- benefit of the estate they represent. tor." Austin vs. Monroe, 47 N. Y. if made upon a new and independent 360; Lucht vs. Behrens, 28 O. S. 237. consideration, as for services ren- e Earle vs. Earle, 93 N. Y. 104 ; dered, goods or property sold and affi'g in part 16 J. & S. 18. See delivered, or other consideration Clark vs. Clark, 8 Paige 152; Mesick moving between the promisee and vs. Mesick, 7 Barb. 120; Douglass the executors as promisors, are the vs. Satterlee, 11 Johns. 16; Whitney personal contracts of the executors, vs. Phoenix, 4 Redf. 180; Johnson and do not bind the estate, not- vs. Corbett, 11 Paige 265. withstanding the services rendered 7 He is bound to exercise that or goods or property furnished, or degree of diligence and prudence in other consideration moving from the care and management of the es- the promisee, are such that the ex- tate which men of discretion and in- ecutors could properly have paid for telligence in such matters ordina- the same from the assets and been rily employ in their own like af- allowed for the expenditure in the fairs. Matter of Butler, 1 Connoly settlement of their accounts. The 58. See §§ 435, 436, 653, 718, 1361. principle is, that an executor may 1378, 889, 1640, 1578. disburse and use the funds of the § 507 ASSETS CAKE AND MANAGEMENT 426 § 507. Notes, etc., given by administrator^* In consonance with what has been said in the previous seo- tion, Courts have held that promissory notes given by an admin- istrator for services rendered to the estate, or for property pur- chased for the benefit of the estate, are personal obligations of the administrator or executor, and cannot be collected against the estate.^* Thus, in Curtis vs. Bank,® an administrator bought a monument for the grave of his intestate and gave his negotiable note as administrator. This note was sold before due to an innocent purchaser. In the meantime, the adminis- trator had filed his account and filed a receipt showing pay- ment for the monument. It was said in this case " that the giv- ing of a negotiable note as administrator is such a departure from his authority, as to relieve the estate, and hence his sure- ties from liability, is a proposition so firmly established both upon principle and authority as to leave no excuse for contro- versy," ® In a more recent case it was held that an action at law cannot be maintained against an administrator as such by an attorney upon an account for services rendered such administrator at his request in and about the settlement of the estate so as to bind the estate for the payment thereof.^" And in another case it was held that executors and administrators are personally liable for the services of attorneys employed by them, but their con- tracts therefore do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the execu- tor or administrator may properly pay for, and receive credit for the expenditure in the settlement of his account.^^ In such cases the law contemplates that the administrator or executor will himself pay the value of such services and be re- 7a Cited Pajme vs. Recht, 38 O. ler vs. Hall, 64 X. C. 60 ; 1 Edwards C. C. 260. on Bills and Xotes, § 75 ; Gregory 7*Mellen vs. West, C. C. 89; 3 vs. Leigh, 33 Texas 813. See also C. D. 46. Ferrin vs. Myrick, 41 N. Y. 315; But the Probate Court may make Austin vs. Munro, 47 N. Y. 360. an order to pav a claim for services, 10 McBride vs. Brucker, 5 C. C. see § 64o. ' 12: 3 C. D. 7. See § 471 : notes due estate, § 502, n Thomas vs. Moore. 52 0. S. 201. Stocks and Bonds. If the administrator refuses to 8 39 0. S. .579. pay and the estate received the 9 Citing King vs. Thom, 1 Term benefit of his services, an applica- Rep. 487; Cornthwaite vs. First tion before the estate is settled, the Xat. Bank, 57 Ind. 268; Rittenhouse court might direct its payment out vs. Ammerman, 64 Mo. 197: Chris- of funds belonging to the" estate, tian vs. Morris, 50 Ala. 585 ; Kess- 427 EMPLOYMENT OF ATTORNEY § 508 imbursed by receiving credit for the amount paid in the settle- ment of his account. In a case cited in 15 C. C. 265, a suit was brought against the administrator for twenty-five barrels of corn which she had furnished at the request of the administrator after his appoint- ment, to feed the swine belonging to the deceased at the time of his death. In such case it waa held that the agreement is but a personal contract of the administrator and is no charge on the estate when demanded by the creditor.^^ § 508. Employment of attorney.^-* It is undoubtedly the right and in most cases the duty of the administrator or executor to employ counsel to advise and assist him in the performance of his official duty.^^ But, as stated in the previous section, no matter how necessary such services may have been, tlie attorney cannot sue the estate to recover for them, but must enforce his demand through the administrator or ex- ecutor. But a claim for attorney fees cannot be allowed for set- tling matters which involve no liability.^* Likewise it is. not proper to allow an attorney fees for draw- ing and insertion of a notice of the appointment of an adminis- trator, nor the listing of property. But the advice in the mak- ing of a proper inventory or settlement of partnership interest, or adjusting of a claim against the estate, or in settling a claim against the estate on which the deceased was surety, or giving advice about a question of descent, or investigating settlement and disposition of a large number of bills, or by arranging to continue a loan, or making a partial distribution of an estate, or preparing an account, are all proper cases for the employment of an attorney. ^^ But an executor has no power to employ an attorney to defend a will where a suit is brought to set the same aside," for litiga- 12 Dailey vs. Dailey, 66 Ala. 266; Where beneficiaries employed coun- Burglier vs. Wright, 22 Bull. 381. sel whose services were very val- 1-* Cited, 79 0. S. 110. liable to the estate, such fees were 13 Thomas vs. Moore, 52 0. S. 205 ; allowed by the court on equitable Miller vs. Proctor, 22 0. S. 442. principle. In re Oskamp. 1 -N. P. 11 /n re Estate of McAlpin, 8 Dec. (N.S.) 1!)7; 49 Bull. 568; Cin. Sup. 655; 38 Bull. 231. Ct. (1904). In sale of real estate, attorneys' is /jj re McAlpin, 8 Doc. 655; 38 fees are not prior to mortgage Bull 231. claim. Sherman vs. Millard, 6 C. 0. is/n re Johnson, 4 N. P. 156; 7 (N.S.) 338; 27 C. C. 177. Dec. 1. See §§ 645, 660 (1905). § 508 ASSETS CARE AND MANAGEMENT 428 tion of that kind is not necessarily in the interest of the estate. It was even held that attorney's fees would not be allowed where such a case was amicably settled without trial, especially when the settlement did not govern the distribution of the de^ cedent's property in accordance with the provisions of the will/' The same doctrine was announced by the Supreme Court, where it was held that the executor is not bound to assume the burden of a defense of the contest of a will by the heirs at law, that he is not entitled when the will is adjudged invalid to charge the estate, in his settlement of accounts, with the ex- pense of maintaining such defense/^* However, if the execu- tor is successful in having the will sustained, counsel fees may be allowed/® If a suit was brought to construe a will, this would be a necessarv matter for the employment of an attor- ney."* The services of an attorney at law are extraordinary services, and where the proper administration of the estate require such services, the executor or administrator may themselves perform such necessary services as attorneys and be entitled to a reason- able compensation therefor.^® 17 In re Seegar, 1 Dec. 113. But such fees only become a claim 17* Andrews vs. Andrews, 7 O. S. against the estate on settlement of See Estate of Currey, 20 N. P. ^he account. McMahon vs. Ambach, (N.S.) 219; 27 Dec. 485, wliere the 79 0. S. 103. court refused to make payment of See § 659, Extra compensation. attorney fees for defending a will, ^he following is a syllabus of the even when successful, a charge on , , , r . , . * the estate *^^^® ° ^^ '" -^-fcAIpm, as found in 18 In re Estate of Daniel Laws, 17 8 Dec. 655. See 38 Bull. 231 : Bull. 80; IS Bull. 198. Whenever the services of an at- 18* /» re Wolfe, 7 Dec. 220; 4 N. tornev are required in the settlement P 336 ' 'iQ rn' AC ij o • T \ T of an estate, in order to give the ad- 19 Chatfield vs. Swing, 7 Am. L. . . ^ ' , . " Rec 326 ministrator advice upon questions In this case it was held that the of law, or to perform legal services, preparation of the necessary pa- which the administrator could not pers for the application to the court perform himself, it is the duty of in a proper case to sell specific chat- ^he Court to allow him for such tels at private sale, and the procur- . -t-i i j „* t ;„ ^ , t ' 1 , ^ . services. The burden of proof is mg an order for such sale is an , , . ■ ^ ^ , i, . extra service so far as this dutv re- "PO^ ^^'^ administrator to show that quires the aid of an attorney;" and the services rendered him by the at- also that it would be proper to make torney were such services as the law an allowance for an attorney to as- makes an extra allowance for. The sist an administrator of a large drawing and insertion of the notice estate m taking out letters and giv- ^ ,, . , . t t-u j™;„;= . , i- *• 1 X 1 ■ 1 i of the appointment of the adminis- ing instruction m regard to his dutv . ^ . . at the appraisement, and also mak- t^'^tor ^^ ^ newspajier is not a mat- ing out accounts of administration, ter which, inasmuch as blanks are 439 EMPLOYMENT OF ATTORNEY §508 As to the matter of the employment of coimsel, experience has demonstrated the wisdom of employing counsel to assist an administrator in almost every instance. Usually administra- furnished and directions given by the Probate Court, requires the as- sistance of an attorney. The ser- vice of the notice of the making of the inventory upon the proper par- ties does not alone require the as- sistance of an attorney, but the making of the inventory and taking account of the different assets, in the manner in which they are to be inventoried, and the proper prepara- tion of the inventory, is a matter in which the administrator is entitled to the services of an attorney. The amount which should be allowed for such services must be determined by the character of the estate and the assets. In case at bar, an estate valued at about $500,000.00, not complicated and in excellent condi- tion, the Court allowed $100.00. The settlement of partnership interests, three in number, held by deceased, was a service requiring an attorney. And where there appeared to have been little difficulty and very little litigation involved in settling such interests, that it was largely a mat- ter of detail, and that the amount of money involved in such interests was small, a fee of $250 was allowed. The settlement of a claim of $1,350, without suit, by payment of money and offsetting indebtedness due from deceased, was a matter in which the administrator was entitled to an at- torney. A fee of $135.00 allowed. Concerning matters relative to which there could be no legal ques- tions or liability, such as subscrip- tions made by deceased to a church or to the Y. M. C. A., not questioned or disputed by the heirs, the admin- istrator was not entitled to the ser- vices of an attorney. The transfer of securities held by deceased as trus- tee, and to which no claim was made by the heirs and all that the ad- ministrator was required to do was to require identification of the suc- cessor in trust, was not a matter requiring the services of an attor- ney. The listing of the property, consisting of shares of stock in a corporation, bills and notes and real estate, for taxation, was not a mat- ter about which the administrator required any attorney. Services of the attorney in advising the admin-- istrator as to the latter's charges for administering, were for his own benefit and are not a proper charge upon the estate administered. In the settlement of a claim against deceased, as a surety upon a note, the administrator was entitled to an attorney. The sum of $100 allowed. Concerning a question of descent, occasioned by the death of one of the heirs, though not complicated, was a matter entitling administrator to an attorney. The sum of $100 al- lowed. In the matter of the settle- ment or disposition of bills receiv- able, aggregating $12,712, which were investigated and, as nothing could be made on them, distributed to heirs of the estates, there was rea- son why the administrator might have employed an attorney and a fee of $100 is allowed. In the arranging for the continuance of a deposit of money with the company in which deceased was principally interested, for a longer time than the strict rules of law might have permitted, and for the reason that to have re- quired payment would have embar- § 509 ASSETS CABE AND MANAGEMENT 430 tors or executors are not persons skilled in legal matters, and a very small mistake very often causes complication in the end, costing the ©state far more than the employment of a competent counsel would have from tJie very beginning. If the adminis- trator or executor is not a lawyer, except in the simplest cases of administration, he should in the very beginning of the ad- ministration of his trust seek the employment of competent counsel. ^^ § 509. What counsel allowed. If the services were rendered in part to the executor and in part to the widow, he can be allowed only to the extent of the services to the estate,^^ A charge for sel'^aces in the settlement between some of the heirs and the administrator, which seiwices were for the benefit of the heirs, will be allowed the administrator.^^ Where an attorney has, under the employment of an executor, rendered professional service for the estate represented by such executor, and afterwards the will has been set aside and another person has been appointed to represent tJie estate as administra- tor, he will be entitled to pay for such sennces out of the estate."^ rassed the company, the administra- f™ds coming into the counsel's tor was entitled in order to have hands were to be held until fees matters arranged so as to protect "^^'^re paid, etc.. it was held that his bondsmen, to the services of an while the administrator could not attorney, and a fee of $250 is al- pledge funds of the estate for his lowed therefor. In making a partial individual debts, yet where no cred- distribution of the estate prior to i^or appeared to be injured such the statutory time, at the request agreement would be sustained, of some of the heirs, the adminis- Burgher vs. Wright, 22 Bull. 381. trator was entitled to the services of ''-' ^« re Smith's Estate, 22 X. Y. an attorney. The sum of $500 al- Supp. 1067; S. C, 1 Misc. Rep. 269. lowed. In'filing a final account the " ^" re Baker, 47 Bull. 559; Ap- administrator was entitled to the peal of Barton, 131 Pa. St. 359; S. services of an attorney, and $100 is C., 18 Atl. Eep. 902. allowed. For general counsel in set- 23 Nave vs. Salmon, 51 Ind. 159. tling an estate amounting to about Where one litigant bears the bur- $500,000, which was in excellent ^^^ ^^^ expenses of litigation for shape, and was settled without liti- the benefit of others as well as him- gation except in relation to partner- ^elf, and they share in the benefits, ship interests, the administrator was they should bear a fair share of allowed the sum of $305. the expenses, and attorney's fees 20 See §§653, 659, 660, 1644. will be alloweS out of their share. Where the agreement between the Harris vs. Harris, 5 N. P. (N.S.) administrator and counsel was that 239; 17 Dec. 599. 431 WHEN ATTORNEY ALLOWED § 509 Fees are allowed for counsel to defend an administrator'a final report,"* even though a part of the items are disallowed.^'' So an executrix is entitled to counsel fees for services ren- dered upon a final accounting by the other executors.^" Fees for watching over the interests of heirs or legatees can- not be allowed,^^ nor for resisting an application to compel him to give additional security if he is not successful,^® nor for pro- curing an action to secure the widow's rights/® nor for repre- senting a minor distributee as guardian ad litem.^^ If an heir employ an attorney to contest the settlement, or hasten a settlement, he is not entitled to pay for his attorney out of the estate, even though successful.^^ He is not entitled to an allowance for fees and costs incurred in prosecuting his own personal interests as heir.^" But a fee for securing the appointment of the administrator is a proper charge. ^^ The administrator will not be allowed a fee for his attorney if the employment was occasioned by his own fault, neglect or gross ignorance.^* Such an instance is where he does not follow the advice of his counsel, and fails to show a satisfactory reason for not doing so.^^ So if he brings an action where a prudent man would not do The fees of counsel are a part of *' ^^^ ^« O'Brien's Estate, 25 N. Y. the expenses of administration and ^upp. 704; S. C, 5 Misc. Rep. 136. are a preferred claim. In re Mai- '^ Pinckard vs. Pinokard. 24 Ala. colm, 51 Bull. 209. 250; Sill vs. Sill, 39 Kan. 189. But they cannot be finally al- ^^ Pinckard vs. Pinckard, 24 Ala. lowed in advance of the adjudication 250. on the administrator's account. Mc- ^^ ^n re Stuttmeister's Estate, 75 Mahon vs. Ambach, 79 0. S. 103. Cal. 346; S. C, 17 Pac. Rep. 223. 24 Jacobs vs. Jacobs, 99 Mo. 427; See In re Baker, 47 Bull., 559; S. C. 12 S. W. Rep. 457. where fee allowed out of estate. 25 /n re Meeker's Estate, 45 Mo. 32 Wakefield vs. Gilleland (Ky.), App. 186. 18 S. W. Rep. 768. 26 In re Kenworthy's Estate, 63 ^3 in re Van Nostrand's Estate, 24 Hun 165; S. C, 17 N. Y. Supp. 655. N. Y. Supp. 850; S. C, 3 Misc. Rep. 27 Kingsland vs. Scudder, 36 N. J. 396. Eq. 284; Succession of Hughes, 14" 34 O'Reilly vs. Meyer, 4 Dem. 161; La. Ann. 863; Estate of Marrey, 65 Fagan vs. Fagan, 15 Ala. 335; Al- Cal. 287; Miller vs. Simpson (Ky.) dridge vs. McClelland, 36 N. J. Eq. 2 S. W. Rep. 171; Brandon vs Hog- 288; Bobbins vs. Wolcott, 27 Conn, gatt, 32 Miss. 335; In re Jessup's 234; Estate of Bradley, 11 Phila. Estate, 80 Cal. (J25; S. C, 22 Pac. 87; Morrow vs. Allison, 39 Ala. 70, Rep. 260. 30 Munden vs. Bailey, 70 Ala. 63. § 509 ASSETS CAEE AISTD MANAGEMENT 432 SO, he may not recover for his attorney's fees paid in such an in- stance.^" He will not be allowed for counsel fees in resisting a proper charge brought against himself,^^ nor will he be allowed for at- orney's fees paid for services he ought to have rendered in person,^* such as searching for a will.^° He will not be allowed for attorney's fees in a suit brought against himself for a settlement of his accounts,*" nor in trying to uphold an improper settlement,*^ Where the contestants, by w^riting, authorized an exeoutor to pay their attorney a certain fee, the executor is not entitled to credit for a further sum paid the attorney more than five years thereafter, for the payment of which no other authority is shown. ^^ The administrator has no right to use the funds of the estate to prosecute his intestate's murderer,*^ nor for vindicating his intestate's good name on the trial of a person who had killed him for alleged dishonorable conduct,** nor to maintain ejectment for the benefit of the heirs. *^ Where an executor, in good faith, his employed counsel in 36 Anderson vs. Piercy, 20 W. Va. ^i Taylor vs. Minor (Ky.), 14 S. 282. W. Rep. 544. 37^ Anderson vs. Anderson, 37 Ala. *2 in re Butler's Estate, 1 Con. 683; Moses vs. Moses, 50 Ga. 9; Sur. 58; S. C, 9 N. Y. Supp. 641. Beatty vs. Trustees, 39 N. J. Eq. 43 Lush vs. Anderson, 1 Mete. 452; Lilly vs. Griffin, 71 Ga. 535; (Ky.) 4L6. Ex parte Allen, 89 111. 474 ; Estate •** Woodward vs. Woodward ( S. of Stott, Myr. 168; Heister's Appeal, C), 15 S. E. Rep. 355. 7 Pa. St. 455; May vs. Green, 75 45 Reynolds vs. Canal Co., 30 Ark. Ala. 162. 520. 38 Edmonds vs. Crenshaw, Harp. Attorneys of creditors of an estate Eq. 224 ; Estate of Ballentine, Myr. appearing and assisting the admin- 86; Pullman vs. Willets, 4 Dem. istrator in defending actions against 536 ; Hurlburt vs. Hutton, 44 N. J. the estate, are not entitled to re- Eq. 302; S. C, 15 Atl. Rep. 417. ceive compensation out of the estate, 39 In re Van Nostrand's Estate, 24 unless the administrator recognized N. Y. Supp. 850; S. C, 3 Misc. Rep. .their services and right to compen- 396. .«ation by employing them or agree- 40 Robbins vs. Robbins (Ky. ), 1 S. ing to pay them for such services. W. Rep. 152. Moor's Estate, 8 Pa. Co. Ct. Rep. 447. 433 WHEN ATTORNEY ALLOWED §509 litigation concerning the probate of the will, and it appears that such employment was necessary for the protection of the estate, the executor will be allowed his counsel's fees.'*® Where an administrator acts in good faith, and with the exer- cise of a sound judgment, in bringing suit for the purpose of collecting supposed assets of the estate, the estate, and not him- self, is liable for the necessary counsel fees, although the suit is unsuccessful.*^ An administrator should be allowed counsel fees and expenses incurred in good faith and under the advice of counsel in resist^ ing appeals by distributees from orders auditing his accounts.** Co-executors and co-trustees will not be allowed fees for sepa- rate counsel, when it does not appear that the employment of additional counsel was beneficial to the estate.*^ *8 Douglas vs. Yost, 18 N. Y. Supp 830; S. C, 28 Abb. N. C. 370. *7 7n re Smith's Estate, 11 Pa. Co. Ct. Rep. 448. *sln re Rose's Estate, 80 Cal. 156; S. C, 22 Pae. Rep. 86. Charges for legal services contain- ed in a bill filed by counsel on ap- plication for a rehearing in regard to fixing his fees in a partition pro- ceeding, and which was considered by the Court as being included in the fee allowed him, will not be again allowed the executors in their account. Appeal of Barton, 131 Pa. St. 359; S. C, 18 Atl. Rep. 902. Where, in a contest over a claim against the estate, the administra- tor has employed an able attorney, who has not asked assistance, the administrator will not be allowed payments made to an assistant at- torney of but few years practice, who has become indirectly employed in the case, except for services that would otherwise have been neces- sarily performed and charged for by the attorney. In re Collyer's Es- tate. 1 Con. Sur. 546. Where, in a legal proceeding, executors are ful- ly represented by counsel, who are paid by the estate for their services, and the executors seek to charge the estate for fees paid other counsel in such proceeding, the burden of proof is on the executors to show what services were rendered by such other counsel, and also that such services were necessary for the proper protec- tion of the estate. In re Archer's Estate, 23 N. Y. Supp. 1041. *9 McDaniel's Estate, 9 Pa. Co. Ct. R. 232. Where two executors honestly dif- fer as to the manner of executing the will, and each employs a careful and able attorney to assist him, each is entitled to be reimbursed for the amount paid his attorney, which ap- pears to have been fully earned, whether tne services of either or both the attorneys were beneficial to the estate, and it is immaterial that one executor qualified and en- gaged his counsel before the other. In re Dellaplain's Estate, 1 Con. Sur. 1; S. C, 3 N. Y. Supp. 202. See §§ 6.53, 1402, 1644. But where the services are val- uable they may be allowed, although §510 ASSETS — CAKE AND MANAGEMENT 434 § 510. Amount of counsel fees allowed. The determination of the amount of counsel fees that should be allowed is alwayS' a question of more or less difficulty to the Court. It is so for several reasons. In the first place, it is one of great delicacy for one member of the bar to sit in judgment as to what his brother member of the profession should charge for his work. Secondly, no one is so able and competent to de- termine what should be charged as the man who makes the charges. In the settlement of an estate there are innumerable questions of various kinds upon, which the advice of an attorney is sought, and which may afterwards appear to have been of lit- tle importance, but which in fact were of much importance to a proper administration of the estate. Wliere the attorney is one whose standing and ability is unquestioned, the Court will hesitate to reduce or disallow the bill as paid or presented by the administrator. In one case it was said the amount of compensation for legal services rendered by the executor or administrator is to be deter- mined by ascertaining what a prudent administrator would feel authorized to pay an attorney under all the circumstances of the case.'" In another case it was said " in determining the amount to be allowed I consider as the first and most important element, the work actually performed ; second, the amount involved ; third, the standing and reputation and learning of the lawyer; fourth, the result of tlie ser\'ices."°^ not employed by the administrator. ing of the value of legal services it In re Baker, 47 Bull. 559. is proj^er to consider the time occu- The court does not determine the pied by them, the difficulty of the fees which an executor may pay, questions involved; the nature of but will allow him to charge the the services rendered; the amount estate with attorney's fees for such involved in the litigation; the pro- services as were necessary and fessional standing of the counsel proper m the settlement of the es- ...j^q ^laim pay for services, and to tate. 7n re Ullman, 19 Dec. 803. ^^^^ ^^^^^^ ^j^^ ^.^^^j^ ^,,,i^j^ j^^^ 50 Harris vs. Martin, ,9 Ala. 895, , i i ta • ^ ii * onn n- • rp r^ -i-.i- -4 be^n reached. It is apparent that 899; aff. m Teague vs. Corbitt, o7 .i i a -j +• i i-* A 1 ^cn r , A ^1 ^ T- wr. the last consideration can bear lit- Ala 529, 544; Clark vs. Knox, 70 ,, .^ ^, , , Al ' 607 617 ' •* *"■'*'' ^P^'^ '-'^^ amount or 5^1 In the matter of Arkenburgh, ^^'ork which has been done, but yet 13 Misc. Rep. (N, Y.) 744. it is always accepted as a proper In Cross vs. Moore, 14 N. Y. App. element to be considered in reaching Div. 353, the Court said: "In judg- the value of the services which have 435 AMOUNT OF ATTORNEY FEES ALLOWED § 510 However delicate a matter it may be for the Court to pass upon suck fees, nevertheless it should be fearlessly done; for sometimes counsel, as well as administrators and executors, seem to forget tlieir proper duty in the just administration of the estate, and proceed upon the theory that it is to be adminis- tered for thei?- benefit instead of those entitled thereto by law. If the administrator pay the attorney more than his services are worth, he will be chargeable with the excess.^^ But it is evident that, where the matter is not regulated, by statute, justice requires that counsel fees actually paid in good faith should be allowed, although in excess of amounts allowed by law, if the excess be not of such magnitude as tO' show negligence in the ad- ministrator.^^ A charge of $15 for preparing and having the administra- tor's bond approved is excessive.®* An allowance of $300 for settling an estate of $8,000, where there is little or no litigation, is sufficient.®^ So is an allowance of $1,150 where the estate is of the value of $95,000, and consists largely of judgments and mortgages.®" A fee of $5,000 in an estate where the effects amount to $62,000, is not excessive when important and valuable services have been rendered by the attorney in litigation and in the gen- eral management of the estate, which devolve exclusively upon him in consequence of the continued illness of the executor.^^ A charge of $110 as counsel fee, in preparing two returns of sale by the executors, and obtaining the necessary orders there- in, is excessive.®^ been rendered; and for that reason, b 4 Appeal of Barton, 131 Pa. St. while it is entitled to but little 359 ; S. C, 18 Atl. Rep. 902. weight, yet it must not be forgot- 55 Succession of Osborn^ 40 La. ten." Ann. 615; S. C, 4 So. Rep. 580. 02 In re Bradley's Estate, 1 Con. se Appeal of St. Clair, 15 Atl. Sur. 106; S. C, 2 N. Y. Supp. 751; Rep. 914. Hurlbut vs. Hulton, 44 N. J. Eq. 57 Succession of Henry, 12 So. 302; S. C, 15 Atl. Rep. 417. Rep. 365; S. C, 45 La. Ann. 156. 53 Lindsay vs. Howerton, 2 Hen. os Appeal of Barton, 131 Pa. St. & M. 9; Noel vs. Harvey, 29 Miss. 359; S. C, 18 Atl. Rep. 902. 72, 78; Wilson vs. Bates, 28 Vt. 765, 769. §510 ASSETS CARE AND MANAGEMENT 436 A charge of $45 as counsel fees for drawing a petition to change the terms of a sale by the executors, will be disallowed, on motion.^® No necessity being shown for the attendance of counsel at sales of land by the executors, a charge of $100 therefor will be disallowed ; as also a charge of $10 in procuring purchasers ; but $50 will be allowed for instructions and general advice in regard to the sales.*"" Where the settlement of an estate, amounting to over $23,000, extends over four years, during which time counsel gives ad- vice, brings suit to sell real estate in Probate Court, also suit in Commion Pleas to construe will, makes abstract of title, files ac- counts, a fee of $550 is not excessive.^^ Where the services rendered were on the contest of a will which involved the testamentary capacity of the testatrix, whose estate amounted to $100,000, and the proceedings occupied twenty-two days in taking testimony and two or three in oral ar- giunents, a fee of $5,000 was allowed.®^ A fee of twenty-five per cent, for the collection of an estate consisting only of the savings bank deposit of $1,600, with no debts, was unreasonably large.^^ Where an attorney was employed to collect a doubtful claim of $30,000, enter a contract that, if successful, he should be paid a liberal fee, but if unsuccessful only his actual expenses, should be paid, and the amount collected was $10,000, a fee of $2,000 was held to be reasonable.^* The following items have been held excessive: Fifteen dol- lars for preparing tlie official bond and having it approved ; $60 in preparing a return of sale and obtaining two orders of sale therein ; and $25 for preparing a petition and obtaining an order amending a return.*^® B9 Appeal of Barton, 131 Pa. St. 63 j„ re Barber, 12 N. Y. Supp. 859; S. C. 18, Atl. Rep. 902. 538. 60 Appeal of Barton, 131 Pa. St. 6* McCullcugh's Estate, 31 Ore- 359; S. C, 18 Atl. Rep. 902. gon 86. 61 /n re Wolfe, 4 N. P. 336. es McGregor's Estate, 131 Pa. St 62 Gross vs. Moore, 14 N. Y. App. 359. Div. 353. 437 TAXATION § 511 A charge of $20 a day for attending sessions of a reference at which nothing was done but to adjourn was held excessive, and the charge was reduced to $10 per day for such days.***^ The payment of a salary of $5,000 a year was, considered rea- sonable and proper where the estate, amounting to $500,000, was largely in debt, and its affairs were so complicated as to occupy nearly the entire time of the attorney.^^ § 511. Taxation. All taxes that were due at the time of the death of the deceased are ta be paid by the administrator or executor. It is therefore his duty to attend to that matter, and this applies to real and personal property. It is the duty of each administrator or executor having control of personal property to list it for taxa- tion ; and his title to such property by relation dates back to the time of the decedent's death, "^^ and this property must be listed for taxation at the residence of the administrator.^^ Unless the administrator or executor has control over the real estate, taxes that accrue after the death of the decedent must be paid by the heirs. '^° If an executor or administrator refuses to either list or pay the taxes, he would be lial)le for any damage which might be occasioned from such neglect.'^ ^ Taxes must be paid on the funds of an insolvent estate in the hands of an administrator unlike an assignee. ''- The assessment of taxes is so far complete by the second jNIon- day of July that the name of the person assessed for the year cannot be changed; hence, having died testate on July 12, the taxes are properly chargeable against his estate."^ 06 /n re Colyer, 1 Con. (N. Y.) This applies to bonds. Tafel vs. 546. Lewis. 75 0. S. 182. 67 Steel vs. HoUaday, 20 Or. 462. Even though all the beneficiaries See §§'653, 1402, 1644. See previous are nonresidents, personal property section, the case of In re McAlpin, of the decedent who died in 1900, syllabus of which is given as a which was omitted from taxation note. from 1804 to 1890, is properly listed C8 Sommers vs. Boyd, 48 0. S. in the name of the decedent State 648. See §663. vs. Gilfillan, 3 N. P. (NS) 153; See § 1202 as to taxes between 15 Dec. 756. executor and trustee. Taxes become a lien on real estate ea Brown vs. Noble, 42 0. S. 405. on the day preceding the second 70 For listing of property where IMonday in April, and all taxes due there are several administrators. and xmpaid at the time of the death See § 205. of the testator must be paid by the 71 § 5685 G. C executor. Loomis vs. Phul, 2 JST. P. 72Robb's Estate, 5 Dec. 227, 381; (X.S.) 423; 15 Dec. 37. 5 N. P. 52. A testamentary trustee is not li- 73 INIorrison vs. Bruce, 1 Dec. 190. able onlv wlien he has charge of See §§ 663, 1292, 1392. the property at the time the taxes The fact that the decedent at the become a Hon. Id. time of his death was a resident of AH funds in the hands of the another State will not relieve the administrator are liable to taxes administrator from returning the and must be listed. This is true same for taxation where he resides. even though there is an order of § 512 ASSETS CARE AND' MANAGEMENT 438 § 512. Custody of funds. Necessarily, the administrator or executor has control of the funds belonging to the estate, and the Probate Court has no au- thority directing him where and how he shall keep them.''* In the proper control and safety of funds held in a trust capacity, the Courts require from the trustee absolute honesty and good faith. But if the trustee acts in good faith within the requirements of the law, he will be treated by the Court with liberality and tenderness. He will not be held responsible for losses in the absence of wilful misconduct or fraud, especially when acting under advice of counsel, '^^ and the executor or ad- ministrator will not in such cases be held responsible for losses occasioned by mere error of judgment. And where he has acted with what men of sense and experience would deem reasonable discretion in their own affairs, his acts or omissions in good faith will not render him liable for losses arising in conse- quence, especially during a period of doubts and difficulties.^" An administrator cannot make a profit out of the estate ; and if he invest the assets, it is at his own risk. In such an instance he will be liable for all the profits derived from the investment; and if he lose the assets he will be liable for their value.''' He should keep the assets and their proceeds separate and apart from his own, so that they can.be readily traced.''* If he loses money of the estate, together with his own, and only a portion be recovered, he must first return out of the part the court that it should be paid on HI- 114; Merritt vs. Merritt, 62 a certain claim. The same rule does Mo. 150. 157; Perrine vs. Vreeland, not apply as in assignments. Gregg 33 N. J. Eq. 102; affirmed, lb. 596. vs. Hammon, 4 N. P. (N.S.) 214; ^e Woerner on Admin. 708, citing 16 Dec. 549. Affirmed, etc. LeGrand vs. Fitch, 79 Va. 635, 638; There may be several tenements Torrence vs. Davidson, 92 N. C. 437 j in the same building. Gin. vs. Yeat- Perry vs. Smoot, 23 Gratt. 241; man, 30 O. S. 276. Pope vs. Mathews, 18 S. C. 444; If an executor, agent, or guardian Loomis vs. Armstrong, 63 Mich. 355; is put to any trouble in listing the Dundas vs. Chrisman, 25 Neb. 495. property, he has a lien on the land See Willis vs. Brancher, 79 0. S. for his services. § 5687 G. C. 290. 74 7n re Welch, 110 Cal. 605; De- 77 Gilbert vs. Welsch, 75 Ind. 557; Greayer vs. Super Ct., 117 Cal. 640. Jn re Essex's Estate, 20 N. Y. Supp. 75 Woerner on Admin. 707, citing 62. Thompson vs. Brown, 4 John. Ch. 78 Hagthorp vs. Hooks, 1 G. & J. 619, 629; Calhoun's Estate, 6 Watts. 270; Marvel vs. Babbitt, 143 Mass. 185; Watkins vs. Stewart, 78 Va. 226. 439 CUSTODY OF FUNDS § 513 recovered the estate's portion, although by so doing he lose his own.^* If he deposit the money in a bank, crediting it to his own ac- count, this will be a conversion,^" and if the bank fails, he loses it, even though the officers knew part were trust funds.^^ If he convert assets of the estate to his own use, by investing them in his business, he will be liable either for the highest rate of interest or for the profits, at the option of the beneficia- ries or creditors entitled to call for an accounting.®^ If he knows he cannot close the estate for a considerable pe- riod, it is his duty to place the money at interest, although no statute requires him to do so.*^ But our statute provides that if money remains in the hands of an executor or administrator for probably a greater length of time than six months it should be invested,®* § 513. Failure of bank where deposited. It is negligence in an administrator to keep money of the es- tate in his house,®^ unless the circumstances make it as safe there as anywhere else.®° Consequently the funds of the estate ought to be kept in a safe place of deposit. He may therefore deposit them in a bank having at the time of deposit a good reputation for solvency; and if loss subsequently occurs, without his neglect, he will not be liable,®^ even though it be a bankf of which he is a director.®® T9Kirkman vs. Benham, 28 Ala. s* § 10746 G. C, §514. See §389. 501. See subsequent sections. 80 Shaw vs. Baerman, 24 0. S. 25; 85 Cornell vs. Deck, 8 Hun 122. Union Bank vs. Smith, 4 Cr. C. C. so Fudge vs. Durn, 51 Mo. 264. 509 ; Ivey vs. Coleman, 42 Ala. 409. 87 Odd Fellows Ben. Asso. vs. Fer- 81 Harward vs. Robinson, 14 111. son, ,3 C. C. 84; Ramsey vs. Mc- App. 500; Summers vs. Reynolds, Gregor, 1 C. S. C. 327; Norwood vs. 95 N. C. 404; Williams vs. Williams, Harness, 98 Ind. 134; Jacobus vs. 55 Wis. 300; Ditmar vs. Bogle, 53 Jacobus, 37 N. J. Eq. 17; Cox vs. Ala. 169. Roome, 38 N. J. Eq. 259; Twitty vs. 82Norris' Appeal, 71 Pa. St. 106; Houser, 7 S. C. 153. Estate of Br^^wn 8 Phila. 197; Dow- ss /^ re Maxwell's Estate, 23 Abb. ling vs. Feely, 72 Ga. 557 ; Cannon N. C. 23 ; S. C. .3 N. Y. Supp. 42L ; vs. Apperson, 14 Lea 553. 1 Con. Sur. 230. 83 Perkins vs. HoUister, 59 Vt. 348. § 514 ASSETS, CARE AJSTD MANAGEMENT 440 But if he deposit the money m his own name, or with his own accoimt, he will be liable for the full amount should the bank fail ; for by such deposit he is guilty of a conversion.*^ And so he will be liable if he deposit the money and take out a certificate of deposit payable with interest ; for the transaction is a loan without security.^" If the deposit be made under an agreement that it shall re- main for a time, thus rendering the transaction a loan and not a deposit, or if a deposit originally made with prudence^ is con- tinued for such an unreasonable length of time as to involve a breach of duty, the representative is responsible for loss arising from the insolvency of the bank.^^ § 514. How executors, etc., guardians and trustees may in- vest funds. "When they have funds belonging to the trust which are to be invested, executors, administrators, guardians, and trustees, may invest them in certificates of the indebtedness of this state, of thei United States, or in such" other securities as the court having control of the administration of the trust ap- proves. When money coming into the hands of an executor, administrator, trustee, agent, assignee, attorney, or officer is stopped therein by reason of litigation or other lawful cause, and if it will probably be so detained for more than six months, he may invest it during such detention in the manner that trust funds are now authorized by law to be invested, or as the pro- bate or other court having jurisdiction of the pending litigation, or person aforesaid, directs." [R. S. § 6413.]^- 89 Shaw vs. Baerman, 34 O. S. 25; (K.S.) 307; 29 O. C. C. 25; affirmed Corya vs. Corya. 118 Ind 593; Nalt- "S O. S. 424. ner vs. Dolan, 108 Ind. 500; Fletch- ^^''^"^ ^'^^^^^ °^ corporate stock are in danger of loss or depreciation er vs. Sharpe, 108 Tnd. 2^Q; Har- the Probate Court, under §§524, ward vs. Robinson, 14 111. App. 560; 6080 and 6413 has power to order SummerP fs. Reynolds, 95 N. C. t^i«^™ sold and reinvested. Ordinary .„. ^., ^ , ^„ ., ,„« prudence is as to investment. The 404; Ditmar vs. Bogle, 53 Ala. 169. ^.^^ate Court has full and corn- so Appeal of Baer., 127 Pa. St. plete jurisdiction over investments 360; S. C. 24 W. N. C. 299- 18 Atl and reinvestments. Guthrie vs. Gas R„„ 1 ' & Elec. Co., 2 K P. (X.S.) 117: ^' ■ . 15 Dec. 23. 91 Kedf. Sur. Prac. 499. 'when the will authorizes the ex- See §§ 718. 1389. ecutor to make investments he will not be liable in the absence of neg- 92 R J 1014 Q n ligence. Willis vs. Brancher. 79 If a trustee invests funds and 'see Bonding Co. vs. Bank. 22 C. does not designate that the fund C. (N.S.) 177, where it was held is in trust, leaving it open so he t^^^t the approval of an account, in TTiJrriif ^loiv,. u oo 1 • 1, Ml whicli the investment was stated, might claim it as his own, he will „^^_+ , +^ „^^.„,,. fv.. ;„,.«..f™or.f be charged witn it as if it was his own. Brown vs. Williams, 9 C. C. operated to approve the investment. 441 INVESTMENTS § 515 § 515. When investment to be made. The above section of the General Code is a combination of two distinct acts of the legislature, placed together by the Codifying Commission. The first part of the section applies generally, that investments may be made in United States bonds, and the second is intended to apply when an executor or admin- istrator or trustee ought to invest the funds in his hands, when for some reason the same could not be distributed or otherwise disposed of, as a proper administration of the trust might re- quire. Sec. 10843-4-5, G. C, (§ 786) makes provision for money that may remain in the hands of the administrator or executor after he has been directed by order of court to distribute. Under that section it is held to be compulsory to make an investment.'** And sec. 10933 G. C. (§ 1367) provides how permanent invest- ments should be made by guardians. Generally, it is not ex- pected that an administrator or executor will have any funds to invest, for it is his duty to collect the assets and distribute them as rapidly as possible. But if for any reason, such as liti- gation, etc., he should be prevented from making a distribution, then it is the purpose of the section above that some investment may be made. Generally, an administrator is not chargeable with interest on money belonging to the estate unless it was shown that the money was used by him, or that he has held it such a length of time as would make it inequitable not to allow interest on it.^* The rule is very well stated by a distinguished author as fol- lows : " The rule is, that during the period of getting in the estate, paying the debts, etc., preliminary to final distribution or a permanent investment, under the will, whether the period be long or short, the representative is held to tlie same degree of care which a man of ordinary prudence would exercise, under the same circumstances, with respect to placing his o\vti money 80 that it might earn interest. If the Court can determine that, 83 7n re Thornton, 5 Dec. 151; 7 up by litigation in good faith, does N. P. 335. not bear interest ; and this rule is »* In re Thornton's Estate, 7 N. P. applicable to debts which the admin- 335; 5 Dec. 151. iatrator owes to the estate^ and Money in the hands of an admin- which is chargeable against him as istrator which has yielded him no money in his hands. James vs. profit, and which he has not been West, 47 Bull. 750; Sup. Ct. ordered to pay out, or which is tied § 515 ASSETS CARE AND MANAGEMENT 442 under the circumstances of the particular case, it was a breach of duty for the representative to let the money lie idle, he may be charged, on his accounting, for the amount of interest which, with reasonable diligence, he might have received. If distribu- tion is unreasonably delayed, he is chargeable "vvith interest on the funds, the same as an executor or trustee would be for an unreasonable delay in making a permanent investment under the will. The reasonableness of the delay depends, of course, upon the circumstances of the particular case. He may keep in hand such sums as' the distributees may call for at any time ; if kept ready to be paid over, on demand, a delay of demand is no ground for charging interest." ^^ In making investments, if the administrator or executor wishes to escape responsibility, he should keep himself strictly within the limits of the law. If, by the exercise of reasonable diligence no investments can be made, such as the law contem- plates, he would not be chargeable with interest for allowing it to remain idle. In making investments, the administrator or executor is only required to use common prudence and skill of competent men, and not that of the most cautious and money- making men.'"' It is negligence to loan the funds of the estate without secur- ity, though the borrower is amply solvent at the time.^^ Per- sonal security is not sufficient.''® l^or is a second mortgage, as a rule.''^ An investment, without an order of Court, in stocks or bonds of a corporation has been held not to protect the administrator/"" Government bonds, however, are good investments.^"^ 93 Redf . Sur. Law and Prac. 500. 567 ; Bogart vs. Van Velsor, 4 Edw. 90 Miller vs. Proctor, 22 O. S. Ch. 718. 442; Spencer's Appeal. ". W. L. M. 99 Wilson vs. Staats, 33 N. J. Eq. 408. 524 ; Perrine vs. Petty, 34 N. J. Eq. See also Armstrong vs. Miller, W. 193. 562; 6 O. 118. 100 Tucker vs. Tucker 33 N. J. 97 Probate Judge vs. Mathes, 60 Eq. 235; Garesche vs. Priest, 78 Mc. N. H. 433: Sherman vs. Lanier, 39 126. N. J. Eq. 249. ^°^ Ormiston vs. Olcott. 84 N. Y, »8 Lef ever vs. Hasbrouck, 2 Dem. 339 ; Tucker vs. Tucker, supra. 443 APPLICATION TO INVEST § 516 He may not invest in mortgages in another State/"^ although a mortgage taken to secure the purchase money of land sold there will protect him,^°^ As a rule, investments made by the decedent may be contin- ued without liability for loss; but even here the administrator must exercise care and convert them into money if he has in- formation, or could have obtained it with reasonable diligence, that the investment was likely to prove unsafe and loss occur to the estate.^"* This subject will be again treated of in subsequent chapters, on guardians and testamentary trustee.^°° § 516. Application to invest, etc. It might be well for an administrator or executor, if he has any reason to believe that the funds in his hands cannot be dis- tributed for more than six months, to make application to the Probate Court setting out such fact and asking the Court for au- thority to invest the money in some proper manner. The order might be made by some other Court than the Probate, if there was a pending litigation in the other Court, and such other Court had jurisdiction of the fund. The Court might author- ize the money to be invested in security other than that pre- scribed by the statute, and if the funds were invested as directed by the Court, the administrator or executor would not be re- sponsible. The application might be in the following form : {Title.) Now comes A. B., administrator (or executor) of the estate of C. D., and represents to the Court that he has in his hands, belonging to the said estate, the sum of dollars, and that by reason ot pending litigation (here describe or give other reasons), he will be unable to distribute said money for more than six months from this date. That he can invest said money (here describe and state security in full). Wherefore he asks that the Court may make an order authorizing him to invest said money in his hands in the said security. Sworn to and subscribed before me and in my presence this day of 190.... lo^Ormiston vs. Olcott, supra. Div. 596; Appeal of Stewart, 110 103 Denton vs. Sanford, 103 N. Y. Pa. St. 410; In re Weston, 91 N. Y. 607. 502; Harvard College vs. Amory, 9 10* Bowker vs. Pierce, 130 Mass. Pick. 446. 262; Marsden vs. Kent, L. R. 5 Ch. los See § 1369, § 1287. § 517 ASSETS CARE AXD MANAGEMENT 444 ENTRY. (Title.) This day this matter came on to be heard, upon the application of A. B., administrator (or executor) of C. D., for an order of the Court authorizing him to invest certain moneys in his hands belonging to said estate, in the following security (here describe). And it appearing to the Court that it would be more than six months before such administrator (or executor) can distribute said money that the security purposed for said investment is sufficient. It is therefore ordered that said A. B. proceed to invest said funds as in application prayed for.ioe § 517. Insurance. An executor or administrator has an insurable interest in the property of the estate, and he mnst exercise the same precautions against loss by fire as prudent men adopt to protect them- selves."'' And he may also, where he has authority over real estate or has the reason to believe that the estate is insolvent, insure it."^ And he may become chargeable for neglect to insure where the house is destroyed by fire. The statute specifically provides that when a will is contested, the executor or administrator shall insure the property.^"^ § 518. Carrying on business of the deceased.^"^^ To carry on the business of a deceased person is not within the scope of the powers of an ordinary administrator. Neither can an executor conduct such a business unless expressly authorized by the will.^^° He might, however, continue the business so 106 See § 1287. trix, was transmitting to aer place 107 Tuttle vs. Robinson, 33 N. H. of business. Levitt vs. Scholes 104; Rubottom vs. Morrow, 24 Ind. (N. Y.), 59 Bull. — . 202. 110 It is equally well settled that But if he has a mere naked power executors, in the absence of power of sale he is not bound to insure, for conferred by the will, have no au- in such cases the fee is in the heir thority to carry on the trade or until sale is made. Reed vs. Brown, business of their testator, and that : 10 C. C. 57; 6 C. D. 15. "The emploj-ment of the trust funds See § 1202. in trade, or any speculative under- See § 379, Fire insurance. taking, without an express author- 108 Redf. Law and Prac. 497. itv, will, a fortiori be treated as a 109 § 10633 G. C, §95. breach of trust: and whatever may 109a See § 435, Executor continu- be the apparent advantages of such ing business; see §436, Administra- a course, and however well-inten- tor continuing business. An execu- tioned the conduct of the trustee, trix, who is carrying on the business there is no question but that the of lier testator may maintain an court will visit upon him any loss action in her representative capacity, resulting from such a step, while he for injuries caused to personal prop- will have to account for any profit erty which the defendant, under thus made." Williams on Ex'rs, agreement with her as such execu- 1274; Hill on Trustees, 379; Perry 445 CARRYING ON BUSINESS § 518 far as is reasonably necessary for its pro|>er preservation and profitable disposition of the money and property invested therein.'" It is not meant, generally speaking, that the administrator or executor is bound, immediately upon the decedent's death, to convert into cash the assets employed in his trade; on the con- trary, where the best interests of the estate require it, he may, within reasonable limits, make purchases which will bind the estate/'^ However, an administrator or executor, conducting the business of a deceased person, always does so with great risk to himself. If there is no authority in the will, and he con- ducts the business for such a length of time that it may be con- sidered that he continues the business, instead of merely pre- serving it until a purchaser can be found, if successful, he must account for the profits ; if unsuccessful, he must bear the losses. Even where the will authorizes the executor to conduct the business, the executor will be personally liable for all debts in- curred. To this rule there is said to be two exceptions; first, that when the will authorizes the expenditure of assets for a par- ticular purpose, which expenditure is necessary for the protec- tion, reparation and safety of the estate, and the executor has no funds and is not willing to make himself personally liable, he may, by express agreement, make the expenditure a charge upon the estate. The other exception is the insolvency of the execu- tor who continued the business and contracted the debt. In on Trusts, § 429. So rigid is this Lucht vs. Behrens, 28 0. S. 238. rule, and so careful have the Courts m Redf. Sur. Prac. 491, citing always been to guard against the Hannahs vs. Hannahs, 68 N. Y. 610; perilous consequences resulting Thompson vs. Brown, 4 Johns. Ch. from embarking the assets in trade, 619; Johnson vs. Kellogg, 8 N. Y. that, even when the will authorizes St. Rep. 413; Ames vs. Downing, 1 the executor to carry on the busi- Bradf. 321; Hooley vs. Gieve, 9 nes3, he can not in so doing create Daly, 104; 9 Abb. N. Cas. 8, and liabilities against the general es- note. tate, but the creditor of such new Compare Luers vs. Brunjes, 5 business must look either to the Redf. 32; Boulle vs. Tompkins, Id. business itself or to the executor in- 472; Gilman vs. Wilber, 1 Dem. 547. dividually for his pay. 112 Redf. Sur. Prac. 491, citing Matter of Sharp, 5 Dem. 516. §518 ASSETS CARE AND MANAGEMENT 446 such case, the general assets may be made liable, in equity, for the debts incurred in such continued business.^^^ In Lucht vs. Behrens,^^* where the executor of an estate, who is not authorized to do so, takes the personal assets of his testa- tor and uses them in carrs'ing on the former trade and business of the testator for a series of years, for the purpose of making money to be used in paying the debts and supporting the family of the testator, consisting of a widow and minor children, and also for the purpose of keeping up the business for the minor sons when they should be old enough to take charge of it, and in so doing pays off all the debts of the testator, it was held that the general assets of the testator in the hands of an adminis- trator de bonis non, is not liable for money borrowed by the ex- ecutor for and used in carrying on such trade and business, though the executor acted in good faith/^^ Where the vriW directs that the whole personal estate should be used in carrying on a business, such direction is subject to the law that the personal estate must first pay the personal debts of the testator, and only the personal estate remaining after pay- ment of such personal debts can be used by the trustee to carry on the business/^® Where the executor or administrator carries on business of the deceased in good faith at the request of heirs, distributees or legatees they will not be heard to object to credits in his account, or loss incurred in consequence thereof. But the burden lies on him to show that the losses were incurred with the full under- standing of all tlie parties. ^^^ Only by the clear and unmistakable intention of the testator can assets other than those employed in the business be held liable for the debts of a going concern. ^^^ 113 Redf. Siir. Prac. 492. made by him to the employees in 114 28 0. S. 231. such business, in accordance with 115 Lucht vs. Behrens, 28 0. S. the general policy of the deceased 231. during his lifetime, these are prima 116 P. C. & St. L. Rv. Co. vs. facie reasonable and proper. In re Schmidt, 8C. C. 355. ' Kohanzi, 16 X. P. (X.S.) 337. 117 Poole vs. Munday, 103 Mass. In this case Judge Haddin dis- 174; Ward vs. Tinkham, 65 Mich. cusses a number of interesting ques- 695. tions. 118 See Discussion of subject, Schouler says (Sch. on Exrs. Woerner on Admin. 688, 689. 325): "Chancery protects the ex- See also article in 13 Bull. 31. ecutor who can show his testator's If an administrator conducts the express sanction, but scarcely be- business of the deceased, such as yond this, and chiefly so as to keep operating a newspaper, payments the hazardous investment under its 447 CARRYING ON BUSINESS § 518 As before observed, a wider latitude is allowed an administra- tor or executor in closing out the business than in continuing one. In order to presence a business until it could be disposed of, would not be a continuation of the business. In such a matter the executor or administrator must exercise the judg- ment of an ordinary prudent and careful man, and endeavor to dispose of the business at the very earliest possible time. Some- times it would be very detrimental to close up a business at once, but as a general rule, it will be more profitable to the estate than to continue it, even for a short time. If it can be disposed of for a slight loss, it will generally be more profitable to the es- tate than to hold it."** That part of the estate not invested in such business is not liable to subsequent creditors.^^" But where a testatrix directed her executor to carry on a mercantile business for the benefit of her son, and empowered the executor " to^ sell or make such otlier disposition of my real and personal estate as the safe conduct of such business shall seem to require," it was held that a pur- chase of goods by the executor on credit, in the course of carry- ing on such business, subjected the general assets of the estate to the payment of the price. ^"^ prudent direction. To employ trust In re Rose's Estate, 80 Cal. 166; funds in trade on the representa- S. C. 22 Pac. Rep. 86; Poole vs. tive's own responsibility has always Munday, 103 Mass. 174; Ward vs. been treated as essentially a breach Tinkham, 32 N. W. Rep. 901. of trust; and the Courts have resist- If an administrator continue the ed much pressure to relax the rule, business under the will, all losses by And the executor or administrator said debts, costs of personal prop- so employing funds of the estate has erty purchased to replace similar the disadvantage of incurring all the articles worn out or consumed in risks while he must account for all conducting the business, expenses of the profits." repairs on the real estate used, are ii» But it has been held that, properly chargeable against the es- though an administrator is not au- tate. thorized to carry on his intestate's Accounting of Jones, 103 N. Y. business, and should not blend the 621; Cline's Appeal, 106 Pa. St. 617. expenses and disbursements connect- ^^o Brasfield vs. French, 59 Miss, ed therewith with the legitimate 632; Jones vs. Walker, 103 U. S. item of his accounts, where he 444; Morrow vs. Morrow, 2 Tenn. charges himself with the gross Ch. 549; Delaware, etc., R. R. Co. proiits of the business, and the vs. Gilbert, 44 Hun 201. Court debits him with the amount 121 Willis vs. Sharp, 113 N. Y. thereof, he should be allowed money 586; S. C. 21 N. E. Rep. 705. paid out in the course of the busi- "♦•ss. § 519 ASSETS CARE AND MANAGEMENT 448 Special legatees or creditors can compel the closing up of the business after the time fixed in the will; but if the residuary legatee continued the business as executor after the time so fixed in the will, he cannot defeat subsequent creditors/"^ It would seem that an executor carrying on business under the will is personally liable to all persons with whom he deals as such, though they have a right to resort for the payment of their debts to the assets of the estate/"^ In seeking to charge an administrator for profits made by the use of the assets of the estate in his business, the burden of proving such profits lies upon him asserting that such were made/"* § 519. Carrying out contracts of deceased. Except contracts of a personal nature, executors or adminis' trators are bound to the extent of the assets coming into their hands by the contracts of their decedents, and they must answer any damages for breach, whether it occurred before or after the decedent's death. The statute specifically confers upon admin- istrators or executors of decedent owners, under the Mechanics' Lien act, the saiiie rights and the same liabilities as the owners would have had if they were alive.^"^ As between the administrator or executor and the heir, the former may, as a general rule, exercise his discretion whether to perform or rescind any contract of the decedent imposing any liability or duty upon himself for the best interest of the estate, subject, however, to the approval of the Court.^'® i!2Brasfield vs. French, 50 Miss. ise Ony vs. Hawkins, 8 0. R. 455. 632. See § 523, as to carrying out .con- 123 Liable vs. Ferry, 32 N. J. Eq. tracts relating to real estate. 791; Willis vs. Sharp, 43 Hun 434. Upon a contract for the sale of Where an executor is managing growing timber, a right of action an estate and a person is injured on for damages or rescission being a an elevator, the estate cannot be personal right, belongs to the ad- sued; the estate of a deceased is ministrator. Isham vs. BrucKer not liable for the torts of the ex- Stave Co., 2 C. C. (N.S.) 1; 25 ecutor. Deschler vs. Franklin, 20 O. C, C. 167; affirmed 72 0. S. C. C. 56. 167. 124 Jn re Munzor' Estate, 25 N. Where in direct proceedings the Y. Supp. 818; S. C. 4 Misc. Rep. parties agree that a certain amount 374. shall be paid by the husband to the For discussion of executor or ad- wife during her natural lifetime, m.inistrator carrying on business in this contract must be carried out a partnership. See §§ 433, 434, 435, by the administrator of the husband. 436. Hassenek vs. Markbreit, 68 0. S. See §§ 1379, 1588. 554. 125 See §8322 G. C. 449 CAEKYING OUT CONTKACTS § 519 Our statute provides, ^"^ that by permission of Court, an exec- utor may complete a sale of lands, and where the decedent has entered into a contract to purchase real estate, and dies before it is conveyed to him and before he has paid for it, his heir or legatee is entitled to have his executor or administrator pay for the realty out of the personal estate.^^^ Where it is within the power of an administrator or executor to rescind a contract, he cannot, after ratifying it, disavow his act; having made his election, he is bound by it; and likewise those beneficially interested in the estate are bound by the ad- ministrator's or executor's acts. Woerner says: ^^® " That if the executor or administrator de- cides to enforce or carry out the contract, he is liable at common law for the loss that may occur to the estate and consequences thereof, while any profits arising become assets of the estate. In equity, however, and under the statutes of most American States, the administrator, acting in good faith, Vyill be protected for the execution of the contract, the breach of which would re- nult in damages, although the estate is insolvent. The loss for carrying out the contract would be greater than the damages or breach would have been." ^^° Where the deceased agreed to convey to the plaintiff a certain tract of land and did not do so, whether the payment was to be made in money or services, the executors were compelled to carry out the agi'eement.^^^ The plea of usury may be made against an administrator as well as it could have been made against his testator.^^^ But an executor or administrator cannot set aside a convey- ance made by a debtor with the intent to hinder and delay his creditors, unless the property so conveyed is actually required for payment of debts.^^^ A contract that is indefinite and 129 Woerner on Admin. 686. uncertain need not be carried out. 130 f^gg Schu. on Exr.s. § 254. In re Stewart, 1 N. P. (N.S.) 413; .31 Crabill vs. Marsh, ^38 O. S. 49 Bull. 103. 33J g^g Howard vs. Brower, 37 O. In this case the Probate Court „ „ assumed jurisdiction to try that ",,,..' , , -^ ,, , ., ^-v ^ •' . , , ,, , • • i32Ausdal vs. Potterf, 41 O. S. question and instruct the adminis- trator. 6^7- 127 § i]()28 G. C. i33McCall vs. Pixley, 48 O. S. 129 Chamberlain vs. Dunlap, 126 379; Doney vs. Clark, 55 O. S. 294. vr. Y. 45. § 520 ASSETS CARE AND MANAGEMENT 450 § 520. Contracts not binding, etc/^^* There are certain contracts which, although binding upon the deceased during his lifetime, are not binding upon his legal representatives. These are contracts of a personal nature de- pending upon personal skill, or taste of the obligee, such, for instance, as the obligation of an author to prepare a book for publication, or a master to instruct an apprentice,^^* The contract to marry or an obligation to be perfonned by the contracting party in person. ^^^ Thus a contract for combina- tion for mutual profit of the business ability of B. as manager, and the musical talent of S. as director, in the organization and touring of a band, the compensation to be paid S. to be a propor- tion of the profits, is dissolved by the death of B.^^® If the contract of a deceased be personal, and the performance of the deceased himself be the essence thereof, his executor Avill not be liable, except only so far as the contract was broken dur- ing his lifetime.^^^ So a contract to sell all the lumber manufactured by one party during five yeare, to average a certain number of feet per year, but stipulating no fixed quantity for any year, was declared a personal contract, dissolved by death of either party.^^* And was also held in the case of a contract to manufacture a certain patented article and push the sale in a certain manner requiring personal skill.^^^ 13-t Baxter vs. Burfield, 2 Strange, of the contracting parties as induce- 126'6. iiients to the contract, there is mu- 134* Cited Stewart vs. Herron, 77 tuality, and the death of either of 0. S. 142. the parties is the death of the con- 135 Siler vs. Gray, 86 N. Car. 566. tract. In such a case the personal 130 Blakely vs. Sousa, 197 Pa. St. representative of the deceased can- 305, 335. not call upon tlie survivor to per- 137 Dickinson vs. Callahan, 19 Pa. form, and the latter cannot require St. 227. tlie ohligations to him to be as- Tlie duty of the survivor to a sumed, and discharged by another, contract of a strictly personal na- Blakely vs. Sousa, 197 Pa. St. 305- ture to perform his covenants ter- 335. minates with the death of the other iss Dickinson vs. Calahan, 19 Pa. party to it, for the reason that St. 231. neither of the contracting parties is^ Smith vs. Preston, 170 111. 179. contemplated attempted performance Contract for personal services by a substitute. Where distinctly cannot be specifically enforced, personal services, requiring peculiar Hagmen vs. Campbell, 15 Dec. 221. skill, are to be rendered by each 451 CONTKACTS NOT BINDING 520 And the contract between a firm and agent to employ him in their business for a term of years was held discharged by death of a member of the firm/**' The death of one party to a contract does not operate as a revocation or discharge of his part of the agreement, where his obligation is such that it can be performed by his personal rep- resentative/^^ If the contract is for the performance of personal services, requiring particular ability and skill, there is the implied con- dition that the contractor shall be alive and physically able to perform them/*^ i-so Tasker vs. Shepard, 6 H. & N. 675. 1*1 Hawkins vs. Bael, 18 B. Mon. (Ky.) 816; 68 Am. Dec. 755. 142 Marvel vs. Phillips, 162 Mass. 399; 44 Am/ St. Rep. 370. A written contract between a sew- ing machine company and W. re- cited the fact of a sale by the for- mer to the latter of one hundred Howe machines for the price of which W. had given a series of notes, the company stipulating to accept on or before maturity of the amount due thereon, notes of sub- purchasers, drawn to the order of W. and guaranteed by him. The company was to ship to W. a speci- fied number of machines monthly, and W. agreed to sell them within a specified territory, at the regular re- tail prices established by the com- pany, and deal only in its machines. After machines were delivered, W. died. It was held that the contract was personal to W., and the further performance did not devolve on the administratrix of his estate. Howe Sewing Co. vs. Rosensteel, 24 Fed. Rep. 583, citing Robson vs. Drum- mond, 2 Barn. & Adol. 303; Dickin- son vs. Calahan, 19 Pa. St. 227. In compromise and settlement of criminal and civil proceedings for fornication and bastardy, and breach of promise of marriage, A agreed to deliver her child to C. to discontinue both actions and release B from all claims and demands, in consideration of which B agreed to pay all costs in said cases, " to re- lieve A from any cost or expenses in the support and maintenance of said child, and see that it was well taken care of." Held, the contract was not personal to B, but could be enforced against his executors. Stumpt's Appeal, 116 Pa. St. 33; 8 Atl. Rep. 866. Contracts for personal services are subject to the implied condition that the party contracting to perform shall continue in health, and such contracts are revocable by his inca- pacity to perform. Powell vs. New- ell, 59 Minn. 406; 61 N. W. Rep. 335. The above was where a note was given to a physician for future services and the physician became ill, held the giver of the note was released from payment. When J agreed to furnish S with " six suc- cessive crops of hemp of his own raising, embracing each year all the hemp he can raise upon not less than one hundred, nor more than one hundred and sixtj- acres of land § 521 ASSETS CAKE AND MANAGEMENT 452 § 521. Duty as to mortgages, etc. It will be the duty of the administrator or executor to keep alive chattel mortgages by refiling them, as required by law; and if the security should be lost by failure to refile such a mortgage, the administrator or executor would be liable. It raust be refiled within thirty days from the expiration of three years from its date. Likewise it would be the duty of an admin- istrator to keep alive judgments, and exercise proper care to pre- vent any claim from being barred by the statute of limitations. As to keeping down interests on mortgages or other incum- brances upon the property, it is culpable negligence for the ex- ecutor or trustee to fail to do so,"^ when he has funds on hand sufficient for that purpose. In West vs. Dean,"* it was held that an administrator had no right to bid in property which was sold at foreclosure, even though he may think it ^Hll turn out to the advantage of the es- tate. While this may have been the law applicable to that case, in which it was sought to hold the estate responsible on the contracts of the administrator, yet it occurs to me that it is not good law. It rather seems to me that the law is, as Redfield expresses it: ^*^ " The representative has a right, and it may be his duty, in the foreclosure of a mortgage belonging to the estate, to bid in the premises, on the sale thereof, and he may take a deed there- for in his own name, individually. The premises thus pur- chased are to be regarded as personal property of the estate, and it is the duty of the representative to convert them into money, to be accounted for by him as part of such estate." *® He is, therefore, authorized to enter into a contract for tlie recovery of such as is to be accounted for by him as part of such estate.""" each year," it was held a personal i47 Valentine vs. Belden, 20 Him contract and could not be enforced 537. against J's executor. Schultz vs. See Cook vs. Ryan, 29 Id. 249; Johnson's Ex., 5 B. Mon. 497, citing Clark vs. Clark, 8 Paige, 152. _ Chittv Pldgs., vol, 1, 58; Chitty on If a mortgagor dies in possession Contr. 98. " of mortgaged property, it cannot be A suit for slander does not abate replevined from the administrator. by the death of the plaintiff. Alpin It is the duty of the administrator vs. Morton, 21 0. S. 536. to sell the property in due adminis- i43Redf. Sur. Prac. 497. tration of the estate, the claim ^ 10712 G. C. proper for the court to seize the Where no bond is required the rem, and by constructive notice, statute of limitations begins to run make the whole world parties. from the time notice of appointment Where all the world are in fact is made. Grant vs. Baldwin, 89 0. proper or necessary parties, the doc- S. 413. trine of due process of law does not If this notice is not given the prevent the legislature from adopt- limitations provided by § 10722 G. Ing a more appropriate, adequate C, § 609, will not avail as a de- and complete remedy than that fense against an action brought known to the common law. McNa- more than six months after rejection mara vs. Casserly, 61 Minn. 335-343. of the claim. Croxton ^Mining Co. 6 Experience has demonstrated vs. Hubbard, 28 0. C. C, 249. 469 AFFIDAVIT, ETC. § 545 An administrator de honis non must give notice of his ap- pointment in the same manner as an original administrator or executor.^ § 545. Notice. The statute does not indicate what the notice should contain. So far as giving notice to creditors is concerned, it was held that the following was a sufficient notice : All persons indebted to the estate of late of township, county, deceased, are hereby notified to come forward and make payment immediately ; and all persons having claims against said estate are notified to present them, properly authenticated, for settlement within six months from this date.9 (date) It has been held that notice of such appointment could not be legally advertised in a paper other than one printed in the English language.^" The following is a usual form : LEGAL NOTICE. has been duly appointed executor (or administrator) of the last will and testament of the estate of C. D., late of , deceased.** It might be well in giving this notice to call creditors' atten- tion particularly to the fact. Something of this nature might be added: "All persons indebted to the estate are requested to make immediate payment, and those having claims against the estate will present their claims, duly authenticated for set- tlement, within," etc. §546. Affidavit as evidence of notice. "An affidavit of the publisher or agent of the newspaper making such publication made, filed and recorded, together with a copy of the notice, in the probate court, within six months after bond has been given, shall be admitted as evidence of the time, place and manner in which notice was given. ' ' [E. S. § 6089 ; 102 v 202. ] ^^ 8 § 107.57 G. C, § 621. uating the evidence that such notice 8* Under present statute this was given, and for the convenience should be signed by the probate and protection of the administrator, judge. The filing forms no part of the notice 9 Gilbert vs. Little, 2 O. S. loC). and is not for the benefit of cred- it Kingwald's Estate, 5 N. P. 4!)6 ; itors, the mere fact that the notice ') Dec. 4.52. was not filed, if actually given, will 11 § 10713 G. C. not change a creditor's rights. Au- The filing of the notice in the drey vs. Shell, 77 0. S. 218. Probate Court is a mode of perpet- § 547 NOTICE OF APPOINTMENT 470 § 547. Proof of publication. It is not only important to the administrator or executor that notice be given, but equally important that the evidence of such notice be perpetuated in the Probate Court; and it is for that purpose that the provisions of the above section was enacted into law. The affidavit may be in the following form: State of Ohio, county, ss. Personally appeared before me, a notary public in and for county, for the publishers of ( naming newspaper) who, being duly sworn says that the annexed advertisement was published in the , a newspaper printed and of general circulation in said county for three consecutive weeks, commenc- ing upon the day of 190 . . . , and that each in- sertion was upon day. (If the newspaper has also a daily edition, add.) Affiant further says that a daily and weekly edition of said newspaper is published, and that the circulation of the daily in this county exceeds that of the weekly, and that the cost of publication in the daily does not exceed that of the weekly. Sworn to and subscribed before me this day of A. D. 190.... Notary Public in and for county, Ohio. § 548. Cases where notice of appointment is not given within the proper time or evidence not perpetuated. "If notice be not given of the appointment of an executor or of an original administrator or administrator de bonis non, within the one month prescribed for that purpose, or the evidence thereof be not perpetuated as hereinbefore provided, and cannot be made, on the petition of the executor or administrator the court may order such notice to be given at any time afterward, in which case such eighteen months ana other periods of time, limited for the commencement of actions against executors and admin- istrators, and for other purposes, and which begin to run from the date of the administration bond, shall begin to run respec- tively from the time such order of court is made, if notice be published in accordance therewith." [R. S. § 6126; vol. 102 V. 203.] 12 § 549. Form of petition, etc. It is the object and purpose of the above section that if for any cause an administrator or executor or other person required to give notice, fails to do so, or having given notice fails to file 12 § 107G0 G. C. 471 FAILURE TO GIVE § 550 the proper evidence, showing that such notice was given, he may by permission of Court at any time when it is discovered that the statute has not been complied with, give proper notice. The petition may be in the following form: {Title.) A. B., administrator (or executor) of the estate of C. D., deceased, re- spectfully represents to the Court, that (here state for what reason proper was not given) he failed to give the notice of his appointment within the time limited by law for that purpose. Wherefore he asks that he may oe authorized to give said notice and file the same and the affidavit to its publication in this Court as he could have done in the first instance. Sworn to and subscribed before me and in my presence this day jf , 190.. .. § 550. Entry. (Title.) This day this matter came on to be heard, upon the application of A. B., for authority of this Court to give notice of his appointment as such ad- ministrator (or executor). And it appearing to the Court that the alle- gations of said petition are true, leave is hereby granted to said A. B. to give notice of his appointment as required by law.i3 g 551. Liability for omission to give notice. ' ' No order of court, made by virtue of the next preceding section, shall exempt the executor or administrator, or their respective sureties, from liability for damages for which they would otherwise be liable, by reason of the omission to give notice within such three months." [R. S. § 6127.] ^* It will be observed that under the provisions of sec. 10642 G. C. (§ 369) that the time limited for the commencement of actions, presentment of claims, etc, shall commence to run not from the date that the administrator has given his bond, but shall begin to run from the time that the order of the Court is made, and if in such instances the extension of time would work in- juriously to the estate, the administrator would be responsible. 13 Such an order would act retro- n § 10761 G. G. actively, and validate all previous acts. § 552 PKESENTATION OF CLAIMS 472 CHAPTER XXXII. PRESENTATION AND REJECTION OF CLAIMS. § 552 Object and purpose. § 561a Action against administrator § 553 What must be presented. or executor. § 554 What need not be presented. § 561b Notice. § 555 Sufficient presentation. § 562 Comments. § 556 When waived. § 563 Requisition to reject a claim. § 557 Authentication of proof. § 564 Bond, etc. § 557a Satisfactory voucher, etc. § 565 Entry ordering notice. § 558 When not required. § 566 Form of notice, etc. § 559 Allowance of a claim. § 567 Action on real estate stayed. § 560 Rejection of a claim. § 568 How action brought. § 561 When claim shall be rejected at instance of heir or cred- itor. § 552. Object and purpose.* A person appointed administrator or executor of a deceased person's estate is not presumed to know of tlie existence of claims against the estate-, or if he does know of their existence, he is not presumed to know their amount or their justness. For this reason the law requires that creditors shall pr^ent their claims to the administrator or executor for allowance; but before the executor or administrator can insist on the cred- itor's complying with this provision, he must first have com- plied with the law himself in having given the notice required in the previous chapter. The claims should be presented so that the administrator or executor can examine their validity, and if he finds thein just, to save the expense, costs, and trouble of litigation. The law expects the creditor to be diligent about this matter, and Avhile the statute nowhere ex- pressly commands him to present his claim, yet it places him in danger of losing the same if he does not present it. If he fails to present it for six months after the executor or administrator has given notice of his appointment, the administrator or exec- utor may proceed to pay the debts due from the estate, and in eighteen months he may distribute to the heirs, and he would not be liable to any creditor who has failed to present his claim, although the remaining estate should not be sufficient to pay such neglectful creditor.^ ♦ Cited Bray vs. Darby, 82 0. S. November 21, 1011. 85 0. S., as to 51. eighteen months limitation. See Harris vs. O'Connell, decided See S 608, note. 1 § 10741 G. C, § 667. 473 OBJECT AND PURPOSE § 552 Where the claim of the creditor is due, he must present it within eighteen months trom the date of the administration bond where the administrator or executor has given notice of his appointment.- Whether or not in such a case, if a creditor fail to present his claim, he might proceed against the heirs, is undecided, but if a good excuse could be shown, his claim could be enforced in equity against heirs receiving assets from the estate,-^ If his claim was not presented within six months and assets of the estate had been distributed, in payment of debts, etc., he would be limited in any action he might bring against the administrator on his claim, to the amount of the assets re- maining in the administrator's or executor's hands unadminis- tered at the commencement of the action and he might be deprived of his costs.^ The creditor is absolutely barred of his right of action against the estate when he presents his claim and the same is disputed or rejected and he neglects to bring a suit on such a claim within six months from the time of its rejection or dispute.* While the creditor should be diligent in presenting his claim the executor or administrator should likewise be diligent in either allowing or rejecting the claim. By neglect, the cred- itor may lose a part or the entirety of his claim. By inaction the administrator or executor will prolong the administra- tion of the estate, and may in that manner not only injure the rights of the claimant, but also those beneficially inter- ested in the estate. In this chapter and the subsequent three chapters these rights' and liabilities will be considered, in some 2 § 10746 G. C, § 613; § 10760 G. eovery on his bond. The author is C, § 548. inclined to doubt this in lieu of the A creditor may lose his claim by language in Harris vs. O'Connell, 85 laches, which is' defined to be such 0. S. 145. neglect or omission to assert a right If notice of the appointment of as taken in conjunction with the the administrator is not given, the lapse of time and other circum- statute of limitations does not apply, stances, causes prejudice to the ad- Croxton ]\Iining Co. vs. Hubbard, verse partv. and operates as a bar in 28 0. C. C. 249. equity. Kemper . B. & L. Assn., 2a § io741 G. C., § 667. 5 N. P. (N.R.) 40.3; 30 O. C. C. 3 § 10737 G. C. 70; 18 Dee. 484. If an administrator has notice See § 584. where it is said equity of a claim, and exhaust the funds will aid a creditor. in paying other claims, he will be Cited Harris vs. O'Connell, 85 O. liable. In re Wakefield, Goebel, 5. S. 145. See State vs. Schott. 22 Dec. * §§ 10722-3 G. C. 320, where it was held that failure 5 The statute of limitations to present to the administrator of a against a claim for funeral expenses deceased county treasurer and de- does not begin to run until an ad- ceased bondsmen within eighteen ministrator is appointed. In re Geo. months of the qualification of the H. Miller Estate, 12 Dec. 562. administrator, claims for interest See § 608, note, illegally paid such treasurer on See 8 444, Statute of limitations; public deposit, does not bar a re- §607, Limitation of actions; §610, § 553 PRESENTATION OF CLAIMS 474 instances the discussion of the various sections, perhaps, en- trenching on each other.^ § 553. What must be presented. As a general rule it may be .said that any claim of what- ever character may be presented provided it existed against the deceased in his life time, and provided further that it is one which survives him.*' The claim for services rendered after the decedent's death, is against the executor personally and not against the estate.'^ Our statute, however, makes funeral expenses, etc., debts of the estate, and it would seem that all claims, for which the executor is not personally responsible, must be presented, etc., as required by statute.® Claims which the executor or administrator is competent to adjust and settle are not confined to claims arising on con- tract, nor to those cognizable in the Common Law Courts. The object is to allow a presentation of all claims against the estate whether of a legal or equitable nature." Contingent liabilities for which the estate is not primarily liable, upon which its liability has not been fixed, may be properly presented.^" A claim for a deficiency on a mortgage, foreclosure or claim, for which the decedent would have been liable if living, should be provided for by the executor or administrator, and hence ought to be presented. All claims to recover damages or negli- gence of an inn-keeper, mail-carrier, surgeon, attorney, etc., are in reality founded upon a contract, express or implied, and should be presented. This question will be further con- sidered in the next section, by considering what kind of claima need not be presented. § 554. What need not be presented. As the law does not require the doing of an idle thing it may he said as a general rule, that no claim is required to be Suit on rejected claims; §976, In- 780; 5 0. L. R. 102; affirmed 11 solvent estate; §999, Presentation C. C. (N.S.) 95. of claims; § 1628, Presentation in Where once allowed and after- assignments, wards disallowed, the time limit for 6 Redf. Sur. Prac. 521. bringing action dates from the last ■7 Clark vs. Todd. 16 N. Y. Supp. disallowance. See Speidel vs. Phil- 491; Woerner Admin. §§759-760. lips, 78 0. S. 196. This case distin- 8 See §16.30. See McClellan vs. guished Harris vs. O'Connell. 85 0. Filson. 44 0. S. 184. In re Geo. H. S. — ; Bray vs. Darby. 82 0. S. Miller Estate. 12 Dec. 562. 47; Stewart vs. MdLaughlin. 47 0. 9 Hovt vs. Bonnett. 50 N. Y. 538. S. 555. 10 Cornes vs. Wilkin, 79 N. Y. 129. However the suit must be brousrht See § 569. within the limited period for brinsing Where a claim is once presented actions. Harris vs. O'Connell, 85 O. and allowed, no suit thereon is nee- S. 145. essary. Eicher vs. Darby, 17 Dec. Where a person is found guilty of 475 WHAT NOT BE PRESENTED § 554 presented, unless it is such a claim that the administrator or executor can legally refuse to pay. If the character of a claim is such that no action of the administrator or executor can defeat the validity of the claim, then it would be useless to present it, so far as affecting the legality of the claim itself is concerned. But if the claimant neglect to present his claim and the admin- istrator or executor in ignorance distribute all of the assets of the estate, at the time provided by law, unquestionably the claimant would lose his demand. Thus a claim against a deceased stockholder of an insolvent corporation on his statu- tory liability, need not be first exhibited to his personal repre- sentative for allowance or rejection, before suit is brought." Where a judgment is a subsisting lien on the lands of the debtor at the time of his death, it is not necessary to- present such a claim for allowance to the personal representative. ^- Neither is it necessary to present a claim in proceedings to revive an action.^^ A claim for taxes need not be presented as it is the duty of the representative to pay the taxes and debts chargeable, with the action of the officials in reference thereto.^* "Where a claim against an estate has been duly presented and allowed by one administrator, no further allowance is required by a succeeding administrator.^^ The claim of a legacy need not be presented.^*' Nor is a claim of an annuity under a will one that must be presented.^^ Whether a contingent claim on a replevin bond need be presented or not was questioned in Daykin vs. Emery,^^ and the court rather placed it in the same category with a stockholder's liability of the decedent. A claim by a personal representative of a deceased executor for debts paid by such executor in administering the estate of a crime and sentenced to pay a fine i^ Webster vs. Bible Society, 50 O. and dies before the fine is paid, the S. 12. same is not a debt or demand that 17 Hunt vs. Hayes, 19 C. C. 151; can be collected from decedent's 10 C. D. 388. estate, Hagan, J., in Clark common 18 10 C. C. 653; 5 C. D. 121. Pleas. However in the same case it When a claim is in suit and re- was held that the costs of such ac- vived in the name of the adminis- tion, was a debt for which the estate trator no presentation is necessary, was liable. Glass vs. Buzzard, 33 O. C. C. 145, Affirmed by court of Appeals. 14 0. C. C. (N.S.) 427; affirmed 11 Hull vs. Standard Coal & Iron 85 0. S. 461. Co., 7 N. P. 157 ; 7 Dec. 527 ; Wanz If a guardian has rendered ser- V8. Park Hotel, 1 C. C. Rep. 105; 1 vices to an imbecile ward, allowance C. D. 63. for services is first to be determined 12 Ambrose vs. Byrne, 61 0. S. by the Probate Court settling the 146; William vs. Bradley, 5 C. C. account, in case of the decease of 114; 3 C. P. 61; 7 C. C. 227; In re the ward, and it need not be pre- Wakefield, Goebel, 5. sented to his administrator to se- 13 Musser vs. Chase, 20 O. S. 577. cure its allowance. 14 Gager vs. Prout, 48 0. S. 80. Seasongood vs. Ingram, 86 0. S. 15 Thomas vs. Chamberlain, 39 O. 76; 89 0. S. 460. S, 112. § 555 PRESENTATION OF CLAIMS 476 his testator is not a claim against the deceased/^ but if it is sought to make the estate liable it must be presented. If the executor is residuary legatee and gives bond under the provisions of sees. 10608-9, G. C. (§57), a presentation of a claim against the estate is not necessary before suing on the bond,-" Setting aside a will on contest five years after its pro- bate, and thus annuling the letters to the executor is no excuse for not presenting a claim while he was acting, and an ad- ministrator being appointed, to whom plaintiff presented his claim for the first time, such claim is barred.-^ § 555. Sufficient presentation. "A literal compliance with the terms of the statute," says a distinguished author,-- "is the only course to secure absolute safety to the creditor, and to relieve the administrator from the perplexing doubt, and even personal hazard, which may arise if the sufficiency of the exhibition is not clearly apparent. For, however liberally disposed he may be to waive technical de- fenses and to deal with creditors on the basis of substantial jus- tice, he stands as the representative of all creditors as well as of heirs, legatees, and distributees, whose technical rights he is not at liberty to disregard. It is by no means easy to de- termine how far literal compliance can be insisted on, to what extent the administrator may waive it, and from what circum- stances a waiver may be presumed. The utmost strictness is essential where the time of the exhibition of the creditor's claim affects its priority over others. It is obvious that the administrator can exercise no discretion in such case, and that the sufficiency of the exhibition can be tested by the statute alone, because whatever indulgence is extended to a creditor who has not strictly complied with the statutory re- quirements in insolvent estates must result to the injury of others, who have conformed to the law," 19 Stewart vs. O'Donnel, 2 Dem. -- Woerner on Admin. 804. 17. See § 645. It is not necessary to formally 20 Stevens vs. Hartley, 13 0. S. present the claim, if the holder of 525. However, it would seem that the claim notifies the administrator he should make a demand on the that he has the claim, and is in- legatee, before he is allowed to formed by the administrator that he maintain his action. need not be in a hurry. If within a 21 Delaplane vs. Smith, 38 0. .S. reasonable time thereafter the i 413. See § 1630. This is on the ministrator informs the claimant ground that no administrator is that the claim is rejected, unequiv- liable for any action after eighteen ocally, a suit must be brought with- months from' the time he has given in six months or the claim will be bond. 477 SUFFICIENT PRESENTATION § 555 The presentation of a claim may be considered in a two- fold view. First, as to what would be sufficient to place a liability on the executor, if he does not consider it in his pay- ments of the debts of the estate. And second, as to the re- sponsibility thrown on tlie creditor to bring suit on his claim within the required time. As to the first of these I apprehend that an executor or administrator might be under some danger in making a distribution, if he has such knowledge of the exist- ence of a claim, although it was not formally presented, tliat his payment of the debts of the deceased without consid- ering it would be a fraud upon the holder."^ Where the exec- utor or administrator knows of the existence of a claim that ought to be presented, the better practice would be to indi- cate to the holder of the claim that he ought to present it. B[owever,in the absence of fraud, it is the duty of the owner to present thle claim without special notification from the executor or administrator.^* As to. what will be a sufficient presentation of a claim to authorize or require a creditor to sue thereon witliin six months is a somewhat different matter and will be again refen-ed to, sec. 607 et seq. Before suit can be brought upon a claim it must be formally presented, unless the executor or adminis- trator by his acts shows that a presentation is not necessaiy. barred. An attorney may reject a that all persons having claims claim for his client. Miller vs. 'Ew- against the decedent which they in- ing, 68 O. S. 17G. tend to enforce have presented the 23 Bank vs. Carpenter, 7 O. pt. 1, same and demanded payment there- 21-70. of; and if he thereafter distribute 2'4 " Therefore a creditor should the assets to those entitled to them, not rely upon the fact or supposed or distribute them in a manner to fact that the executor or adminis- which they give approval and con- trator has knowledge of the exist- sent, he will not be held accountable ence of his claim. Such knowledge for such distributed estate to a cred- on the part of the executor or admin- itor who neither presented his claim istrator of the existence of a claim nor took anj' legal proceedings to against the estate does not avoid the collect it while the funds were in the necessity of its due presentation." administrator's hands. See O'Cou- See Matter of Morton, 7 Misc. 343, ner vs. Gifford, 117 N. Y. 275, 283; citing Livingston vs. Gardner, 4 Erwin vs. Loper, 43 N. Y. 521 ; Field Redf. 516, and note. vs. Field, 77 N. Y. 294; Jessup's An administrator who has con- Sur. Pi'ac. 913. formed to the requirements of the See note, §§552, 668, 557. statute and has published the pre- In re Wakefield's Est., Goebel 5. scribed notice, has a right to assume § 556 PKESENTATION OF CLAIMS 47S Generally it may be said that a claim need not to be presented in any particular form j^rovided it be sufficiently definite to notify the administrator of its character, and amount, and enable him to make provision for its payment.^^ The notice must be actual and unmistakable and the claim should be described with such accuracy as to distinguish it from all similar claims. Our statute contemplates that the claim be made in writing* and if it is in the form of an account, it should set forth each item distinctly. The creditor having a claim against the estate should be careful in presenting it in the proper time and ascertaining the disposition that the executoa" or administrator intends to make of it. If not pre- sented within eighteen months from date of giving bond by the executor or administrator, no action could be maintained thereon.-'^ § 556. When waived. While the statute throws around the presentation of a claim, proper formalities, yet they are not such but what may under certain conditions be waived. Thus wh^ere an administrator has not seen and examined a claim against the estate he represents, and is subsequently requested to allow" it, which he refuses to do, such claim being present in the pocket of its o^vIler, and the administrator so told, a fonnal presentation of the claim is not neoessaiy, but may be presumed to be- waived,^^ and the claim considered as presented and rejected, 25 Henderson vs. Ilsley, 49 Am, plaintiff had it in his pocket, and Dec. 41; S. C. 11 S. & M. (Miss.) 9. told the administrator he had it 28 § 10746 G. C, § 613. with him. If such were the facts, See § 668, Notice of demands. of what importance could it be, that 27 It is shown in the bill of excep- the account should be taken from tions that the administrator had the pocket and formally presented? seen and examined the account in The object of the law in requiring Marcli, 1858. The evidence tended the presentation of claims against to show that in September follow- an estate to the administrator, is to ing the plaintiff asked the adminis- apprise him of their existence, trator to allow the account, which amount and character. Such knowl- was refused ; that the account was edge of this claim the administrator not in fact presented, though the had already acquired in March ; and 479 WHEN WAIVED AUTHENTICATION § 557 Where the same person is administrator of the creditor estate as well as of the debtor estate, no formai presentativ^n or allowance of the claim need be made."' However, if the execu- tor is appointed without giving bond, the claim must be pre- sented within the time limited by law from the date of his giving notice of his appointment.^" And where a claim against an estate is of such a character that it could be presented to the administrator for allowance before suit can be brought thereon, where the executor enters appearance in the suit so brought and proceeds to trial without objection, this amounts to a waiver, and such waiver cannot be taken back by the administrator when the case comes on for trial.^*^ Where a claim is once allowed and the estate is aftei-wards declared in- solvent, it need not be again presented unless a commissioner of insolvency be appointed.^^ In all actions brought against an administrator or executor, it must be proven that such a claim was presented and rejected.^" A presentation to one of several executors or administrators is suflicient.^^ §557. Authentication of proof. "When a claim is pre- sented against the estate of a deceased person, the executor or administrator may require satisfactory vouchers in support of it and also the affidavit of the claimant that such claim is justly due, that no payments have been made thereon, and that there are no set-offs against it to his knowledge. Such oath may be taken before any officer authorized to administer oaths. The expense of it shall be allowed by the executor or administrator, if the claim itself is allowed." ' [R. S. § 6092.] ^^ assuming that the other facts were Where a petition against an ad- proved wliich the evidence tended to ministrator does not show that the prove, we thinlc that a refusal to claim was presented and disallowed allow tlio account under such cir- and the administrator goes to trial cumstanccs, would be a waiver of its and makes no objection, it is too formal presentation, and that the late after several trials and costs jury would be warranted in so find- have been incurred, to raise the ing. . Clieesman vs. Kyle, 15 O. S. question. Devereaux vs. Hutchin- 15. son, 16 0. C. C. (N.S.) 447; 28 Thomas vs. Chamberlain, 39 O. affirmed, 78 O. S. 415, no op. S. 112. If a creditor neglects to present 29 Delaplane vs. Smith, 38 O. S. his claim and takes security to in- 413. sure its payment he will be held to 30 Davkin vs. Emery, 10 C. C. have waived his claim. Shell vs. 652; 5 C. D. 121. Bernhardt, 24 Dec. 182. So also if 31 Haley vs. Krug, 1 C. C. 44; 1 he conceals his claim and if as heir C. D. 27. he participates in a partition pro- 32 Yager vs. Griess, 1 C. C. 531; 1 ceedings. C. D. 206. 34 §10717 G. C. 33 Woerner on Admin. 806. § 557a PRESENTATION OF CLAIMS 479a ^ 557a. Satisfactory voucher, etc. "While the claimant may not be required to place all his evi- dence before the executor or administrator which he may have to support his claim, yet the statute would deem to indicate that more than the affidavit may be required. "The executor or administrator may require satisfactory vouchers in support of the claim and also the affidavit of the claimant that such claim is justly due, that no payments have been made thereon, and that there are no set-offs against same, ' ' etc., is the language of the statute. It will be observed that the matter of "satisfactory vouchers in support of the claim" is in addition to the requirement of the affidavit. So far as the author knows this has received no judicial construction in Ohio, and not very much elsewhere. The statute of New York is very much similar to our own, but not much light is thrown on the matter by text writers from that state. ' ' The statute plainly intends ' ' says one, ' ' that the claim shall be presented or exhibited in some writing, stating its nature and the amount, the name of the creditor and a demand for its pay- ment. The personal representative of the estate is put by such paper in possession of information which enabl&s him to act intelligently either in admitting the claim or taking such steps as are necessary to protect the estate against it."^** Another says: "The verification of a claim gives it the character of an un- disputed debt; the claimant is not required to furnish other evidence unless required to do so by the representative. He may be required to furnish a bill of particulars or make his claim more definite and certain. ' ' ^*^ The claim as presented "shall give to the personal representative such information con- cerning the nature and amount of the demand as to enable him to act intelligently in providing for its payment, or in rejecting it."'*<^ The general rule of law is that if suit be brought on a demand that has not been rejected, that the party is non-suited.^*'' Before the claim can be rejected it must be presented as the statute requires. It follows therefore that a claim might be 34a,Jessupp, Surrogate Prac, p. Surrogate courts, 5th ed. 525 913 (N. Y.). (N. Y.). 34b Redfield, Law and Practice, 34c 18 Cyc. 480. ^79b SATISFACTORY VOUCHER, ETC. § 557a rejected for either of one of two reasons. First, that it was not presented, when so required, with satisfactory vouchers, or proper affidavit, or, Second, because of the denial of the justice of the demand. It is the object and purpose of the law that estates be settled as economically and speedily as possible. All demands against the estate are to be settled without litigation when the same can be done without detriment to the interests of the estate. But claims will arise concerning the merits of which the exec- utor or administrator has little or no knowledge. This knowl- edge may be peculiarly within the possession of the claimant. Without such knowledge, the administrator or executor is unable to determine whether the claim is just or not. "Voucher" it is said "is a word that has several meanings; but in its ordinary signification it means a document which serves to vouch the truth of accounts, or to confirm or establish facts of any kind."^*« And "satisfactory" is defined as "giving or producing satisfaction; yielding content; especially relieving the mind from doubt or uncertainty and enabling it to rest with confidence. ' ' ^"^^ It would therefore seem to follow that under this statute the executor or administrator has a right to demand when a claim is presented, not only an affidavit embodying the facts required by the statute, but such additional matters as will enable him to satisfactorily determine whether the interests of the estate re- quire the acceptance or rejection of the claim. If the claimant can, and will not give this required evidence, and the claim is rejected for that reason, we believe this becomes jurisdictional, and no right of action would lie to enforce col- lection of the same by suit. When therefore a claim is presented about which the admin- istrator or executor is ignorant he should inform claimant of the facts which he desires to know, and which he deems necessary for him to know to enable him to intelligently and properly determine whether the claim should be allowed or rejected, and if claimant captiously or negligently refuses to give the same, then reject the claim for that reason and that there may be no question as to the reason for his conduct, indorse on the claim the reasons for his action. 34 Whit. Probate Code, «i See § 1636. 491 ACTION ON REAL ESTATE STAYED § 5G7 Form of notice to the holder of the claim may be as follows : To N. Y. You are hereby notified that your claim of dollars, for which has been presented to me (or which I understand will be presented to me) as executor (or admin- istrator) of the estate of I. J., deceased, for allowance, in accordance with an order made by the Probate Court of county, is disallowed and rejected by me, and that you are required to sue on said claim within six months from this date, or be forever barred. Administrator. § 567. Action on real estate stayed. If at the time a requisition has been filed in the Probate Court, proceedings to sell lands of decedent to pay such claim have been commenced, they shall be stopped and no further proceedings shall be had, until such claim shall have been deter- mined. The matter may be determined either by a suit at law, or compromise, or if the creditor fails to sue on the claim vtdthin six months from tlie time of notice of its rejection has been served on him. Thereafter proeeedings shall be taken up, if the claim has been found to be a valid one, and proceed as if no such requisition had been filed. § 568. How action brought. The action shall be brought against the administrator or exec- utor and the judgment shall be against the administrator or executor; and the heir or person making the requisition shall be. made a party defendant and shall have a right to plead and make any defense which the administrator or executor could make. If the plaintiff shall recover judgment, it shall be against the executor or administrator, but the costs shall be against the party filing the requisition. In a suit by an admin- istrator to recover upon a bond given in the pursuance of the provisions of sec. 10734 (§ 561), it is necessary to enable him to recover, for him to show that the requirements of said section have been strictly complied with.*'^ 62 Fullerton vs. Davis, 1 C. C. 572 ; 1 C. D. 320. §568 PRESENTATION OF CLAIMS 492 If the heir or otlier party filing the requisition so desires, he may prosecute error.®^ We therefore hold that if the ad- ministrator desires to recover these costs, it is his duty to see to it that the costs are awarded against the party giving the bond. There having been no " costs awarded against " the plaintiff in error in the original suit, he would not be liable there- fore upon his bond, and for reasons above stated he would not be liable for the attorney's fees or other ex- penses. 63 Spaulding vs. Allen, 19 C. C. 608; 10 C. D. 259. We hold that the provisions of the statute which authorize the heir in such action " to make any defense to such action which such administrator or executor should make " necessarily carries with it the right to test the regularity of the proceedings in the trial Court, in the same manner as the adminis- trator or executor could do, and this includes the right to institute and carry on proceedings in error. Suppose the Court had overruled a demiirrer filed by these heirs to the petition, and had been clearly wrong; or had sustained a demurrer to their answer and had been clearly wrong; to hold that the heirs might not proceed in error to have such wrong righted, would cut them off from what the statute clearly gives them, viz. : " To make any " — every — " defense to such action which such administrator or execu- tor could make," For recovery on bond. See Fuller- ton vs. Davis, 1 C. C, 572; 1 C. D. 320. i93 CONTINGENT CLAIMS §569 CHAPTER XXXIIl. PRESENTATION OF CLAIMS NOT DUE. § 5f59 Contingent claims. § 570 Debts not due paid by admin- istrator, etc. § 571 When claim allowed by Court. § 572 What claims included. § 573 Presentation of claim, etc. § 574 Notice, etc. § 575 Order of the Court. § 576 Ordering claim paid. S 577 Ordering assets to be retained. § 578 Ordering the giving of bond. § 579 Form of bond. § 580 Allowance of Court not con- clusive. § 581 Action to be brought against executor or administrator; against heir if he has given bond. § 582 Pleading when action brought on bond. § 583 Appeal and error. § 569. Contingent claims. The administration laws of our State contain no provision es- pecially applicable to contingent claims, where the estate is solvent. If the estate is insolvent, it makes provision for their payment or presentation.^ The reason for this may be, that by the provision of other sections ^ the distributees and legatees are liable for any claim that may become due after the settle- ment of the estate'. If the estate be insolvent, of course there are no funds to be distributed to heirs, and therefore unless the creditor could present a contingent claim, he would be abso- lutely without remedy. There may be instances which under our present law an owner of a contingent claim may be left without a remedy. For instance suppose that a contingent claim does not become a fixed one, for several years after the estate has been distributed, in which time the distributees have squandered the estate, in such cases the owner of a contingent claim, it seems, would be without a remedy. It would be ad- visable, however, for the owner of a contingent claim to present the same, either to the Court or to the legal representative. 1 § 10888 G. C, § 983. 2 §§10870, 10877-8 G. C, §§585, 687. The distribution of an estate will not be delayed by a contingent claim. See §775. § 570 CLAIMS NOT DUE 494 Of course the administrator or executor would not be liable to make a payment thereon until the contingent claim had become a fixed one and he was notified of that fact. An ad- ministrator might pay debts within six months after his appoint- ment, but he could not safely make a distribution with notice of a contingent claim, unless more than eighteen months had elapsed from the date of his giving bond, if he has given his notice of appointment as provided by law. "Claims not absolute or certain," says Woerner,^ "but de- pending upon some event after the debtor's death, which may or may not happen, are not enforceable against executors or admin- istrators after they have fully administered, without notice that such claim has become absolute."* §570. Debts not due paid by administrator, etc. There are two sections, to-wit, sees. 10735, 10748, G. C. (§571), which seeiu to be applicable to debts of a fixed character that do not mature within the eighteen mouths limit of administration. The provisions of sec. 10735 give ample powder to an administra- tor or executor for paying a debt that is not yet due, where he is satisfied that the debt is an honest one and allows it. Section 10748, G. C, seems to make provision for the allowance of a claim which by reason of its not being due cannot be presented as a legal claim to the administrator. Section 10735 is as follows : ' ' Debts not due may be paid by an executor or administrator, according to the class to which they belong, after discounting the legal interest upon the sum paid for the time unexpired, if the claim does not bear interest before maturity." [R. S. §6104.]^ § 571. When claim allowed by Court. "A creditor whose right of action does not accrue within eighteen months after the 3 Woerner on Admin. 818. Hantzch vs. ]\rassolt. 01 Minn. 361. 4 "A contingent claim is where See §607, Limitation of action; the liability depends upon some fu- § 982, Order of distribution. ture event, which may or may not 5 § 10735 G. C. happen, and therefore niakes it now And the court may order him to wholly uncertain whetlier there ever make such payment, or receive a debt will be a liabilit.y. Poland, C. J,, in not vet due. Denmead vs. Sharp, Sargent vs. Kimball, 37 Vt. 320. 14 Dec. 301. It is probably a dis- Cassaday, J., in Austin vs. Saveland, cretionary power in the Probate 77 Wis. 108. Starr, C. J., in Court. 495 CLAIMS INCLUDED § 572 date of the administration bond may present his claim to the court from whicli the letters issued, at any time before the estate is fully administered. If, on examination thereof, it appears to the court that the claim is justly due from the estate, by eon- sent of the creditor and executor or administrator, it may order the claim to be dischargred, as if due after discounting interest, or that the executor or administrator retain in his hands suffi- cient to satisfy it. If an heir of the deceased, or devisee, or others interested in the estate, offers to give bond to the alleged creditor, Avith sufficient surety or sureties for the payment of the demand, in case it be proved to be due from the estate, the court may order such bond to be taken, instead of orderiner the claim to be discharged, or requiring the executor or admin- istrator to retain assets as aforesaid." [R. S. ^6115; 102 V. 204.]« § 572. What claims included. The above section is the only provision of our laws that per- mit a claim to be presented to the Probate Court for its allow- ance. The holder of the claim may present it, even if the same be not due, to the administrator, and if the administrator allows the claim as provided in sec. 10735, G. C, the same need not be presented to the Probate Court. But if it is such a claim that the executor or administrator does not wish, to allow, and the cred- itor wishes to hold the assets in the hands of the administrator or executor to apply on his claim, then he must make application as provided in the above section. If the creditor so chooses, he need not present his claim, and when it is due, he can sue on the same and recover from the distributees of the estate. Even if the claim be presented to the Probate Court and for some reason be not allowed, the creditor has a right to sue the distributees/ Whether or not a contingent claim could be presented under the above section is certainly questionable. If it w^ere highly probable that the contingency upon which the claim depends, would arise at an early date, the Court might make an order pro- tecting its payment for a skort time. But it seems from the fl § 10748 G. C. be paid, although no execution has T §§ 10877-8 G. C, §587. been issued within five years. Am- Judgment on lands Is entitled to brose vs. Byrne, 61 0. S 146. § 573 CLAIMS NOT DUE 496 words of tlie statute that it is only when the claim is justly due that the Court may make the order. The Massachusetts statute is very much similar to our own. There it was held that the pro- ceedings apply to any claim arising out of the contract of the de- ceased, the right of action on which does not accrue within two years.® The statute does not compel the administrator to sell real es- tate to meet the liability when it shall accrue.* A creditor of an estate upon which ancillary administration has been taken out here is entitled to have assets retained to sat- isfy his claim when it shall acciaie.^" A claim of a balance due a ward from a guardian of a de- ceased intestate, upon an account filed by him in his lifetime, which was not allowed by the Probate Court until more than six year after the taking out of administration on his estate, is within the statute.^^ Pleading the lien by the judgment creditor, in an action brought by the personal representative to sell the land for the payment of debts, is not the commencement of an action within the purview of the statute limiting the time within which action may be commenced against executors and administrators/^ § 573. Presentation of claim, etc. A creditor holding such a claim should present a full state- ment of it in writing to the Probate Court with a petition for an order requiring the executor or administrator to retain in his hands assets sufficient to satisfy it when it becomes due and pay- able. The claim may be presented at any time before the estate is fully administered. The following may be used as a form for the petition : 'Hammond vs. Granger, 128 n Cobb vs. Kempton, 154 Mass. Mass. 272. 266. » Ciark vs. Holbrook. 146 Mass. 12 Ambrose vs. Byrne, 61 0. S. 366. 146. 10 Newell vs. Peaslee, 151 Mass. 601. 497 NOTICE, ETC. § 574 (Title.) Now comes E. F. and represents that he holds a note (or other claim) against the estate of A. B., deceased, of which C. D. is administrator, etc. dated day of , for dollars, which said note will not become due until (here state date). (If the claim is of any other nature or character other than that of a promis- sory note, so state, giving a full and complete description of the claim.) Wherefore he asks that said administrator (or executor) may be ordered to retain in his hands a sufficient amount of the assets of said estate to pay said note when the same becomes due. Or said administrator (or executor) may be directed, if he agrees thereto, to pay said note out of the funds of the estate now in his hands. Sworn to and subscribed before me and in my presence this day of , 190.... § 574. Notice, etc. There seems to be no provision in the statute requiring a notice to the executor or administrator, or to any one beneficially interested. Possibly from the subsequent provisions of the General Code^^ it is not intended that any such notice shouli be given. The one ^* provides that the decision of the Court shall not be conclusive against any person interested to oppose the allowance, and the other provides tliat if it is- not allowed, 8uit may be brought against the distributees. If it is sought, however, to have the claim discounted and paid by the adminis- trator, he should in some manner be brought into Court. Per- haps the best way would be, if the administrator or executor is willing, for him to file an answer, which might be in the follow- ing form: (Title.) Now conies C. D., administrator (or executor) of the deceased A. B., and represents to the Court that he has examined the application of E. F. for the Court to make an order allowing his claim which is not yet due; and the said administrator (or executor) consents to the prayer of said application and joins therein asking the Court to make an order that the same be discharged in like manner as if due, after discounting the interest. § 575. Order of the Court. The statute seems to contemplate that the Court may make either one of three orders. First, it may order the claim to be paid by the executor after discounting the interest, or second, it may order the executor or administrator to retain in his hands 13 s§ 10749, 10877-8 G. C, §§ 580, i4 § 10749 G. C. 587. § 576 CLAIMS NOT DUE 498 sufficient assets to satisfy the same, or third, if any of the heirs or devisees or others interested in the estate shall offer to give a bond to the alleged creditor, the same may be taken instead of ordering either the claim paid or the retaining of assets. ISTeither one of these orders can be made by the Court, unless it shall ap- pear to the Court that the claim is justly due from the estate^ These are the words that seem to make it very doubtful whether the Court could make an order on a contingent claim, for no claim can be said to be justly due which may never become due at all. Several entries providing for the various orders which the Court may give will be given in the following sections. The application to the Court does not involve an inquiry into the amount of assets in the executor's hands, but is limited to the question whether the claim is, or may become, justly due from the estate.^^ § 576. Ordering claim paid. If, upon hearing, which should be one that fully satisfies the Court that the claim is justly due, and it further appear that both the creditor and the executor are willing to have the claim allowed and paid out of the assets, and the heirs do not offer to give bond, the following may be a proper entry : (Title.) This day came E. F. and presented to the Court his claim in the sum of dollars, against the above estate. Which claim is not due until after the day of , which is more than two years from the date of the bond of the said administrator (or executor) of said estate. And the said C. D., administrator (or executor), having filed his answer in this Court consenting that said claim may be ordered paid, and on examination it appearing to the Court that said claim is justly due from the said estate, it is now ordered that said admin- istrator (or executor) of said estate pay the present value of said claim, to-wit: The sum of dollars, to the said E. F. in full satisfaction and discharge of his claim. § 577. Ordering assets to be retained. If it appear to the Court, on examination of the claim, that the estate is justly indebted thereon, that neither or either of the 15 Hammond vs. Granger, 131 due and payable, but that it con- Mass. 351. stitutes a just debt of the estate The words "justly due" on draft and should in equity be payable out mean, not that the claim is then of the funds of the estate. '499 OKDEE, FOE BOND § 578 creditor or administrator or executor desires or consents to the present payment of said claim, and the heirs do not offer tO' give bond, the following may be used as proper entjy : {Title.) This day this matter came on to be heard, upon the application of E. F., for an order of this Court on his claim, amounting to dollars, which is not yet due. And it appearing to the Court that there i8 justly due on said claim, from the estate of A. B., the sum of dollars. Neither the said E. F. nor the said C. D., admin- istrator (or executor) of the estate of A. B. consenting to the payment of Baid claim, and none of the heirs or others interested in said estate offering to give bond, as provided by law, it is ordered that said C. D., as admin- istrator (or executor) of the estate of A. B., retain in his hands suflBcient money to satisfy the said claim when it shall become due and payable. § 578. Ordering the giving of bond. If any of the heirs of the deceased or devisee, or others inter- ested in the estate, shall offer to give bond to the alleged creditor with sufficient surety or sureties for the payment of the demand, the Court may, if it thinks fit, order such bond to be taken, in- stead of ordering either the claim to be paid or assets to be re- tained. In such cases the entry may be in the following form : {Title.) This day this matter came on to be heard upon the application of E. F., for an order of this Court on his claim, amounting to dollars, which is not yet due. And it appearing to the Court that there is justly due on said claim, from the estate of A. B., the sum of dollars. And I. J., one of the heirs of the dec3ased, having oflFered to give bond with sufficient surety to the said E. F. for the payment of said claim when it shall become due and payable, in case it shall prove to be valid. It is now ordered that if the said bond, with M. N. and O. P. as sureties, be executed and given to said E. F., that the said administrator (or executor) be released from tlie payment of said claim, and that the said E. F. shall thereafter proceed to collect his claim from the said I. J., a-s provided by law. § 579. Form of bond. The bond shall be given to the alleged creditor with sufficient surety or sureties for the payment of the demands in case the same shall be proved to be due from the estate. It seems that the creditor having applied to the Court, is bound to accept the bond ordered by the Court. The bond may be in the following form : Knotc all Men by these Presents: That we, I. J., M. N. and O. P., are held and firmly bound unto E. F. in the sum of dollars, to the payment of which we § 580 CLAIMS NOT DUE 500 jointly and severally bind ourselves, our heirs, executors and administrator, if default be made in the condition following. Whereas, E. F. has filed his petition in the Probate Court within and for the county of , and State of Ohio, alleging that he holds a claim against the estate of A. B., deceased, consisting of a note, dated , 190 ... , and calling for dollars in years from date (or otherwise briefly describe the claim, according to the facts) ; and praying that inasmuch as said note will not become due until after the expiration of two years from the date of the bond of C. D., the administrator of the estate (or executor of the last will and testament) of said A. B., deceased, said C. D. may be ordered to pay said claim forthwith, upon rebate of interest, or that he may be ordered to retain in his hands sufficient assets of said estate to pay said claim when the same becomes due; and, whereas, the said I. J., one of the heirs-at-law of said A. B., deceased, has off'ered to said Probate Court to give bond for the payment of said claim, in case the prayer of said E. F. should not be granted, which offer has been accepted by the Court. Now, therefore, if the said I. J. shall pay the claim of said E. F. when the same becomes due, in case it shall be proved to be a valid debt of said estate, then this obligation shall be void; otherwise it shall be and remain in full force and effect. Signed by us, this day of , A. D. 190 ... . ( Signatures. ^ § 580. Allowance of Court not conclusive, and executor or administrator not compelled to pay if disputed, unless, etc. "The decision of the court thereon shall not be conclusive against the executor or administrator, or* other person interesteJi to oppose the allowance of the claim. They shall not be com- pelled to pay it if disputed by them, unless it be proved to be due, in an action to be commenced by the claimant, within six months after it becomes payable." [R. S. § 6116.]^^ It will be observed from the provisions of the above section that the orders made under sec. 10748, G. C, do not prevent the executor or administrator, or any other person, from opposing the allowance of the claim, any time thereafter when it shall be presented as a claim against the estate. It would therefore seem that any action that might be taken under sec. 10748, G. C, would have no other bearing on the claim when it became due except to retain assets to meet the same, or to have a sufficient bond to provide for its payment. It is no adjudication of the claim in any respect whatever. § 581. Action to be brought against executor or administra- tor; against heir if he has given bond. "The action for this purpose must be brought against the executor or administrator, 16 § 10749 G. C. 501 PLEADING, ETC. § 582 in case he has been required to retain assets therefor, or ordered to pay it. But if the heirs or others interested in the estate gave bond, as before provided, the action shall be brought on the bond." [R. S. §6117.]!^ § 582. Pleading- when action brought on bond. "If action be so brought, the plaintiff must set out his demand as in an action against the executor or administrator, alleging the lia- bility of the defendants by reason of the bond. The defendants may plead any defense that would be available to the executor or administrator." [R. S. § 6118.]i8 § 583. Appeal and error. There seems to be no statute making provision for an appeal from the decision of the Probate Court made upon any question presented under the provisions of sec. 10748, G. C. (§ 571), and it is therefore thought there is no right of appeal. It is likewise very questionable whether error could be prosecuted en any order that the Court might make, for sec. 10877, G. C. (§ 587) contemplates that a claim presented may not be allowed by the Court. If it is not allowed by virtue of that section, the right of the creditor to prosecute his claim against the distributees is fully protected. Likewise in sec. 10877, G. C. (§587) it is provided that the decision of the Court shall not be conclusive against the executor or administrator, or other person interested, to oppose the allowance thereof. So it may be very much doubted whether the action of the Court on a claim presented under sec. 10748, G. C. (§ 571) would be such a final order as would give ground to prosecute a suit in error. 17 § 10750 G. C. not prevent action against heirs, 18 § 10751 G. C. etc., as elsewhere provided. § 10752 Action under these sections will G. C, § 585. 584 CLAIMS UNPAID AT SETTLEMEJSTT 502 CHAPTER XXXIY. CLAIMS UNPAID AT SETTLEMENT. § 584 Claim due must be pre- § 589 Estate of any heir, etc., sented, etc. liable after his death. § 585 Estate of deceased in the § 590 Where two or more liable, hands of the heir, etc.; creditor may proceed liable for certain debts. against all in one action. § 586 Jurisdiction, etc. § 591 Insolvency, etc., of heir or § 587 Heirs, etc., to contribute to devisee not to affect liabil- pay claims after settlement ity of others, of estate, and how. § 592 Amendments allowed to bring § 587a Limitation, etc. in other parties. § 588 Comments. § 593 Heirs, etc., liable to contri- bution. How recoverable. § 584. Claim due must be presented, etc. In the previous chapter we have treated of the manner in which claims that are not due before settlement, or eighteen months from the time the administrator or executor gives bond, may be presented and the creditor's rights protected. It was there said that it was not mandatory on the creditor to present his claim if it was not due before final settlement was made. It will be the purpose of this chapter to give the provisions of the General Code giving to creditors a right to proceed against heirs and legatees. As the Probate Court has no jurisdiction over the set- tlement of estates after a final settlement is made, it might not properly come within the province of this work to treat of actions brought after a final settlement, but as it is very closely allied to a proper settlement of an estate, the sections of the General Code will be given with some brief comments. It has always been deemed equitable and just that the assets of a deceased person should, wherever they may be found, be made applicable to the payment of his just debts and liabilities. Cred- itors, however, can not sit idly by during the administration of Beneficiaries under a trust can there being no claim asserted not maintain an action against the against his estate within the time heirs and legatees of a deceased fixed by the laws of administration, trustee or enforce a claim against Robson vs. Evans, 35 O. C. C. 510. their interest in trust property, 503 ESTATE IN HANDS OF HEIRS, ETC. § 585 an estate and not present their claims without dangler of losing the same. If they do not present them within six months, the executor or administrator may proceed to pay debts. If they do not present their claims in case they are due before he makes a final settlement, provided such settlement is made more than eighteen months after the date of his bond, or when settlement has been made before eighteen months from date of bond, and claim has not been presented before the expiration of the said eighteen months, they can not proceed to collect the same from the heirs or devisees. Such neglect or failure to act upon the part of the creditor will have lost him his claim entirely. Under the provisions of the subsequent sections of the General Code referred to in this chapter, the creditor would also be barred of his claim if he did not commence action within one year after the same was due. Another matter that should be observed is that no creditor can bring a suit against an heir or devisee until after a final settlement.^ If no action can be brought by a creditor against an heir until after a final settlement, it would likewise follow that no creditor could bring suit against an heir until there had been an admin- istration of the estate. The method of procedure for a cred- itor who has a claim, in which there had never been an admin- istration of the estate, is to have an administrator appointed, and then present his claim to the administrator. Courts of equity refuse to aid creditors who fail to collect their claims, in the mode thus pointed out by law, before final settlement and discharge of the administrator, without satis- factory excuse.^* § 585. Estate of deceased in the hands of heirs, etc. ; liable for certain debts. "After the settlement of an estate by an executor or administrator, and the expiration of the time limited for the commencement of actions against him by the creditors of the deceased, his heirs, next of kin, widow as next of kin, devisees, and legatees shall be liable by action in the common pleas or superior court as provided in the following sections, for all debts, which could not have been sued for, against the executor or administrator, and for which provision was not made, as hereinbefore provided." [R. S. §6217.]- lArbaugh vs. Millett, 5 C. C. College, 17 Wall, 521, 530. See 295; 3 C. D. 146. §014, Limitation of action; §617, 1* Collamore vs. Wilder, 19 Kan. When not barred. 67, 80; Public Works vs. Columbia 2 § 10876 G. C. §586 CLAIMS NOT DUE AT SETTLEMENT 504 § 586. Jurisdiction, etc. The action by the creditor must he bro\ight in the Common Pleas or Superior Court of the county in which service of sum- mons on the heir can be obtained, and only exists for debts on which an action could not have been maintained against the ex- ecutor or administrator, or w^here no provision has been made, such as the retaining of assets, or the giving of bond provided for in the previous chapter. As before stated, the action can- not be brought until the estate has been administered upon, and a final settlement made.-^ A^ a general rule, it may be said that | the sale of real estate by an heir conveys a title which is subject to a creditor's lien,^ unless the estate has been fully adminis- tered, as provided by law, and the sale be made to an innocent purchaser. It sliould be furtlier observed that the action provided for is a I personal action against the heir or distributee, etc., and that it is not one that follows the property itself, which may have been received in distribution; and therefore if the heirs and distrib- utees become bankrupt before the creditor gets judgment, he would be without a remedy. ? 587, Reirs, etc., to contribute to pay claims after settle- ment of estate, and how. ' ' Such creditor, whose right of action first accrues after the expiration of the time of such limitation, and whose claim had not been presented to the court, or if pre- sented, not allowed, as hereinbefore provided, may recover itj against the heirs, widow, as next of kin, and next of kin of the deceased, and the devisees and legatees under his "will, each onej of whom shall be liable to the creditor to an amount not exceed- ing the value of real or personal estate that he or she received under the will, or by the distribution of his estate. If, by the 2aArbaugh vs. Millett, 5 C. C. 295; 3 C. D. 147. 3 Farren vs. Robinson, 17 0. S. 243; Stiver vs. Stiver, 8 0. 221; Piatt vs. St. Clair, 6 0. 227. In an action by a creditor I against tbe lieirs, after tlie estate is] settled, tlie same defense may be] made as could have been made by] the administrator. Camp vs. Bost-] wick, 20 0. S. 337. 505 CONTRIBUTION AMONG HEIRS § 587a will of the deceased, any part of his estate, or one or more of the devisees or legatees, be made exclusively liable for the debt, in exoneration of the residue of the estate, or of the other devisees or legatees, it must be complied with in that respect, and the persons and estate so exempt by the will, be liable for only so much of the debt as can not be recovered from those first charge- able therewith." [R. S. §6218.]* § 587a. Limitation. "No such suit shall be maintained un- less commenced within one year next after the time when the right of action first accrues, except the person entitled to bring it be, at the time it accrued, within the age of twenty-one years if a male, eighteen years if a female, insane, or imprisoned, in which case, every such person may bring such action within one year after the disability is removed." [R. S. §6218.]** § 588. Comments. Several things may be observed about the above section. First, the creditor can only bring the action if it accrued after the time of the limitation of a settlement, or when a settlement has been made that the claim shall not have been presented to the Court-, or if it has been presented, that it was not allowed. Sec- ond, that the creditor may recover the same against the persons that have received the estate on distribution, each one of whom shall be liable not exceeding the value of what he shall have re- ceived. Third, if there was a will, and any part of the funds or property distributed was made liable primarily for the debts, the legatee receiving the same first would be liable, and the will in that respect should be complied with. Fourth, that no suit shall be maintained unless it be commenced within one year after the time when the right of action accrued, except for a disability therein mentioned. » 4 § 10877 G. C. under the provisions of §§ 10876, 4* § 10878 G. C. 10877 and 10878 G. C. Robson vs. This limitation is not merely a Evans, 35 0. C. C. 513. See Thomas statute of limitations relating to vs. Kalbfus, 97 0. S. 232. the remedy, but is a necessary When a cause of action accrues qualification of the right to main- before the expiration of the time in tain the action. Roth vs. Hummel, which an executor may be sued, suit 1 0. App. 361; 35 0. C. C. 355. can not be maintained against tlie The only cases in wliicli heirs and lieirs. Bevitt vs. Diehl, 12 Dec. devisees miglit be held liable are 383-315. See § G13. § 589 CLAIMS UNPAID AT SETTLEMENT 506 § 589. Estate of any heir, etc., liable after his death. "If any of such heirs, next of kin, widow, devisees, or legatees, dies without having paid his or her just proportion of such debt, his or her executors or administrators shall be liable therefor to the extent he or she would have been if living." [R. S. § 6219.]' § 590. Where two or more liable, creditor may proceed against all in one action. "If, in the cases specified in the next three preceding sections, more than one person is liable for the debt, the creditor by one action shall proceed to recover it against all so liable, or as many of them as are within the reach of process. Thereupon, by the verdict of a jury if either party requires it, the court must determine what sum, if any, is due to the plaintiff. They also according to the equities of the case, shall decide how much each of the defendants is liable to pay toward the satisfaction of the debt, and the court shall render judgment accordingly." [R. S. § 6220.]" § 591. Insolvency, etc., of heir or devisee not to effect lia- bility of others. "If any of the heirs, devisees, or others who were originally liable for the debt, be insolvent or unable to pay his proportion, or is beyond the reach of process, the others nevertheless shall be liable to the creditor for the whole amount of his debt ; except that no one shall be compelled to pay more than the amount received by him from the decedent's estate." [R. S. §6221.]^ § 592. Amendments allowed to bring in other parties. ' ' No suit shall be dismissed or debarred for not making all the persons defendants who might have been included as such. In any stage of the cause the court may award process to bring in other par- ties, and allow amendments necessary to charge them, as de- fendants, upon such terms as it deems reasonable." [R. S. §6222.]« § 593. Heirs, etc., liable to contribution. How recoverable. "If, in consecpience of insolvency, absence or other cause, any of the persons liable for such debt, fails to pay his just pro- portion to the creditor, he shall be liable to indemnify all who, by reason of such failure on his part, have paid more than their 5 § 10879 G. C. Each heir is liable separately for G § 10880 G. C. the amount received by him from 7 § 10881 G. C. the estate. Spicer vs. Giselman, 15 8 § 10882 G. C. 0. 338. 507 RECOVERY FROM HEIRS § 593 just proportion of the debt — such indemnity to be recovered by all of them jointly, or in separate actions by anj'" one or more, for his or their parts respectively, at their election." [R. S. § 6223.]'' 9 § 10883 G. C. See general dis- Admin., pp. 1261 to 1272. See cussion of subject, Woerner on Schouler, Extrs. § 445. § 594 AUBITRATION OF CLAIMS 508 CHAPTER XXXV. AEBITEATION OF CLAIMS. § 594 Doubtful claims against an es- § 599 if it exceed one hundred dol- tate to De referred to arbitra- lars. tion. § 600 Duties of Probate Judge, etc. § 595 Construction of statute. f ^Ji 5°*'''^ """/^ °^*^ .*° referees. „ -„^ . . ^ r 8 602 Referees to report to Court. § o96 Agreement to refer. Proceedings, powers, and § 597 How proceeded on if claim is compensation of referees* less than one hundred dol- costs. Ij^j.g § 60,3 Hearing, etc. R nna T^ 4^- ( ^-i r ^- r ..u ^ ^^^ Witnesses, how procured, etc. § 598 Duties of the Justice of the § 605 Filing of an award. Peace. § 60G Form of confirmation of award. § 594 Doubtful claims against an estate to be referred to arbitration. "If the executor or administrator doubts the justice of any claim presented, and so verified, he may enter into an agreement in writing, witli the claimant, to refer the matter in controversy to three disinterested persons, who, if the claim does not exceed one hundred dollars, shall be approved of by a justice of the peace of the county in which the letters were issued. If the claim exceeds one hundred dollars, the referees must be approved of by the probate judge." [R. S. § 6093.] ^ § 595. Construction of statute. In construing the sections of the General Code referred to in this chapter, our Supreme Court says:- "That an executor or administrator has the power, at common law, to submit to arbitration a disputed claim against the estate which he repre- sents is, we think, unquestionable. An important part of the duties which he is appointed to perform is the payment of the debts due from the estate. In the discharge of this duty he 1 § 10718 G. C. The rejection of a claim does not For authority of administrator or prevent the administrator from sub- executor to submit to arbitration mitting it to arbitration. Brad- of claims in favor of the estate, see street vs. Pross, 9 Dec. Rep. 154; 11 §455. See §969, Insolvent estates. Bull. 117. 2 Childs vs. Updyke, 9 0. S. 336. 509 CONSTKUCTION OF STATUTE, § 595 must first ascertain the extent to which the claims presented for payment are just and valid. This he may do, if he and the creditors can so agree, either by means of arbitration or without it. And by such acts, done in good faith, the estate must be bound. These sections provide, substantially, that when the amount of the- claim so referred does not exceed one hundred dol- lars, the agreement or reference and the approval of the referees may be filed with such Justice of the Peace as the parties may agree upon, who shall thereupon docket the cause, appoint a day of trial, cite the referees, subpoena witnesses, and proceed to the trial of the cause, and render judgment upon the finding of the referees. But, if the claim so referred exceed one hundrd dol- lars, the agreement of reference and approval of the Probate Judge may be filed with the clerk of the Court of Common Pleas of the county in which the parties, or either of them, re- side (now Probate Judge), and said clerk shall thereupon docket the cause, and enter a rule referring the matter in controversy to the persons so selected. The referees shall thereupon hear and determine the matter, and make their report thereon to said Court. This report the Court may set aside or confirm, and render judgment thereon, which shall be valid and effectual, and in all respects, as in other cases (Swan's Stat. 377, original sees. 87, 88, 89). The manifest object of these provisions was to furnish a mode of trial, a cumulative remedy, which, by consent of parties, the administrator might adopt, instead of an ordinary civil action. In this mode of trial, the award or report of the referees stands as the verdict of a jury, on which judgment may be summarily entered. To give it this effect the requirements of the statute must be substantially pursued, and therefore the referees must be approved by the proper officer. But this cumu- lative remedy does not, as we think, take away or affect the com- mon law right of the parties to submit the matter in dispute between them to arbitration. The award rendered in such com- mon law arbitration has no judicial force. It operates neither as a judgment nor as the verdict of a jury. The failure to per- form it may constitute a cause of action, or its performance may furnish a good defense in a subsequent suit between the parties § 596 ARBITBATION OF CLAIMS 510 on the same subject matter. But no judicial action can be had upon it without pleadiugs as in other cases." A claim may be submitted to arbitration even after it has been rejected by the administrator and suit brought. In Bradstreet vs. Pross,^ it was held that " notwithstanding the parties to a statutory arbitration may have agreed that the award of the arbitration upon questions of fact should be final and conclusive upon both parties, such an agreement cannot de- prive the Court of jurisdiction to order a remittitur, where, in the opinion of the Court, the sum awarded by the arbitrators was excessive. The parties cannot by their agreement either give jurisdiction to the Court or take it away from the Court." § 596. Agreement to refer. Several matters are jurisdictional in order to constitute a valid award within the provisions of the sections of the General Code given in this chapter. The first is that a claim must have been presented, verified according to law, to the administrator or executor. Then there must be an agreement entered into in writing to refer the matter in controversy. The statute does not contemplate that there should be any other pleadings in the case than what may be sho^^m upon this agreement in writing. It is said therefore that this agreement in writing should state the names of the parties and such allegations showing the nature and kind of the claim, as would support a petition if the claim were sued on in a court of justice. It is further a jurisdictional matter to have the reference approved as provided by statute. The form of agreement may be as follows : Whereas, the undersigned A. B., holds a claim against the estate of C. D., deceased, in the sum of dollars (state the nature of the claim) which he has presented for allowance to E. F., the executor of the last will and testament of (or administrator of the estate of) said decedent: Whereas said defendant E. F.. disputes the validity of said claim (or denies that the claim is a just debt against said estate). It is therefore agreed between the said A. B. and E. F., to refer the matter in dispute to the arbitration of G. H., I. J. and K. L., "vho shall be subject to the approval of M. N., of county (in which letters were issued). (But if the claim does not exceed one hundred dollars, say) 3 11 Bull. 117; 9 Bull. 244. 511 LESS THAN $100 § 597 who shall be subject to the approval of O. P., a justice of the peace, of county ( where letters were issued ) , that this agree- ment with the approval of said referees shall be filed with said O. P. (or any other justice of the county the parties may agree upon) and such further proceedings shall be had before said justice as the statute provides. Dated day of , 190 (Signed.) Indorsement. — I approve the referees within named. day of , 190.... Probate Judge. Or Justice of the Peace of County.* § 597. How proceeded on if claim is less than one hundred dollsiX3> "If the amount of the claim so referred does not exceed one hundred dollars, upon filing the agreement of ref- erence and the approval of the referees, with such justice of the peace as the parties agree upon, he shall docket the cause, appoint a day of trial, issue a citation for the referees, and subpoenas for witnesses. The cause shall be regulated, and in all things, proceed as is provided for arbitration before justices of the peace, except, that if judgment is rendered against the executor or administrator for the debt, damages, or costs, it shall be rendered, and execution issue thereon, as in actions against executors and administrators." [R. S. §6094.]^ § 598. Duties of the justice of the peace. The statute is specific in pointing out what the duties of a justice shall be when a reference is had for a claim not exceeding one hundred dollars. It is the object and purpose that when a reference is filed with the justice it shall be treated as if a suit had been commenced in such justice's Court, and therein the par- ties had agreed to submit the matter to arbitration. As such a matter is to be tried before the arbitrators, subject to the ap- proval of the justice of the peace in whose Court the agreement in writing has been filed, the law applicable to such trials gener- ally, is applicable here, and will l>e found discussed fully with the necessary fonns in that invaluable aid to practitioners before the Justices of the Peace Court, Swan's Treatise. No further discussion will be made here, but the reader is referred to that work.* *Whit. Prob. Code. 8 Swan's Treatise 198; sections of 5 § 10719 G. C. the G. C. from 10364 to 10370. §599 ARBITRATION OF CLAIMS 512 § 599. Id. If it exceeds one hundred dollars. "If the claim so referred to arbitration exceeds one hundred dollars, upon filing the agreement of reference in the probate court of the county in which the letters were issued, the probate judge shall docket the cause, and make an order referring the matter in controversy to the referees so selected." [R. S. § 6095.]'' § 600. Duties of Probate Judge, etc. If the amount referred to in arbitration exceed one hundred dollars, then it must be filed in the Probate Court which granted the letters of administration. The judge must docket the case, and make an order referring the matter to the referees. The statute makes no provision for service of notice upon the ref- erees, and an order for them to appear at a certain place and proceed to hear the matter in controversy^, like it does in the prev- ious section, where the matter is less than one hundred dollars. It seems that it would be good practice for the Court, when mak- ing an order of reference, to also include in the order, that notice should be given to the referees, and that a time should be fixed for their meeting to consider the matter. The order of reference may be in the follo^ving form : ORDER OF REFERENCE. (Title.) This day came A. B., administrator of C. D., deceased, and E. F., a creditor of said estate, and filed in this Court their agreement in writing to submit the matter in controversy between them, as to the validity of the claim of E. F. against said estate, and the amount thereof to arbitration, naming G. H., I. J. and K. L. as arbitrators, and the said agreement having been approved by the Court. It is this day order^ni that the matters in controversy between the parties be referred to the arbitrators or referees aforesaid; and that they meet on the day of , at o'clock. . .M. At (here mention place where the referees are to meet), after having been sworn, proceed to the discharge of their duties under the law providing for such cases. And it is further ordered that notice be given by (here insert the name of the party that is to give notice to the referees) to the said G. H., I. J. and K. L. of their appointment as referees in this case, and the time when they shall first meet to consider the same.s 7 § 10720 G. C. 8 The terms arbitrators and ref- erees are used synonymously. The statute referring such matter to the Probate Court calls them ref- erees instead of arbitrators. As the law previously stood, the Probate Court had no other duty and au- 513 NOTICE TO REFEKEE § 601 § 601, Notice and oath to referees. The following may be used as a form of notice to the referees : To ( here insert name of person to make services) : You are hereby commanded to notify G. H.. I. J. and K. L. that they have been selected as referees in a matter between A. B., administrator of the estate of C. D., and E. F., a creditor of said estate; and that they are ordered to appear at (here mention place) , on the day of , at o'clock. . .M., to proceed to hear and determine the said matter in controversy. Given under my hand this day of , 190 ... . Probate Judge. The statute requires the referees tO' take an oath to be admin- istered to them by a judge or justice of the peace.^ A notary public cannot administer the oath,^° But if the parties proceed to a hearing before an unsworn arbitrator they will be held to have waived such irregularity/^ The following may be used as a form of oath : In the matter of arbitration between A. B., administrator of 0. D., and E- F., a creditor, we, the undersigned referees, swear that we will faithfully hear and examine the matter in controversy between them, and will make a just award according to the best of our understanding. Sworn to and subscribed before me and in my presence this day of ,. , 190.... thority in the matter than to ap- The parties may w^aive an objec- prove the referees, and reference was tion to the manner of swearing the required to be perfected in, and the arbitrators. Where the statute pro- report made to the Common Pleas vided that the oath to the arbitra- Court. Anderson vs. Backer, 15 O. tors and witnesses must be adminis- S. 173. tered by a judge or justice of the The present statute, however, has peace of the county, and such oath been changed and the Probate Court was administered by a notary pub- is now the Court to which the report lie, but the defendant, an attorney- must be made and all further orders at-law, was present when the oath had in such Court, the same as the was administered, and made no ob- Common Pleas Court formerly could jection to the proceeding — held that have made or entertained. defendant had waived the objection !' § 12153 G. C. to the manner of swearing the ar- 10 State vs. Jackson, 36 O. S. 281. bitrators. Bradstreet vs. Pross, 11 11 Rice vs. Hassenpflug, 45 0. S. Bull. 117. 377. § 602 ARBITRATION OF CLAIMS 514 § 602. Referees to report to court. Proceedings, powers, and compensation of referees. Costs. "The referees there- upon musti proceed to hear and determine the matter, and make their report thereon to the probate court. The same proceed- ings may be had before the referees, and they shall have the same powers, and be entitled to the same compensation as if the reference were made under the provisions for arbitrations under a rule of the common pleas court. The court may set aside the report of the referees or appoint others in their places, or confirm such report and adjudgre costs, as in actions against executors and administrators. The judgment of the court thereon shall be valid and effectual as in other cases." [R. S. §6096.] 12 § 603. Hearing, etc. The referees having met, thei statute confers upon them the same powers and duties as if the reference was had in the Court of Common Pleas under the general statute referring to matters of arbitration.^^ The statute provides that persons submitting matters to an arbitration may enter into a bond.^* But whether or not such may be done in cases in the Probate Court may be questionable. If such bonds were entered into, I presume they could be en- forced." Witnesses may be subpcenaed and such other process may be had as would be necessary to secure all the facts required for a decision of the matter in controversy. The New York statute is very much similar to our own, and decisions from their Court will be of value to us." 12 § 10721 G. C. such agreement and approval in the 13 See §§11475, 11486 G. C. °^^^ of the clerk of the Supreme 1* § 12149 G. C. Court in the county in which the 15 For form of such bond see Kin- parties or either of them reside, an kead's Pleading, 187. order shall be entered by the clerk 16 If the executor or administrator referring the matter in controversj' doubts the justice of any such claim, to the person or persons so selected, he may enter an agreement in writ- On the entry of such an order the ing with the claimant to refer the proceeding shall become an action in matter in controversy to one or the Supreme Court. § 2718 Code more disinterested persons, to be ap- Civil Proc. N. Y. proved by the Surrogate. On filing 515 HEARING, ETC. § 604 In Tracy vs. Suydam/' it was held that where parties agree to refer under the statute " the agreement to refer need not notice matters of defense to the claim. The account presented is, in effect, the plaintiff's complaint, and there being no plead- ings, and no provision in the statute for pleadings, the defendant is limited to nO' particular defense; and consequently, any and every legal defense against the claim must necessarily be avail- able." And it was also said in that case : " And every species of legal proof adapted to show the injustice of the claim, or its invalidity as a whole, or in degree or amount, is admissible." And the executors are " at liberty to make any defense that their testator or intestate could himself make, if alive, and the same were properly pleaded, in an action upon such claim." ^^ Under the New York statute it was held that a reference un- der the statute stands in the place of an action, and the entry of an order to refer must be deemed its commencement.^* § 604. Witnesses, how procured, etc. All parties to such reference shall have the benefit of legal process to compel the attendance of witnesses, which shall be is- sued by tlie Probate Judge, or possibly by the justice of the peace, and shall be returnable before the referees on the day and place inserted therein named. ^^ 17 30 Barb. 110. against the claim any defense which 18 Jessup's Sur. Prac, 920. they have without pleading it in In Roe vs. Boyle, 81 N. Y. 305, a any form." similar reference had been ordered. In Mowry vs. Peet, 88 N. Y. 453, and the Court said : " This is not it was said that " In trying and ad- an ordinary proceeding. It is spe- judicating upon these matters which cially regulated by statute, 2 R. S. are within the scope of the reference, 89, 90. It cannot be commenced by the statute (2 R. S. 88, § 36) con- Bummons. It can only be com- fers upon the referee and the Court menced by the consent of the parties the same powers as if the reference and the approval of the Surrogate. had been made in an action. But It can be tried in no other way than the proceeding is not an action." before a referee. There are no plead- i9 Bucklin vs. Chapin, 1 Lans. 443. ings, and the representatives of the 20 § 12151 G. C. estate proceeded against can prove § 604 AEBITRATION OF CLAIMS 516 Disobedience to such a subpoena is a contempt of Court and shall be punishable as in other cases. "^ Such mtnesses shall be duly sworn by a judge or justice of the peace. The form for a subpoena may be as follows: State of Ohio, county, ss. The State of Ohio to , Sheriff of county, Greeting : You are hereby commanded to summon X. L. and Z. T. to appear before E. F., G. H. and I. J., or any two of them, arbitrators chosen to determine a controversy between A. B., administrator of C. D., and E. F., a creditor, at , in . ; , said county and State, on the day of , 190 ... , at o'clock . . . M., then and there to testify and give evidence in relation to said controversy before said arbitrators on the part of said A. B. (or C. D. ) and of this writ make due return to me. Given imder my hand this day of , 190. . . . The referees having concluded the hearing of the case, must mai;e an award or finding. The statute requires that the award must be in writing and signed by the referees, or a majority of them,^^ and the same must be filed with the Probate Court. "^ The award must be confined to the terms of the agreement, which cannot be changed in any respect or a different one sub- stituted.^* It may be made in the following form: (Title.) To the Honorable the Probate Judge County. The undersigned, to whom were referred certain matters in controversy between A. B., administrator of the estate of C. D., and E. F., which matters are more particularly mentioned in the agreement to arbitrate, signed by said parties on the day of , having each of them been first duly sworn and having heard the testimony ot witnesses and the evidence adduced, do determine and award that the claim of said E. F. against said estate is a valid one, and that the said A. B., as administrator of C. D., out of the assets of the estate of said C. D., should pay said E. F. the sum of dollars in full of his said claim against the estate of C. D. (here if the finding should be that the claim is not a valid one, say that we find that the claim of E. F. against the estate of C. D. is not a valid one and that there is nothing indebted thereof to the said E. F.), that the costs of this reference amounts to dollars, and that we find that the rame should be paid by Given under our hands this day of , 190. . . . The following is an itemized statement of the costs incurred: 21 § 10217 G. C. 23 § 10721 G. C. 22 § 12154 G. €. 24 See Kinkead's Pleading, 191. 517 FILING AWARD, ETC. § 605 Sec. 12160, G. C, provides that each arbitrator shall be en- titled to receive one dollar a day for his services, and each witness for his attendance; and the justice or judge shall be entitled to like fees as in other cases, which fees shall b© taxed by the arbitrators and included in the award. § 605. Filing of an award. The referees, after they have heard the matter, shall make their report thereon to the Probate Court., and the Court may set the same aside, or appoint others in their places, or confirm such report and adjudge costs as in an action against executors or ad- ministrators; and the judgment of the Court, shall be valid and effectual. If objection is sought to be made against the award, such objection should be filed with the Probate Judge. The law and practice in reference thereto is the same as that of the Common Pleas. ^° § 606. Form of confirmation of award. (Title.) This day this matter came on to be heard upon the application of A. B., administrator of C. D., for this Court to approve and confirm the award heretofore made and filed in this Court by G. H., I. J. and K. L., referees appointed to determine a matter of controversy between the said A. B., admini.?trator, and E. F., and it appearing upon examination that the proceedings of said referees have in all respects been in conformity to law, and no exceptions to their award having been filed by either of the parties, said award is approved and confirmed, and it is considered by the Court that said claim, so arbitrated and allowed, is a valid claim against the estate of C. D., deceased. And it is further ordered that the same be paid out of the assets of said estate, the same as other claims of its class; and that the costs of said reference and the costs that have accrued thereon in this Court be paid out of said assets as a part of the costs of administering said estate. If the finding of the referees be against the creditor after the formal passing of the above entry, it should conclude as follows : And it is further ordered and found by the Court that said claim is not a valid one against the estate of C. D., and the said E. F. is ordered to pay the costs of this reference, together with the costs which have accrued or may accrue in this Court, and that execution issue against him for the same according to law. 25 See Kinkead's Pleading, 194, l95. 607 LIMITATION OF ACTIONS, ETC. 518 CHAPTER XXXYI. LIMITATION OF ACTIONS BY CREDITORS AGAINST ADMINISTRATORS. § 607 Generally. § 617 Action of creditor against § 608 Claim barred by general stat- heirs, etc., not barred. ute. § 618 Limitation of action against §609 When claim barred if not administrator de bonis non. sued within six months § 618a Not required to answer to after rejection. What suit brought after two deemed rejection. years. § 609a Rejection of a claim. § 619 Administrator de bonis non § 610 Suit on rejected claim. liable for two years after § 611 Time within which action giving bond. can not be brought. § 620 When liable for actions for § 612 Construction of the above two years. section. § 621 An administrator de bonis § 613 Limitation of action by cred- non to give notice of his itors. appointment. § 614 Construction of statute. § 622 Barred claims not revived. § 615 Assets received after eigh- § 623 To be further liable if new teen months. assets received. j § 616 What constitutes new assets. § 607. Generally. !For various reasons statutory limitations have been placed upon the right to prosecute actions upon claims against an ad- ministrator or executor of an estate. We have heretofore dis- cussed in various chapters how claims must be presented/ and how suit may be brought on tlie bond of an administrator or executor,- or against distributees.** It will remain for a future chapter to discuss how a suit must be brought by distributees.^ In the present chapter we will treat generally of the effect of the general statute of limitations and of special provisions relat- ing to when and how claims against an estate may be enforced i§§552, 569 et seq. ' 2* § 587. 2 § 260 et seq. 3 § 761 et seq. 519 LIMITATIONS, ETC. § 607 by an action. In order that the proper administration of an estate may not be interfered with, the law provides that within a certain length of time, and under certain conditions, although the creditor's claim may be allowed, it cannot be sued on.* And then other provisions protect an administrator against a suit on a claim which is not brought within eighteen months from the time he gives bond, provided he has given notice of his appoint- ment, or before the estate is finally settled.^ And another section limits the creditor's right of action to assets received after the expiration of eighteen months from his giving bond.*^ And still another provision'' provides that if action is not brought on a re- jected claim within six months it is forever barred. The general statute of limitation provides substantially that an action for the recovery of title to real property must be brought within twenty- one years ; ® upon specialty or an agreement, contract or promise in writing, within fifteen years,'' and a contract not in writing within six years,^*' and trespass on real estate and an ac- tion for relief on the ground of fraud within four years,^^ and an action of libel, slander, etc., within one year,^^ and on an offi- cial bond of an administrator, executor or guardian within ten years from the time the right of action accrues. ^^ In a previous chapter the law providing when a creditor may bring suit against an heir, is discussed/* ■*§ 10740 G. C, §611. ' fendant, an executor or adminlstra- 5 § 10746 G. C., § 613. tor upon any special promise to 6 § 10747 G. C, § 615. answer for damages out of his own T §§ 10722-3 G. C, §609. estate unless the agreement upon 8 §§11219-20 G. C. which such action is brought, or 8 § 11221 G. C. some memorandum or note thereof, 10 § 11222 G. C. is in writing and signed by tlie party 11 §11224 G. C. to be charged therewith or some 12 §11225 G. C. other person thereunto by him or 13§11226G. C. her lawfully authorized. §8621 1* § 585 et seq. G. C. § 10876 G. C. et seq. An action may be brought against See §§555, 987. an administrator, guardian or trus- There is a general statutory pro- tee either in the county in which vision that no action shall be he was appointed or resides. §11278 brought whereby to charge the de- G. C. § 608 LIMITATION OF ACTIONS 520 § 608. Claim barred by general statute. Whether or not an administrator has power to revive a daim barred by the statutes of limitation is a question upon which our Courts are not in harmony/** The question has never been di- rectly passed upon by our Supreme Court. It has, however, been passed upon directly by our old District Court^^ In this District Court case it was held directly and upon the strongest kind of logical reasoning that an administrator or ex- ecutor has no power by a new promise to revive a claim or debt already barred by the statute of limitations. And it is further held in this case, that the administrator or executor can only allow claims which can be legally enforced against the estate, and so claims not barred at the time of their beilig presented to him may be allowed. In this case it is said : " On principle, speaking for myself, I should have no hesitation in holding, independent of the deci- sion of the Supreme Court in the 17 Ohio 9, that an administra- tor has no power to revive a claim once barred by the statute of limitation. The duties of the administrator are limited to col- lecting the debts due to, and to the payment of those owing by, the intestate. What right he has to be generousi with the prop- erty of others, to pay debts for which there exists no legal lia- bility against the estate, I could never comprehend. But what- ever may be the law elsewhere, we have to expound it as we find 14* It is held in England and in States it is held that it is the duty some of the United States that an of the personal representative to executor or administrator is not interpose the bar of the statue on obliged to plead the general statute every claim not properly asserted of limitation in actions on claims \\nthin the statutory period, and in against the estate, if they are other- some jurisdictions an administrator wise justly due, but that it is dis- may waive the bar of the statute of cretionary with him to interpose the limitations where it attached after bar of the statute. But according to the debtor's death, though he may some authorities any person who has not do so if it attached before. 1 1 an interest in the estate as creditor, Am. & Eng. Ency. of Law, 2d ed., legatee, etc., may plead the statute 919. without the concurrence of the ex- is See Drouilliard vs. Wilson, 10 cutor or administrator. In other W. L. J. 385. 521 STATUTE OF LIMITATIONS §608 it settled in Ohio. In Hill vs. Henry/^ tlie Supreme Court held that the effect of our statute, when it had once run out, was to extinguish the debt or claim, so that no recovery could be had on the original promise or obligation, but that the recovery could only be had on the new promise, supported and upheld by the moral obligation resting upon the debtor to pay the original debt. Such, then, is the law in Ohio. Now, can an administrator make a new contract to bind the estate, predicated upon a mere moral obligation, resting upon the intestate? We think not. The administrator has to execute legal liabilities existing against the estate ; he has nothing to do' with the moral obligations rest- ing upon others. His duty is to audit, allow and pay the legal liabilities of the estate; and hence he can allow all claims not barred ; but when once barred by the statute, he has no authority to create a new liability, predicated upon a mere moral obliga- tion, resting upon others. Whatever, therefore', may be the de- cisions elsewhere, we have no hesitation in holding that, under the provisions of our statute, as expounded by tlie Supreme Court, an administrator cannot, by a new promise, revive a claim once barred."^^ 16 17 Ohio 9. 1' Whitman, J.: I am compelled, very reluctantly, however, to acqui- esce in this decision. There seems to be no means of escaping the effect of the decision in the 17 O. 9. By that decision this claim became ex- tinguished in 1847, and no recovery could ever have been had upon it; there can then exist in Ohio, no doc- trine of the waiver of the statute; there must be a new contract based on a mere moral obligation; and no one ever supposed that a personal representative had power to create new contracts. Independent of this decision I should have held the new promise effective to authorize a re- covery. Nash, J.: In the Court below, I ruled this case in favor of the plain- tiff, in obedience to what I supposed to be the weight of authority, though my own mind has never been brought to acquiesce in its correctness. I never could understand what right an administrator had to pay debts which has ceased to be enforcible in a Court of justice. The case in 17 0. 9, was not at the time brought to my mind, or I might then have felt at liberty to have decided otherwise. But that case necessarily settled this, unless we are prepared to hold that an administrator can create con- tracts based upon a mere moral ob- ligation to the same extent as the intestate himself. Hence he might, by a new promise, revive a claim barred by a certificate of bankrupt- cy, or released on a composition among creditors with the intestate § 608 LIMITATION OF ACTIONS 522 The Court places its decision not only on principle, but on the 17 Ohio, which has never been reversed; therefore, it seems notwithstanding what may have been said by the Court in the case of Fisher vs. Mossman,^* " that the statute of limitations does not cancel the debt^ but merely destroys the remedy ;" that the law in Ohio may be considered to be that an administrator has no right to pay or allow a claim that is barred by the statute of limitations. The only case that throws some doubt upon tliis, other than that found in the 11 O. S. 42, is the case of Joyce vs. Hart.'' This was an action brought to restrain an administrator from selling real estate to pay a claim which had been barred by the general statute of limitations, and also was not brought within the pro\'ision of sec. 10746, G. C. The Court, while not necessary to the decision of this case, plainly found that the administrator could waive the statute. The real reason why the action was dismissed was that if the administrator wrongfully paid a claim he was guilty of a devastavit, and the parties therefore had their action at law for damages, and a case for the action of a Court of equity was not presented. In the decision in this case neither the 17 Ohio, nor the one in the 10 W. L, J. is referred to. The Court was no doubt right in dismissing the proceed- ings for injunction, but not on the ground that the administrator had a right to waive the statute of limitations. The case of Fisher vs. Mossman,*" in which the language is found " that statutes of limitation being statutes of repose, sus- pend the remedy, but do not cancel the debt," decides that where a claim was secured by mortgage and no action could be main- in his lifetime. This would hardly is 11 O. S. 42. be claimed by any one. I, therefore, is 27 Bull. 144. Since this text cheerfully concur in the opinion first was written the Circuit Court in pronounced, because, independent of Grouse vs. Fryburger, 22 C. C. 325, our own statute and decision, and criticise this case and decline to fol- on principle, I never could under- low its conclusion. See Baen vs. stand how a mere trustee could be Weller, 12 Dec. 128. allowed to pay debts which had -o 11 0. S. 42. ceased to exist as a legal charge upon the estate. 10 W. L. J. 391. 523 ' GENERAL STATUTE OF, ETC. § 608 tained on the claim by reason of the statute of limitations, yet the mortgage could be enforced. In the case of Keer vs. Lydecker,'^ the Court says the case of Fisher vs. Mossman correctly holds that the bar of the note or other instrument secured by mortgage, does not necessarily bar an action on the mortgage. Thus it will be seen that the only cases '* which seem to contain language throwing doubt upon the decision of Drouilliard vs. Wilson,^^ the question was not direS. 73 "Rpfprred to in a previous chap- 71 RpTimilpr Exrs. S 446T>. ter. See Smith vs. MoTntirp. n.«i "Fed. § .'584, et seq. SR.*}, wliPTi a sale to rtav dehta will be presumed to he valid. § 618 LIMITATION OF ACTIONS 534 § 618. Limitation of actions against administrators de bonis non. "When an executor or administrator dies, resigns, is removed or his letters are revoked, or his powers have ceased, without having fully administered the goods and estate of the deceased, and a new administrator of the same estate is ap- pointed, the time allowed to creditors for bringing their actions shall be enlarged as follows : to so much of the eighteen months provided for the limitation of the action as expired while the former executor or administrator continued in office, must be added so much time after the appointment of the new admin- istrator, as will make two years in all." [R. S. § 6120; 102 V. 203.] ^* § 618a. Not required to answer to suit brought after two years. ''The new administrator shall not be held to answer to the suit of a creditor, commenced after the expiration of such two years, except as provided in the following sections." [R. S. §6120; 102 V. 203.]"** § 619. Administrator de bonis non liable for two years after giving bond. "In all cases such new administrator shall be liable to the actions of the cr&ditors for the space of one year after he gives bond for the discharge of his trust, although the whole time allowed to the creditors be thereby extended beyond such two years." [R. S. § 6121; 102 v. 203.]^^ § 620. When liable for actions for two years. "If the for- mer executor or administrator did not give notice of his ap- pointment as prescribed in this chapter, the new administrator shall be liable to actions of the creditors for two years from the date of the bond given by him." [R. S. § 6122. ]^« § 621. An administrator de bonis non to give notice of his appointment. "The new administrator shall give notice of his appointment in the manner prescribed with respect to an original administrator. If he fails so to do, he shall have no benefit of the limitations herein provided." [R. S. §6123.]'^ § 622. Barred claims not revived. ' ' Nothing in the next four preceding sections shall revive a claim barred under this 74 § 10753 G. C. '« § 10753 G. C. 74* § 10754 G. C. '7 s 10757 G. C. See §§ 160, 544. See Badger vs. Orr, 34 0. C. C. If lie docs not give notice limita- 32S, as to application of section to tlon does not apply. Mining Co. vs. limitation of time. Kubbard, 8 0. App. 105. 75 § 10755 G. C. 535 LIABILITY OF HEIR, ETC. § 623 or any other act, during the continuance in office of the orig- inal executor or administrator, or of a former administrator de bonis non." [R. S. § 6124.]^« § 623. To be further liable if new assets received. ' ' When assets come to the hands of such new administrator, after any of the periods above limited for the commencement of suits against him, he shall account for them, and be liable to suits and proceedings on account thereof, as is provided in this chapter with respect to an original administrator." [R. S. §6125.]''' 78 § 10758 G. C. See note under previous section. 79 § 10759 G. C. § G16. § 624 EXECUTION, COSTS, ETC. 536 CHAPTER XXXYIL EXECUTION. COSTS. JOINT DEBTOR. §624 How estate of deceased joint § ggS Executions against executor or debtor liable. administrator. 1 625 Preceding section not to af- § 628a Action upon suggestion of feet rights of surety, etc. „ „„„ ^^^ ^^ ■^" . • • a *= •' % 629 Costs m actions against an es- § 626 How and when execution may ^j^^e, when not recoverable. issue against an executor. § 630 WTien costs allowed and by § 627 Revivor of actions and judg- whom. ments. § 624. How estate of deceased joint debtor liable. Bj a settled rule of the common law, the death of one of the joint makers of an obligation extinguished all remedy at law against his estate. If the contract was joint, the action must be joint, and a joint judgment must follow. But as the same judgment could not be rendered against the survivor, and the personal representative of the deceased part.y the consequence was, that no action at law could be maintained against the personal representative, either jointly with the survivor or by a separate suit. In such cases relief was afforded in chancery, but only when a necessity for such interposition was shown to exist^ and, therefore, only upon the condition that the remedy at law against the survivor had proved fruitless. And inasmuch as no equities arise against a surety, and he is only legally bound upon the strict terms of the obligation into which he has entered, there is no small show of authority in the early cases for affirming that no such interference can be invoked against the estate of a party thus situated.^ To meet the difficulties presented by the common law, the following statute was passed : iBurgoyne vs. 0. tLife & Trust Co., 5 0. S., § 586. 537 AGAINST EXECUTOR §625 "When two or more persons are indebted in a joint contract, or upon a judgment founded on it, and either of them dies, his estate shall be liable therefor as if the contract has been joint and several, or as if the judgment had been against himself alone." [R. S. §6102.]- § 625. Preceding section not to affect rights of surety, etc. "The next preceding section shall not affect the rights of a surety, when certified as such, in a judgment rendered jointly against him and his principal." [R. S. §6103.]'' This section evidently refers to the provisions of sec. 11713, G. C, which provides, how judgment against principal and surety is to be entered, and how execution is to be enforced in such cases. § 626. How and when execution may issue against an ex- ecutor. "No execution shall issue upon a judgment against an executor or administrator, unless upon the order of the court which appointed him, or unless the twelve months allowed by law, or the further time allowed by the court for the collection « § 10733 G. C. " The surviving obligor or obligors in a joint contract may be joined with tlie personal representatives of a deceased obligor, in an action upon such contract, and a several judg- ment can be rendered against each, Id. Where partners are indebted for services rendered to them the indebtedness is joint, and under the former practice, on the death of one the only remedy of the creditor at law was a suit against the surviving partner ; but by the statute the debt becomes a joint .and several obliga- tion, and the creditor has his elec- tion to sue the surviving partner or the administrator of the deceased partner or both the surviving part- ner and the administrator. Weil vs. Guerin, 42 O. S. 209. Where two administrators give a joint bond with surety for the faithful admin- istration of the estate that may come into their possession, and thereafter all the property of the deceased comes into their joint pos- session, if waste is committed by one of the administrators after the death of the other, the surety can require that the estates of both be ex- hausted before he shall be liable for the surviving administrator's de- fault. Eckert vs. Myers, 45 0. S. 525. The surviving administrator and the representatives of the de- ceased administrator will be jointly liable to indemnify the surety. Id. By the provisions of this section a judgment rendered against one of two joint debtors and the adminis- trator of the estate of another is a several and not a joint judgment." Williams vs. Bradley, 5 C. C. 114, 117; 7 Id. 227; 3 C. D. 58. See § 225. The estate of a deceased partner and the surviving partner are severally liable for joint obliga- tions. Lackner vs. McKeeney, 252 Fed. 403. 3 § 10734 G. C. § 627 EXECUTION, COSTS, ETC. 538 of the assets of the estate, have expired. If an account has been rendered, and settled by the court, execution shall issue only for the sum that appeared, on the settlement of such ac- count, to have been a just proportion of the assets applicable to the judgment." [R. S. § 6105; 102 v. 202.]* It will be observed from the v^ording of the above section that it is the intention that no administrator or executor shall be embarrassed with an execution so long as the estate is un- settled and he is within the jurisdiction of the Probate Court. Unless the Probate Court authorizes the issuing of such an execution. If the administrator has made his final settle- ment, then execution may issue without permit of the Probate Court; and if there are assets in the hands of the adminis- trator or executor, the execution shall issue only for the sum that shall have appeared on the settlement of such account to have been a just proportion of the assets applicable to the judgment.^ § 627. Revivor of actions and judgments. An action for libel, slander, malicious prosecution, nuisance cr against a justice for official misconduct, abates by the death of either party. All other actions or proceedings, such as sur- vived at common law and by statute, may be revived and pro- ceed in the name of the personal representative.® If the plain- tiff in an action dies, the action may be revived in the name of the personal representative or heirs and devisees, to whom- soever his rights in the action passed.'^ A proceeding for the condemnation of lands must be revived in the names of the heirs or devisees.^ If the defendant to an action in which the right sur\'ives to his personal repre- sentative dies, it shall be revived against him ; and if to his 4 § 10736 G. C. S. 563 below; Lauer vs. Smith, 1 C. 5 See Sur. Prac. 55S for discus- C. (N.S.) 121; 24 C. C. 47. sion of N. Y. (Law. 6 §§ 11235, 11407 G. C. and See Woerner on Admin. 864. § 11407 G. C. Kinkead's Pleading, See Kemper vs. B. & L. Co., 11 § 1054. C. C. (N.S.) 372; 30 C. C. 700; 80 7§ 11407 G. C. Kinkead's Plead- O, S. 732; Smith vs. Lauer. 65 0. ing, §10.55. 8 Ky. Co. vs. Bohm, 29 0. S. 633. 539 REVIVOR OF JUDGMENTS § 627 heirs and devisees, then it shall be revived against them.® An action for the recovery of real property is revived against the heirs or devisees of the defendant/" A revivor against a repre- sentative or successor of a defendant must he made within a year from the time it could have been first made/^ But it can- not be revived in the name of the personal representative or successor of the plaintiff as a matter of right, if the expiration of the year from the time that the order might have first been made/^ If a party dies after a levy has been made, it is not necessary that the action be revived before proceeding to sell.^^ A claim upon which suit has been commenced against a per- son who dies before its termination, need not to be presented to his personal representatives before the revivor of the action may be had.^* A revivor may in the Court's discretion be allowed if more than a year has elapsed since the death of some of the plaintiffs, and will be allowed if there has been no laches/'' Where the summons is returned " not found — dead " there is no suit pending which can be revived against the administra- tor/*' If after attempted revivor, an administrator comes in and files a general denial to the action, he becomes a party, and the action may proceed/^ If a firm sues in the firm name, and one partner dies, action may be continued in the same name/^ If either or both parties die after judgment ren- dered before satisfaction, their representatives may be made parties and the same revived by an action brought for that pur- pose; or they may be made parties in the same manner as in the revival of an action before judgment, and judgment may be rendered against them accordingly. If either party die af- ter verdict rendered on error, and before the judgment is car- S 11408 G.C. 11 C. C. 196; Eagle Paper Co. vs. 10 § 11409 G. C. Bragg, 4 Dec. 194; 7 N. P. 1G5, 11 § 11410 G. C. 16 Daykin vs. Denner, 5 C. D. 121; 12 For further discussion, see Kin- 10 C. C. 652. kead's Pleading, § 1055. i^ Id. Supra. 13 Cist vs. Beresford, 13 Bull. 303. is Pa. Ins. Co. vs. Carnahan, 10 C. i*Musser vs. Chase, 29 0. S. 577. D. 225; 19 C. C. 97. I'Barr vs. Chapman, 5 C. D. 46; 628 EXECUTION, COSTS, :::tc. 540 ried into execution by the lower Court^ the same may be re^ vived in the lower Court/® If the plaintiff dies after personal judgment has been ren- dered, or a decree for the specific sale of real estate is made, the action must be revived before a levy or sale can be made thereunder. ^° But unless such a judgment becomes a lien during the lifetime of the debtor, it cannot be enforced against the heirs.^^ But if a debtor dies after a levy has been made, the sale may proceed without making the personal representative a j party.'" If a defendant die after execution is levied, the exe- \ cution proceeds as if the death had not taken place. But where execution is issued after the death of the defendant, upon a judgment rendered in his lifetime, and levied upon lands of which he died seized, the sale, if made, is void.^^ § 628. Executions agfainst executor or administrator. "All executions against executors and administrators, for debts due from the deceased, except in the cases otherwise provided for herein, shall run against the goods and estate of the deceased in their hands." [R. S. §6107.]^* § 628a. Action upon suggestion of waste. ' ' Wlien an execu- tion against an executor or administrator, for a debt due from the estate of the deceased, is returned unsatisfied, the creditors may bring an action, upon a suggestion of waste, against the executor or administrator. If the defendant does not show to the contrary, he shall be deemed guilty of waste, and be per- sonally liable for the amount thereof when it can be ascertained. If the amount of such waste can not be ascertained, the executor j or administrator shall be liable for the amount due on the orig- inal judgment, with interest thereon, from the time it was! rendered, and judsrment and execution must be awarded ac-j cordingly as for his own debt." [R. S. §6107.]-** According to the above section no execution can issue except by permission of the Probate Court, unless the estate has been 19 § 11649 G. C. 20 Cist vs. Beresford, 1 C. C. 32; 1 C. D. 19; Moore vs. Ogden, 35 S. 430; Beaumont vs. Herrick, 24 0. S. 445. 21 Miller vs. Tavlor. 29 0. S. 257. 22 Bigelow vs. Renker, 25 0. S. | 542; Kinkead's Pleadinor, §1057. 23 Lessee of Massie's Heirs V3.J Long, 2 0. 287. 21 § 10738 G. C. 24* § 10739 G. C. 541 COSTS WHEN NOT ALLOWED § 629 fully settled. Then if it is issued and no goods are found upon which a levy can be made, a suit may be brought against the administrator; and if the value of the property which the administrator or executor should have in his hands applicable to the execution cannot be ascertained, then tlie entire amount of the execution claim shall be recovered. A suit might also be brought on the bond.^^ Where a judgment is a subsisting lien on the lands of the debtor at the time of his death, it is not necessary thereafter to issue execution upon it in order to preserve the lien. It is entitled to share in the proceeds of the land, when sold by the personal representative, according to its priority at the time of the debtor's death, although execution be not issued thereon within five years from its rendition or the date of the last execu- tion.'« § 629. Costs in actions against an estate, when not recover- able. "In suits against the estate for the recovery of money only, or of specific personal property, in which no provision is made herein in relation to costs, no costs shall be recovered against the executor or administrator, to be levied of his prop- erty or of the property of the deceased, unless it appears that the demand on which the action is founded, was presented within six months after his giving bond for the discharge of his trust, that its payment was unreasonably resisted or neglected, or that the defendant refused to refer it pursuant to the preceding provisions. In such cases the court may direct such costs to be levied of the property of the defendant, or of the deceased, as are just, having reference to the facts appearing on the trial." [R. S. § 6106; 102 v. 202.]'' § 630. When costs allowed and by whom. "Where a judgment for a sum of money, or for specific per- sonal property is awarded against the administrator or executor in an action against him, it will be observed that the statute prescribes certain conditions precedent to the rights of the plain- tiff to recover costs, to-wit : It nmst appear (1) that the plain- ts See § 262, § 10869 G. C. -'7 § io737 G. C. =« Ambrose vs. Byrne, 61 0. S. 146. 8 630 EXECUTION, COSTS, ETC. 542 tiff's demand was presented within one year after his giving bond for the discharge of his trust, and (2) that its payment was unreasonably resisted or neglected, or third that the defend- ant refused to refer the claim. On such conditions the Court having reference to the facts appearing on the trial, may award costs against the executor or administrator to be collected out of his individual property or out of the property of the dcr ceased; and such costs are a matter of right. '^ These condi- tions apply to actions against executors, etc., and not for action by executors. And they do not apply to actions commenced against the decedent in his lifetime, and continued, after his death, against the executor, etc. ; ''* nor to actions upon claims created since his decease, by or under the direction of the execu- tor."" Nor does the statute apply to costs on appeal, or inter- locutory costs. ^^ 28 Snyder vs. Snyder, 26 Hun 324. , There seems to be no reported de- cision of our Courts on the above section, and as it is very similar to tlie provision of the New York Code, citations will be made from that State, from the valuable works of Redf. Sur. Prac. 542. And Jessup's Sur. Prac. 926. 29 Benedict vs. Caffe, 3 Duer, 669 ; Lemen vs. Wood, 16 How. Pr. 285; Tindall vs. Jones, 19 Id. 469; 11 Abb. Pr. 258 ; Merritt vs. Thompson, 27 N. Y. 225; Mitchell vs. Mount, 17 Abb. Pa. 213; Yorks vs. Peck, 9 How. Pr. 201. Merritt vs. Thompson, supra, ex- pressly overrules McCann vs. Brad- ley, 15 How. Pr. 79, which had given a contrary construction of the statute, but in which another ground for denying plaintiff's motion to be allowed costs existed, and was no- ticed by the Court. Mitchell vs. Mount, supra, decided at about the same time as Merritt vs. Thompson, was followed by Le- men vs. Wood, supra, and view in harmony therewith was adhered to in Tindall vs. Jones, 19 How. Pr. 469. The same conclusion as that in Merritt vs. Thompson is said to have been reached, in the general term, in Haight vs. Hayt, which, however, is not reported upon this point, but was affirmed on the merits by the Court of Appeals (19 N. Y. 464), and the costs of the several appeals allowed, on the ground that an ap- peal is in the nature of a new action, and that as to the appeal, the exec- utors ceased to be defendants. 30 Smith vs. Patten, 9 Abb. Pr. N. S. 205. 31 Hunt vs. Connor, 17 Abb. Pr. 466; Judah vs. Stag, 22 Wend. 641. The statute does not apply to a suit to foreclose a mechanic's lien (Mar- ryatt vs. Riley, 2 Abb. N. Cas. 119). To warrant the charging of the costs on the representative personal- ly, he must be found to be guilty of mismanagement or bad faith in the defense (Co. Civ. Proc, § 3246 R. S.). 543 WHEN ALLOWED § 630 In order to avail himself of the statutory exemption from costs, the executor or administrator must bring himself clearly within the conditions contemplated by the statute. The rule prevails, that the representative must have been guilty of some violation of duty, such as an unreasonable neglect or refusal to pay the claim when presented, before he can be properly charged with costs, in addition to referee's fees and disburse- ments ; and no such violation of duty being shown, it is error to allow costs. First condition. As to the first condition, it is fatal to a claim for costs that the creditor had not presented his claim within six months after the administrator or executor had given his bond. In New York it is held that it is wholly immaterial whether the executor or administrator ever gave notice of his appointment.^" And that it does not matter that the executor or administrator unreasonably resisted and neglected to pay or refer the claim ; that the plaintiff is not entitled to costs, if his claim was not presented within the statutory limitation.^* (2) As to the second condition — that, to charge defendant with the costs, he must be shown to have " unreasonably resisted or neglected " to pay the claim, — in deciding whether such re- sistance or neglect was reasonable or not, the Court must have " reference to the fact which appeared on the trial." If the Court finds that the defense was reasonable and proper, it is sufficient to exempt the defendant from costs, although in the end he was unsuccessful. Where there is reason, in the compli- cated nature of the accounts involved, in the great amount of business transacted and in the supposed and actual existence of grave counterclaims, to justify the defense actually made, espe- cially if it appears that the judgment was rendered for a much 32 Roe vs. Hunter, 8 N. P. 21; son vs. Root, 18 Abb. N. Cas. 462). Brinker vs. Loomis, 43 Hun 247. Horton vs. Brown (29 Hun 654), so 33 Supple vs. Sayre, 51 Ilun 30; far as it holds that the first condi- King vs. Todd, 27 Abb. N. Cas. 149. tion must have been complied with The rule is not altered by the fact and one of the subsequent conditions that the creditor was unaware of must have also happened, in order the publication of notice to present to entitle plaintiff to costs, has been claims, until the statutory period overruled. allowed therefor had expired (Clark- §630 CLAIMS OF ADMINISTRATOR 544 smaller sum than the original claim, costs should not be award- ed to plaintiff.^* It must appear, however, that the defendant had good reason to believe that there was a valid defense to the claim, in whole or a material part of it, or that the defense would probably have been successful, if, for example, he could have procured the attendance at the trial of a certain witness.^^ Where the claim is materially reduced on the trial, it cannot be said to have been unreasonably resisted.^® The claim on which the recovery is had must be substantially the same as the one which was presented to, and rejected by, the executor.^^ But the fact that tlie plaintiff was allowed to amend his com- plaint so as to claim a larger recovery, and to prove and to recover a larger compensation for services, than that stated in the claim presented to the executors, does not change the claim from that originally presented.^* jSTor does the fact that the action was for a smaller sum than the amount claimed in tlie account as presented and rejected, deprive plaintiff of his costs.^^ 34 John?on vs. Myers, 103 N. Y. 666. 35 Stephenson vs. Clark, 12 How. Pr. 282. He will not be charged with costs for resisting a claim referred under the statute, where he has acted with reason and good faith, although the claim be finally allowed (Vaughn vs. Strong, 66 Hun 278; s. c. 21 N, Y. Supp. 154). In that case, which was a reference in a special proceeding, it appeared that defendant found among papers of deceased, documents in his hand- writing from which she had a right to assume that the claims were un- just; and that, on two successive trials referees had found in defend- ant's favor. Held, erroneous, on judgment being rendered against her, on the third trial, to grant a motion for costs on the ground that payment had been unreasonably re- sisted. 36 Cruiskshank vs. Cruikshank, 9 How. Pr. 350; Comstock vs. 01m- stead, 6 Id. 77; Buckhout vs. Hunt, 16 Id. 407; Harrison vs. Ayers, 18 Hun 336; Pursell vs. Fry, 19 Hun 595; 58 How. Pr. 317; Pinkernelli, vs. BischofF, 2 Abb. N. Cas. 107; Daggett vs. Mead, 11 Id. 116; Web ster vs. Nichols, 21 Week Dig. 566; where the claim was reduced one- third. But a reduction of one-fifth, in a claim for services, in conse- quence of a difference of opinion as to value, where there had not been a denial of the whole claim, does not relieve from costs (Fort vs. Gooding, 9 Barb. 388). For other illustrations, ^ee Darling vs. Halsey, 2 Abb. N. Cas. 105. 37 Genet vs. Binsse, 3 Daly 239. 38 Field vs. Field, 77 N. Y. 294. 39 Carter vs. Beckwith, 104 N. Y. 236. 545 SERVICES OF OTHERS § 680 (3) As to the third condition — that to charge the defendant with costs, he must have '' refused to refer the claim, as pre^ scribed bj law," — ■ the foregoing considerations are entirely applicable. A refusal to refer is a fact, and not a conclusion of law, and before costs can be included in the judgment, the fact of a refusal must be found or certified to by the referee, or if the certificate does not state all the facts, fully and fairly, they may be shown by affidavits on a motion for costs.*" The reply of the representative (defendant), on rejecting the claim, to the claimant's (plaintiff's) suggestion of a compromise and reference, that the claim had better take its course at law, is a refusal to refer, entitling the latter to costs, on a recovery.*^ It is not necessary for plaintiff to The certificate of the referee, based *how that, after the rejection of the upon a concession of the defendant claim, he offered to refer the matter on the trial that he had refused to before the commencement of the ac- refer the claim, should be conclusive tion (Id.). But in Nellis vs. Dues- upon the Court in awarding costs ler (44 N. Y. State Rep. 229; s. c. (Id.). See Russell vs. Lane, 1 18 N. Y. Supp. 315), it was held Barb. 519; Wilkinson vs. Little- that where an executor rejected a wood, 67 How. Pr, 474; Meltzer vs. claim and refused to refer it, the Doll, 91 N. Y. 365. claimant, though recovering only a *^ Clark vs. Corwin, 39 N. Y. small part of the amount demanded, State Rep. 784; s. c. 21 Civ. Pro. was entitled to costs. Rep. 108; 15 N. Y. Supp. 618. 40 Ely vs. Taylor, 42 Hun 205. 631 CLAIMS OF ADMINISTKATOB, ETC. 546 CHAPTER XXXYIII. CLAIMS OF EXECUTOR OR ADMINISTRATOR. 631 Debts due to executor, etc. 632 General Law Applicable. 633 Proceedure on presentation of executor's or administrator's claim to Probate Court. 634 Claims under fifty dollars. 635 Where the claim exceeds fifty dollars. 636 Presentation of claims. I 637 Entry and notice. i 638 Entry and notice for non- residents. § 639 Character of proof required. § 640 Allowance or disallowance of claim. § 641 Hearing. Exceptions. Appeal. § 641a Appeal on claims by executor or administrator for debt. § 641b On appeals from probate to common pleas court. § 641c Bond. §642 Error, etc. § 643 Appeal. § 644 Form of appeal bond. § 645 Debts due for services ren- dered to the estate by others. § 631. Debts due to executor, etc. We have heretofore seen ^ that at common law the naming of a person as executor cancels the executor's debt. Tkis was on the theory that, the testator knowing that the executor could not sue himself, meant by naming him to serve in that capacity, that the debt should be canceled. This rule was changed by the statute. It was likewise a rule of the common law that where a person was appointed administrator or executor of an estate which. wa& indebted tO' him, such administrator or executor had a right to retain his own debt out of whatever assets might come into his possession. He could do this even if it gave to his claim a superior right over others. He could also retain sufficient assets to pay his own claim without the Court passing upon the justice of the same. This idea waa not in accordance witli justice, and Courts of Equity were fre- quently called upon to correct inequalities.^ This matter is settled in our State by the following statute: 1 § 10691 G. C, § 389. 2 Schouler on Extra. 439 ; Woer- ner, Admin. 842. 547 DEBTS DUE ADMINISTRATOR § 632 "No part of the assets of the deceased shall be retained by an executor or administrator, in satisfaction of his own debt or claim, until it has been proved to and allowed by the probate court. Such debt is not entitled to preference over others of the same class." [R. S. § 6099.] ^ § 632. General law applicable. There are two particular classes of debts that may be due an executor or administrator. The first class might be said to include claims for moneys advanced by liim to pay legacies or debts before he has realized on the assets of the estate; and the second, debts owing to him as an individual by the decedent at the time of his death. In respect to the first class of debts it may be stated, that -the payment of legacies or debts by an executor, before ascertaining what is due to the creditors, and thus before being in a position to know whether the balance of the estate will be sufficient to pay debts and legacies, is at his peril.* Where an executor personally makes advances to legatees, so far as the estate is concerned he is entitled merely to be sub- rogated to the rights of the legatees and to a repayment from the shares of such legatees only, and if after the payment of debts it becomes necessary to scale down the legatees pro rata, 3 § 10727 G. C. ceived. The advertisement for claims Where an executor is removed, under the statute, aiTords suilieient etc., and tiles his account, if his own protection to the executor or admin- claim has not been adjudicated as istrator, if he pays or distributes provided, he may sue his successor. after the period for the advertise- Sharp vs. Pontius, 2 C. C. 7 ; 1 C, D. ment to run has expired. If he pays 331. before, it is at his own risk, and he 4 Abbott vs. Abbott, 5 0. 86, 536 ; should suffer, in preference to an in- Glacius vs. Fogel, 88 N. Y. 434. nocent creditor." The debts of an estate must be When a widow wlio is adminis- paid before distribution to heirs; tratrix of her husband's estate pays and distribution made to heirs upon a debt of the estate out of her in- the advice of counsel and the pro- dividual funds, she is subrogated to bate judge, is made at the peril of all the rights of the creditors. In the administrator. If the estate re Patterson, 11 0. L. R. 373; 58 proves solvent, he should be credited Bull. 305. Judgment on exceptions with such distribution, but if in- to an executor's account disallow- solvent, he should not receive such ing a claim made by him to the pro- credit. James vs. West, 47 Bull. ceeds of a certain farm by virtue 750. of an agreement with the testator Surrogate Bradford, in Clavton does not bar a proceeding under Sec. vs. Wardell, 2 Bradf. 1, 7. held, 10728 for compensation for working "that the losses suffered by the ex- the farm under a claim of an agree- ecutors by these overpavments. could ment therefor. The two claims are easilv have been avoided by reserv- different and inconsistent. Estate ing the funds necessary to meet all of Ward, 21 O. 0. C. (N.S.) 753; claims of which notice had been re- 22 0. C. C. 44. § 632 • CLAIMS DUE ADMINISTRATOR 548 the right of the executor, independently of his ultimate remedy against the legatee, is merely to that pro rata share of the assets available for distribution among the legatees to whom he has made advances.^ But for advances made by an executor to pay debts of a solvent estate, he is entitled to reimbursement.® It is the second class of claims that is referred to in the above section of the General Code that will be considered in this chapter; and it is intended to place an administrator or executor upon the same plane as any other creditor of the estate.'^ Where a creditor is appointed administrator to his debtor and dies with- out receiving assets, it is not to be assumed that the debt was paid or extinguished. In such a case tlie administrator of the deceased administrator may sue the administrator de bonis nan and recover.^ It is perfectly competent for an executor or administrator to assign his claim against the estate and the assignee may maintain action thereon as any other creditor could.® The question might some times arise as to the effect of the statute of limitations either general or special in relation to the executor's claim. In view of such a question arising, the Code of New York provides that from the death of the decedent until the first judicial settlement of the account of his executor or administrator, the running of the statute of limita- tions against a debt due from the decedent is suspended.^" There is no statutory provision in Ohio on that subject, and it may, therefore, be said tliat if an administrator's or execu- tor's claim is barred by the statute of limitation before the deatli of the deceased, it could not be revived by action of the administrator or executor. The object of the suspension of the running of the statute in New York is for the reason that the executor's claim could not be passed on until the first judicial settlement of his account. Such not being the ease 5 Rogers vs. Weaver, 5 O. 536; water vs. Gintner, 18 N. P. (N.S.) Tickel vs. Quinn, 1 Dem. 425, 432. 209. See also Estate of Randell, 8 X. 7 Williams vs. Purdy, 6 Paige, Y. Supp. 652. 166: Clark vs. Clark, 8 Paige, 152. 6 Livingston vs. Newkirk, 3 Johns. « Hall vs. Pratt, 5 0. 72. Ch. 312; Yeddo vs. Whitnev, 17 9 Snyder vs. Snyder, 96 N. Y. 88. Weekly Dig. 120. Even if he bor- lo New York Civ. Code, §2731; rows money for that purpose. West- Jessup's Sur. Pract. 1311. 549 DEBTS DUE ADMINISTRATOR § 633 in Ohio, our statute permitting the executor or administrator to file his claim for allowance any time after his appointment. It would seem that the general rule to he applied to an ordi- nary creditor would he applied on the claim of an executor or administrator. And if the administrator or executor fail to present his claim to the Prohate Court until the right of action is harred thereon, he would lose his claim." Of course, after the claim was once presented the statute would cease running. Under the New York statute, after the first judicial settlement, the statute begins to run,"* § 633. Procedure on presentation of executor's or adminis- trator's claim to Probate Court. "When an executor or ad- ministrator presents a debt or claim to the probate court for its allowance, which he owns, against the estate he represents, amounting to fifty dollars or more, the court must fix a day, not less than four weeks nor more than six weeks from its presenta- tion, when the testimony touching it shall be heard. The court forthwith shall issue an order, directed to the executor or ad- ministrator, requiring him to give notice in writing to all the heirs, legatees, or devisees of the decedent interested in the estate, and such creditors as are therein named. Such notice must contain a statement of the amount claimed, designate the time fixed for hearing the testimony, and be served upon the persons named in the order at least twenty days before tlie time for hearing. If any persons mentioned in the order are not residents of the county, service of notice may be made upon them by publication for three consecutive weeks in a newspaper, published or circulating in the county. All the persons named in the order shall be parties to the proceeding, and any other person having an interest in the estate, may come in and be made a party thereto." [R. S. §6100.]i2 nin re Ward, 21 C. C. 753. Spink, 7 C. C. (N.S.) 89; 28 O. C. li*Redf. 8ur. Pract. 528. C. 94; affirmed 78 0. S. 390. 12 § 1U728 G. C. The original jurisdiction of the A proceeding commenced by an Probate Court in the allowance of executor or administrator under the administrator's claim. Field vs. § 10728 G. C, for the allowance of a Block, 4 C. C. (is.S.) 216; 26 0. C. claim wliich lie owns nimseit, is an C. 113. See Liggett vs. Liggett, 51 action or suit in his beiiaif. In re Bull. 59, following the same rule. Ward, 21 C. C. 754. A jjayment made by the administra- The Probate Court has jurisdic- tor on his own claim would not tion under § 10728 G. L-., § i>'66, to take it out of the statute because reject or allow claims of an execu- he had no right to make such pay- tor, etc., and all equitable power ment. In procedure for allowance necessary to a full and complete of a claim of the executor against justice, and allowance may be made an estate a co-executor is not a to a mother out ot a cliild's estate necessary party. Downing vs. for past support under extraordi- Downing, 3 0. C. C. (N.S.) 623; 23 nary circumstances. Spmk vs. O. C. C. 389. § 634 CLAIMS DUE ADMINISTRATOR 550 § 634. Claims under fifty dollars. The above section makes no provision as to how a claim of an administrator or executor under fifty dollars may be al- lowed. It is evidently the intention of the law that where a claim is less than fifty dollars that the executor or adminis- trator shall verify and file his claim with a receipt for its payment with his account, and pennit it to be attacked in ex- ceptions to the account. Of course the administrator or execu- tor would have no right to pay his own debt in any other order of priority than that allowed to other claims of a like character. It sometimes happens that even where claims above the sum of fifty dollars exist in favor of the executor, that it is the desire of all parties to save the annoyance and trouble of the Courts passing on such a claim. If the estate is solvent, and the ad- ministrator procure a written approval of all the heirs, I see no reason why he could not retain sufficient assets to pay the claim. The better way, however, is always to follow the provi- sions of the statute. § 635. Where the claim exceeds fifty dollars. Where the claim exceeds fifty dollars the statute is specific in providing the mode of procedure. In the first place it must be presented to the Probate Court that made the administra- tor's or executor's appointment. In the second place the Court shall fix a day for hearing not less than four weeks, nor more than six weeks from the time of its presentatioru In the third place an order shall be issued to the executor or adminis- trator requiring him to give notice to all the heirs, legatees, or devisees, and such creditors as the Court may tliink proper. Which notice shall contain a statement of the amount of the claim, and designate the time fixed for hearing. Fourth, that said notice must be served at least twenty days before the time fixed for hearing. And fifth, if any of the persons requiring notice be non-residents they shall be served by publication for three consecutive weeks in a weekly newspaper published or circulating in the county. Sixth that all of the persons named 551 PRESENTATION OB CLAIM § 636 in the order requiring notice are parties to the proceeding and ary other person interested in the estate may be made a party. § 636. Presentation of claim. The statute does not so say, but I have no doubt that the claim must be presented to the Probate Court that makes the appointment. Neither does the statute contemplate that there shall be any other pleadings in the case, than the statement or account that is filed by the executor or administrator. It would, therefore, be proper that the statements contained in the account be of such a character that if they were put in the form of a petition, a demurrer would not lie. The claim ought to be itemized and sworn to. Recognizing the fact that administrators or executors are not educated lawyers, and some- times do not employ legal counsel, a liberal rule would no doubt be applied in such cases, similar, perhaps, to that in a Justice's of the Peace Court. The claim ought to be presented in a rea- sonably short time after the administrator's or executor's qual- ification. This is so for several reasons. It might prevent a troublesome question of the statute of limitation,^^ and it would also assist a speedy settlement of the estate by having such matter settled at as early a date as possible. The following may be used as a form: APPLICATION. {Title.) To Probate Judge of County, Ohio. C. D., executor (or administrator) of the estate of A. B., deceased, respectively represents to the Court that the estate of A. B. is indebtec^ to him in the sum of Dollars, which debt was incurred during the lifetime of said A. B. And that an itemized account attached «.nd marked exhibit A., is a correct statement of said account. (Here if the same be founded upon a promissory note, a copy of the promissory note might be given instead of an exhibit.) Wherefore said C. D. prays the Court that an order may be made ^xing a day for the hearing of said claim, and the giving of notice thereof as required by law, and that upon a hearing thereof that said claim may be allowed as a valid claim against the estate of A. B., and that he may have such other relief as is just and proper. 13 In re Ward, 21 C. C. 753, § 632. § 637 CLAIMS DUE ADMINISTRATOE 552 State of Ohio, County, ss. C. D. being first duly sworn says that he is the owner of the claim set forth in the above application and that the same is just, due and unpaid, that there are no offsets against the same, and that the estate of A. B. is justly indebted thereon in the sum of Dollars. Sworn to and subscribed before me and in my presence this day of § 637. Entry and notice. Upon liie presentation of this claim the Court must make an order fixing the time of hearing, and make an order requiring the administrator to give notice to the heirs and other interested persons. The entry may be in the following form : (Title.) This day came C. D., administrator (or executor) of the estate of A. B., and presented to this court his claim against the estate of said A. B. for allowance ; and thereupon the Court fixed the day of at o'clock. .. .M.. 190.., as the time for hearing the same; and orders that said administrator (or executor) give notice thereof iif writing to the following parties: (here insert the names of all the heirs, devisees and legatees and such creditors as the Court may think should be notified ) , at least twenty days before said time set for hearing. The following may be used a,s a form of notice: To C. D., administrator (or executor). You are hereby commanded to notifj' the following persons (here insert names of persons to be notified) , that on the day of you presented to the Probate Court of County your claim against said estate, amounting to dollars, and that this court has set the time for hearing, the same to be on the day of at o'clock, at the office of the Probate Judge of this county. You are further ordered to serve the said notice at least twenty days before the said time of hearing. , Probate Judge. § 638. Entry and notice for non-residents. If the heirs, legatees or devisees, or a creditor that the Court require to be notified are non-residents of the county, then service must be made by publication, and the entry may be in the following form: (Title.) This day came C. D., administrator (or executor) of the estate of A. B., and presented to this court his claim against the estate of A. B., de- ceased, thereupon the Court fixes the day of at o'clock. . .M.. 190.... as the time for hearing the same, and it appearing to the Court that (here mention names of the parties that are non-resi- dents), are non-residents of this county. It is ordered that notice be given 553 PROOF REQUIRED § 639 by publication for three consecutive weeks in a weekly newspaper published (or circulating) in this county. The following may be used as a form, of notice, when re- quired by publication : To E. F., G. H., and I. J., residents of County, Ohio, and L. M., a resident of County, Iowa. Persons interested in the estate of A. B., deceased, late of County, Ohio, as (here state how interested, whether heirs, devisees, legatees or creditors), will take notice that on the day of , C. D., the administrator (or executor) of the estate of A. B., presented to the Probate Court of County, a claim for allow- ance against the said estate, for the sum of Dollars. That said cause will be for hearing on the day of , at o'clock. . .M., 190. . ., at the office of the Probate Judge of said county. C. D., Administrator. The notice whether served or given by publication should have a proof of service made thereon and filed with the Pro- bate Court, with the papers of the case, and made a part of the proceedings. § 639. Character of proof required. It has been said that the claim of an executor or administra- tor, particularly if a relative of the deceased, is viewed with suspicion.^* And when the claim is based on a not© overdue at the time of the testator's death, the executor must show clearly that he held the note by a title hostile to that of the deceased, unexplained possession being insufficient.^^ In other cases it has been held that where the debt is based on a written obli- gation, the executor is entitled to the benefit of the usual pre- sumption. He is not bound, therefore, to prove affirmatively that the note has not been paid.^'' The rule is general that the claimant's oavu affidavit, verify- ing his claim, is not, of itself, the proof required. The exist- ence of the debt must be established by legal evidence, in ad- dition to the verification which he may require of another creditor. Thus where the administrator sworn, on his own "Kydd vs. Dalrymple, 2 Dem. 43; Hoffer's Estate, 156 Pa. St. 473, 630. isMacombers Estate, 11 N. Y. 16 Kuhlman's. Estate, 178 Pa. St. Supp. 198. § 640 CLAIMS DUE ADMINISTRATOR 554 behalf without objection, failed to testify that no payments had been made on account of his claim, or there were no off- sets against it, the claim was rejected, as these were held to be affirmative facts, to be established by the claimant.^^ In this kind of a proceeding the application takes the place of a petition and the proceedings assume the character of a case at law and hence the rules of evidence applicable to any other proceeding at law, should be applied here. If the parties resisting the application plead payment, the burden of proof is upon them/' § 640. Allowance or disallowance of claim. If upon the hearing the Court is satisfied that the claim is a just one, it should be allowed to the administrator or execu- tor. Interest may also be allowed, the same as to any other creditor. The following may be used as a journal entry : ( Title. ) This day this matter came on to be heard upon the claim presented to this court for allowance by C. D., administrator (or executor) of the estate of A. B. against the estate of A. B., for the sum of Dollars, and it appearing to the Court that notice thereof has been given as required by the former orders herein made, this cause came on further to be heard upon the testimony of witnesses and was submitted to the Court. Whereupon the Court finds that such claim is a valid and legal one, and that there is due from the estate of A. B, to said C. D., the sum of Dollars, with interest from the day of . . . . , and it is therefore ordered that the said claim be allowed as a valid one against the estate of said A. B., and that the said C. D. may retain out of the assets, a sum sufficient to pay the same, provided assets are in his hands applicable to claims of the same character sufficient to pay all in full. If not then said claim to be paid pro rata with those of the same class; and that the costs of this proceeding is taxed at Dollars, be paid out of the funds of said estate in the hands ol said administrator. If the claim is disallowed, an entry should be made contain- ing the findings of the Court, and might in addition contain a provision that the administrator should pay the costs of the pro- ceedings.^® 17 Wood vs. Rusco, 4 Redf. Transactions with an agent is aa 380; Redf. Sur. Prac. 527; Woerner inadmissible as if made by declarant on Admin. 822; Jes. Sur. Prac. 918. himself. Wehrman vs. Beech, 7 18 See Estate of Gerke. Goebel, C. C. (X.S.) 216; 28 0. C. C. 128. 289; In re Ward, 21 C. C. 758, as i°See § 1640, Assignments— pre- to evidence incompetent. ferred claims. See In re Runyans Est., 4 N. P, 335; 7 Dec. 236. 555 EXCEPTIONS, ERROR, ETC. § 641 § 641. Hearing. Exceptions. Appeal. ' ' Upon the hearing as to the allowance of such debt or claim, exceptions may be taken to a decision of the court upon a matter of law, by any person affected thereby. Bills of exception may be taken and allowed, and proceedings in error had after a final order or judgment as is provided in other cases." [R. S. § 6101.]-° § 641a. Appeal on claims by executor or administrator for debt. "When an executor or administrator asks the allowance of a debt or claim for more than one hundred dollars against the estate of the decedent, an appeal may be taken by any person affected thereby to the common pleas court from an order or judgment of the probate court, allowing or disallowing it, or any part thereof." [R. S. § 6101.]-°* § 641b. On appeals from probate to common pleas court. "In appeals from the probate to the common pleas court, the matter so appealed must be tried and decided in like manner, and so near as practicable the proceedings be the same as if the common pleas had original jurisdiction thereof; except that, unless the court orders them, pleadings are not to be filed." [R. S. §6101.] 20** § 641c. Bond. "Within twelve days after the making of such order or judgment, the person so appealing shall give a bond to the state, in such amount as the probate judge pre- scribes, with one or more sureties to be approved by him, for the use of the person interested therein, conditioned that the appellant will pay all costs awarded against him in the appellate court." [R. S. §6101.] -Of § 642. Error, etc. It will be observed that the object and purpose of the pre- vious section is to preserve to the parties every right that they would have had if the action had been brought on the claim in a Court of general jurisdiction ; and it is, therefore, specifically provided that exceptions may be taken to any decision of the Court upon any matter of law, by any pei-son who may be af- fected thereby ; and that bills of exceptions may be taken and proceedings had as in ordinary cases in error. It, therefore, makes the Probate Court a Court of original jurisdiction in the matter of a claim of an administrator or executor against the estate. Providing both appeal and error, and every objection to the right of trial by jury, etc., upon such a claim is removed, 20 § 10720 G. C. 2o»* § 107.31 G. C. 20* § 10730 G. C. 2ot 10732 G. C. § 643 CLAIMS DUE ADMINISTRATOR 556 practice has demonstrated the fact to us that generally the de- cision of the Probate Court is final in such matters. § 643. Appeal. The second previous section provides as ample a power for appeal from the decision of the Probate Court, as it does for proceedings in error, except that where the amount does not exceed one hundred dollars there can be no appeal. If the cause is appealed it should be tried in the Court of Common Pleas, in the same manner as if the action had been originally brought in that Court. There need not be any additional pleadings unless the Court, sees fit to order them. In such a case tlie executor or administrator would be in the position of plaintiff and those resisting in the position of defendants. If it is desired to take an appeal, the statute must be strictly com' plied with, and the person desiring to appeal, which may be either the executor or other interested party, must within twelve days after the judgment has been rendered, give a written under- taking to the State of Ohio with one or more sureties to be ap- proved by the Probate Judge, with the condition that the person appealing shall pay all the costs awarded against him, and which bond must be in the amount that the Probate Judge prescribes. If any person desires to appeal, it would be well to fix the amount of the appeal bond in the entiy giving judgment."^ § 644. Form of appeal bond. Be it known, that we, G. H., I. J., and K. L., are held and firmly bound unto the State of Ohio, for the use of (here name the persons interested in the judgment appealed from), in the sum of (here insert the amount fixed by the Court), to the payment of which we do hereby jointly and severally bind ourselves, if default be made in the condition following: Whereas, C. D., executor of the last will (or administrator of the estate) of A. B., late of County, deceased, did, on or about the day of , A. D. 190. . ., present to the Probate Court of said county, for allowance in favor of said C. D., against the estate of A. B., a certain claim of Dollars, for , and, Whereas, said court heard the testimony touching said claim on the day of , A. D. 190...; and, thereupon, did, on the same day (or on the day of , A. D. 190. . ., as may be), 21 See Downing vs. Downing, 23 C. C. 389; 3 C. C. (N.S.) 623. 557 DEBTS DUE FOR SERVICE OF OTHERS § 645 allow said ctalm ugainst said estate, from which decision the said G. H. has appealed to the Court of Common Pleas of said county of Now, ir vhe said G. H. shall pay all costs that may be awarded against him in said Court of Common Pleas, in the proceedings therein to be had concerning said claim, then this obligation shall be void; otherwise it shall be and remain in full force and effect. Signed by us, this day of A. D. 190. . . (Signature of G. H., I. J. and K. L.) When said bond is filed in the Probate Court, the judge should make an entry of the fact which may be in the following form: (Title.) This day came G. H. and filed his bond to appeal this cause to the Court of Common Pleas, which bond is in the sum of dollars, with I. J. and K. L, as sureties thereon. On examination whereof the Court finds that said bond is according to law, and with sufficient sureties and in the amount heretofore ordered by the Court. It is therefore ordered that said bond with the sureties thereon be approved by this Court.2ia § 645. Debts due for services rendered to the estate by others. In addition to the kind of debts mentioned in the first sec- tions of this chapter, which may be due to an administrator or executor, are those made by the executor or administrator in the management of his trust.'^ It is well settled in Ohio, that this kind of a debt is not one for which the estate can be made liable by suit. The executor or administrator assumes a per- sonal liability and then depends upon the Court to allow him for the disbursement. If the administrator wishes to avoid a responsibility, he must expressly stipulate that the creditor shall be paid out of the estate only."^ As to what right the creditor may have against the estate for services rendered, there may be some question. Woerner says : " In view of the ultimate liability of the estate for the disbursements made in its behalf by the executor or admin- istrator, and of the duty incumbent upon the Probate Court to pass upon the question of the reasonableness of the charges, as well as of the liability of the estate, it would seem that original jurisdiction to adjudicate between executors or administrators 21a This entry might continue and 22 See §506, et seq.. Care and order tliat a transcript of the pro- management, etc. ceedings be made which, together 23 Woerner, Admin. 758; Mellen with the papers, be filed in the Court vs. West, 5 C. C. 93; 3 C. D. 46, of Common Pleas. § 645 CLAIMS DUE ADMINISTKATOE 558 and their creditors for services in respect of the estate should, on principle, be vested in the Probate Court, to avoid cir- cuity of action and unnecessary costs and delay." It is also said " That the person rendering services might, whatever his claim, against the administrator may be, present it directly to the Court. ^* Whether such could be done under the Ohio law, is an open question. There seems to be no good reason why a creditor should not have this privilege. As the Probate Court must ultimately pass upon the question whether his claim is such an one as could be allowed against the estate, there seems to be no good reason why the Probate Court should not pass upon this, in the first instance, should the creditor so desire. The administrator or executor certainly could not be affected in- juriously thereby and it might be to his benefit, for if such ad- ministrator or executor should be compelled in a suit against him by the creditor to pay more than the Probate Court, should deem to be a just and reasonable value of such, services, he would be the loser. There may be instances when such a course would permit the creditor to protect himself where otherwise he might be in danger of losing his claim. Especially is this true if the administrator or executor be insolvent. In such a case it being a personal obligation of the administrator or executor, a judgment against him would be of no value. It has been held that a Court of Equity might, where the executor or administrator is insolvent, order that such services be paid out of the assets of the estate. But why require that kind of a proceeding, instead of permitting the creditor to apply di- rectly to the Probate Court for an order directing the adminis- trator or executor to pay the claim out of the assets of the estate? In fact if the administrator or executor be insolvent, the creditor rendering such service would be without a remedy. For if the assets are once distributed, he could not recover from the persons receiving the same; and if exceptions were filed 24 Woerner on Admin. 758. See § 646. et seq.. Time and order of payment of debts, etc. 559 DEBTS DUE OTIIEKS, ETC. § 645 to the account, and sustained, it could hardly be said to be such a devastavit that a recovery might be had against the bondsmen. In the case of Mellen vs. West,^^ where an administrator employed an attorney and then died, it was held that " if the succeeding representative of the estate is satisfied of the cor- rectness of the charge, and that the Probate Court would sanc- tion it, the amount should be paid by him. But if there is doubt on this point, or the administrator, for any cause refuses to do this, we have no question but that it should be worked out by the decision of the Probate Court, which, if the validity and justice of the claim are shown, might direct its payment by the administrator as part of the costs and expenses of settling the estate." 25 5 C. C. 93; 3 C. D. 46. The question whether or not the Probate Court would have jurisdic- tion to make such an order is not free from difficulty. Woerner else- where states the law to be, that the Probate Court has no rij^ht to de- termine such a question, and that the remedy of the creditor must be sought out in another court. Woer- ner, Admin., § 162. The question in our State is, whether or not the statute which gives to Probate Courts exclusive jurisdiction to di- rect and control the conduct of ad- ministrators or executors, is broad enough to direct an executor to pay a claim out of the estate for services rendered in behalf of the estate, § 10492 G. C, § 27. In a recent case (Jones vs. Green, 21 C. C. 97; 11 C. D. 548), it was held that the Probate Court had no authority to order an administrator to specifically perform an agreement alleged to have been made by his intestate. This case is somewhat different from that which would be made to a court asking that the Court direct the administrator or executor to pay a claim, not that the intestate had incurred, but that the administrator or executor has in- curred. As stated in the text, such a claim is a part of the settlement of the estate incurred in its manage- ment, care and control. There seems to be good reason why the Probate Court might not rightfully exercise jurisdiction in such a case. The recent case of Smith vs. Rhodes, 08 0. S. 500, sustains the power of the Probate Court to order a debt paid, where the debt was in- curred in the administration of the estate. In this case the court re- quired the administrator to file an account of his expenses. This was done. It included an attorney's fee — and the court approved this expense account. The administrator did not pay the attorney, and suit was brought against his bondsmen and sustained. In the case of Denmead vs. Sharp, 14 Dec. 301, it was held that the Common Pleas Court had no power to compel an administrator to re- ceive payment of an unmatured note, and the Probate Court did have such power. This case is a little different from the case of Jones vs. Green, 21 C. C. 96; 11 Cir. D. 548. §646 PAYMENT OF DEBTS 560 CHAPTER XXXIX. ORDER AND TIME OF PAYMENT OF DEBTS AND ADMINISTRATOR'S COMPENSATION. §646 §647 §648 §649 §64ga §650 §651 §652 §653 §654 § 654a §655 §656 §657 §658 §659 §660 §661 C4ene rally. In what order debts to be paid. Can not be paid in other order. Funeral expenses. Funeral expenses, etc. Hus- band and wife. Amount to be allowed as funeral expenses. Tombstone. Last sickness. Expenses of administration. Compensation allowed execu- tors or administrators. Fur- ther allowance. Effect of compensation provided by will. Furtlier allowance. When entitled to. How calculated. Compensation fixed by will. Compensation of joint admin- istrators. Extra compensation. Employment of agent, office rent, etc. Allowance made to the widow and children. §662 §663 §664 § 665 §666 §667 668 669 §670 670a 671 §672 §673 Debts due the United States. Taxes, etc. Wages. Debts due general creditors. Previous section (10715) not to affect lien. When executor or adminis- trator may proceed to pay debts without being liable for deficiency of assets. Notice of demands, etc. And if whole estate be paid and afterwards other claims presented, he shall not be liable therefor. If so paid away as to leave insufficient assets to satisfy subsequent claims. How far liable. May prove estate insolvent. If assets are exhausted in paying preferred claims. Executor or administrator not liable for payment of subsequent claim. Interest on claims. Payment to heirs, etc., be- fore final settlement. § 646. Generally. In the treatment of the administration of estates, we have now reached a period, which one distingnished author declares to be the principal function of executors and administrators, that is to pay the debts, and discharge the liabilities of their testators and intestates.^ Having treated of the appointment of administrators and executors and filing of inventories, the 1 Woerner on Admin. 755. An months after he has given notice of administrator may pay debts with- his appointment. § 10741 G. C, out liability to those who have not § 667. presented their claims within six 561 ORDER IN WHICH MADE § 647 disposition of personal property and presentation of claims, some authors have considered the subject of the disposition of real estate as a proper one to follow, and such seems to be the order of arrangement of the sections of the General Code. "We have deemed it better, whether wisely or not, to consider the subject in logical order, as if the personal estate was all that was to be administered upon ; and will consider the sale of real estate in subsequent chapters, after the subject of accounting and distribution has been discussed. It is a well- settled principle of law that personal property is the primary- fund for the settling of all the personal obligations of the testa- tor.2 This order may, however, be changed if a testator clearly designates some other fund to be primarily liable.^ In order that equality may exist, the law does not permit a creditor by superior diligence to acquire a superior right, but the estate stands for the payment of all general creditors alike.* He may lose his claim by negligence however, A con- tract to pay a certain debt out of the promisor's personal estate after death, does not confine it to that fund.'' In the payment of the debts of the testator the law expects that the administra- tor or executor will always act in the interest of the estate. If he could settle a debt for less than its face value, he must account to the estate for the profit, he can not pay a debt for less than its face value and charge the estate with more than he pays for it.® And this rule will extend to an agent acting for the admin- istrator or executor. The payment of debts of the intestate and the order of their payment will be the subject of discussion in the remaining sections of this chapter.' §647. In what order debts to be paid. ** Every executor or administrator shall proceed with diligence to pay the debts of the deceased, applying the assets in the following order : "1. The funeral expenses, those of the last sickness, and the expenses of administration; 2 Case vs. Hall, 52 0. S. 24; Jes. Cox vs. John, 32 O. S. 532. Sur. Prac. 955. 7 See § 705, Filing account; § 732, 3 Bano vs. Wick, 14 0. S. 505. See Notice; § 895, Sale of real estate; § 1208. § 904, Proceeds of real estate; § 959, 4 McDonald vs. Alten, 1 O. S. 293, Insolvent estate; §§694-695, Pay- 5 Judy vs. (Louderman, 48 O. 9. ment of legacies; §755, Distribu- 562. tion. § 648 PAYMENT OF DEBTS 562 "2. The allowance made to the widow and children for their support for twelve months; "3. Debts entitled to a preference under the laws of the United States ; "4. Public rates and taxes, and sums due the state for duties on sales at auction ; "5. To every person who performed manual labor in the service of the deceased, before payment of the general creditors, the full amount of wages due to such person for such labor performed within twelve months preceding the decedent's death, not exceeding one hundred and fifty dollars ; "6. Debts due to all other persons." [R. S. § 6090.] « "If there be not enough, after paying any one of such classes, to pay all the debts of the next class, the creditors of the latter class shall be paid ratably in proportion to their respective debts. No payment shall be made to creditors of one class, until all those of a preceding class or classes, of whose claims the executor or administrator has notice, are fully paid." [R. S. § 6090.] *** § 648. Can not be paid in other order. This statute, as to the priority of debts, is mandatory. It is intended to be a direction to the administrator or executor as to the manner of performance of his duty, and it prescribes the order of preference to be observed by him in the payment of 8 § 10714 G. C. injuries to real or personal property 8* § 10715 G. C. of another." Woerner on Admin. The order in which debts are pay- 769. able out of a decedent's estate is, at If an administrator having knowl- common law, as follows: "First, edge of a valid claim against an debts due the crown by record of estate, pays all other claims, there- specialty; second, certain debts, pe- by exhausting the fund, he is liable, culiar to the English laws and cus- In re Wakefield Est., Goebel 5. toms, such as debts to tlie postoffice A claim for alimony under the for letters, money due the parish decree of a court of another state from deceased overseers of the poor, does not bind property in this state funds in the hands of officers of as a preferred claim, unless asserted friendly societies, regimental debts. in this jurisdiction in the lifetime etc.; third, judgments of courts of of the decedent. Murray vs. Murray, record (except those in foreign coun- 21 Dec. 807. tries), and decrees in equity ren- A provision in a will that "out dered asrainst the deceased in his of mv estate mv children shall pay lifetime; fourth, recognizances b^^- mv funeral expenses and all my fore courts of record or maTistrates, d<^hts," not onlv includes debts and securities bv statute, such as the which the testator owed at the time statute merchant, statute stanle, and of his decease, but all debts, such the like: fifth, debts bv special con- as costs of administration^ of the tract under s^al. and rent: sivth, estate. TTarbosou vs. "Mellinser. 2 simple contract debts, those due the O. App. 75: 18 O. C. C. (N.S.) 504; crown takinq- precedence of those 35 O. C. C. 196. due any subject, and damages for 563 PAID IN OKDEB PKOVIDED BY STATUTE § 648 debts. This is its express object, and the administrator or exec- utor, when he proceeds to discharge his duty, is bound to obey its directions.'' Even if the Court direct otherwise the admin- istrator may disregard it." If the administrator disregard the order prescribed, and the estate prove insolvent, he will be liable to any class of creditors, to the extent of their loss, who thereby do not receive what they would have received if the proper order had been observ^ed.^^ Such is the law in every State of the union as well as in England,'^^ and an administrator or executor would not only be personally liable, but would be liable to suit on his bond. A failure to obsei-ve the proper order, results usually from a want of proper realization of the exact, condition of the estate'. If an administrator or executor proceeds in any other manner than authorized by law, he always assumes a risk. A distinguished author well says how this rule, of the order of payment, is very often violated.^* The above section of the General Code requires that every executor or administrator shall proceed with diligence to pay the debts of the decedent. But such diligence is to be made in 9 Matter of St. John, 1 Tucker, other; it arises sometimes out of 126; Jessup's Sur. Prac. 948. sheer ignorance of the law, and at ^0 Jenkins vs. Jenkins. 63 Ind. 120. other times in consequence of 11 Cunningham vs. Cunningham, thoughtlessness and lack of caution 94 Tnd. 557. and foresight. It happens hut too 12 Woerner on Admin. 783. often tliat tlie assets of an estate An executor has no power, as fall far short of the expectations such, before final settlement, to turn of heirs and personal representa- over to one creditor of the estate tives, even after the inventory and notes held hv the estate; without appraisement have been filed and an order of the court, and a person more often still, that the liabilities holding them has no title. Surety turn out to be much greater than Co. vs. Houshton, 22 O. C. C. 138. " they supposed. Many estates prove Where property of decedent has insolvent, which are at first looked come into ones possession after the upon as ample to pav all debts and death of decedent, no ricrht of setoff leave handsome portions to the exists in favor of that person heirs: yet executors and administra- atrainst the executor or adminis- tors often close their eyes to the trator. Downer vs. Saving's & Loan possible, in manv cases imminent, Co., 16 0. C. C. (N.S.) 378. consequences of paving debts indis- 13 Tt may not be out of place, criminately. Widows, in particular, however, to remark, that the vio- zealous to vindicate the good name lation of this rule of law is rarely of departed husbands, eagerly pay attributable to bad faith, or a con- all debts as fast as presented, and as Bcious disposition to unduly favor loner as thev have anvthing to pay one creditor to the prejudice of an- with, frequently involving loss to § 649 PAYMENT OF DEBTS 564 payment in the order provided by statute. It also means that he is not required to proceed to the payment of all the debts until the full extent of the indebtedness of the deceased has been ascertained. By sections of the General Code ^* it is provided when an administrator or executor may pay claims without responsi- bility, for any demands that may be afterwards presented. Other sections allow an administrator or executor to make dis- tribution if claims are not presented after eighteen months have elapsed from the date of his bond.^^ § 649. Funeral expenses.* The first in order of payment are funeral expenses, those of last sickness, and expenses of administration. These are each entitled in a like degree to be first paid, although in some States they come in a different order. In this section the first of these three will be discussed. The administrator is entitled to credit for all moneys properly expended for the funeral ex- penses of the deceased,^" but not if they were reimbursed from another source.^*'* He may pay proper and reasonable funeral other bona fide creditors, themselves While funeral expenses are men- or their bondsmen. Simple obe- tioned tirst in the first class, it may dience to the law is sufficient lo Le questionable whether they have avoid such danger. Provisions exist any priority over the other two — in most American States whereby last sickness and costs of adminis- the amount payable to each creditor tration. If there is not enough to is adjudged by the Probate Court pay all in the first class in full, having jurisdiction of the estate. then it is probable they should pro- Payment under such order is a pro- rate. It is a general practice that, tection to the administrator and first of all, costs of administration simple prudence requires that no must be paid, and on the theory debts be paid until such order is that they are necessarily incurred to obtained. Woerner on Admin. 783. enable a fund to be preserved out of 1* §§ 10741, 10742. 10743, 10744, which funeral and expenses of la&t 10745 G. C, §S()67, 609, 670, 671. sickness can be paid. See §645. 13 § 10746 G. C, § 013. See § 705, i«* Estate vs. Hyneman, 11 Phila. Accoimting. 135. 16 The Probate Court has no power The immediate duty of burying to direct the administrator to pay the body rests upon the husband or a claim. In re Geo. H. Miller Est., the wife, or other relative of the 12 Dec. 562; Crapo vs. Armstrong, decedent, or may rest ujwn a stran- 61 la. 097; In re Miller, 4 Redf. ger under whose roof the death oc- 302; Allen vs. Allen, 3 Dem. 524; curred. He cannot keep the body Spire vs. Lovell, 17 111. App. 559. unburicd, or by exixising it to viola- * Cited, In re Kirchner, N. P. tion, offend the feelings or endanger (N.S.) 459; 52 Bull. 107; KroU V3. the health of the living. By whom- Close, 82 0. S. 193. soever the duty is performed, the 565 FUNEEAL EXPENSES §649 expenses without the claim being first allowed by the Court against the estate ; because it is of necessity to secure an early burial of the deceased.^^ The widow is entitled to be reim- bursed for money advanced to pay such expenses, even though she at the time declare that she will make no claim on the estate.^* A friend, however, voluntarily rendering aid, is not entitled to pay; such as searching for the remains of the de- ceased, ^vriting and sending advertisements to the newspapers for the funeral, requesting the clergyman to perform the burial services, placing the corpse in his own house and permitting the funeral services to be held there. ^'^ estate of the deceased is ultimate!}' liable to defray tlie necessarj' rea- sonable expenses of tbe burial. It is analogous to the duty and obliga- tion of a father, to furnish neces- saries to a child and of a husband to a wife, from which the law implies a promise to pay him who does what the father or the husband, in that respect, omits to do. It is not usual, and in most cases, it is not possible, for letters either testamen- tary or of administration upon the estate to be applied for and granted before the funeral of the decedent, 80 that the executor or administra- tor as such is very rarely called upon to superintend the funeral ceremony or direct the necessary ex- penditure of money. It seems to be settled that the reasonable and nec- essary expenses of interring the dead body of a decedent are a charge against his estate, though not strict- ly a debt due from him; so that his personal representative may be sued. as such, for their recover,y. Redf. Surr. Prac. 437. 17 But such claims should be pre- sented for allowance and rejection the same as anv other claim. In re Geo. H. Miller,' 12 Dec. 5fi2; Samuel vs. Thomas, 51 \Ms. 549; Greg- ory vs. Hooker, 1 Hawks 394; Pat- terson vs. Patterson, 59 N. Y. 547; Wilson vs. Shearer, 9 Met. 504; Palmes vs. Stephens, 2 M. Charlt. oH; Pvapp?lyea vs. Russel. 1 Da]/ 214; Ktgina vs. Stewart, 12 Ad. & E. 773; McClellen vs. Eilson, 44 Ohio St. 184; Dampier vs. St. Paul, etc., Co. (Minn.), 49 X. W. Rep. 286. 3 8 Frances' Estate, 75 Pa. St. 220; Sullivan vs. Horner 41 N J. Eq. 299. 19 Hewitt vs. Bronson, 5 Daly 1 ; /)* re McHugh's Estate, 152 Pa. St. 442; S. C, 31 W. N. C. 416; 25 All Rep. 875. Wheie a third person, e. g., the mother of the deceased, officiously, in the presence of the husband of deceased, assumed entire control of the arrangements and sent for the undertaker, telling him to spTe no expenses, it was held that she be- came personally liable to the under- taker for the funeral expenses, and that both the husband and the estate were relieved from the obligation otherwise imposed on them by law. Redf. Sur. Prac. 438. The wife has control of the burial of her husband's body. A man can- not dispose of his body by will. A Court of Equity will decide contro- versies over the burial of deceased persons. Herold vs. Herold, 3 N. P. (N.S.) 405; 16 Dec. 303. See vol. 73, Cen. Law Journal, p. 39, for article on "Property Rights In Human Bodies." §649 PAYMENT OF DEBTS 566 If there is not sufficient assets to pay the expenses, the ad- ministrator is not personally liable.^" But it has been held that the administrator, if he order the services, is personally lia- ble.^^ This is especially true if he have plenty of assets and refuse or fail to pay tlie expenses."^ Mourning apparel for the family is not a proper charge. ^^ But carriage hire in cities and towns to carry the family and friends to the place of interment are proper charges,"^ although not from one town, icy another and back.^^ Reasonable expenses for taking up the body and re- moving it tO' another place if the first place is found improper, are allowable ,^® but not if the first place of burial was proper." The expense of communicating the news of the death of the deceased to his family is a reasonable charge,^^ and also the expense of the widow and heirs traveling to see him at his 20 Hapgood vs. Houghton, 10 Pick. 154; Adams vs. Butts, 16 Pick. 343; Gregory vs. Hooker, 1 Haucks 394; Parker vs. Lewis^ 2 Dev. L. 21; Trueman vs. Tilden, 6 N. H. 201; Campfield vs. Ely, 13 N. J. L. 150. 21 Tracy vs. Frost, 57 Hun 591; S. C, 11 N. Y. Supp. 561. 22Dampier vs. St. Paul Trust Co. (Minn.), 49 N. W. Rep. 2SG. 23 Went. Ofi'. Exec. 259. C07itra Wood's Estate, 1 Ashm. 314; Allen vs. Allen, 3 Dem. 524. Thus it was held in the days of William and Mary, " that for strict- ness no funeral expenses are allow- able against a creditor, except for the coffin, ringing of the bell, par- son, clerk and bearers' fees, but not for the pall or ornaments." " To which," says Dr. Burn, " the expens- es of the shroud and digging the gi'ave ought to be added." Feasting and banqueting were deemed in- congruous with the solemnity, and expenses for festivals were not allow- able out of insolvent estates. Woer- ner on Admin. 760. It hae sometimes been held in this country that the personal represen- tative may reckon in his account a moderate expense for mourning ap- parel for the widow and family of the deceased, as part of the expenses of the funeral. Wood's Estate, 1 Ashrnead 314. And this seems to us not unreasonable. It seems far more intimately connected with the decent perfoi-mance of funeral rites than the same amount expended in a mon- ument, which is now almost invari- ably allowed, because that is one of the demands of public opinion. 3 Redf. Wills 246. 24 Donald vs. McWhorter, 44 Miss. 124. 25 Lund vs. Lund, 41 X. H. 355. So are suitable burial plats (Chalker vs. Chalker, 5 Redf. 480), and even vaults. McGlinsey's Ap- peal, 14 S. & R. 64. Mourning rings to the extent of £93 have been al- lowed in England. Paice vs. Arch- bishop of Canterbury, 14 Ves. 364 26 Allen vs. Allen, 3 Dem. 524. 27 Watkins vs Romine, 106 Ind. 378. 28 Hasler vs. Hasler. 1 Bradf. 248. 567 FUNEKAL EXPENSES § 649 request, though they did not reach him till after his death. ^* So the expense of bringing the body home when death occurs abroad, and of a person to accompany and care for it.^** The estate is not liable for the funeral expenses of the widow of the deceased,^^ but where the husband, wife and child perished in the same accident his estate was held liable for all the expenses.^" And so for a minor legatee,"'^ The wife's es- tate, and not his, is liable for her funeral expenses.^* The ex- penses of a post-mortem examination in the interest of science is not a valid claim against the estate.^^ Nor is a dinner, fur- nished by the person in whose house the funeral was held, to the gTiests, and food for their horses, after the return from the cemeter)', according to the custom of the neighborhood.^^ A donation of $250 made by an executor to his testator's commandery for parading at the funeral is not a proper charge against tlie estate, where it does not appear that the command- ery required the payment of that sum.^ or any other, as a condi- tion of their participation in the funeral.^^ The expenses of a wake, if not unreasonable, constitutes a proper item of funeral charges; as, for example, where the banquet provided consisted only of cheese, crackers and tobacco.^^ Where a will directed that the testator's funeral expenses should not exceed $100, and the will was not received by the executor until after the funeral, it was held eii^or for the Court not to allow reasonable and prop- er charges in excess of $100.''*'* Claims founded in the expenses 29.Tpnnison vs. Hapgood, 10 Pick. as Pmith vs. IMcLausrhlin, 77 Til. 77. 596. 30 S'ullivivn vs. Horner, 41 N. J. 3c> Shaeffer vs. Shaeffer, 54 Md. Eq. 2nn. 079. »i Lawal vs. Kreidlor, 3 Eawle 37 /n re Revnolds, 124 N. Y. 388; 300. S. C. 26 N. 'E. Rep. 954, affirming aiiSnllivan vs. Horner, 41 N. J. 9 N. Y. Siipp. 949. Eq. 209. 38 Johnson's Estate, 8 Pa. Co. Ct. 3:iBntler's Estato. 9 X. Y. Supp. P. 1. G41; R. C, 1 Con. Sur. 58. '-o /„ re Galland Estate, 28 Pac. 3iConstantinidrs vs. W-lsh, 146 Rep. 287 : S. C, 92 Cal. 293. Mass. 281; McClellan vs. Eilson, 44 Judsje Woodmansee, of Cincinnati Ohio St. 184: Freeman vs. Colt, 27 Common Pleas Court, has recently Hun 447; Mc.Cne vs. Oarvey, 14 Hun held that, if the wife has no separate 562: reversing Harvey vs. McCue, 3 estnte, the husband is liable for the Redf. 313; Kessler vs. Hessen, 19 wife's funeral expenses, even though Abb. N. C. 86. Conira. Staple's Ap- she was living senarate and apart peal, 52 Conn. 425; Galloway vs. from her husband, and at tlie time McPherson (Mich.), 35 N. W. Rep. of her death hnd a divorce suit 114. pending, in which temporary all- See S 649a. mony had been allowed. § 649 a PAYMENT OF DEBTS incurred by relatives of the deceased in attending tlie funera| their services and time, are not to be favored in settling a dece dent's estate; for these are presumably offices of respect an^ tenderness, gratuitously rendered, and neither purchased no| solicited/" § 649a. Funeral expenses, etc. Husband and wife. By reason of the change of the common-law rule of the con-' tractual rights of the wife in the control and management of her separate estate, some confusion has arisen in cases where the wife dies owning property, as to the liability of the husband to pay her funeral expenses and expenses incurred during her illness. In an early case it was held that where a married woman dies leaving property, her estate is primarily liable for her funeral expenses, and where the husband pays the same he may recover them from her administrator/"*^ Later it was held that a husband who has paid the funeral ■expenses of his wife, both his and his wife 's estate being possessed of ample means, is not entitled to reimbursement from her estate.-'"^ Along in the same line, it was held that burial services and expenses connected with the death of his wife, are part of the obligation of support imposed on a husband by sec. 7997, G. C, and at common law, and hence a contract of separation between husband and wife releasing him from all claims for her support and maintenance, does not relieve him frora payment of her burial expenses regardless of any separate estate of the deceased wife.*"*^ In another case it was held that a husband, notwithstanding his wife is living separate and apart from him and an allowance made to her of alimony pendente lite, is liable for her funeral expenses upon her death, while proceedings for divorce is pend- Again it was held that unless it appears that a wife by special contract bound her separate estate therefor, a physician render- ing her medical service during her l^st illness may proceed against the husband without first presenting the same to the administrator of her estate and have it paid therefrom.^"*^ 40LuncI vs. Lund, 41 X. H. 355; 40c Humphrey vs. Huff, 35 0. C. Schoul. Exrs. 421. C. 117 (1914)'; 20 O. C. C. (IS'.S.) 40a Clauson vs. Briggs, 36 O. C. C. 178. 582 (1907) : 16 O. C. C. (N.S.) 225. 40dEveland vs. Sherman, 21 Dec. 40b Phillips vs. Tolerston, 20 Dee. 726; 9 X. P. (N.S.) 559. 249; affirmed no op., 82 O. S. 403 ^oeWithrow vs. Boone, 16 X. (1910). P. (N.S.) 506; 25 Dee. 402. 568a AMOUNT OF FUNERAL EXPENSES § 649a These decisions seem to finally settle the question when the husband has voluntarily paid the funeral expenses, etc., when another who has furnished them seeks to compel the husband to pay them. But if the deceased wife has a separate estate, and the claim is presented to her administrator, should he pay it, or compel the creditor to recover the same from the husband ? In a case heretofore referred to *°^ the court says : "Wliile the wife's estate, if she had one, may be liable for her funeral expenses, yet if she had no estate the husband is liable for the funeral expenses. In other words the undertaker has recourse against both the wife's estate and the surviving husband for the reasonable funeral expenses. ' ' The case of McClellen & Filson,*"^' rendered before the passage of the present statute in relation to husband and wife, is in- structive. In this case the wife died testate leaving an estate of her own, and a husband surviving her who also had property. A son was appointed executor and entered upon the discharge of his trust; as such executor he paid, as expenses of the last sickness, physician's bills, also expenses of her funeral and for a tombstone. The physicians who attended were called by the sou on request of his mother; the coffin and other purchases for the funeral were made by the son. It did not appear that the husband took any action in employing either the physician or undertaker. Exceptions were filed to the executor's account by a legatee under her will. In deciding the case the Supreme Court says: "We think the executor was justified in paying the funeral expenses and those of last sickness, and that he should have been allowed for such items in his settlement."* Unless, therefore, it clearly appears that the husband has contracted the bill and the claim is presented to the executor, the executor should pay it. And there seems to be no good reaso.n why the wife's estate should not pay all these claims, even when the husband has contracted them, and if the executor does pay them, the court ought, and the author believes will allow them in his settlement. Of course a wife's estate can not be held for the expenses of her husband's funeral, if he have an estate of his own, unless she has by contract obligated herself so to do.'*"^ If the husband has no estate is the wife liable? This has never been decided in Ohio. It would seem that the duties placed on husband and wife by statute, are somewhat reciprocal : "If the husband is able he must support his wife; if he is unable, the wife must assist him so far as she is able."*"' "They contract toward each other obligations of mutual respect, fidelity and support. ' ' *"•> ^OfEvcIand vs. Sherman, 21 Dec. 40h21 Cyc. 1446; 13 Cyc. 274. ; 726; 9 N. P. (N.S.) 539. 40i § 7907 G. C. i «>K44 0. S. 185. 40J § 7()05 G. C. § 650 PAYMENT OF DEBTS 568b The author believes that under these statutes the wife is liable for the funeral expenses and those incurred during her husband's last illness, even where she has not directly contracted for them, and that the courts will finally so hold, where the husband has no estate. Of course where by will the funeral expenses are made a charge on the estate, they should be paid therefrom, even though the surviving consort might be liable.*"'^ A widow as the heir and nest of kin of her deceased husband is by law to dispose of his body in a reasonable and sanitary manner.'*"^ A son has a quasi property right in the body of his dead mother.^°'^ § 650. Amount to be allowed as funeral expenses.* A number of circumstances enter into the question as to what will constitute a proper allowance for funeral expenses. Thus, whether the estate be solvent or insolvent, whether a person be high or low in society, as well as religious faith, fraternal ideas and family connection. It has never been questioned that the funeral expenses are to be restricted to the amount necessary to bury the decedent in the style usually adopted for persons of the like rank and condition of society/^ In early times a stricter rule was followed as to insolvent estates, than at this date. Courts have constantly inclined in a liberal direction in this matter until now there is very little differance where the expenditure has not been extraordinarily great in amount considering all the circumstances, between a solvent and insolvent estate. "The circumstances determining what is reasonable in such cases," says Wberner, "are numerous, and the degree of im- portance attached to each is incapable of exact measurement, impressing themselves more or less strongly on different minds. Public opinion and general expectation, fashion, the feelings of friends and neighbors, the age, standing, property, the habits of life of the decedent, as well as the standing and rank in society of the surviving family, must all be considered." But large expenditures for burials, disproportioned to the assets of an estate should not be encouraged.*- 40k Where the consort of a de- to prevent her from cremating tne ceased husband or wife received the body, entire estate of said decedent by 40m 59 Bull. 340. virtue of a devise for his or her life, ^l Woerner on Admin. 764, citing for his or her support, with a re- Redf. on Wills 243; Wms. Ex. 968; mainder over, and died leaving no Schoul. on Ex. 421; Willard on Ex. estate, the expenses of his or her 272; Kellev. Pr. Guide. 220. last illness and final expenses, are a * Cited, Kroll vs. Close, 8 O. L. R. legal charge against the estate 70; 82 0. S. 193; .'i2 Bull. 107. passed to him. Kennedv vs. Price, 42 Estate of McKenna, 1 Leg. Gaz. 23 O. C. C. (N.S.) 12; "affirmed no Rep. 12. p. 83 O. S. 472. Says Brewster, J.: "The assets 401 Evans vs. Evans, 23 Dec. 375, of an estate should not be squandered Injunction not allowed in this case in ostentatious displays for the gratification of the weakest of all 569 AMOUNT OF FUNERAL EXPENSES § 650 The following from the same distinguished author has often vividly jDresented itself to persons who have had experience in dealing with estates of decedents. " If greater economy were insisted on, in small as well as great estates, many a widow and heir struggling under the privation of bitter poverty would liave reason to be thankful for being prevented from wasting a substantial part of their means upon the fruitless pomp and ceremony of an extravagantly costly funeral." *^ Foolish and extravagant funerals by those not immediately concerned in the estate will not bind the administrator or execu- tor and the immediate family of the estate.** In determining what is reasonable, an undertaker is chargeable with only such knowledge as to the decedent's property, etc., as is apparent upon reasonable observation, and is entitled to payment of his demand in full, if in accordance with decedent's apparent con- dition, although the estate prove insolvent.*^ However, under- takers should be held strictly accountable in this matter and not allowed to present a bill, which their knowledge of the affairs of the decedent, should have informed them was greater than in justice to all, should be expended, even though the family in- sisted upon such expenditure.*® vanities." Bradley's Estate, 11 those of one's birthplace besides, de- Phila. 87. serve consideration whatever be the 43 Woerner on Admin. 764. last domicile. i **Schoul. 421. Ihe standard varies essentially, I 45 /)j j-g Rooney, 3 Redf. 15. however, with the age and locality; I *6 Burial expenses amounting to as between city and country or pol- $270 are not unreasonable where the ished and simple communities; and, ; decedent left an estate of $800. in general, according to the testa- Kittle vs. Huntley, 22 N. Y. Supp. tor's station in life; all this aiding, 510. doubtless, in fixing a scale of prices The standard of reasonable burial which, even in such simple items as expenses is established by local and the cost of a coffin, may vary great- ': contemporary usage; for religious ly. Schoul. on Ex., §421. and humane sentiment carries tlie It has been held that an under- cost far beyond what mere sanitary taker's bill of $201, where the estate rules might prescribe, and that sen- was $798, was unreasonably high, timent should not be outraged. and it was cut down to $150. In re The religious persuasion of the Karschner, 6 N. P. (N.S.) 459; deceased, or, perhaps of his imme- 52 Bull. 107; affirmed KroU vs. diate family, may be fairly consid- Close, 81 0. S. 191. cred in determining the character Where it is said "It is the duty land terms of costs in the funeral; of the Probate Judge, upon the hear- thus, Jewish, Christian and Pagan ing of an administrator's account, usages differ on these points; like- whether exceptions have been filed or wise Catholic and Protestant, nor not, to scan closely the amounts do all Protestant sects agree among claimed to have been paid for fu- themselves. National habits, and neral expenses, and if unreasonable § 651 PAYMENT OF DEBTS 570 § 651. Tombstone. "The court in settlement, also may allow as a credit to the executor or administrator, a just amount ex- pended by him for a tombstone or monument for the deceased, and for a just amount he has paid to a cemetery association or corporation as a perpetual fund for caring for and preserving the lot on which the deceased is buried. It shall not be in- cumbent on an executor or adiiiinistrator to procure a tombstone or monument or to pay any sum into such fund." [R. S. §6185.]" Even in the absence of a statute under the phrase " funeral expense " the costs of a monument might be included.'*" The former statute provided that the administrator should not be allowed to interfere with the heirs of the deceased in erecting one. The present section does not contemplate the erection of a monument for any person other than the deceased.*^ The stat- ute further seems to give to the administrator or executor, the discretion whether or not the expenditure shall be made. If it is made, however, the Court shall pass upon its reasonable- ness. " He should not," says a distinguished author,^" " before ascertaining the amount of the estate, purchase a larger burial lot than is necessary Although the expenses of the tombstone has been considered a funeral charge, yet, Avhere the estate is insolvent it can be allow^ed, if at all, to a very moderate amount only." The expenditure may be made in a reasonable amount even though the estate be insolvent.^^ However, tlie rights of creditors should not be defeated or jeopardized by the allowanftS of a credit for extravagant monuments or tombstones.'^ and extravagant, should be disal- (N. S.) 417; 18 Dec. 374; affirmed lowed, even against legatees aaid 81 0. S. GS. next of kin." And is without jurisdiction, in ad- *'^ § 10832 G. C. vance of settlement, to entertain an 48 See Comments, 10 Bull. 338. application to fix maximum that 49 Catlin vs. Huestis, 11 C. C. mav be expended. See McMahou vs. 120; 5 C. D. 23; Morgan vs. Mor- Auibach, 79 0. S. 103. gan, 83 111. 196. Cited In re Matter of Erlacher, 3 Redf. 8. In Lohnes, 57 Bull. 125. that case, the estate amounted to Uf course, the heirs may erect .$2,625.78. Held, that the admin- one if they so desire. Cm-fcis vs. istrators should be allowed only Bank, 39 O. S. 581. $250 of $1370 expended by them for 50 Kedf . Surr. Prac. 440. a monument and inclosing the burial 5110 Bull. 338. plot. In Matter of Wood (3 Kedf. 52\Voerner on Admin. 761. 9 n.), it appeared that the estate The Probate Court has no power amounted to less than $2,800, and to order an administrator to pur- that $700 was charged by the ad- chase a monument, under the gen- ministratrix for burial lot and mon- eral authority to control and direct ument, and $200 additional was the conduct of administrators, nor placed to the account of funeral under § 10832, in absence of settle- expenses. It was held, that the ment to pass upon such expendi- charge for burial lot and monument tures. In re Ferguson, 6 5f. P. was excessive. In ^Matter of Mount 571 TOMBSTONE LAST SICKNESS § 652 In making a selection for a tombstone, it certainly is proper fof the administrator or executor to confer with the family as to the kind and character of a stone to be put up, and even if the estate be insolvent, one of moderate cost, taking into consid- eration the standing and character of tlie deceased, ought to be allowed. If the estate is solvent the administrator should proceed and make such expenditure as will satisfy the general desire of the family.^^ § 652. Last sickness. The second kind of expenses that is entitled to a first pref- erment, is the expense incurred during the last illness. A consideration of this question divides itself into two parts, first, what kind of expenses is included, and second, what is meant by the term " last illness." As to the first it may be said, that it would include doctor bills, medicines, nurse hire, food, clothing and place of habitation ; and generally would include all bills for care and attention which were proper to give to the decedent, that degree of care and attention which the usage of society and the laws of humanity require, considering the person's station in life. The term "last sickness" is a (3 Redf. 9 n. ), it was shown that, Supp. 148). An expense of $300 in- cut of an estate of $983.30, the ad- curred by an executor for testator's ministiatrix paid $425 for funeral tombstone is reasonable where the expenses, besides $00 for clergy- estate is valued at more than $6,000, man's fee and music and $78 for a and the rights of creditors are not gravestone. Held, that only $200 impaired. (Matter of Howard, 23 should be allowed for funeral ex- Id. 836). Patterson vs. Patterson, penses and .$50 for a gravestone. 59 N. Y. 574 ; Wood a's. Vanden- In another case, it was held that, burgh, 6 Paige. 277 ; Ferrin vs. My- as against decedent's next of kin, an rick, 41 N. Y. 315; Owens vs. expenditure of $351 for a burial lot Bloomer, 14 Hun. 296. In the last is not unreasonable, where the es- case, the estate did not exceed tate amounts to $13,000; but as $8,000. An expenditure of $500 for against creditors, the expenditure a headstone v/.is held to be extrava- would not have been allowed, it gant, and was not allowed as against aeems. (Valentine vs. Valentine, 4 the heirs. Redf. Surr. Prac. 440. Redf. 265). Funeral expenses in- ^^ A testator who directed by his curred by an executor to the amount will that a suitable monument of $60 will not be held excessive should be erected for his grave, left where the executor acted in good a large fortune, in great part to faith, though testator's estate was charities; and .$6,000 was held not not sufficient to pay in full the an imreasonable amount to expend statutory exemptions of the widow. for the monument. Cannon vs. Ap (Matter of Hildebrand, 23 N. Y. person, 14 Lea. 553. § 652 PAYMENT OF DEBTS 572 difficult one to define. It probably does not mean such a limit- ed period of time before death as is required in the case of making a nuncupative will. Some Courts have held that it practically means in extremis and not lingering illness.^* In another State it has been held that it would include sick- ness no matter how long its duration. ^^ We can probably get our best idea as to what the phrase should include by consid- ering the reason for making such claims preferred in the settle- ment of a deceased person's estate. It was no doubt a hu- manitarian purpose, that induced the passage of the Act, the same that gives to the widow and children a right to their year's allowance, before the payment of general creditors. If a per- son be sick, humanity quires that he be given attention, and that he should have such care, medical and otherwise, as an enlightened age demands. By pledging his property to the payment of such claims, tlie same will be more readily secured. Possibly if such were not the law, a person might not receive the attention that illness requires, for it is well known that sure pay procures speedy attention. Besides it may properly be considered that a man's estate should first give him the care that illness requires, even though other debts may be excluded. And there is no reason, therefore, why a continued illness, even if extending over several years, if it is the illness from which the decedent died, ought not to come within the terms of the statute. If there is a definite period of health or a reasonable degree of health between one sickness and another sickness, the former could not properly be included within the temis of " last illness." It would be well for an administrator in pay- ing a bill of this character, where he had any doubts on the subject, to require the creditor to state in his affidavit that the services were rendered during the last illness of the de- ceased.^® 54 See Heese's Estate, 2 Pearson means of her own. Thompson V3. 482; Duckett's Estate, 1 Kulp. 227. Jones. 33 0. C. C. 182. 53 Huse vs. Bro\Vn. 8 Me. 167. The ph^intifF can not recover un- 56 See §1160, last sickness. less it be established that there Tlie doctrine announced in Hinkle was an express contract on one side vs. Sage, 67 0. S., that there is to perform the service for conipen- no obligation on a member of a sation and upon the other side to family to pay another for services accept service and paj' for same, rendered, held not to apply where Merrick vs. Dilzler. 91 0. S. 256. a brotlicr in jwor health, abund- See Crawford vs. ]Merrell, 33 0. C. antly able to pay for his board, C. 104; Edgar vs. Shock, Admr., without invitation going to live as to when evidence suffici ': to es- vvith a married sister having no tablish contract, 37 Cyc. 603. 573 EXPENSES OF ADMINISTRATION § 653 § 653. Expenses of administration. The third in tlie list of claims entitled to a firet preference, is, expenses of administration. Within this term is included every expense incurred hy the administrator or executor in the proper discharge of his duty, in the administration of his trust. It would include Probate Court expenses, including the proba- tion of the will, granting letters, notice of appointment in the newspaper, making an inventory, paying appraisers, filing the sale bill, filing an account and order of distribution. If real estate be sold it would include the ordinary costs attached to such a proceeding. As a general rule it may be said, that the administrator is primarily responsible for the payment of these Court costs ; and that they are to be paid first, but the statute seems to place them on an equality .vith funeral ex- penses, and expenses of last illness. If there is any litigation had, concerning matters in which the estate was interested, the costs incurred in that respect, if the administrator acted within the proper scope of his authority, would also come within " the expenses of administration." The employment of help, the gathering of crops, and s'ecuring of proper counsel,^^ and as before said whatever expenses the administrator incurs in a proper discharge of his duties, in the just and rightful admin- istration of an estate, are expenses to be included within this provision. It likewise includes compensation to the adminis- trator. These m.atters will be considered in subsequent sec- tions. 5 654. Compensation allowed executors or administrators. Further allowance. Effect of compensation provided by will. "Executors and administrators may be allowed commissions upon the amount of personal estate collected and accounted for by them, and of the proceeds of real estate sold by order of court to pay debts, or under directions of the will, which must f>7 Chapt. 29, § 506 et seq.. Care The court has power to order an and nianageiiieiit of estate. expense account to be filed prepara- As these expenses are necessary tory to the general account. Simith to get the estate in condition to vs. lihodes, 68 O. iS, 500. See pay claimants, the expenses of ad- § 645. ministration ought to be paid first Costs connected with the admin- — before funeral and last illness. istration of the estate are debts of §§50S-!)-10, as to attorney fees. the estate. Harbeson vs. Mellinger, etc. See §904, Real Estate. 2 O. App, 75 j 35 0. C. C. I'Jo. § 654a PAYMENT OF DEBTS 574 1 be received in full compensation for all their ordinary services- as follows : for the first thousand dollars, at the rate of six pef cent; all above that sum, and not exceeding five thousand dol^ lars, at the rate of four per cent, and all above five thousanc dollars, at the rate of two per cent." [R. S. § 6188.] ^^ § 654a. Further allowance. "Further allowance shall be made as the court considers just and reasonable for actual and necessary expenses, and for extraordinary services, not required of an executor or administrator in the common course of his duty. When provision is made by the will of the deceased, for compensation to an executor, that shall be a full satisfaction for his services, in lieu of such commissions or his share thereof, unless by an instrument filed in the court he renounces all claim to the compensation given by the will." [R. S. § 6188.]°^* § 655. When entitled to. In some States the compensation of an executor or adminis- trator, like guardians in this State, depends upon the allow- ance made by the Probate Court. With us, however, this com- pensation is fixed and the Probate Court has nothing to do with it, except where extraordinary services have been rendered. An administrator or executor is legally entitled to the statutory commissions on the amount of the personal estate collected and accounted for by him, and of the proceeds of the real estate sold under an order of the Court for the payment of debts, although he may have failed to charge himself with all the assets received by him, or has asked for credits for sums not paid by him. Even if there be unfaithful administration of the estate, it will not deprive an executor or administrator of a right to com- pensation for his services, so far as they have been beneficial to the persons interested in the estate.^^ 58 § 10837 G. C. See S 895, Sale of Bank vs. Smith. 4 C. C. (KS.) 237; real estate. §1643, Assignments. 20 O. C. C. 317; affirmed 74 0. S. -s* § 10838 G. C. 505. Where real estate forming part A trust company, under an in- of a residuary estate is sold under valid statute, allowed. /(/. an agreement between the heirs, and "'9 Campbell vs. MeCormick, 1 C. not under direction of the will, an C. 504; 1 C. D. 281. executor is not entitled to commis- We think it was the intention of sion on the proceeds. Union Bank the legislature to withdraw this vs. Smith, 4 C. C. (N.,S.) 237; 26 matter from the discretion of the 0. C. C. 317. Court, and to have it fixed so that Personal estate, upon which the the administrator or executor might executor is entitled to commission, rely on receiving what the statute includes all that he has reduced to § 659, Extra expenses, money and accounted for. Union 575 ADMINISTRATOR S COMPENSATION §655 In some states it is held that where he makes a distribution in kind, he is not entitled to commission on such distribution. But the contrary has been held, where certificates of stock came into the hands of the administrator, and were by him held until final distribution and then turned over to the widow as sole legatee.^*' In anotlier case it was held that where an administrator sold real estate and the judgment creditor accepted the purchaser's note, that the administrator was entitled to his commission although nO' money passed through his hands. ^^ It has also been held that where the testator directed cer- tain legacies to be paid by his executor, and devised certain lands to A., charged with the payment of the legacies and costs of administration, so far as funds might be needed by the executor for the payment of the same, and A. paid and took receipts from the legatees, that the executors were not entitled to a commission on the legacies.^^ provides for, and to have a uniform rate of compensation tliroughout the State, and not have the amount of such commissions to vary with the views or feeling of the Court called upon to act in the matter. So far as we are advised this has been the uniform practice in this State. This is the first time that we have known an administra.tor to be deprived of his statutory commissions, even when it appeared that he had been derelict in his duty to the estate. Campbell vs. McCormick, 1 C. C. 504. It is held in numerous cases that compensation must be refused if the administrator has been guilty of willful default or gross negligence in the management of the estate, whereby the same has suffered loss. This principle is adhered to in some of the States in which the compen- sation is fixed by statute, denying any discretion in the matter to the Courts on the ground that the stat- ute gives compensation for faithful administration only. But it would seem that the language of the stat- ute in most States fixing the com- pensation of executors and admin- istrators precludes all discretion in this respect. The Court can neith- er add to nor detract from, nor in any wise vary, the compensation di- lected to be allowed by the statute; it can never allow nor disallow commissions scaled by the degree of skill or of vigilance, 6f good or of bad faith, displayed in the manage- ment of the estate, unless such dis- cretion is vested in the Court by statute. Woerner on Admin. 1164. CO Estate of Duddy, Goebel, 1-30 ; 7 N. P. 589. This was followed in a recent Cincinnati decision, 47 Bull., 286. 61 Stone vs. Strong, 42 0. S. 5?.. 62 Williams vs. Williams, 8 O. S. 301. § 655 PAYMENT OF DEBTS 576 Where the estate was indebted, and the heirs by an agreement with the creditor conveyed real estate to the crditor in discharge of the debt, it was held the administrator was not entitled to charge his commission/^ The executor or administrator of a surviving partner, who dies with partnership assets in his pos- session, and while he is engaged in settling his partnership busi- ness, is entitled to receive compensation out of the partnership funds for his service, and performance of his duties, in behalf of the settlement of such partnership affairs.^'* Where an administrator sells real estate that is encumbered with a mortgage, he is entitled to commission to be first paid before applying the proceeds to the mortgage or other liens. However, if the mortgagee buys in the property, upon so much of the proceeds as is required to meet the mortgage indebted- ness, no commission can be allowed."^ The rule excludes commissions on advancements,^® all un- collectible debts,^^ and property lost or perished."^ And where the administrator is charged with and delivers over to the wid- ow the household furniture which is by law set apart for her, he should be allowed commissions on its appraised value ; ®' but when such property does not pass through his hands, as where it is collected and retained by the widow, no commission 63 Piatt vs. Longworth, 27 0. S. essarv. § 10606 G. C, § 1061S G. C. 1S3. See §1643. 64 Dayton vs. Bartlett, 38 0. S. ec Metcalfe vs. Colles, 43 X. J. Eq. 357. ' 148; Barhite's Appeal. 126 Pa. St. 65 Stone vs. Strong, 42 0. S. 53. 404. Compensation of an executor can 67 Mayberry's Appeal, 33 Pa. St. not be reached by his creditor by 258; Succession of Foulkes. 12 La. attachment, by creditor's bill or An. 537; Moffat vs. Loughridge, 51 otherwise, before it is allowed by Miss. 211; Vanderford's Appeal, 12 the Probate Court. It would em- Atl. R. (Pa.) 491; Kester vs. Lyon, barrass the settlement of estates 40 \Y. Va. 161. and invade the jurisdiction of the 6S Eversfield vs. Eversfield, 4 Har. Probate Court. Overturf vs. Ger- & .J. 12. lach, 62 0. S. 127. The general weight of authority An executor or administrator who is that the executor is not entitled fails to file an account within 30 to commis'sion on specific legacies or days from the time he is notified by on property delivered over in kind, the Probate Judge can get no com- 18 Cyc. 1147. pensation for his services, unless the 69 ifayberry's Appeal, 33 Pa. St. Court enters on its journal that 258. This does not apply to prop- such delay was reasonable and nee- erty set apart and not deemed as- sets of the estate and not appraised. 577 administrator's compensation § 656 is allowable thereonJ° Nor are commissions allowed on his own debt.''^ § 656. How calculated. The commission is to be calculated on the amount of personal estate ^^^ collected and accounted for ; and the proceeds of the real estate sold either by order of the Court or by directions of a will. On the first $1,000 it is 6 per cent., and on the next $4,000, 4 per cent., and on the remainder, 2 per cent. If proceeds of real estate and personal property come into the hands of the administrator or executor, the calculation is first to be made on the personal property. That is, if the per- sonal property amounted to $1,000 and the real estate to $2,000, the commission would be 6 per cent, on the $1,000 of personalty and 4 per cent, on the $2,000 of realty.''^ In no ease, however, can an executor's or administrator's compensation be allowed in a greater amount than that fixed by the statute on the entire amount collected, etc., and if there is more than one administration, the commission can be charged but once. For instance, if an administrator was appointed, and administered on $1,000 of the property, then died and an administrator de bonis non, administered on the remaining $2,000, the administrator would be entitled to 6 per cent, of the $1,000 on that which he administered, and the administra- tor de bonis non 4 per cent, upon the remainder.^^ § 657. Compensation fixed by will. It will be observed that sees. 10837, 10838 G. C. (§ 654) pro- \dde that if a provision is made in the will for compensation of an executor, that the same shall be deemed a full satisfaction for his services, unless he shall by an instrument filed in the Court, 70 Estate of Sharp, 11 Phila. 92. accounted for by them, includes TiBarhite's Appeal, 126 Pa. St. stocks, bonds and other securities 404; IToffer's Estate, 156 Pa. St. belonging to the estate, and an 473; Woerner on Admin. 1167. executor is entitled to statutory I see no reason for this and doubt commission thereon. In the opin- if it he Ohio law. See § .594, Arhi- ion it is said the words "personal tration; §7.50, Distribution; § 1490, estate" are broad enough to include Gdns. compensation; §1642, As- stocks, bonds and other securities, signee's commission. and when collected and accounted TiaTn P>ank vs. Smith, 26 0. C. for by the executor he is entitled C. 317; 4 O. C. C. (N.S.) 237; to his statutory commission, affirmed 74 O. S. 305, it was held " stone vs. Strong, 42 0. S. 53. that the phrase "personal estate," ''^ In re Waring, Goebel 146; 5 §6188 G. C, §654, which allows Dec. 4151; 7 N. P. 553. full compensation upon the amount §207, Division of commissions, of the personal estate collected and § 657 PAYMENT OF DEBTS 578 renounce all claim to such compensation. Where a will pro- vided " that in consideration of tlie legacies herein given to said sons, that no fees, conm:iission or charges for administer- ing upon my estate shall be paid to them or either of them, except for expenses actually incurred." It was held that they were not entitled to commission/* Likewise a person may make an agreement to serve without compensation, which will be binding.^^ So is an agreement as to the amount of com- pensation.^® Unless a \vill otherwise declares, a legate© serving g as administrator is entitled to both his legacy and pay for his services.''^ If a legacy be given in lieu of compensation, the Court caimot defeat tlie provisions of the will.^^ Where testa- tor by his will provides for continuing his business after death by his executors, one of whom is a copartner, in conjunction with another surviving partner, neither executor nor surviving partner will be allowed compensation for carrying on the same ; no provision having been made therefor in the will.^" If the administrator serve as a trustee of the estate, and perform two distinct acts of service, he is entitled to pay for services in both capacities, or double compensation.^*' But if the functions of a trustee are so blended with those of the ad- ministrator as to be inseparable, the act is deemed that of the administrator, and compensation will be allowed to him only in that capacity.®^ If it is evident from the will that the com- 74 Rote vs. Warner, 17 C. C. 342 j so Baker vs. Johnston, 39 N. J. 9 C. D. 536. Eq. 493 j Laytin vs. Davidson, 95 N. 75 Bate vs. Bate, 11 Bush. 639; In Y. 263 j Johnson vs. Lawrence, 95 re Hopkins, 32 Hun. tilS; Estate N. Y. 154; Sanderson vs. Pearson, of Davis, 65 Cal. 3U9; McCam vs. 45 Md. 4S3; In re McCredier's Es- Plewit, 2 McC. Ch. 90. tate, 77 Hun. Ill; S. C. 28 N. Y. 76 Bowker vs. Pierce, 130 Mass. Supp. 305. 262. But see Eoss vs. Conwell, 7 VVhere the executor died before Ind. App. 375; People, etc., Co. vs. filing an account and an adminis- Werner, 6 Ind. App. 614; y. (J. 34 trator de bonis non, etc., was ap- K. E. iiep. 1U5. pointed, but one commission could 77 /n, re Mason, 98 X. Y. 527; As- be charged equitably apportioned pinwall vs. Pirnie, 4 Edw. Ch. 410; between them. Bates vs. Creel, 2 Estate of Guier, l.Ashm. 317. 0. App. 64. 78 Matter of Gerard. 1 Dem. 244; si Johnson vs. Lawrence, supra; Matter of Kernochan, 104 N. Y. Phoenix vs. Livingston, 101 N. Y. 618; Haine's Accounting, 8 N. J. 451; Little vs. Little (Mass), 36 Eq. 506; Secor vs. Sentis, 5 Redf. N. E. Rep. 795; Everson vs. Pitney, 570. 40 N. J. Eq. 539 j S. C. 42 N. J. Eq. 79 Zn re Taft's Estate, 8 N. Y. 461. Supp. 282; y. C. 55 Hun. 603. 579 COMPENSATION OF CO-ADMINISTEATORS § G58 pensation given is to cover all his allowance, double compensa- tion will not be allowed.*^ If a will declares that the legacy given to the executor shall be in lieu of all compensation, or that he shall serve without any, and he decline to accept the office, the administrator witli the will annexed appointed in his place will be entitled to compensation.*^ § 658. Compensation of joint administrators.* Joint administrators are entitled to no more compensation than if there were only one of them administering.** If one be given a legacy as his compensation the other is entitled to only one-half of what they jointly would be entitled to receive.*^ The Court should apportion the pay for services among the administrators according to the services rendered by each one.** But the presumption is that eacli is entitled to an equal share ; and if any of them claims a different division he must show cause for it.*^ ISTo one can object to the division except the administrators.** If the Court make a gross allowance it cannot thereafter compel a division.*® They may agree to a division of the amount to be allowed and it will be binding.®" An agreeonent whereby one administrator renounces his right to letters in favor of his co-executor, in consideration of being paid one-half of the Courts' allowance, is valid. ®^ Where all the statutory fees allowed executors have been re- 82 Shippen vs. Burd, 42 Pa. St. Where there are two, the court 461; Lansing vs. Lansing, 45 Barb. should apportion the commission. 182; Ward vs. Ford, 4 Redf. 34; Meyers vs. Hopiut where he is a legatee, and that a special bequest to him invites the attack, it will not be allowed. Wei'- vs. Weir, 7 C. C. (N.S.) 506; 28 0. C. C. 190. Vven if by agreement with the parties, it is sijstained. Union Bank vs. Smith, 4 C. C. (N.S.) 237: 2fi O. C. C. 317; affirmed 74 0. S. 505. and the previous 9*7n re Johnson, 4 N. P. 156; 7 Dec. 1. Two very interesting cases have been reported from the Common Pleas Courts in Ohio, in relation to both extraordinary services allowed to executors and administrators, and to their attornevs. The case of In re McAlpin, 38' Bull. 231; 8 Dec. 655, has been referred to, syllabus is quoted ii chapter. § 508. Ihe other case is that of Chatfield & ^^■oods vs. Swing & Mellen, 7 A. L. R. 326. In this case the execu- tors were also attmneys, the estate amounted to $171,000 and they pre- sented a bill for extraordinary serv- ices of $24,000. The Court in pass- ing upon the matter goes into the question very thoioughly as to what are extraordinary services, and what should be included within the com- mon course of ndministrntion. for which the enmmiss-i'Mi allowed by fitntnte, should nav ihe ey^eutors in full. While concf'diTTr f?rit an ex- ecutor might be allowed counsel fees for his own se''vice=, the bill was reduced to $4,000. Tn this case it was held that the eriving of a large bond did not warrant an allowance as extraordinary services, nor the § 659 PAYMENT OF DEBTS 582 ices rendered in behalf of the estate by others, even if they were such services that he himself should have rendered in the ordinaiy administration of an estate.'*'' An executor who necessarily incurs expense in searching the title of land belonging to his testator's estate for the purpose of paying off and obtaining an assignment of a mortgage thereon should be allowed the sum so paid in the settlement of his accounts.^* Executors who have invested trust funds in a bond and mort- gage which are perfectly good, are not entitled, on final account- ing, to the expenses incurred by them on a sale and transfer of such bond and mortgage before maturity to a third person.''® Where a will provides that the expenses of administration shall be charged upon, and paid out of, the estate of the testa- tor, both real and personal, the administratrix, to whom one- half of the estate has been devised for life, and who is the as- signee of the other half, is not personally liable for such ex- penses.'"° Where an executor failed to render an account until forced to do so by process of Court, and various items of the account filed by him were contested and disallowed, he cannot reimburse himself from the estate from expenses caused by such contest.^°^ The expenses of hunting up the heirs cannot be charged to the estate. ^^^ Nor the expense of looking out for one's own in- terest."^ 97 Though an executor will be al- Y. Supp. 975 ; S. C. 3 Misc. Rep. lowed his bill for reasonable and 155. necessary livery expenses, he will 102 in re Glynn's Estate, 58 X. not be allowed for the use of his W. Rep. 684. o\\Ti horse and wagon in collecting 103 Id. the assets of decedent's estate. In Entitled to railroad fare and re Ingersoll, 6 Dem. Sur. 184. hotel bills while traveling in dis- 98 /ot re Bettels, 4 N. Y. Supp. charge of duties; also telephone 393. bills. But not a per diem and ex- 99 7w re Lamb's Estate, 21 X. Y. penses in traveling in the com- Supp. 343; S. C. 66 Hun. 631. munitv where the estate is located. lOOBovnton vs. Laddv, 10 N. Y. In re "Pollock, 60 Bull. 273; 17 N. Supp. 622; S. C. 57 Hiin. 580, 594. P. 495. The cost of raising a fund, in- The mere fact that the allowance eluding counsel fees, auctioneer's to an administrator for extraordi- charges. commissions, etc., fall upon nary services rendered his estate the fund, and are chargeable as seems somewhat large will not war- "costs of administration." Teaf's rant the Circuit Court to error in Estate. 7 Pa. Co. Ct. Rep. 463. reversing the Probate Court, the 101 In re Goetsehius' Estate, 23 N. Common Pleas Court on appeal hav- 583 AGENT OFFICE RENT, ETC. § 660 § 660. Employment of agent, office rent, etc. As a general nile administrators and executors are not au- thorized to employ agents to do such things as they ought to do themselves. That is, to keep their accounts, to collect bills, etc. Nor would they be entitled to charge for office rent. But cases are easily conceivable where the magnitude of the estate, or the complication of its affairs, would amply justify the payment of office rent.^°* One of the most common instances of employ- ment in the management of estates, is that of an attorney. Such employment has been considered in a previous chapter. ^'*'' It will be the purpose of this section to give some instances of what have been considered proper expenses. Of course in all these instances, the administrator or executor is primarily liable, unless expressly stipulated to the contrary, when the services were rendered. An executor is not entitled to credits for clerk hire, where the evidence does not show payment to a clerk, but a retention of funds by the executor for services performed by himself as clerk. ^^® Usually an administrator is not entitled to credit for sums paid for clerical services rendered in his capacity as executor.^"^ The employment or payment of agents by an executor to collect the rents of, and manage certain real estate belonging to his decedent's estate is not wasteful or extravagant, where such real estate consists of a drug store with apartments above. ^"^ It is proper to allow an administrator for rent of an office hired ing fixed the same amount. Prentiss 107 Jn re Beache's Estate, 22 N. Y. vs. Woods, 20 O. C. C. (N.S.) 380. Sunp. 1079; S. C. 1 Misc. Rep. 27. Before an administrator can Where a resident executor removes be allowed extra compensation he from the State before settlement of must show his right. Piatt vs. St. the estate, he will not be allowed for Clair's heirs, W. 526. payment to any agent in completing 104 Redf. Sur. Prac. 451. the unfinished business, performance 105 § 508. of which by himself was rendered Whatever services were rendered impossible by his absence, or for as indicated to be proper in § 506 traveling expenses incurred in re- would be a service for whicli the es- turning to the State. In re Tnger- tato would be liable. soil, 6 Dem. Sur. 184. lOfi Jn re Butler's Estate, 1 Con. los Wells vs. Disbrow, 20 N. Y. Sur. 58; S. C. 9 N. Y. Supp. 641. Supp. 518; S. C. 65 Hun. 625. § 660 PAYMEA^T OF DEBTS 584 by him exclusively for the business of the estate, when the use of such office is reasonably necessary for the transaction of such business, and also for payments made by him for reasonable and necessary services rendered in prosecuting claims belonging to the estate, and for money paid in compromise of doubtful claims against the estate/"^ The administrator is entitled to the costs of preserving the crops belonging to the estate/^" and expenses incident thereto,^^^ and for feeding and caring for stock,^^^ and gathering crops/^^ A direction in a will to raise crops does not authorize the purchase of property and anim.als not necessary to such rais- ing/^* The expenses of a broker to sell real estate may be al- lowed if necessary ; ^^^ or an auctioneer/^*' The costs of re- freshments furnished those at the sale will not be allowed.^^' Traveling expenses not included in commissions,"^ will be allowed if necessary to the transaction of the business of the estate."'' The costs of an audit caused by unfounded charges of an executor are properly charged to him/"" i09Newal vs. West, 149 Mass. 258; Ballentine's Estate, Myr. 86 520; S. C. 21 N. E. Rep. 954; us Pinckard vs. Pinckard, 24 Ala. Qlover vs. Holley, 2 Biadf. 291; 250; Garrett vs. Garrett, 2 Strobh. Hawley vs. Singer, 3 Dem. 589; Eq. 272; Shepard vs. Shepard, 19 Clarke vs. Cotton, 2 Dev. Eq. 51. Fla. 300. 110 Nimmo vs. Com., 4 Hen. & M. See § 1644, assignee's commission 57; Lee vs. Lee, 6 Gill & J. 316; Ingham vs. Lindeman, 37 O. S. 218, Byrd vs. Wells, 40 Miss. 711; Wat- where an assignee was not allowed ties vs. Hyde, 9 Conn. 10. an auctioneer. Succession of Wsderstradt, 19 La. ht Griswold vs. Chandler, 5 N. H. Ann. 494. 492. 111 Bomford vs. Grimes, i7 Ark. us Stephenson vs. Stephenson, 3 567; Bantz, 52 Md. 680; Edelen vs. Hayw. 123. Edelen, 11 Md. 415; Myrick's Es- us Clarke vs. Blount, 2 Dev. Eq. tate. 38 La. Ann. 611. 51; Pinckard vs. Pinckard, 24 Ala. 112 Branham vs. Com., 7 J. J. Mar. 250; Wendell vs. French, 19 N. H. 190. 203: Doy vs. Codman, 39 N. J. Eq. 113 /n re Turpin's Estate, 7 N. P. 259; In re Rose's Estate, 80 Cal. 569; 5 Dec. 410. 166; S. C. 22 Pac. Rep. 86. 114 Johnson vs. Henagan, 11 S. C. 120 Appeal of Barheite, 126 Pa. 93. St. 404; S. C. 24 W. N. C. 64; 17 iisDey vs. Codman, 39 N. J. Eq. Atl. Rep. 617. 585 ALLOWANCE MADE WIDOW. ETC. § 661 § 661. Allowance made to the widow and children. A claim entitled to be paid after the funeral expenses, those of last sickness, and expenses of administration, is the allow- ance made to the widow and children for their support for twelve months. The nature, character and law relating to such allowance has been discussed in a previous chapter.^^^ Sufficient here to say, that such an allowance is not a preference over a mortgage or judgment liens.^^" Such property as is spe- cifically set apart to the widow passes at once intO' her posses- sion, and it is the duty of the administrator or executor, as soon as he has in his hands assets sufficient to pay the funeral ex- penses, expenses of last illness and costs of administration, to apply enough of the remaining assets to satisfy this debt. For the allowance made to a widow and her children for her year's support, is a debt, and real estate may be sold to secure its payment.^^^ § 662. Debts due the United States. The third in order of preference, are debts due the United States. The following are the two sections of the Revised Statutes of the United States which provide generally as to such preferences. " Whenever any person indebted to the United States is insol- vent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied ; and the priority hereby estab- lished shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary as- signment thereof, or in which the estate and effects of an ab- sconding, concealed, or absent debtor are attached by process of law, as to eases in which an act of bankruptcy is commit- ted." "" 1-1 s 310 ct scq. ^oe also Whitley vs. Weber, 2 C. C. 122 Jones vs. Allen, 6 N. P. 513. 33G; 1 C. D. 517; See §332. 123 Allen vs. Allen, 18 0. S. 235; 124 § 34GG, U. S. Eevised Statutes. §663 PAYMENT OF DEBTS 586 This priority, however, does not operate as a lien upon the property of the debtor, nor in derogation of a lien existing be- fore his death, nor of the widow's allowance under the State law, and necessarily depends upon notice being given to the executor or administrator either by action against him or other- wise in default of which payment to other creditors cannot make him liable as for devastavit. And the priority extends only to the net proceeds of the property of the deceased after payment of the necessary expenses of administration, includ- ing taxes and funeral charges, but not expenses of last illness.^^* § 663. Taxes, etc. Public rates and taxes, and sums due the State for duty on sales at auction, is the fifth in order of preference. It is a general rule, that taxes whether on real estate or personal prop- erty, which are assessed or payable at the death of the de- cedent, are to be paid by the administrator or executor out of the personal property. Taxes assessed on real estate after the demh of the owner, are to be paid by those receiving the in- heritance. There may be taxes which the administrator or executor is required to pay which are not included within this preference.^-^* Thus it has been held,^-^ that the term taxes does not include assessments made by a municipal corporation under authority, derived from the legislature; and although such an assessment, which was confirmed at the time of the decease of the testator, is a personal debt, and should be paid out of the personal estate, it is not entitled to any priority before other "Every executor, administrator, !See § 10662 G. C, § 300b. or assignee, or other person, who Wliere a life tenant died in pays any debt due by the person or October the taxes payable in Decem- estate from whom or for which he ber are a claim on the life tenant's acts, before he satisfies and pays estate, and if the executor does not the debts due to the United States pay them the remainder man may from such person or estate, shall be- and recover them from the execu- come answerable in his own person tor. Robinson vs. Bouler, 18 C. C. and estate for the debts so due to (X.S.) 372. the United States, or for so much 127 Seabury vs. Bowen, 3 Bradf. thereof as mav remain due and un- 207; Redf. Sur. Prac. 549. paid." §3467, U. S. Revised Stat- See §§511. 1202, 1392. utes. If the testator died on the day 126 Woerner on Admin. 772. preceding the second Monday in 126a The administrator or execu- April, the heir or trustee, and not tor must see that the inheritance the executor, should pav the taxes, tax is paid. §349. State vs. Bond- In Est. of O'Brien, 2 X. P. (X.S.) ing Co., 16 N. P. (X.S.) 297; 23 421: 14 Dee. 319. It would have Dec. 609. been different it he would have died a few davs later. 587 TAXES § 663 debts. It would, therefore, seem that the taxes which are intended by the law to be preferred, are those which are collected for State and county purposes generally. The question sometime arises as to the time when these taxes become tixed, so as to charge the administrator or executor with their payment. By statutory provision, personal property is required to be listed on the second Monday of April,^-^ and a lien for State taxes attaches on the same day.^-^ As is well known, the rate of taxes is not fixed until a later date. The State auditor gives notice of the rate required for State purposes on the first Monday of June,^^° and the county commissioners at the June session fix the amount to be raised, ^^^ and township trustees on or about the loth day of May, deter- mine the amount that they deem necessary for township pur- poses.^"^* As to real estate, the amount is not charged on the auditors duplicate until the first of October. If a person dies after the second Monday of Ajjril, and before October first, should the personal representative or the heir pay the taxes on the real estate? Just at what time this period becomes fixed so as to charge an executor or administrator, has not been passed upon by our courts. In one case, however, it was held, that the assess- ment of taxes was so far complete by the second Monday of July that the name of the person assessed for the year could not be changed; and hence if the owner died on that date the taxes were properly chargeable against his representative. "- In New York, property is to be listed between the first Monday of September and the first Monday of January. There it was held that the party who owned the property between that date, and died after the first Monday in January, although the rate had not been finally fixed, his estate would be charge- able. ^^'^ 128 § 3375 G. C. Columbiana county that taxes 129 § .5671 G. C. ajjainst a decedent's real estate 130 § .5626 G. C. accrue and are payable from October 131 § 5627 G. C. and § 5630 G. C. 1st. not second Monday of April, 131* §§ 5646, 5647 G. C. hence are chargeable against the 132 Loomis vs. Van Phul; cited in heir and not the administrator. In Morrison vs. Bruce, 1 Dec. 190. this case a number of authorities are Recent decision of Hamilton Com- cited, but there seems to be no better men Pleas, In re Est. of Mary reason for fixing October 1st than O'Brien, it is held that where the the second Monday in April. The owner died testate the day on which heir does not generallv get full pos- the taxes became a lien, but which session on the death of the ancestor, wore not ascertained or levied at If when the ancestor died the land the time, having appointed an ex- Avas seeded, the entire crop would ecutor and also a trustee of a por- go to the administrator, even though fion of the real estate, the trustee it did not mature for nine months, thereupon became the owner of the However, the date of October 1st real estate, and he, and not the being in the fall when nearly all evonitor is liable for the taxes. the crops are matured, it might he Loomis vs. Van Phul. 14 Dec. 31P: better for that reason than April, ronorted in 2 N. P. (N.S.) 423; 15 But the decisions are not uniform T^f'f- 37. rior in accord. Where a life tenant Jn re Lones, 57 Bull. 172, it died in Oetober, 1009, it was held is held by the Probate Court of the administrator must pay the § 664 PAYMENT OP DERTS 588 In view of these decisions it may properly be considered, that if the person be living on the second Monday of April that his estate will be chargeable with all taxes to be assessed for that year. As to the lien of assessments, our Supreme Court has recently made an interesting decision.^^* Installments of assessments for municipal improvements which are certified to the county auditor and are due and pay- able within the year next after the last day of September in any year, should be placed upon the duplicate of the county for such year and collected as other taxes; the installments not so due and payable, should not be placed upon the annual duplicate until they become so due and payable.^^*^ Installments which are properly entered upon the annual county duplicate should be collected the same as other taxes, and in case of a judicial sale of real estate, or a sale by ad- ministrators, executors, guardians or trustees, made after tha last day of September in any year, such installments as stand unsatisfied upon such duplicate should be paid out of the pro- ceeds of such sale. It has generally been held, that a claim for taxes is such a one as should be paid by the personal represen- tative even without presentation to him, or allowance by tha Court, but that it may also be proved up as a claim against the estate in the Piobate Court like other demands/^^ § 664. Wages. The fifth in order of preferment is the wages which are due to a person who has performed manual labor in the service of taxes due December 20, 1909. Rob- omitted; and that such taxes are a inson vs. Bouler, 18 0. C. C. (N.S.) debt of the deceased, and shall have 272. the same priority as other taxes in 133 Matter of Balcock, 115 N. Y. distribution or payment of inferior 450; Jes. Sur. Prac. 944. debts or claims that shall relieve 134 Makeley vs. Whitmore, 61 0. the administrator or executor from S. 587. liability to pay such taxes. See See §§ 895, 904,. also §"511, as to taxation. See 134a Where decedent during his § 904. lifetime eiTected insurance in a. A guardian or executor, etc., is mutual fire insurance company his entitled to a lien on the land for his estate is liable for assessments up expense or money paid in listing to the time of his death and jointly property for taxation, or paying with the heirs thereafter during the taxes thereon. § 5687 G. C. life of the insurance, hi re Lones, Executors who hold property for a 57 Bull. 123. term of years and required to pay 135 See Gager vs. Prout, 48 0. S. taxes, are owners, and should be no- 89, where the matter is discussed as tiiied when assessment is made, to the correction of false returns. Roberts vs. Bernard, 8 C. C. (N.S.) §§ 106G0, 10665 G. C, presented in 422; 29 0. C. C. 725. § 300, provides for placing property Funds in the hands of an admin- on the duplicate, which has been istrator, even though under order to 589 TAXES § 665 the estate and during the life time of the decedent, where the same has been performed within twelve months preceding the death of the decedent, the amount allowed shall not exceed $150. It will be observed that there are several essentials to entitle a person to this preference. First, it must be man- ual labor; second, it must have been rendered to the deceased during his life time, and third, it must have been performed within twelve months previous to the time of the decedent's death ; and if these three essentials are established, the claim can be allowed as a preference to the amount of $150. If such a claim exceeds $150, the remainder would come in the same class as debts due to general creditors. There may be some difficulty sometimes in determining just what is included within the tei-m "manual labor." It usually signifies labor with the hands as distinguished from intellectual labor. Un- der an act giving the preference to employees, it has been held that a tram car driver is not a person engaged in manual labor. Likewise, that an omnibus conductor was not a person engaged in manual labor."® § 665. Debts due general creditors. If the administrator or executor has sufficient assets of the es- tate to pay those creditors preferred by sec. 10714-5, G. C, as dis- pay on certain mortgages, is tax- ers," and I can not see that a driver able. Gregg vs. Harimon, 4 N. P. is a man "engaged in manual (N.S.) 214; 16 Dec. 549. labor," to whom the act is intended 136 14 Am. & Eng. Ency. of Law to apply. 255. Grantham, J., said: "It is very "It is said that manual labor in- difficult to draw a clear and definite eludes any work done with the line as to how much and what hands. But writing, for instance, classes of work are included in the is clearly not manual labor within words 'manual labor'; but I think the meaning of the Act, but yet it that these words were inserted in would come under the definition the section with a view to being ap- contended for, if it were a good one. plied to those whose labor is labo- Again, can it be said that a tele- rious without being intellectual. The graph clerk is a manual laborer, or ordinary definition of labor is con- a hair cutter? Clearly not. Is, tinuous work without any necessity then, a driver to be taken to come for very much thought. Unless, within the meaning of the clause therefore, driving can be said to be merely because he works with his labor of such continuous kind re- hands? I can see no distinction be- quiring little thought, it does not tween his case and thope I have come within the meaning of the taken as examples — namely, a tele- Act." graph clerk, a writer, or a hair cut- See In re Kohanzi, where the ad- ter. All have manual work to do, ministrator paid laborers in a going but that does not necessarily make concern, 16 N. P. 337. them come under the term "labor- § 666 PAYMENT OF DEBTS 590 cussed in the previous sections, the remainder is to be applied to other creditors. The statute further provides, that if after paying one of said classes and there is not enough to pay the debts of the next class, the creditors of said next class shall be paid ratably in proportion to their respective debts, but that no payment shall be made to creditors of any one class until thosQ of the preceding class or classes of whose claims the executor or executors shall have had notice shall be fully paid. If the administrator makes payment upon a claim in any one of these classes before the expiration of six months, he does so at his peril. After the expiration of six months, however, he can make payment without being liable to a creditor of a pre- ceding class.^^"^ It is not the intention, however, of the legisla- ture, by giving the preference to creditors to interfere in any respect whatever with liens existing and attaching to the prop- erty of the deceased, be the same, either real or personal. A^ to personal property, the law has placed this matter beyond question by the following section of the General Code."'' §666. Previous section (10715) not to affect lien. "Noth- ing in the next two preceding sections shall affect any lien, legal or equitable, which a creditor or other person had upon the personal estate of the deceased during his lifetime." [R. S. 5 (JUyi.J 1^^ This section preserves the rights of parties as existing at the time of the death of the decedent. It would perhaps have been unconstitutional to have attempted to take away rights of this character, property subject to a lien of any character should be sold, the lien paid and the remainder placed to the credit of the general fund. The rights of lien holders to the proceedings of real estate will be discussed when treating of 136a See §§645 and 667. vs. Brooks, 25 Ark. 318; Fox's Es- See Schell vs. Bernhard, 24 Dec. tate, 92 N. Y. 93. 182; reversed 36 0. C. C. 39. But specific property or funds A person dying, owning and in held by him in a trust capacity possession of property which he had must be turned over to his succes- mortgaged, the interest of the mort- sor in the trust. Governor vs. gagee is transferred to the fvmd. etc. Hooker, 19 Fla. 163: Rowlev vs. Lineler vs. Wesco, 79 0. S. 225; 3 Fair, 104 Tnd. 189: Nat. Bank of N. P. (KS.) 653: 16 Dec. 474. Trov vs. Rtanton, 116 Mass. 435. See McDonald vs. Aten, 1 0. See § 632. S. 293: Grovenor vs. Austin. 6 0. 138 §10716 G. C. 103; Lessee vs. Beed. 5 O. 221. A chattel mortgage unfiled might 137 Debts owed bv the deceased in be a good lien as against the heirs a fiduciary capacitv have no prefer- of the df^ceased. but would not be ence over general creditors. Green good asra'n'st creditors. Kilbourne vs. Fav, 20 O. S. 264. 591 NOTICE, OF DEMANDS § 667 tlie sale of real estate. Suffice it to say that the holder of a claim secured by a lien may also present his claim to the ad- ministrator or executor, duly verified as any other claim, and have it paid out of the funds in the hands of the administra- tor or executor. The lien is merely security for the payment of the debt, and the holder may waive the right to proceed against such security. § 667. When executor or administrator may proceed to pay deibts without being liable for deficiency of assets. "If an executor or administrator, notice of whose appointment has been given as provided in this chapter, does not, within six months thereafter have notice of demands against the estate, which will authorize him to represent it insolvent, after the expiration of such six months, he may proceed to pay the debts due from the estate. He shall not become personally liable to any other creditor in consequence of such payments made before notice of his demand, althousrh the remaining estate be insuffi- cient to satisfy such creditor." [R. S. § 6109; 102 v. 202.]^^^ § 668. Notice of demands, etc.* There are several essentials required before an administrator or executor can proceed to pay debts of the decedent without liability to creditors who have not presented their demands. In the first place, the period of six months must have elapsed since the administrator or executor gave his bond or received his letters of appointment. This depends, however, upon the further fact that he has given his notice of appointment, ^*° for at no time can he escape a liability to general creditors, if he neglects to give sudi notice of appointment. Another es- sential is, that sufficient demands have not been presented to him, to cause him to declare the estate insolvent,^*^ for if the estate be insolvent, then it must be paid out as pro- il vided for the settlement of insolvent estates. The question arises, what is a sufficient notice of a creditor's demand that "will bind the executor and make him responsible, if he pro- 139 § 10741 G. C; applied Harris l^o See § .543 et seq. vs. O'Connel, 8.5 O. S. 136. I4i See § 959 et seq. on Insolvency Administrator may recover from of estates. I heir if he distributes more to lieir See 8 903. \ than heir is entitled to. Rogers vs. * Cited Bray vs. Darby, 82 O. S. Weaver, 5 0. 536. 47. § 669 PAYMENT OF DEBTS 592 ceeds to make payment without recognizing or considering such a demand. In a previous chajjter"^ this matter has been pretty thor- oughly considered, and a quotation from Woemer, there, places the responsibility upon the creditor, to strictly comply with the provisions of the statute ; and that in order to hold an executor or administrator responsible, the claim must be presented to the administrator as required by statute.^*^ The mere fact that an administrator or executor has knowl- edge that there is a demand, will not be sufficient; for aught that he knows it may never be presented for payment. But if a claim is presented to him under such circiunstances that would lead an ordinarily prudent man to believe that the creditor meant to assert his claim against the estate, the ad- ministrator or executor ought not to distribute the estate with- out notifying the creditor of his intention tO' so do. If the ex- ecutor or administrator so acts as to lead a reasonably prudent man to believe that no formal presentation is necessary, or that the claim will be allowed without a.ny presentation, he would be liable if the creditor's claim was not considered, ^^^lile the law places certain duties upon the creditor, it does not throw a cloak around the executor or administrator which Avill shield him from the consequences of his own ^\Tong. § 669. And if whole estate be paid and afterwards other claims presented he shall not be liable therefor. "If an ex- ecutor or administrator in manner aforesaid, pays away the whole of the estate and effects of the deceased before notice of the demand of any other creditor, he shall not, in consequence of such new demand, be required to represent the estate in- solvent, but may plead that fact, and, upon proving such pay- ments, shall be discharged." [R. S. §6110.]^" 142 § 555. fects of a deceased, means all his 1*3 See § 10717 G. C. property; and if a claim be present- ly* § 10742 G. C. ed the real estate may be sold even See previous section. after a partition by the heirs. Far- The whole of the estate and ef- an vs. Robinson, 17 0. S. 242. 593 ASSETS — EXHAUSTED § 670 ? 670. If so paid away as to leave insufficient assets to satisfy subsequent claims. How far liable. "If an executor or administrator in manner aforesaid, pays away so much of the estate and effects of the deceased, that the remainder is insufficient to satisfy a demand of which he afterward has no- tice, on such last mentioned demand, he shall be liable to pay only so much as may then remain in his hands." [R. S. §6111.]i« § 670a. May prove estate insolvent. "If two or more such demands be exhibited, which together exceed the amount of assets in his hands, he may represent the estate insolvent, and must divide and pay over what remains in his hands, to and among such creditors as prove their debts, under the commission of insolvency, pursuant to such order as the court makes in that behalf. The creditors of the deceased, who previously were paid shall not be liable to refund any part of what was received by them." [R. S. § 6111.] '^•'>* An important provision of the above section is, that it pro- vides that a creditor shall not be obliged to refund any part of the money where it has been properly paid to him. It was held in an early case, that where an administrator supposing an estate to be solvent pays a creditor beyond his distributive share, that he might recover back the excess,"*' whether this is the law now or not, may be questionable."^ § 671. If assets are exhausted in paying preferred claims. Executor or administrator not liable for payment of subse- quent claim. "Upon settlement of the administration account in court, if it appears that the estate and effects which came to the hands of the executor or administrator have been exhausted in paying charges of administration, the allowance to the widow and children of the deceased, the charges of his last sickness and funeral, or other debts or claims, entitled by law to a preference over the general creditors such settlement shall be a bar to an action brought against the executor or administrator, by a creditor not entitled to such preference. The executor or administrator may plead and give it in evidence, although the estate has not been represented insolvent. [R. S. § 6112.]"^ i4'' § 1074.3 G. C. 148 § 10745 G. C. ''■*"'* § 10744 G. C. It is sometimes the practice 148 Rodgcrs vs. Weaver, 5 0. 53G. where claims are presented which 147 See § 9.5fl, Insolvent estate. I § 672 PAYMENT OF DEBTS 594 § 672. Interest on claims. As a general laile, aii administrator or executor is not charge- able with interest upon the money of the estate in his posses- sion and control. But where it is tlie duty of an executor or administrator to pay money in his hands to creditors, legatees or distributees of the estate, and he needlessly delays such pay- ment and neglects to make it when such payment is due, or where he has unreasonably and causelessly delayed the final settlement of the estate, and has used the funds of the estates for his own purposes, he will be chargeable with interest ; and in an aggravated case it is the duty of the Court to charge him with compound interest, computing the interest annually.^*^ The principle deducible from the decided cases upon this sub- ject is that one exercising such trust is liable for interest when he has improperly kept the beneficiaries out of the use of their money ; and mere delay in closing up an estate is held to some- times be prima facie evidence of this.^^** As to the liability of the estate of the decedent for interest upon claims, it may be said that, with the exception of contracts and obligations which expressly bear interest, unless the statute prescribes a different rule, the claims of creditors are to be treated with re- spect to the matter of interest just as they stood at the time of the decedent's death.^^^ l^o interest can be allowed upon a claim, even though demanded, unless the paper or contract which is the basis of the claim shows that interest results as a matter of course from the facts stated.^^^ are not entitled to preference, and Brackenridge vs. Holland, 2 Blackf. the estate is insolvent, in order to 377; Roberts vs. Malin, 5 Ind. 18; save expenses, a calculation is made Case vs. Case, 51 Ind. 277; Shaw vs. by the executor or administrator as Bates, 53 Vt. 360. to what can be paid pro rata, and iso Manning vs. Manning, 1 Johns, then the creditors receipt for such Ch. 528; Dufour vs. Dufour, 28 Ind. amount and release the administra- 421; Norris App., 71 Pa. St. 106; tor from all further liability. This Vance vs. Vance, 32 La. Ann. 186. mode can only be pursued where all isi Schouler Exrs. & Adms., § creditors agree. 440; Davis vs. Wright, 2 Hill Law See § 515, Investments. 560; Sue. Durnford, 1 La. Ann. 92; i*9Cooch vs. Irwin, 7 0. S. 23; Holmes vs. Lusk, 78 Ky. 548. Henry Prob. Prac. 340; citing i52 Aguirre vs. Packard, 14 Cal. Johnson vs. Hedrick. 33 Ind. 129; 171. 695 INTEREST, ETC. § 673 Interest should be allowed on accounts and other claims pre- sented according to custom, and in the same manner that the same could have been collected if the decedent was alive. General legacies bear interest at the legal rate, from the end of the first year, from the date of the notice of the appointment of the executor, unless it be clearly apparent that the testator did not so intend.^^^ If an administrator or executor pays pressing demands out of his own funds, he is. entitled to credit himself with interest on the sum so advanced. ^^* § 673. Payment to heirs, etc., before final settlement An executor or administrator who voluntarily pays, with knowledge of all the facts, etc., a part of the assets of the estate to the widow, heirs, or legatees, before the final settlement of the estate, leaving insufficient means in his hands to pay the debts of the estate and the expenses of ad- ministration, and compensate himself for his services, cannot recover from the parties to whom such payments were made, sufficient money for the needs of the administration. The loss is his, for by such voluntary pavment he is guilty of waste and is not entitled to relief. To make such payment a voluntary payment so asi to preclude a reooveiy from the distributee, to whom the payment was made, it must have been made with full knowledge of all the facts, or with full opportunity of ob- taining such knowledge, otherwise such distributee is liable to refund, if necessary, foi' the payment of the debts and ex- penses of the estate.^^^ As a rule an overpayment to a creditor, made by the admin- istrator or executor, may be recovered. It being inferred that 153 Gray vs. Case School, 62 O. S. is* See § 715. 1. 155 Smith vs. Smith, 76 Ind. 236 The above is the syllabus of the Stokes vs. Goodykoontz, 126 Ind case, and the Court says, one year 535; Wolf vs. Beaird, 123 111. 585 from the date of the notice of ap- Rogers vs. Weaver, 5 Ohio 536 pointment. It seems to us that it Walker vs. Hill, 17 Mass. 380 would have been more accurate to Wheadon vs. Olds, 20 Wend. 174 have said, one year from the date of Alexander vs. Fisher, 18 Ala. 374. giving bond. See § 632^ also James vs. West, 47 Bull., 857. §673 PAYMENT OF DEBTS 596 he only intended to make such payment as the estate could afford, and not to subject himself to personal liability on ac- count of a deficiency of assets. This is, however, contrary to the common law rule/^° But it is probably essential to a recovery, that such payment has been made under the impression that the estate was sol- vent.'" The better practice under our statute is to take a refunding bond where a distributive share is paid before final settlement of the estate.'^® 156 Walker vs. Hill 17 Mass. 380; Hatcher vs. Royster, 14 Lea 222; Beatty vs. Dufief, 11 La. Ann. 74. 157 Rogers vs. Weaver, 5 Ohio 536 ; Walker vs. Hill, 17 Mass. 380. 158 Edmunds vs.. Scott, 78 Va. 720. See § 696. A beneficiary in an estate has no power under the statute to receipt for her distributive share in advance of the distribution or of a finding of the amount coming to her, and a re- ceipt so given by her remains sub- ject to explanation, and an admin- istrator has no power to negotiate for or accept such a receipt where the assets of the estate have passed out of his hands and he is therefore unable to settle with the beneficiary. In re Kuehnken's Estate, 8 N. P. 6S7. 597 PAYMENT OF LEGACIES §674 CHAPTER XL. PAYMENT OF LEGACIES. § 674 Introductory. § G75 Specific legacy. § 616 General legacy. § 677 Demonstrative legacies. § 678 Gifts of stock, etc., General or Special. § 679 Vested and contingent legacies. § 680 Absolute and conditional leg- acies. § 681 Cumulative, repeated and sub- stituted legacies. § 682 Stated amount and residuary legacies. 5 683 Lapsed legacies, § 684 Void legacies. S 685 Adeemed legacies. § 686 Satisfied legacies. § 687 Legacies in lieu of dower. § 688 Legacies to creditors. §689 §690 §691 §692 §693 §694 §695 §696 §697 §698 §699 §700 §701 Legacy to a debtor. Legacies charged on land. Legacy for life. Legacies in the nature of in- comes and annuities. Abatement of legacies. General rules as to payment. When legacies should be paid. If any legatee require legacy to be paid within eighteen months, Court may require him to give bond. Application for order requir- ing payment. Form of application. Hearing, etc. Form of bond. Form of entry, approving bond and ordering payment. i § 674. Introductory. The subject of legacies, properly speaking, is a branch of the subject of wills, and to general treatises on wills, the reader must be referred for extended discussion. Of course it can only affect the administration of an estate where there is a will of the decedent, for a legacy is a gift or disposition in one's favor by a last will and testament, and is commonly applied to a gift of personal property, the word " bequest " being, how- ever, a more proper word, strictly confined to personalty. Many difficult questions arise as to the payment of these gifts ; when and how such payment should be made. Where an ex- ecutor or administrator with the will annexed, has any doubts ^ See §1180 ct seq., As to con- struction gifts caitsi mortis. of wills; §1240, As to § 675 PAYMENT OF LEGACIES 598 about the propriety of making payment of a legacy, he should let the Court decide the question. This he can do in a num- ber of ways* He can bring an. action to construe the will,^ or he can refuse payment of a legacy, and in that manner com- pel the legatee to bring an action in the Probate Court asking the Court to direct payment,^ This may be done before a final account is filed, as provided in sec. 10762, G. C.,* or after final account has been filed, payment may be enforced, under sec. 10848-9, G. C.^ It has been a question with the writer, whether this chapter should follow the chapter on accounting, etc., or should be treated of when speaking of wills. However, as some legacies may be required to be paid before an account is filed, it would seem not inappropriate to treat of the subject immediately after the consideration of the matter of payment of debts. There are quite a number of different kinds of legacies. Thus we have general, specific, demonstrative, pecuniary, absolute, conditional, vested, contingent, residuary, cumulative, addi- tional, repeated, satisfied, lapsed and adeemed. These various kinds of legacies will be considered in the subsequent sections of this chapter, although from the nature of this work, they can' not be treated with that thoroughness which they deserve.* § 675. Specific legacy. Probably the first kind of a legacy that an executor will neexi to deal with, is that of a specific legacy, which is defined to be a gift of a particular, specified and determined piece of prop- erty as distinguished from a general gift.^ It differs from a general legacy in that it is not intended by testator to be paiJ out of his estate generally, but is to be paid solely by deliver- ing to the beneficiary the specific thing given by -will,® 2 § 10857, 10S58 G. C, § 33. Keller vs. Shaffer, 29 O. S. 264. § sA suit to collect a legacy must 761. be brought in the Probate Court. 6 See § 720, Accounting. § 1206, Smith vs Harker, 41 0. S. 236; 9 Real estate devised. Am L. Rec. 488. 7 Page on Wills, 912. 4 § 696. 8 Byrne vs. Hume, 86 Mich. 546 ; 5 An unpaid legacy is not the sub- Page on Wills, 912, citing: ject matter of a chattel mortgage. Thus, a gift of testator's property 599 SPECIFIC LEGACY §675 Our statute provides-^ tli at where property is specifically be-» queathed, it may be delivered to the legatee, by the legatee giving to the executor a redelivery bond, otherwise it remains in the possession of the executor to' be disposed, of in. the final settlement of the estate, as required by the will. A specific legacy under certain conditions may have an advantage over other legacies, or may be at a disadvantage. If the estate is insolvent such legacy does not abate until the entire amount of the general residuary legacies have been consumed in paying the testator's debts, unless a contrary intention is manifested by the will." However, if the property specifically bequeathed for any cause does not exist, the specific legatee cannot hold other propei-ty of the testator for the payment of such a legacy. It invested in his mercantile business is a specific gift. Kelley vs. Rich- ardson, 100 Ala. 584. So a gift of the horses, farming implements, etc., upon a given plantation, is a spe- cific bequest. McFadden vs. Hef- fley, 28 S. C. 317; 13 Am. State Rep. 675. So a devise of land owned by testator at the date of the will is a specific devise. Kelley vs. Rich- ardson, 100 Ala. 584. Money may be the subject of a specific legacy. A gift of money deposited at a cer- tain named bank is a specific legacy. Barber vs. Davidson, 73 111. App. 441; Prendergast vs. Walsh (N. J.), 42 Atl. 1049; Towle vs. Swasey, 106 Mass. 100; Crawford vs. McCarthy, 159 N. Y. 514. A gift of a certain sum out of a certain described de- posit has been held to be a specific legacy. Crawford vs. McCarthy, 159 N. Y. 514. So a gift to the bene- ficiary of a debt specifically de- scribed by indicating the debtor is a specific bequest. Sinnott vs. Ken- aday, 14 App. D. C. 1 ; Gelbach vs. Shively, Q7 Md. 498; Tomlinson vs. Bury, 145 Mass. 34G; Gilbreath vs. Winter, 10 Ohio 64; Derby vs. Derby, 4 R. I. 414; Gardner vs. Printup, 2 Barb. 83. So a gift of a debt, secured by a mortgage, the executor being directed to assign thf mortgage to the legatee, is a spe- cific bequest. Wheeler vs. Wood, 104 Mich. 414. And a gift of a cer- tain amount to be paid by allowing the legatee to select such amount out of a specified number of bonds and mortgages held by testator's exe- cutors was treated as a specific gift. Blundell vs. Pope, (N. J.) 21 Atl. 456. A gift of certain encumbered realty, with a direction that the exe- cutors pay off the encumbrancee thereon, is a specific devise of such realty free from all encumbrance?. Porter vs. Howe, 173 Mass. 521. A specific legacy may be a gift of property to be afterwards acquired, if described with sufficient particu- larity. Kelley vs. Richardson, 100 Ala. 584 ; ShaflFer's Succession, 50 La. Ann. 601. 9 § 10699 G. C, § 474. 10 Pago on Wills, 923. § 676 PAYMENT OF LEGACIES 600 is sometimes very difficult to determine whether or not a cer- tain bequest is specific or general. From the liability of spe- cific bequests to fail for want of proper property to apply to- wards the satisfaction of the same, the Courts have inclined to favor general legacies, and where there is a doubt in that re- spect, to hold the legacy to be general rather than specific. A specific legatee is entitled to all the income or increase resulting thereon from the time of tlie death of the testator. There is no difference in Ohio between a bequest of a thing in specie, and of its proceeds ; both are specific and not demon- strative.^^ § 676. General legacy. A general legacy is not payable until it is shown that there are sufficient assets to pay creditors and preferred claims as indicated in the previous chapter. It is defined to be a be- quest chargeable upon the general estate and not so given as to be distinguishable from other parts of the estate of the same kind.^* It is also defined to be a legacy which may be satis- fied by any part of the testator's estate, corresponding either in value or general description to the provisions of the will.^' The characteristic of the general legacy or devise is that it does not attempt to dispose of specific pieces of property. x\ny pecuniary legacy, which from the terms of the will, is payable generally from testator's estate is a general legacy.^* A be- quest of " all moneys or legacies coming to me from any source," is said not to be a specific legacy.^'^ A bequest of money due the testatrix from the estate of her deceased hus- band, subject to payment of certain other legacies, was held to be a general and not a specific legacy. ^^ A bequest of all testator's property except certain specified articles is a general 11 Sharp vs. McPherson, 6 C. D. i* Kelley vs. Richardson, 100 Ala. 634; 10 C. C. 181, 18G. See § 694 584; Golder vs. Chandler, 87 Me. 63; a3 to payment. Hughes vs. Hughes, 91 Wis. 138. i2Bouver's Law Die. 20; 13 Am. is Dean vs. Rounds, 18 R. I. 436; & Eng. EncY. of Law 10. Derby vs. Derby, 4 R. I. 414. 13 Kelley vs. Richardson. 100 Ala. le Littig vs. Hance, 81 Md. 416. 584; Dean vs. Rounds, 18 R. L 436. 601 GENERAL. AND DEMONSTRATIVE § 677. bequest/^ In case of doubt of testator's intention, the Courts always presume that he intended to give a general legacy in- stead of a specific one." Thus, certain legacies which aggregate in amount the prin- cipal of a fund given by testator in trust for other legatees, and which are payable on the decease of such other legatees, are held to be general legacies, there being no direction that they be paid out of such trust fund/® No preference is indicated between general legacies by such expressions in the will, as " in the first place," '' first of all," etc., followed by other legacies beginning with " next," or " secondly."^" The order in which the legatees are named is immaterial, as well as the fact that one is named in the body of the will and the others in the codicil. ^^ § 677. Demonstrative Legacies. There is another kind of a legacy which has some of the characteristics of both a general and a specific legacy, and is designated as a demonstrative legacy. It is defined to be one which is general in its nature, but which is made payable out of certain specified property, either real or personal.^^ 17 Kelley vs. Richardson, 100 Ala. invested in stocks"; Johnson vs. 684. Conover, 54 N. J. Eq. 333; and a i^Dryden vs. Owing, 49 Md. 356; gift of a certain sum "which may Littig vs. Hance, 81 Md. 416; be invested in bank stock " has been Briggs vs. Hosford, 22 pick. (Mass.) held demonstrative. In re Hodg- 288; Wallace vs. Wallace, 23 N. H. man, 140 N. Y. 421. A demonstra- 149; Gilbreath vs. Winter, 10 Ohio tive legacy has been held to be 64; Dean vs. Rounds, 18 R. I. 436. created by a gift which, in its terms, 19 Teal vs. Hilton, 21 R. I. (Part is apparently specific where it is 2) 227. evidently given as a means of car- 20 Everett vs. Carr, 59 Me. 325, rying out testator's intention of di- 330; Wms. Ex., 1370. viding his estate equally. Ham- 21 Sumner vs. Society, 64 N. H. mer's Estate, 158 Pa. St. 632; Lake 321, per Smith, J. vs. Copeland, 82 Tex. 464. 22 Page on Wills, 915. Demonstrative legacies thus com- A gift of a certain amount " to be bine most of the advantages of both paid out of my personal property on general and specific legacies. If the hand after the death of my said property out of which it is made wife," is a demonstrative legacy. payable is in existence, the demon- Hibler vs. Hibler, 104 Mich. 274. strative legacy is payable out of such So is a gift of "the sum of $8,000 fund before other legacies. Dunford § 678 PAYMENT OF LEGACIES 60! A demonstrative legacy is, of course, a first charge upon tne" fund or property which testator designates as to the source of' payment of such legacy."^ A demonstrative legacy is not de- feated, however, by the partial or total failure of the fund out of which such legacy is payable, but in such case the deficiency is to be made up out of testator's personal estate, not specifi- cally bequeathed.^* § 678. Gifts of stock, etc., general or special. When a testator, by will, disposes of a certain number of bonds and stocks, or bonds and stocks of a certain value, it is often very difficult to determine whether the gift is general or specific; and there is some difference of judicial opinion in particular cases. The general principle which controls in this case is that, if it appears from the entire will th.at testator intended to pass particular, designated bonds or stocks, that the gift is specific; while, if the will can be complied with by giving any bonds or stocks of the kind, value, and amount named, the gift is a general one. Thus, a gift of a certain amount of money in certain named securities, and identifying them, is a general gift, and not a specific one, though testa- tor had exactly that amount at his death. A gift of a certain vs. Jackson, 22 S. E. 853. If the 9 C. D. 536 ; Ives vs. Canby, 48 Fed. property out of which it is payable 718; Golder vs. Chandler, 87 Me. 63; is not in existence, the demonstra- Byrne vs. Hume, 86 Mich. 546 ; Lake live legacy is payable out of testa- vs. Copeland, 82 Tex. 464. tor's property generally. Page on " The gift is unconditional and ab- Wills, 915^ 916. solute, although as is often the case, A demonstrative legacy is a be- he overestimates the sources of sup- quest of a sum of money payable out ply which were to assure its pay- of a particular fund or thing. It ment. The source indicated turning is a pecuniary legacy, " given gen- out to be insufficient, others must be erally, but with a demonstration of taken to supply the deficiency. It a particular funds as the source of is a demonstrative legacy, not lost its payment." It is, therefore, because of the non-existence of the equivalent to, or in the nature of, a property specially pointed out as a devise or bequest of so much, or means of satisfying it." ]\Ioore vs. such a part of the fund or thing Alden, 80 Me. 301 ; citing Smith V3. specified. Glass vs. Dunn, 17 0. S. Fellows, 131 Mass. 20; McLean vs. 413. Robertson, 126 Mass. 537: Potter ■ 23 See Chapt. 36. Page on Wills. vs. Brown, 11 R. I. 232; Wells vs. ''24 Rote vs. Warner, 17 C. C. 342; Borwick, L. R. 17 Ch. D. 798. 603 GIFTS OF STOCK, ETC. § 678 value of securities, to be selected by executors from his estate generally, is a general and not a specific gift. A gift of a certain sum, " either in stock or money," is, of course, a gen- eral gift. But where testator gives stocks, bonds, or other se- curities in such way as to show that he gives specific bonds or specific shares of stock or particular securities, the gift is regarded as a specific and not a general one. Thus, where testator gives a specified number of shares of a certain kind to one beneficiaiy, and another specified number to another, the two together being exactly equal to the amount of stock owned by testator when he made his will, the gift is treated as a specific one, especially, as in a subsequent clause, he gives " balance of my stock," that is, the rest of his stock of other kinds, to other beneficiaries. A gift of the dividends of a specified block of stock, being considered in law as a gift of the stock itself, is a specific bequest. Where testator's inten- tion to make a specific gift is clear, a slight misdescription of the security to be given does not prevent tlie gift from being a specific one.^^ A bequest of $10,000, payable as follows: " Twenty shares of the First Nat. Bk. at $2,000, $1,000 in L. S. & M. S. Ry., at par, $7,000 in money or good note," is a demonstrative legacy, and if the testator did not own the named stock or bonds, is pay- able out of the residuum as a general legacy.^^ 25 Page on Wills, 914, and author- should be construed as if it had been ities cited. made immediately prior to testator's In a case which is a departure death, unless his intention clearly from the normal, a gift to legatees appears otherwise. The legacies of certain number of shares of a were, therefore, treated as general particular kind of stock "now owned pecuniary legacies. Where testator by me and standing in my name" directs Ihat a certain sum of money on the corporation stock books, derived from his estate generally be amounted in all to 2,200 shares; at invested in a certain manner, this the date of the will testator owned is held to be a general, and not a ever 3.000 shares; at the time of his specific legacy, the fund thus in- death lie owned only 200 shares. vested being raised from testator's I The Court held that this was a gen- general estate. Page on Wills, 915. j eral and not specific legacy. This 26 Rote vs. Warner, 9 C. D. 536; result was to some extent aided by 17 C. C. 342, 343-4. a statute providing that a will § 679 PAYMENT OF LEGACIES 60^ § 679. Vested and contingent legacies. A legacy is contingent when, the enjoyment of it depen( upon the happening of some event as the arrival of the legatee* at a certain age — and vested, when given generally, in which case, is payable out of the personalty ; it vests immediately upon the testator's death. The distinction between vested and contingent legacies is important mainly With, reference to the question of lapse. It also becomes important as bearing upon the question whether, and from what time, the legatee is en- titled to interest on the legacy, and to what person the legacy goes when limited over. The leading inquiry upon which the question of vesting or not vesting turns, is, whether the gift is immediate, and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the beneficiary arriving of age, or surviving some other person, or the like. If futurity is annexed to the substance of the gift, the vesting is suspended; but if it appear to relate to the time of payment only, the legacy vests instantly. The mere circumstance that the gift is future, that is, the actual possession is postponed, does not make time of the substance of the gift, or affix a condition to the immediate vesting of the interest. That question is detennined by the intention of testator, as gathered from the w^hole will, and not by partic- ular expressions."^ The law favors the vesting of estates, and unless a contrary intention is unequivocally expressed, it will not be imputed to the testator.^^ If a legacy is directed to be paid when the legatee attains full age, the gift is absolute, and vests on the death of the testator ; but if it is payable when he comes of age, or if, or provided, he lives till he is twenty-one, it does not vest till the contingency happens, and if it never happens, the legacy lapses."^ 27 Hamilton vs. Rogers, 38 0. S. notwithstanding it is given over, in 255. case of his death under age, or 28 Linton vs. Laycock, 33 0. S. " without heirs " ; and though liable 128. to be divested on a contingency, the 29 Page on Wills, §667, §670; substituted legatees will only take Redf. Sur. Prac. 611. the principal; and the interest ac- A direct gift to a minor is vested, cruing meanwhile belongs to the 605 VESTED ABSOLUTEl ETC. §680 § 680. Absolute and conditional legacies. An absolute legacy is where a thing is bequeathed without any qualification, while a conditional legacy is one depending upon the happening or not happening of some uncertain event, by which it is either to take place or be defeated.^" The condition may be either precedent or subsequent. If precedent, the estate vests, upon its performance; if subse- quent, it vests upon the testator's death, subject to be divested by non-performance. Precedent contingencies are such as must happen or be performed before the estate can vest or be enlarged ; subsequent are such that, by their, failure or non- performance, an estate already vested may be defeated.^^ There are no technical words to distinguish them, and whether they be the one or the other is a matter of construction, and depends upon the intention of the party creating the estate.^^ Thus a legacy in trust conditioned upon the immediate and continued engagement of the beneficiary in the business con- minor, and may be appropriated for his support. Pinney vs. P'rancher, 3 Bradf. 198. See Matter of Good- rich, 2 Redf. 45. Willets vs. Ti- tus, 14 Hun 554; Linton vs. Lay- cock, 33 O. S. 128 ; Foster vs. Wick, 17 0. 250. The rule favoring immediate vest- ing must yield to the intention. Hence, a devise requiring the estate to be divided after the death of a son, between the children of sons A and B, and if A's children died childless, that share to go to B's children, subject to a requirement that the executors should pay A $3,000; held, no interest vests in the children of A or B until C's death, because the will was a mere direc- tion to pay to them, and the share of A's child dying would go to B's children after C's deatli, subject to the payment of $3,000 to A, and A having died before C, the $.3,000 never vssted in him and he could not transmit it to his widow, but B's children took it. Baldwin vs. Humphrey, 4 C. C. 57 ; 2 C. D. 417. A legacy to B, payable at the death of the testator's widow vesta at once, and hence does not lapse by B's death before the widow, but is payable to his administrators. McGuffey vs. Brooke, 2 C. S. C. R. 231. 30 See Caw vs. Robertson, 5 N. Y. 125; rev'g 3 Barb. 410; Cooper vs. Remsen, 3 Johns Ch. 382; Id. 521 5 Id. 459; Crochercn vs. Jaques, 3 Ewd. Ch. 207. Of the duty of ex- ecutors, in the payment of a be- quest conditioned on their being sat- isfied that the beneficiary had re- formed from dissipation. See Dus- tan vs. Dustan, 1 Paige. 509; Smith vs. Rockefeller, 3 Hun. 295. 31 Bl. Comm. ii. 154. 32 4 Kent Comm. 124; Towle vs. Remsen. 70 N. Y. 303. §^ 680 PAYMENT OF LEGACIES 606 ducted by the testator in b,is life time, fails upon the discon- tinuance of such services, although caused by illness and per- manent physical disability.'' ' If a legatee upon condition accepts the legacy, and enters into possession, he must perform the condition, however bur- densome. He is not bound to make his election whether or not to take the bequest, until the condition and value of the gift can be reasonably ascertained. A mere design or intention to accept will not conclude him, or prevent a retraction, if he was ignorant of the real state of the legacy, and the extent of the charge upon it. If he refuses to accept the legacy, the executor will be " considered as a trustee holding the fund for the benefit of those interested in the legatory charges.'* A recital in a will that the legacy given is in consideration of the legatee's attention to testatrix and her husband, ^^ or an expression* of gi'atitude toward a legatee for his services to be rendered as executor,'® was held to be an expression of motive 33 Welsh vs. Welsh, 20 Week. Dig. 369. 34Redf. Sur. Prac. 612. ' A limitation over of personal property dependent on a future un- certfJn event (as an absolute money legacy to L, but if she dies without leaving children then over) takes ef- fect (if at all) as an executory de- vise and not as a remainder, and no interest vests in them until the con- tingency. Lapham vs. Martin, 33 O. S. 99. Under an absolute legacy to L, but if she dies leaving no children, then over, the executor has no power to invest the fund .and give L the income only, but mvist give her pos- session of the principal, though she has moved out of the State, is child- less and has no property. If the limitation over is valid, the execu- tory devisees and not the executor are the proper parties to protect their own interests without requir- ing security. Lapham vs. Martin, 33 O. S. 99. A devisee, or grantee, unlike an heir, may disclaim the gift, and hi3 creditors can not charge it. Any unequivocal act of disclaimer — as by answer in a suit — will estop him. Wallace vs. McMicken, 4 Gaz. 16.5; 2 D. 564. Accepting a legacy or personalty is not an election to accept a sep- arate devise or realty charged with paj^ment to other legatees. Collett vs. Cook, 3 C. C. 119; 2 C. D. 68. Accepting a devise or bequest charged with the payment of debts renders the devisee personally bound for them by implication of law, at least to the extent of the devise. Fuller vs. McEwen, 17 O. S. 288. 35 McCarty vs. Fish, 87 Mich. 48. 36 Chassaing vs. Durrand, 85 Md. 420. (After the gift was added: " I thank him, in advance, for serv- ices in closing up my estate as testa- mentary executor.") 607 CUMULATIVE, REPEATED, ETC. § 681 of testator in making the gift, and not a condition upon which he made it Accordingly, the failure of the beneficiary to act as expected by testator does not avoid the gift. So a gift of a homestead to testator's wife, " for a home for her and my children," shows testator's motive in making the gift, and does not impose a condition that testator's wife shall continue to rer side thereon.^^ A gift to one upon condition that after receiving the gift he pay certain sums of money to persons designated, is generally considered not strictly a condition, the breach of which may forfeit the estate but rather as imposing a personal liability upon such devisee, or as creating a trust. ^^ § 681. Cumulative, repeated and substituted legacies. A legacy bequeathed twice to the same person, may be either cumulative, if the testator intended the legatee to have two legacies given him in the same will, or it may be only a repe- tition of the bequest in the first, in which case the legatee will take but one legacy. The latter is also known as a substituted or repeated legacy, while cumulative legacy seems to be synon- ymous with an additional legacy.^^ Woerner gives Williams' classification as to the determination of questions arising in the matter of cumulative or repeated legacies, as follows: First, where there is no evidence of the testator^s intention apparent on the face of the will ; second, where there is such evidence; and in respect of those cases where no internal evi- dence of intention is discernible, he suggests the following proposition to aid Courts of construction : I. If the same spe- cific thing is bequeathed twice to the same legatee in the same will, or in a will and again in a codicil, but one legacy is given ; for when once given, the testator has exhausted his power of disposition over the thing given. II. Where two legacies of quantity are given in the same instrument of equal amount, 37 Davis vs. Hardin, 80 Ky. 672; 29. (This is recognized by the Talbot vs. Schneider, 151 Mo. 299. Courts, especially wheie there is no 33 Young vs. Grove, 4 C. P. GG8 ; gift over.) Woodward vs. Walling, ,31 Ta. ,5.33; 39 Schoul. Exrs. 468; Woerner on Cunningham vs. Parker, 146 N. Y. Admin. 968; Page on Wills, § 798. § 682 PAYMENT OF LEGACIES 608 to the same legatee, there also the same bequest is considered a repetition, and the legatee takes but one legacy. III. Where two legacies of quantity of unequal amount are bequeathed to the same legatee in one and the same instrument, the one is not merged in the other, but the latter is regarded as cumu- lative, and the legatee takes both. IV. And where two legacies are given simpliciter to the same legatee by different instru- ments, the presumption is, also that the latter is cumulative, whether they be equal or unequal in amount. ■'° Of course, the first thing always to be considered is the in- tention of the testator, and the above rules apply only when there is no possibility of ascertaining the testator's intention from his words construed with reference to any circumstances which the Court may lawfully consider. Legacies substituted for or added to former legacies are, according to a general rule, subject to the same conditions as those for which they are sub- stituted or to which they are added, although it is not so ex- pressed in the testamentary instruments. But this rule, like the other rules of construction, above mentioned, is never ap- plied to thwart, but only to cany into effect, the testator's intention ; the rule must always yield to tlie discernible inten- tion of the testator.*^ If the two legacies are payable at different times and places, the presumption is that they are cumulative, even though they are given in. the same insti'ument.^" Where the two gifts are given in the same instmment to the same beneficiary, and are of the same amount and value, the prima facie rule is that, in the absence of anything showing a contrary intention, the lega- cies are presumed to be substitutional.*^ § 682. Stated amount and residuary legacies. It may perhaps be stated as a general rule, that the amount of legacies are fixed by the testator, and will not be changed 40Woerner on Admin. 970. C. C. 247; Thompson vs. Teulon. 22 4iWoerner on Admin. 971. L. J. Ch. 243; 1 W. R. 97. See § 1182, Construction of wills. 43 Brennan vs. Moran, 6 Ir. Ch. 42lTicrelfield vs. Coghlan, 2 Coll. R. 126; Garth vs. Meyrick, 1 Bro. C. 609 STATED AMOUNT RESIDUARY § 682 unless there is deficiency in the estate. Very often, however, in the same instrument the testator disposes of the residue of his property, and this residue so disposed of by will, constitutes a residuary legacy. It carries with it, not only everything in terms disposed of, but everything that in the end turns out not to be well disposed.** Hence lapsed and void legacies fall into the residue, for the same reason that general residuary bequests contingent in terms, carries the income which accmnu- lates between the testator's death and the period of vesting. If the testator's estate is insufficient to pay off all his legacies and devises in full, after paying his debts, the legacies given in the residuary clause abate first, No payment can be made to the residuary legatee until all other legacies have been paid in full.*^ Such legacies are usually to be classed as general legacies, although there- might be instances in which they would be specific, especially might this be true where there is sufficient money ou hand to pay debts and general bequests; and the property remaining would be specific.**^ This would not, however, often occur. Where the testator gives particular specific portions of a tract of land to different devisees, and the balance to another, the latter devise is spe- cific.*' Where a specific disposition follows or is preceded by a general residuary gift, the specific disposition is regarded as C. 30; Manning vs. Thesiger, 3 Myl. die horses," it was held that this & K. 29; 4 L. J. Ch. 285; Uickin- was not a general residuary clause son vs. Overton, 57 N. J. Eq. 26; carrying slaves on two several plan- Page on Wills, p. 948, § 799. tations, but must be construed to ** 1 Jar. on Wills, § 762. include only property of the same <3 Page on Wills, § 772. kind as the articles enumerated. <8Schoul. on Exrs. 462. Minor vs. Dabney, 3 Rand. 191, 198, *7 Pittman's Estate, 182 Pa. St. et seq.; see also Godard vs. Wag- 355. ner, 2 Strobh. Eq. 1, 9. Where cer- Thus, where a testator disposed of tain things are enumerated in a leg- real and personal property specific- acy, and a more general description ally, and then proceeded, " I be- is coupled with it, that description queath to my friend. Dr. J. D., all generally covers only things of a my books, medicines, and shop fur- like kind with those specially niture, and all the estate not before named. Andrews vs. Schoppe, 84 devised, including my gig and sad- Me. 170; Woerner on Admin. 968. § bod ?AYMENT OF LEGACIES 610 an exception or qualification out of the general disposition;*^ but the gift of a life estate specifically to one, and a gift of the residue to the same donee, will give him a fee in, or absolute title to, tlie property so given. A clause may operate as a residuai-y gift without the use of the words " rest," " residue," etc.,*^ and conversely if by *' rest," " balance," etc., the testator means to refer to a portion of land, parts of which are devised to others, these words will not prevent the gift from being specific.^" No particular fonn of words is necessary to constitute a resid- uary legatee ; any expression is sufficient from which the testa- tor's intention is discernible that the person designated shall take the surplus. Nor is it of controlling consequence that the clause is not the last of the disposing provisions, though such is the usual position. ^^ § 683. Lapsed legacies.^^^ A lapsed legacy or devise is one which was originally valid, so that if testator had died immediately upon the execution of his will such devise or legacy would have taken effect, but which fails because the beneficiary in some way becomes incapable of taking under the will before the devise or legacy vests. '^^ A legacy or devise is also said to lapse where the beneficiary, though competent to take under the will, refuses to do so.^^ A lapse at common law most frequently occurs by reason of the death of the beneficiary before that of the testator. In Ohio, as in a number of other States, this has been changed by statute.^* And the legacy does not lapse where it is made tO' any child or other relative of the testator. If such child or other relative 48 Davis vs. Callahan, 78 Me. 313. the legacy does not lapse. Charl- 49 Striewig's Estate, 169 Pa. St. ton vs. Miller, 27 0. S. 298. 61. 53 See §1195, Lapsed bequests; 50 Tittman's Estate, 182 Pa. St. Page on Wills, 8 728. 355. 54 § 10581 G. C. 51 Morton vs. Woodbury, 153 N. Where the will provides that a Y. 243, and cases cited. certain person may do certain acts, 51a See § 1028, Bequests to chari- and such person dies Avithout per- table institutions. forming such duties, a legacy de- 52 Where a person makes a will pendent upon such performance to his wife and then is divorced — lapses. In re King, 17 Dec. 403. 611 LAPSED LEGACIES § 683 shall have been dead at the time of the making of the will, or died thereafter, leaving issue surviving the testator, in either case, such issue shall take the estate devised in the same manner as the devisee would have done. A lapse might occur by reason of the death of the beneficiary after testator's, but before the gift vested. °^ But where a legacy or devise vests upon testator's death, it does not lapse because the beneficiary dies before the devise or legacy vests in possession.^" Likewise a devise in trust, or in the nature of a trust, does not lapse by reason of the death of the trustee before the bene- ficiary. Thus a gift to a designated priest, to be expended in masses for the repose of the soul of testatrix, w^as held not to lapse by reason of the death of the priest before that of testa- trix, since another trustee might be appointed. ^^ If a legacy be given upon a valuable consideration in pay- ment of a debt of testator, it does not lapse. ^^ A residuary clause of " the balance " of certain property, after paying the foregoing legacies, does not pass the amount of void or lapsed legacies, but they are intestate property, and so of legacies void under our mortmain statute. ^^ A testa- tor may by will prevent a lapse and the common law favors such reasonable construction of the will as would prevent a lapse.'^" Where the statute against lapse applies only where the bene- ficiary is a " relation " of testator, a relation by marriage is S5 Where a devise is made of lands lion by tlie liusband does not au- to the husband of the testatrix for thorize the executor to sell the lands life, with a direction to the executor before the death of the husband, to sell after the death of the hus- Wilson vs. Hall, 6 C. C. 571; 3 C. D. band, and distribute as follows: .589. " 1st Should my sisters, S and C, se Page on Wills, § 739. or either of them sviTvive myself and s; Kerrigan vs. Tabb., 39 Atl. 701. my nusband, I give either or each bs Page on Wills, § 739. of them surviving $500," and the See § 687. husband elects not to take under the bd Davis vs. Davis, 62 0. S. 411; will. Held: Upon the death of S. c. below, 6 Dec. 371; 4 N. P. S prior to the death of the husband 276 ; 8 C. D. 52 ; 15 C. C. 174. the legacy to her lapses. Such elec- ^o Page on Wills, § 741. § 684 PAYMENT OF LEGACIES 612 not a relation within the meaning of the statute.®^ Nor is a husband a '' relative " of his wife in this sense.®" Nor is a wife a '' relative " of her husband.®^ Where the statute prevents lapse, and in case a beneficiary leaves a '^ lineal descendant," it is held that the mother of the beneficiary is not a " lineal descendant."^* ISTor, indeed, are any of the heirs not in the descending line from the beneficiary.®* Nor is an adopted child a descendant so as to prevent a lapse.®* Under statutes preventing lapse, the beneficiary who dies before testator can not, by his will, alter the devolution of the gift from that indicated by statute.®^ § 684. Void legacies. A void legacy or devise, is one which never could have taken effect upon testatoi>'s death. It differs from a lapsed legacy, in this, that a lapsed legacy is one which was originally valid, and that if the testator had died immediately on the execution of the will, would have been enforced. Both in their results are the same. 61 Horton vs. Earle, 162 Mass. heir under § 8598 G. C, S 1902, thus 448; (a brother-in-law held not to standing like a grandchild to the 1 1 +• • Ai • Ty 11 testator, does not lapse bv the death, be a relation m this sense. Bramell , . '. * i " i „f ..„ leaving issue, of sucli person beiore vs. Adams, 146 Mo. 70. testator. (Supr. Ct., not rep.) 62 Norwood vs. Mills, 1 N. P. 314. White vs. Agnew, 38 B. 47. 63 Kenton's Estate, 10 Wash. 533. ^^ Phillips vs. McConica, 59 0. See § 5971 R. S., § 1194, providing ^-eSHalsey vs. Convention of P. E. against a devise to a relative fail- Church, 75 Md. 275. A bequest of ing by death of the devisee before a fund in trust to pay the income the testator applies to a devise to to S for life, and at her death to , ., -, , ,x- 11 divide the principal among her sur- children as a class. Woolley vs. . . ,.,', o j- i^ i„„,.-„„ '' vivmg children. b died, leaving Paxson, 46 O. S. 307. children and also the children of a 64 Morse vs. Hayden, 82 Me. 227. deceased child. Held, the latter 65 Loveren vs. Donaldson (N. H.), <^ould not take. The statute (now .e Atl 71 <; ^- S., §5971). to prevent lapsing § 1C531 G. C., § 1194, provides ct., not rep.) Stamp vs. Cooper, against the lapse of a devise to "any 34 B. 318. child or other relative" of the testa- ^ee .< 1195, Lapsed bequest. ,,.,.. » , . A condition m a will making a tor who dies leaving issue. A devise ^^^^^^ dependent upon a separation to one whom the testator's daughter of husband and wife is void. Moores had adopted under § S030 G. C, vs. IMoores. 33 0. C. C. 463. §1898, and also has desicrnated as . See § 1028 As to bequests to char- itable institutions. I 613 VOID LEGACIES § 684 Void legacies may, for purposes of convemence, be divided into two general classes : those which are void by reason of some condition in testator's will which is not complied with, and those which are void by reason of the existence of some positive rule of law which prevents testator from making the disposition of his property which he contemplates.*'^ Legacies which are void by reason of some condition in testa- tor's will, which is not complied with, are so numerous as to prevent a discussion in this treatise.^® Legacies which are void by reason of the existence of some positive rule of law, may be illustrated by gifts of remainders over on breach of a condition in restraint of alienation, or by gifts which are void as being in contravention of the rule against perpetuities. So a gift may be void, because the description of the property given is so ambiguous that it is impossible to tell to which part of testatoi-'s estate it applied. A gift may also be void because the legatee never had the capacity to take the gift.'** The rules which govern the devolution of void legacies are substantially the same as those which control in case of lapsed legacies. In the absence of a residuary clause the property which is the subject of a void gift descends as in case of intes- tacy.'^ Where there is a valid general residuary clause, void legacies pass under such residuaiy clause to the residuary legatees.''^ While at common law void devises descended to the heir, they pass now under a residuary clause which contains apt words to pass such property.'^ A well recognized exception to the rule 88 Page on Wills, § 745. 174; 8 C. D. 52; rev. 4 N. P. 276; 60 See for discussion, chapt. 30, 6 Dec. 371; Dulany vs. Middleton, Page on wills. 72 Md. 67; Carter vs. Presbyterian As to absolute and conditional Church Board of Education, 144 N. legacies, see previous sections, of Y. 621; In re Allen, 151 N. Y. 243. this chapter. 73 Davis vs. Hutchings, 15 C. C. TO Page on Wills, § 745. 174; 8 C. D. 52; reversing 4 N. P. "Levy vs. Levy, 33 N. Y. 97 State vs. Holmes, 115 Mich. 456 McHugh vs. McCole, 07 Wis. 166 to L. R. A. 724. Wis. 409 72 Davis vs. Tlutchings, 15 C. C. 276; 6 Dec. 371; Giddings vs. Gid- ding.s, 65 Conn. 149; Milwaukee Protestant Home vs. Becher, 87 § 685 PAYMENT OF LEGACIES 61' that void legacies and devises pass under a residuary clause, is where the void legacy or devise is itself given by a residuary clause. In such case the property which is the subject of the void gift does not pass to the other residuary legatee, but de- scends as intestate property.''* §685. Adeemed legacies. A legacy is, strictly speaking, adeemed (from adimere, to take away) when the thing given has by some act of the testa- tor, ceased to exist in the form in which it is described in the will, so that on his death there is nothing answering the descrip- tion of the legacy to be given to the legatee. This, of course, can only happen in cases of specific legacies, since general or demonstrative legacies are not dependent npon the existence of specific things, and cannot, therefore, be adeemed, or taken away, by the destniction or alteration of the subject of the gift.- A similar result follows where the testator performs the function of an execut-or, by giving during his lifetime what he intended the legatee to have by his will, thereby satisfying the legacy himself, leaving nothing for the executor to do in respect to such legacy. The distinction between the ademption and satisfaction of legacies seems clear enough, but it is not gener- ally observed, the term " ademption " being applied indiscrim- inately to cases where the legacy is cut off by the destruction or alteration of the subject, and where it is satisfied by the delivery of the subject to the legatee during the testator's lifetime.'® 74 Powers vs. Codwise, 172 Mass. must be shown either from the will 425; Temple vs. Pasquotank Coun- itself or by extrinsic evidence that ty, 111 N. C. 36; Booth vs. Baptist ademption was intended. Ellard v. ' Church, 126 N. Y. 215. Ferris. 91 0. S. 339. fSGilbreath vs. Winter, 10 Ohio. -6 Woerner on Admin. 973; Page 64, 68; Smith's Appeal, 103 Pa. St. on Wills, § 779. 559 ; Walton vs. Walton, 7 Johns. "I give to M all the amount that Ch. 258 362. may be recovered from K due me Whether a' gift made to a legatee for' the sale of the P estate," is a bv a testator subsequentlv to the specific and not pecuniary or demon- date of the will is to be taken as an strative legacy, and is adeemed by ademption if the legacy depends on the testator having received the the intention of the testator, then money. Gilbreath vs. \\ inter, 10 the legacy is to a person other than 0. 64. a child, unless the gift is for the An ademption is a premature same specific purpose for which the compliance with a will, but an act legacy was intended, there is no pre- antedating the will, or an advance, sumption of such intention, but it can not diminish a legacy, for evi- 615 ADEEMED LEGACIES § 685 From the nature of ademption, it follows that it could only apply to specific legacies, and to demonstrative legacies. If it has been determined that the legacy is a specific one, little trouble will arise whether it was adeemed. The question sometimes arises whether a bequest was in- tended by the testator to be paid at all events, the fund being pointed out by the way only of demonstration. The leading principle is that when a testator bequeaths a sum of money, or, what is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, such intention will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular way or out of a particular fund ; although no positive i*ule of ready applica- tion to every case can be laid down. Each case will depend upon a consideration of all the material provisions of the will, and of the extrinsic circumstances respecting the testa- tor's family and estate, which may be fairly brought to bear upon the question of intent. ^^ Where specific property remains in existence in specie, slight and immaterial changes in its form do not adeem legacies.'^ Where B and his wife each made a will, B giving $700 to a grandson, C, and the wife giving $500 to the same, B after- wards conveyed to C real estat©, reciting a consideration of $1,100, the wife releasing dower, and the deed stating that it was in part consideration of C's relinquishment of his prospect- ive interest in the estate of B and his wife. C also gave B a re- ceipt for the deed, stating therein that it was an advancement and in full for all his interest as heir-at-law of B or otherwise dencc of such intent would vary the legacy is adeemed only when a gift will. was extended at the time to be a Nor can an executory contract satisfaction of the legacy. A sub- afTect a legacy either as a contract sequent intention will not have such or an estoppel. Statements in the effect. Stichtenoth vs. Toph, 23 B. will that legacies will be adeemed 126. in a certain way, merely gives his ^^ Redf. Sur. Prac. 621. executors convenient evidence of his '^s See Page on Wills, 781, for intent to make gifts in lifetime. A fiirtiier discussion. § 686 PAYMENT OF LEGACIES 616 and also " as heir at law " of the wife. B died before his wife. Held, C is entitled to the $500 legacy under the wife's will. There is no ademption, nor an advancement, nor an estoppel, nor a release.''^ A specific legacy which has been adeemed is not revived merely by republishing the will, nor does the ademp- tion of a specific legacy revive a legacy for which it was substi- tuted.«° § 686. Satisfied legacies. A legacy is satisfied when the testator during his lifetime delivers something of value to the legatee which he intends to be a substitute for the legacy.*^ Whether or not a legacy has been satisfied, is purely a question of fact, and from the fact that the law favors the theory, that all children should share equally in the property of their parent, the presumption arises that if a parent gives to a child to whom a legacy is provided, it will be presumed that the gift was in satisfaction of tlie legacy. It was the doctrine of the common law, that if a portion be given to a child it satisfies the entire legacy, but the doctrine now is, probably, that a gift of a part of the legacy is only a protanto satisfaction.*^ Whei'e the testator does not occupy a relation of a parent to a beneficiary, a gift made by the testator to the beneficiary is not presumed to be in satisfaction of the legacy.*^ These presumptions^ however, make out only prima facie cases and may be overcome by testimony to the contrary. Specific legacies are said not to be affected by the subsequent 79 (Supr. Ct., not rep.) BrowTi's cash money. Held, the legacy to Exception, 42 B. 258. nephews and nieces was specific and After devising to his sister all therefore v.'as adeemed by the sale his personalty and a life estate in and the remaining proceeds pass to his farm, being his only realty, the the sister under the bequest of per- testator required his executor after sonalty. Sharp vs. McPherson, 6 his sister's death to sell the farm' C. D. 634; 10 C. C. 181. and divide the proceeds among so 13 Am. & Eng. Ency. of Law nephews and nieces. The testator 80. afterwards sold the farm and of the ^^ Page on Wills, § 782. proceeds there remains part of the ^- Page on Wills, § 783. mortgage unpaid, and also some "^ Page on Wills § 784. 617 IN LIEU OF DOWER. § 687 advancement of a portion^ because the gift of specific articles of personal property, by the father to his child is not presumed to be intended as a portion.^* Advancements as the term is prop- erly applied, does not apply to satisfaction of legacies. For in its proper application, it applies to the. distribution of the prop- erty of an intestate. § 687. Legacies in lieu of dower. A very frequent form of legacy, is that given by will to the widow of the testator. By our statute, such a provision, made in favor of the widow, or widower, will be considered as made in lieu of her dower rights, unless it plainly appears by the will of the testator, to have been the intention that the widow or widower should have the provision made in the will to be in addition to the dower rights,®^ Perhaps the most important attribute to this kind of a legacy, is as to its order of abatement, where there is an insufficiency of asse>ts to pay other legacies. In our Statei husband and wife stand in tlie same relation as to^ dower rights. The text -books, however, usually speak of them in the- feminine gender. " The acceptance by tlie widow," says Woerner,*° " of the testamen- tary provision made for her, in lieu of her right of dower in the testatoi-'s estate, gives her an interest therein superior to that of a legatee; having relinquished her dower, which is paramount to the rights of creditors as well as of legatees or devisees, she thereby became a purchaser of the interest rep- resented by the devise uf legaxry to her. She talces, not by the bounty of the testator, but in virtue of a contract with him, the reciprocal considerations- being tJie relinquishment by the widow of her right of dower, thereby enabling the testator to dispose of his estate without reference thereto, and the price offered by him for this right, consisting in the devise of legacy to her."" 84 Woerner on Admin. 978. Ch. 411, 413, citing Eng. & Am. au- 85§§105C6, 105G7, 105GS, 105G9 thorities; Carper vs. Crowl, 149 111. G. C, § 1215. 465, 479; Jarm on Wills *467, and 86 Woorncr on Admin. 272. Bigelow's note, p. 458, collecting 87 Isenhart vs. Brown. 1 Edw. § 687 PAYMENT OF LEGACIES 618 " Thus," says the same author in another place,^* " a pro- vision for a widow in lieu of her dower right entitles her to take as a purchaser for a valuable consideration, not subject to that abatement to which general legacies are subject,^^ even though the value of the legacy be in excess of the value of the dower right,''** and tliough the will was made before marriage, if in contemplation of marriage,^^ and although the gift be an an- nuity payable out of the income." ^^ The provision in lieu of dower is held to be superior to specific, as well as general legacies ; these must abate if neces- sary to satisfy the same.^^ But whether specific devises of real estate abate in favor of such provision is not so unanimous- ly held.'* A somewhat difficult question might arise in case of a legacy given in lieu of dower, as to its abatement, where it was in the nature of a residuary legacy, should the assets be insuflicient. There is no doubt of the settled rule that such legacies are to be favorably considered, and if possible the rights of the widow or widower will be protected, at least to the value of those rights relinquished by the acceptance of the legacy.®^ The judge of the Probate Court, generally finds that one of his most difficult duties, is to correctly inform widows and wid- owers as to their rights under the will, and by law in the estate American cases. As to the prefer- citing English authorities; Howard ence of legacies in lieu of dower over vs. Francis, 30 N. J. Eq. 444, 448. other legacies, see Woerner on ^i Towle vs. Swasey, 106 Mass. Admin. 985, and cases. 100, 106; Farnum vs. Bascom, 122 88 Woerner on Admin. 985, citing Mass. 282, 289. authorities given below. 92 Moore vs. Alden, 80 Me. 301 ; 89 Page on Wills, § 776; Security Rowe vs. Lansing, 53 Hun. 210. Co. vs. Bryant, 52 Conn. 311; Pol- 93 Borden a's. Jenks, 140 Mass. lard vs. Pollard, 1 Allen 490; Lord 562; Clayton vs. Aiken, 38 Ga. 320, vs. Lord, 23 Conn. 327, 330; Will- 332; Loocock vs. Clarkson, 1 De- iamson vs. Williamson, 6 Pai. 298, saus. 471, 475. 305; In re Gotzian, 34 Minn. 159, 9* Affirmatively in the case of 167; See Barnett's Appeal, 104 Pa. Borden vs. Jenks, supra; negatively St. 342, in which the widow's legacy in Boykin vs. Boykin. 21 S. C. 513, was held to abate. 534, and Morse vs. Hayden, 82 Me. 90 W^arren vs. Morris, 4 Del. Ch. 223, 231 ; Woerner on Admin. 985. 289; Brown vs. Brown, 79 Va. 648, 95 See Page on Wills, §776. 619 LEGACIES TO CREDITORS § 688 of the deceased, when such parties are making their election.^** Of course a legacy in lieu of dower could not have preference unless the widow was entitled to dower. Possibly under our statute, the iiile would apply even if there was no dower estate, provided the widow released her distributive share of the personal estate. While personal property is primarily liable for the payment of bequests, the testator may change or exonerate one class of his property for the payment of his debts, and the bequests made to his widow in lieu of her dower have been held to be impliably exonerated from the payment of his debts.^^ § 688. Legacies to creditors. Legacies to creditors are like those spoken of in the pre- vious section, made upon a oonsideration, and are, therefore, en- titled to a preference.®^ The rule that a legacy to a creditor is a satisfaction of the debt, is subject to many exceptions. In general, a legacy implies a bounty, and not a payment.®'' But one who accepts a bequest and is put to his election between the gift in the will and a claim against the estate, his acceptance of the fonner is a satisfaction of the latter ; and it is imma- terial whether what he takes turns out to be of greater or less value than that which he surrendered.^"" The cases justify the following statement of doctrine on this subject: (1) A legacy is never deemed a satisfaction of a debt contracted after the date of the will. (2) It is not considered a payment when the will contains an express direction that the debts and legacies shall be paid, such as " after all my debts and legacies are paid, then I give," etc., or words of like im- port. ^**^ (3) Where the particular motive or purpose for which »6 See chapt. on election under loo Caulfield vs. Sullivan, 85 N. Y. wills, § 1214 et seq. 153. »T Page on Wills, § 763, citing loi An express direction for the Calder vs. Curry, 17 R. I. 610; See payment of all the testator's debts § 946, Dower relinquished. rebuts the presumption that a leg- »8 Page on Wills. §§776, 795; acy to a creditor was intended as a Woerner on Admin. 985. satisfaction of the debt (Fort vs. »9 Reynolds vs. Robinson, 82 N. Y. Gooding, 9 Barb. 371). See Bough- 103. ton vs. Flint, 5 Abb. N. Cas. 215; § 689 PAYMENT OF LEGACIES 620 the legacy is stated in the will, e. g., as a token of regard, or from ancient friendship, or from relationship, and the like, it will not be deemed a satisfaction of the debt. (4) Where the legacy is contingent and uncertain, or payable at a future time, or upon condition, it is not a satisfaction. (5) Where the legacy is less than the debt, or the debt is unliqui- dated, or in negotiable paper, or in a current account, the debt is not satisfied. (6) Where the legacy is of a different nature from the debt, as where the testator is indebted by bond, and he bequeaths an interest in land, it is not a satisfaction. (7) A specific legacy is never a satisfaction, unless expressly so declared by the will, and it is so accepted by the legatee."^ The general rule is that the effect of a legacy to testator's creditor is governed by testator's intent, and that an intention thereby to pay the debt must be either evidenced by the lan- guage of the will or be fairly inferable from the circum- stances.^*'^ § 689, Legacy to a debtor. Where a testator gives a legacy to one who is indebted to him, without any expression of his intention to release such debt, the mere fact of giving such legacy does not of itself oper- ate as a release of the debt."* In such cases the indebtedness may be deducted from the legacy where the legacy exceeds the indebtedness, as a proper means of adjusting the mutual credits. A bequest, however, by the testator to his debtor of the amount of his debt, is a forgiveness of the debt, and might be classed as being a specific legacy."^ The naming of a person as executor s. c. 74 N. Y. 476; rev'g 13 Hun 103 Redf. Sur. Prac. 615; See 13 206. Bull 564. io2Willard on Ex'rs 360; Will- loi Page on Wills, §794, citing iams vs. Crary, 5 Cow. 368; 8 Id. Hayward vs. Leper, 147 III. 41, af- 246; 4 Wend. 443; Clarke vs. Bo- firming 49 111. App. 53; Spath vs. gardus, 12 Wend. 67; Compare Mul- Ziegler, 48 La. Ann. 1168; Sleeper heran vs. Gillespie, Id. 349; and see vs. Kelley, 65 N. H. 206; Bailey's Eaton vs. Benton, 2 Hill 576. Estate, 153 Pa. St. 402 ; Chaffee vs. A legacy to the creditor's wife, Maker, 17 R. I. 739. and its acceptance is not an extin- los Showell vs. Showell, 5 Barb, guishment. (Mulheran vs. Gilles- 312. pie, 12 Wend. 349.) 621 LEGACY TO DEBTOR, ETC. § 690 in a will does not as at common law, discharge any just claim which the testator had against the executor."® Such a be- quest is like any other bequest, liable to be taken as assets to pay the testator's debts, and as before herein stated, the executor may, where the legatee is indebted to the testator, retain either in partial or full satisfaction of the debt by way of set-off."' A legatee is bound by a recital in the will of a debt due by him, except in a clear case of a mistake in figures. A will pro- vided that as testator was not indebted to any of his children, any judgment got on a claim by any of them should be de- ducted from his share. One child held testator's note and transferred it to a person who got judgment on it against the estate. The same child also had a claim against the testator for the price of land he had sold for her and had not paid her, and she got judgment on this against the estate, both judgments having been paid by the executor. Held, both judgments must be deducted from said child's share."^ § 690. Legacies charged on land. Originally at common law, real estate was not liable for the debts of a decedent. From this followed the docrine, that real estate is not subject to the payment of a legacy, unlesis it appears to have been the intention of the testator to make such real estate liable therefor; and the doctrine still remains that, in the absence of anything in the will showing a contrary in- tention, legacies are never to be paid out of real estate."^ To enter into a discussion of this subject, is not within the province of this work. Suffice to say, that when a person makes a bequest, it may be fair to presume that he expects its payment to be made out of his property, and it will not take very strong language to give a construction that real estate may be used for 108 See § 389. costs of administration and legacies 107 Woerner on Admin. 975 j provided for in the will are not Schoul. Exrs., § 470. made a charge on the land, pro- log ( Supr. Ct. not rep. ) ; Sheets ceeds derived from the sale of the vs. Hunter, 37 B. 283. land do not fall in the residium but A debt due to a legatee, as physi- pass to the heirs for want of a fund clan for services, is not extinguished out of which they may be paid. by a legacy of $5,000 "to my good, Ferguson vs. Wentz, 27 Dec. 462. kind, attentive physician. Dr. G.," he A devise to a son of a certain need not elect, but is entitled to tract of land upon consideration both. Swing vs. Gatch, 7 Am. L. that he pay to a daughter a cer- Rec. 5; 3 B. 571. tain sum devised, is a charge on 109 Page on Wills, §747; Geiger the farm and in such case the vs. Worth, 17 0. S. 564. personal property is exonerated When a testator's personalty is from its payment. Lacy vs. Buel- not sufficient to pay Ms debts and sail, 33 0. C. C. 460. § 691 PAYMENT OF LEGACIES 622 the payment of such legacies. Especially is this true, where the realty aud personalty is blended in one fund/^'^ If a devisee of land charged with the payment of legacies accept the devise, he has the personal duty imposed on him to pay without refer- ence to the fact, whether the property devised and accepted, is sufficient for that purpose.^^^ However, to charge legacies on land, so that the devisee is required to pay them, the inten- tion to make it such a charge may be implied, but the intention must be clear/^" A provision that certain property, part of which is realty, is to be used for the payment of debts, clearly charges the debt upon the realty/" And where a testator gives legacies in excess of the amount of his personal property, this will be held to be a manifestation of his intention, that his real estate may be used for the payment of such legacies.^^* Subject to the payment of debts and expenses of administer- ing the estate, the testator may make any portion or part of his property responsible for the payment of his legacies and in such a manner as he may choose/'^ The devisee of land incum- bered by a mortgage is not entitled to have the debt paid out of personalty and realty specifically devised to others, but takes cum onere unless there is personalty or realty not specifically devised from which to pay the debt,^^® § 691. Legacy for liic. It was at one time veiy much questioned whether a life es- tate could be created in personalty, but it is now well settled that as a general rule such estate may be created/^^ Where 110 Moore vs. Beckwith, 14 0. S. on Wills; Woerner on Admin. 1096- 129; Longley vs. Stump, 11 Bull 7. 247; Hunt vs. Hayes, 19 C. C. 151; ne Tucker vs. Lungren, 5 C. D. 10 C. D. 388. 577; 12 C. C. 622. 111 Fuller vs. McEwen, 17 O. S. n" King vs. Beck, 15 Ohio 559; 288. Pruden vs. Pruden, 14 O. S. 251; 112 Clyde vs. Simpson, 4 O. S. 445. Keating vs. Reynolds, 1 Bay (S. 113 Watts vs. Watts, 38 0. S. 480. Car.) 80; Williamson vs. Hall, 10 ii*Townsend vs. Townsend, 25 0. Am. Law Reg. N. S. 466. S. 477; Dean vs. Loewenstein, 6 C. See §597 and cases there cited, C. 587 ; 3 C. D. 597. Page on Wills. 115 See discussion. Chapt. 35. Page 623 LEGACY FOB LIFE § 691 personal property is bequeathed tO' one for life only with re- mainder over, it sometimes becomes an important question whether the first taker is entitled to the possession and control of the coi-pus of the property, and, if so, whether the first taker must give bond for the repayment of the same at the expiration of the life estate. Where the property is bequeathed in this way in trust, it is elsewhere held the first taker has no right to the possession of tlie corpus of the property.^^* Where the property is given for life, and no trust is created, the beneficiary has a right to the possession of the corpus of the property without the intervention of a trustee."^ Where a trustee is appointed by will during the minority of the life ten- ant, the tenant is entitled to the possession of the property on coming of age/-° In Ohio and other States it is held that the life tenant is entitled to the possession of the personal property without giving any bond for the repayment of the same, unless some special showing is made, which will induce the Court in its discretion to require such/"^ Where life tenant has power to dispose of the corpus as he sees fit, his right to the possession of the property without giving bond is generally recognized/^^ Dividends, upon stock owned by testator which have been declared at the time of the testator's death, although payable subsequently or even if the dividends were declared at a subsequent time, for a period which had expired at or before the death of the testator, are payable to the estate and do not go to a life tenant. The subject of divi- dends and to whom they should be paid in case of life tenants •118 La Bar's Estate^ 181 Pa. St. Martin vs. Lapham, 38 0. S. 538; 1 ; Reynold's Estate, 175 Pa. St. 257. Ratliff vs. Warner, 32 0. S. 334. 113 Fox vs. Senter, 83 Me. 295; This doctrine has been applied Kuykendall vs. Devecmon, 78 Md. even where the life-tenant is a non- 537 ; White vs. Massachusetts In- resident and is financially irrespon- stitute of Technology, 171 Mass. 84; sible, it being held that sec-urity can Henderson vs. Kinard, 29 S. Car. 15. be required only upon a showing 120 Kuykendall vs. Devecmon, 78 that the life tenant intends to Md. 537. squander the corpus. Martin vs. 121 Bierce vs. Bierce, 41 O. S. 241 Posegate vs. South, 4G O. S. 391 Lapham vs. Martin, 33 0. S. 99 Lapham, 38 O. S. 536. 122 Posegate vs. South, 46 O. S. 391 ; Langley vs. Farmington, 66 N. H. 431; Woerner on Admin. 999. § 692 PAYMENT OF LEGACIES 624 and remaindeniian, is one of considerable difficulty and the courts do not seem to be in accord. ^"^ § 692. Legacies in the nature of incomes and annuities. A testator within the lailes prescribed by law may make such disposition of his property as he sees fit, and may dispose of his property by piece meal in the way of incomes or annuities/'* An annuity is a right to the payment of a specified sum of money at stated intervals, usually annually or at aliquot parts of a year.^'^ One of the chief points of difference between a gift of income and an annuity is, that a gift of income fails if the principal of the estate is not sufficient on investment to pay the income bequeathed ; ^'^ while an annuity does not fail be- cause the net income is insufficient to p'ay it in^ full, but is payable out of tlie principal. ^*^ Where the testator absolutely gives the beneficiary a given income and merely indicates in his wull the source from which it is to be obtained, tlie general rule is that the income in such cases is to be estimated from the death of testator, enough of the capital, if necessary, being retained to pay the income during the period in whicK tlie fund is non-p-roductive.^"^ This rule holds good even where the first payment is to be made only when " sufficient funds for that purjwse shall come " into the 123 See Woerner on Admin. 1002; i25 Dewey's Estate, 153 N. Y. 63; Page on Wills, § 602; See § 1398, As Kearney vs. Cruikshank, 117 N. Y. to dividends. 95. 124 See § 1287 et seq., as to in- It need not be paid annually, come, etc. Cunimings vs. Cummings. 146 Mass. See chapter next to index for ta- 501 ; Pierce's Estate, 56 Wis. 560. bles, etc. 1 26 Dewey's Estate, 153 N. Y. 63. It cannot be within the province 127 Addition vs. Smith, 83 Me. of this work to give an extended dis- 551; Merritt vs. Merritt, 48 N. J. cussion of this subject, and it more Eq. 1 ; Whitson vs. Whitson, 53 N. properly belongs to the duties of a Y. 479; Curran vs. Green, 18 R. I. testamentary trustee than to those 329. attaching to an administrator or 128 Griggs vs. Veghte, 47 N. J. executor. But by reason of its sim- Eq. 179; Stanfield's Estate, 135 N. ilarity to legacies is inserted here. Y. 292. See Chapt. 26, Page on Wills. 625 INCOMES AND ANNUITIES § 692 hands of the trustee/^® A gift of the income generally means a gift of the net income after deducting taxes and other ex- penses necessary to the preservation of the property from which the income is derived/^" So where the education of minors i3 charged upon testator's estate^, the estate may be distributed upon withholding a sum adequate for such education/^^ Assessments for sewers and street paving must be deducted from the income under a will providing that " all reasonable repairs and improvements " shall be deducted from the in- come/^^ But where " taxes were made payable out of the in- come given to life tenant, it was held that sewer assessments could not be deducted from such income.^^^ Where a life tenant does not expend the entire income of the estate in which he has an interest, a question is presented as to the proper dis- position to make of such accumulation at his death. If he has a life estate, it was held that the income was his absolutely, and that any accumulations are the property of the life tenant, ?nd at his death are to be distributed as part of his estate/^* If, however, the first tenant has not a life estate, but is merely given a proper and suitable maintenance and support out of the estate for his life, the life tenant only has a right to so much of the income of the estate as is reasonably necessary and proper for his support, and the accumulations will pass either under a residuary clause or as property not disposed of by will/^' If the beneficiary dies between the periods for the payment of income, it is now held that the income should, in such case, be apportioned, provided it is an absolute gift of income and not a 128 Crew vs Pratt, 119 Cal. 131; i32 Warren vs. Warren, 148 111. Page on Wills, § 601. 641. 130 Duke of Cleaveland's Estate, i33 Chambers vs. Chambers, 20 R. (1894, 1 Ch. 164) ; Heard vs. Read, I. 370. 169 Mass. 216; Morse vs. Morrell, "tEldred vs. Shaw, 112 Mich. 82 Me. 80 ; Dickinson vs. Henderson, 237 ; Schwartz vs. Gehring, 7 C. C. (Mich.) (1900), 81 N. W. 583; 426; 4 C. D. 662; (in case the will Dewey's Estate, 1.53 N. Y. 63; Boggs gave the life tenant " the use of all vs. Taylor, 29 0. S. 172. my real and personal property dur- i3iNeff vs. Neff, 3 W. L. Gaz. ing her life.") 67 ; Page on Wills, § 602. iss Page on Wills, § 605. § 693 PAYMENT OF LEGACIES 626 gift of support merely/^® Common law and equity were op- posed to apportionment of annuities where the annuitant dies between the days of payment/^^ An exception was always made to this rule in jurisdictions when a widow who elected to take in lieu of dower was held to be a purchaser for value, in favor of annuities bequeathed in lieu of dower/^^ § 693. Abatement of legacies. When there are not sufficient assets to pay all the legacies, according to the rules established by law, or the declared in- tention of the testator, those which are not paid, are said to abate. Of course no legacy can be paid at the expense of valid debts of the testator, for tlie law will compel a man to be just, before it will allow him to be generous. The order of abate- ment of legacies whether by will directly expressed, or by rules of law, are founded upon the intention of the testator. Where the decedent does not direct the order in which legacies should abate, the following is the order of their abatement: First, residuary legacies, second,, general legacies, third, legacies given for a valiiable consideration or the relinquishment of dower oi some right or interest, fourth, specific and demonstrative lega- cies. Thus if a will provided legacies of the above mentioned class, and the assets were insufficient, the first class that would suffer would be the residuary legacies, and after that, general legacies, then those for a valuable consideration, and last spe- cific and demonstrative legacies. These various legacies abate pro rata in the class to which they belong, as a general rule.^'" Of course if the will shows that one legacy of a class should have preference over another of the same class, such preference would be given. 136 Page on Wills, § 606. i^s Cushing's Will, 58 Vt. 393; In the absence of instructions in Page on Wills, § 609 ; Woerner on the will there is a contrariety of Admin. 994, 1002; Schoul. Ex. 479. opinions. Henry vs. Henderson, 63 i"0 See Page on Wills, chapt. '57. L. R. A. 616; (Miss.) 1905, holding A recent Connecticut case holds it not apportionable. it not apportionable. Slower vs. i"7Wiggin vs. Swett, 6 Met. Sanford (1905), 63 L. R. A. Clo, (Mass.) 194; 39 Am. Dec. 710; and extensive note. Kearney vs. Cruikshank, 117 N. Y. Where the will has a number of ^5. provisions the court will look at all 627 GENERAL RULES AS TO § 694 § 694. General rules as to payment. The general rules in regard to the payment of legacies, ^here no time is fixed or indicated by the will, together with the interest thereon, may be stated thus : First. Specific legacies are considered as severed from the bulk of the testator's property; by the operation of the will; from the death of the testator ; and, as specifically appropriated, with the income and increase thereof for the benefit of the legatee from that period, and interest is computed thereon from the death of the testator."** Second. General legacies are not payable until one year from the issuing of letters testamentary, but draw interest from the expiration of one year after the testator^s death, as at common law."^ Third. A legacy given to a widow, in lieu of dower, where the testator died seized of real estate of which she was dowablej draws interest from the death of the testator. Fourth. A legacy given in satisfaction of a debt draws in- terest from the testator's death. Fifth. A legacy given to a child of the testator, or one to whom the testator has placed himself in loco parrentis, will, if such child is an infant, and is not otherwise provided for by the testator's bounty, or in some other way, draw interest from the testator's death, to provide means for the support and main- tenance of such infant child ; the amount of interest for the first year to be fixed by the Court according to circumstances, not, however, to exceed the amount necessary for the proper sup- port, education and maintenance of such infant during the year succeeding the testator's death.^*^ the provisions of the will and the N". P. 40; 9 Dec. 607; 12 Dee. 405. surroiindino; conditions of the testa- See § 327, Right barred by will tor in determining which of the or contract. legacies shall abate. Youtsey vs. While the contest of a will, pend- Bowman, 6 N. P. (N.S.) 381 j 18 ing its determination, is an impedi- Dcc. ,577. ment to the payment of the legacy 140 See §675. thereunder, yet it will not prevent I'll Webster vs. Bible Society, 50 it drawing interest after one year O. S. 1 ; Gray vs. Case School, 02 O. from tlie date of the executor's S. 1. qualification. Ebersole vs. Cole, 19 i-t2Krigbaum vs. Southard, 23 N. P. 507; 27 Dec. 175. Bull. 438; Langhorsfc vs. Alilers, 7 § 695 PAYMENT OF LEGACIES 628 Sixth. An annuity draws interest from tlie death of the testa- tor in the absence of any direction contained in the will to the contrary. Seventh. A general legacy of a specific amount bequeathed to one for life, with remainder over, on the death of the life tenant, will begin to draw interest at the end of twelve months from the death of the testator ; and the first payment of interest will become due thereon at the expiration of the second year. Eighth. A life tenant of the residue of the testator's estate will be entitled to the net earnings of such residue from the tes- tator's death, after providing for the payment of debts and other legacies."^ § 695. When legacies should be paid. If the legacy is paid before the time limited by law for credi- tors to present their claims, it is done at the peril of the execu- tor or administrator. If the administrator or executor is satis- fied beyond question that the assets will be sufficient to pay all the legacies as well as the debts of the decedent, legacies ought to be paid when sufficient assets are realized. Unless the admin- istrator or executor is so satisfied he should not make pay- ment on any legacy until eighteen months have elapsed from the date of his giving bond. If legatees desire their legacies at an earlier date the law provides a method in which to acquire them. In the case of specific legacies as we have heretofore seen,^" the legatee can acquire immediate possession by giving a re-deliv- ery bond; and if other legatees desire their legacies and there are assets in the hands of the executor or administrator, they may require pajnnent by giving an indemnity bond as provided in the subsequent section. The question whether or not an administrator or executor will be required to pay a legacy is vested in the Probate Court.^*^ 143 Rice Prob. Law; Page on Langliorst V3. Ahlers, 12 Dec. 405; Wills, §§ 499, 7S8, 804; Woerner on 65 0. S. 600. Admin. 100.5-1012. ' An executor can not be compelled Where a will devised $25,000 to A to pay a legacy before eighteen and H to be divided share and share months from the date of his ap- alike, when each arrives at 24 pointment Tinless bond is given as years of age, and A arrives -of age required by § 10762 G. C. Wella seven years before H, H is not en- vs. King, 19 N. P. 184. titled to interest from the time A i^* See § 675. was entitled to receive her legacy. i^s The assets constitute a trust 629 WHEN SHOULD BE PAID § 686 "While the statute seems to contemplate that a payment might ibe ordered without giving the bond, yet the administrator or executor except in rare instances ought to be protected by an indemnity bond, and in no case ought he be required to pay a legacy before the eighteen months' limitation for creditors to present their claims has expired. Unless the remaining assets to pay creditors are sufficient beyond all reasonable question. After the expiration of the time limited for presentation of creditors' claims, a failure to pay might make the executor or administrator liable on his bond.^*® § 696. If any legatee require legacy to be paid within eighteen monti.s, court may require him to give bond. "When within eighteen months after having given bond for the dis- charge of his trust, an executor or administrator is required by any legatee or next of kin, to make payment in whole or part, of his legacy or distributive share, if it deems fit, the court may require that the legatee or the next of kin first give bond to the executor or administrator, with surety or sureties approved by the court, conditioned to refund the amount so to be paid, or as much of it as may be necessary to satisfy demands that afterward may be recovered against the estate, and to in- demnify the executor or administrator against loss and damage on account of such payment." [R. S. § 6128; 102 v. 204.] '" fund, first, for creditors, and second- the death of testator, it appears ly, for the legatees and distributees. that it may safely be done. Over the administration of this The condition, age and surround- trust by the executor or administra- ings of a testator may be talcen into tor, the authority of tlie probate consideration by courts in determin- court is ample to see that the fund ing probabilities, and where it thus is faithfully applied for the benefit appears that after paying the leg- of tliose to whom it belongs. To acy ample property of tlie estate is this end, where payment is required left to satisfy all claims that might of a legacy or distributive sliare, be- possibly l)e presented, and where it fore the time has elapsed, allowed appears that the requirement of a for creditors to present their claims, bond to protect the executor would the court is expressly authorized to be a great hardship to the legatee, require the executor or administra- payment to him of the legacy with- tor to be indemnified by a refunding out giving such bond may be or- bond against the consequences of dered. In re Isherwood's Estate, 7 such payment. Dawson vs. Daw- N. P. 332; See Disney vs. Hawes, 12 son, 2.5 0. S. 4.50. Bull. 322. 1^0 See §§10743, 10744, G. C, If payment is made before re- §26.5. quired to a legatee, this does not Where the will leaves the time prevent it being credited to share when a legacy should be paid in the of beneficiary on final settlement, discretion of the executor, yet the Westwater vs. Gintner, 18 N. P. courts can direct the legacy to be 209. paid, notwithstanding such discre- i*^ § 10762 G. C. tion given to the trustee, when after the lapse of a reasonable time since § 697 LEGACIES 63( 4 697. Application for order requiring payment. If the legatee desires a payment to him, or a delivery to himj of specific articles, he should file an application in the Probate! Court setting forth the facts upon which he expects to rest his application. This application should show, outside of prelim- inary matters, that the executor or administrator has assets in his hands which could be applied on the payment of such legacies. It should also allege a willingness on the part of the legatee to give such bond of indemnity as the Court might re- quire, or if not, to allege a good ground for not giving bond, etc. The administrator or executor should enter his appearance to the action, if not tlie Court, should order that a notice be deliv- ered to him.^** § 698. Form of application. {Title.) Now comes A. B. and represents to the Court that on the day of , C. D. was duly appointed and qualified as executor (or ad- ministrator with the will annexed) of E. F.. deceased, by the Probate Court of county, and that he is still acting as such executor. That the said E. F. bequeathed by his will, which is probated in the Pro- bate Court of county to the said A. B. (here state what). That the said C. D., executor, has in his hands sufficient assets to pay said legacy as provided in said will, and all debts of decedent, that he has requested said executor to pay said legacies, but that said executor has neglected and refused so to do. Said A. B. further alleges, that he i« willing to give a bond of indemnity to the said C. D., as executor in such sum, and with such security as the Court may require. Wherefore he prays that order may be made by the Court, requiring said C. D. to pay to said A. B. the legacy to him bequeathed by E. F., deceased. Sworn to and subscribed before me and in my presence, this day of , 190... § 699. Hearing, etc. If the executor has entered his appearance, the Court might proceed to an immediate hearing of the case. If the executor has not entered his appearance, the Court should make an entiy 14S A suit to collect a legacy can See Gray vs. Case School, 62 0. S. only be brought in the Probate 1, 7; Lapham vs. Martin, S3 0. S. Court. Smith vs. Havker, 9 Eec. 99. 488; 41 0. S. 236. 631 BOND, ETC. I 700 setting the case down for a date for hearing and also requiring a notice to be issued to the executor, stating the time of hearing and the nature of the complaint. The following may be used as an order requiring bond, etc,^^^ FORM OF ENTRY. (Title.) This day came A. B., a legatee under the will of E. F., deceased, and filed his application in this Court for an order requiring C. D., executor of the estate of said E. F., to pay a legacy bequeathed to said A. B. by E. F., deceased; and it appearing to the Court that C. D. has assets in his possession belonging to said estate which may be applied on the pay- ment of said legacy, it is ordered that said A. B. give bond to the said C. D. in the sum of dollars, the sureties to be approved by this Court, conditioned according to law, and that this cause be continued imtil such bond be filed herein and approved by the Court. § 700. Form of bond. I ' Know all men by these presents, that we, A. B., C. D. and E. F. are held and firmly bound unto G. H. in the sum of dollars ; for the payment of which we do hereby jointly and severally bind ourselves: Whereas, said G. H., executor of the last will and testament of I. J., has this day paid to said A. B. the sum of dollars on a legacy left to him by the said I. J., in his last will and testament, and four years not having expired from the time said G. H. gave bond for the discharge of his trust as said executor. Now the condition of the above obligation is Such that if the said A. B. shall refund said amount paid to him, or so much thereof as may be necessary to satisfy any demands that may be re- covered against the estate of said I. J., deceased, and shall indemnify the Baid G. H. against all loss and damage on account of said payment, then this obligation to be void; otherwise to be and remain in full force and effect. Signed by us this day of A. D. 190. . .. ' Executed in presence of iso § 701. Form of entry, approving bond, and ordering payment. {Title.) This day came A. B., a legatee under the will of E. F., deceased, and having produced to the Court, the bond as required by a former order herein stated, and the bond having been examined by the Court and the sureties thereon approved, the said executor is airected to pay to the said A. B. the legacy provided for him in the will of E. F., deceased, as prayed for in his application herein.isi ' 1*9 If the executor wished to raise i^o Whit. Prob. Code. an issue as to his liability, etc., he i^i If an action is brought after might file an answer as in § 574, the filing of an account and order to for form of notice and entry see distribute according to law and the 15, 566, which may easily be will of deceased, it is done under changed to answer in the matter §§10848, 10849 G. C, §761. above. I §702 ADMINISTKA-TOR S ACCOUNTING 632 CHAPTER XLI. ADMINISTRATOR'S AND EXECUTOR'S ACCOUNTING. 702 Duty to account. 703 Executor or administrator to render an account, etc. 703a W hen to make oath as to ac- count. 704 Where to be filed. 705 Time extended. 706 Time allowed to collect assets not to operate as allow- ance of further time to file account. 707 Administrator, etc., of de- ceased or msane administra- tor, etc., to file account. 708 Successive administration. 709 Joint executors^ etc. 710 With what executor or admin- istrator shall be charged. 711 Amount of sale bill. 712 Goods and chattels not in- cluded, etc. 713 Rights and credits of the de- cedent. 714 Proceeds of real estate sold. 715 Interest, etc. 716 Profit and income — Pients, etc. 717 How chargeable with property consumed by him. 718 Increase or decrease of estate not to affect executor or ad- ministrator. 719 Executor or administrator not responsible for bad debts. 720 Entitled to what credits. 721 Vouchers lo be produced for all debts paid. 722 Vouchers. What is proper. 723 What items may be allowed without vouchers. 1 See § 634, As to ext'rs and Ad- m'r's compensation; See § 1293, As to Trustees' accovmting; See § 1484, as to Gdn's accounting; See § § 724 Comments. Affidavits, etc. § 725 Preparation of account. § 726 Oath to account. § 727 Form of administrator's or executor's account. § 728 Filing and entry. § 729 Notice of filing accounts to be published. § 730 Form of notice, etc. § 731 Entry and record of publica- tion. § 732 Importance of notice. § 733 Examination of accountants under oath. § 734 Hearing when no exceptions are filed. § 735 Entry where no exceptions are filed. § 730 Exceptions. § 737 Form of exceptions. § 738 Court may refer account to special commissioner. § 739 Trial, etc. § 740 Evidence. § 741 How compelled to render ac- count. § 742 Who may compel, etc. § 743 When and how account may be opened, etc. § 743a Mistakes or errors. § 743b Distribution after settlement. § 744 Absence of party. § 745 To correct errors and mis- takes. § 746 Opening account after eight months, etc. § 747 Error and appeal. § 748 Statement in lieu of account. § 749 Ancillary account.! 1289, Dividends; See §1290, Gain and loss; See § 1291, Alteration and repairs. 633 DUTY TO ACCOUNT § 702 § 702. Duty to account. An administrator or executor having collected the assets of the estate, and paid the debts as provided in the preceding chapters, the duty will be incumbent upon him to give to the Court, a detailed statement of his management of the trust. If all the debts and all the assets have been paid within the neriod of eighteen months, he may file what is termed a " final account." If he has not been able to perform these important functions of his trust, he must file an account of what he has already done; this is known as a " partial account." In its re- quirements, it is not to be dealt with differently from a final account. This obligation to file an account rests upon all who undertake to administer an estate.^* It is usually set forth in the bond which administrators or persons holding a trust posi- tion are required tO' file,^ but it is not dependent upon any stip- ulation. It rests upon all executors and administrators, admin- istrators with the will annexed, temporary administrators, tes- tamentary trustees, guardians by will or deed, representatives of deceased executors of administrators, gTiardians, or testamen- tary trustees. This is so much ingrained in the policy of our law, that the Courts have held a provision in a will invalid, which attempted to free an executor from the obligation to ac- count.^ The object of accounting is to furnish for all persons interest- ed a complete history of the estate, so that they may protect themselves against fraud, negligence or loss.* An account may be described as a statement in writing veri- fied, containing, in concise detail, the history of the dealings with the trust estate or funds.® Settlement out of Court does not dispense with the duty of accounting, and is not a compli- ance with the condition of the bond,®, but a residuary legatee !• RcTimil. Exrs. G31. count. Pherson vs. Mitchell, 12 O. 2 §10606 G. C, §83; §10618 G. App. 336. C, § 124; § 10635 G. C, § 1367. * Hall vs. Grovier, 25 Mich. 428; 3 Matter of Gilbert, 11 N. Y. In re Place, 1 Reclf. 276; Swan vs. ,Supp. 743. _ Wheeler, 4 Day 137; Rhett vs. Ma- A clause in a deed that the trustee son, 18 Gratt. 541 ; Woerner on Ad- shall not he required to render any min. 1134. account of his trusteeship, does not n Jess. Sur. Prae. 1266. supercede the jurisdiction of the « Clark vs. Clay, 11 Fost. (N.H.) Probate Court to require an ac- 393; Bard vs. Wood, 3 Met. (Mass.) 74; Harris vs. Ely, 25 N. Y. 138; § 703 administrator's accounting 63^ who has given the required hond/ or an executor or administra- tor, to whose hands no property has come, need not account.^ § 703. Executor or administrator to render an account, etc, ''Within twelve months after his appointment, every executoi or administrator shall render his account. of his administratini upon oath, and in like manner render such further account! thereof every twelve months thereafter, and at such other timei as the court requires, until the estate is wholly settled. He maj be examined on oath on any matter relating to his accounts and the payments tlierem mentioned, and a 'so touching any property or effects of the deceased, which came to his hands. [R. S. §6175; 102 V. 205.] 9 § 703a. When to make oath as to itemized account. "Every executor, administrator with the will annexed, or testamentary trustee who does not make a final settlement of the decedent's estate within such twelve months, and carries the administra- tion of his trust from year to year thereafter, whenever he renders such account above mentioned, on oath to such court, as a part thereof, shall make a full, itemized statement of all the funds of the decedent's estate under his control, the date and nature of their invpstment. the security therefor, and the rate of interest or income accruing thereon, and shall at such time exhibit to the court, for its examination, the security or securities he may have for said funds." [R. S. §6175; 102 v. 205.] ''* The above section provides that an administrator shall file an iccount within twelve months after his appointment, and the Courts have held that he could not be required to file an account at an earlier date.^^ Thereafter an administrator or executor if further time be granted, must tile his account within twelve months and also at such other times as the Court may require. This would seem Stewart vs. Stewart, 31 Ala. 207; filed averring merely that all the Smile vs. Siler, 3.5 Ala. 88. debts have been paid,"^ without in de- 7 Clark vs. Tufts, 5 Pick. (Mass.) tail showing the amount of assets 337; McElroy vs. Hathaway, 44 received and the debts paid there Mich. 399; Copp vs. Hersey, '31 N. may be some question, depending H. 317. largely who the interested parties s Walker vs. Hall, 1 Pick. (Mass.) may be. If the administrator was 20. See In re Soutter (N. Y. ), 12 the sole heir or the executor the sole N. E. Rep. 34, 7 Am. «Sd Eng. Ency. legatee, it might be done. If the of iLaw, 422. items can not be given in detail by But it seems he must in some reason of loss, negligence or death manner inform the Court and others of administrator, then the statement interested that he has had no funds. should be made as complete as the In practice this is Tisually done by known facts will justify, filing a statement in lieu of an ac- ^ S 10820 G. C. count. See subsequent section. See 9* § 10S21 G. C. §§ 1491, 1484, 1296, 1293, 440. 10 State of Ohio VS. Moore, £ W- Whether a statement could be L. Gaz. 405. 635 WHERE TO BE FILED § 704 to give authority to tlie Court if good cause be shown, to require an accouut to. be filed at any time even though an ex- tension had been gi-ajited of twelve months. This is probably the correct view, for whatever time an administrator or execu- tor has beyond the twelve months provided by statute he re- ceives from the Court, and not from a positive provision of law. § 704. Where to be filed. The account must be filed in the Probate Court which made the appointment. The subject of accounting belongs general- ly to a Court of Equity, but it was undoubtedly the intention of our constitution and the statutes made in relation to estates, that the jurisdiction over the settlement of estates should exclu- sively vest in the Probate Court/^ and until his accounts are finally settled."^ If for any reason the Probate Court, from the nature of its organization and the general powers given it, could not protect substantial rights of persons interested in such estates, a Court of Equity might assume jurisdiction.^- But if it did assume jurisdiction, it would only be in the nature of affording auxiliary relief. This is very well expressed by Corwin, J., when he says,^^ " We certainly do not admit the right of a creditor, by any proceeding, at his own option, to transfer the settlement of an estate from the Probate Court to a Court of Equity. But cases have arisen, and may arise again, when, from the pe- culiar relations of the administrator to the estate, or his connec- tion with a title sought to be converted into assets, in the opinion of a majority of this Court, the aid of a Court of Equity may 'be invoked by a creditor, not for a general settlement of the estate of which he is a creditor, but for the purpose of reaching and placing in the hands of the administrator assets which might otherwise not be reached. But, this object accomplished, the Court of Equity will have performed its function, and leave the distribution of the assets thus obtained, to the Probate iCourt." " 11 state vs. Beatty, 33 Bull. 109. 13 McDonald vs. Aten, 1 O. S. 296. iia-ln re Morrison Estate, 68 O. 14 When a testator, by his will, S. 252. directed liis executors to invest a 12 Rote vs. Stratton, 2 N. P. 27. specific fund, the interest to be paid § 705 administkator's accounting I § 705. Time extended. We have seen in a previous section/^ that every executor and administrator is required to proceed with diligence to pay the debts of the testator; and in another part of this work," that he is to proceed with diligence to convert the assets into money or funds, for the purpose of distribution. If, however, after having exercised diligence in. both of these respects and twelve months have expired from the time of the administra- tor's or executor's appointment, upon his filing the account re- quired by law, a further time of twelve months may be allowed. The Court ought to require in all cases, diligence, energetic, and active effort on the part of the administrator or executor, to settle the estate if possible within the twelve months' period. Observation and experience has demonstrated that a prolonged settlement of an estate works disadvantageously in more ways than one. Assets undisposed of, generally depreciate in value. Debts unsecured, lose their security. Family feuds increase and are encouraged. Legatees, administrators, and others die and hamper the administration of the estate. It, therefore, fol- lows, that this extension of time should only be granted for good and sufficient reasons; and if it is granted for a twelve month period, for good cause shown, I apprehend the Court may revoke such an order and require an account to be ren- dered at an earlier date. ^ 706. Time allowed to collect assets not to operate as al- lowance of further time to file account. "The time allowed by annually to S., the -widow of his de- will, and the entire beneficial inter- ceased son, during her life, and at est in tJie fund having vested in S., her death, the principal thereof to equity will decree its payment di- be paid to her two sons, L. and D., reetly to her, without the delay and and L. and D. died without issue, expense of successive administra- leaving no brother or sister either tions. Taplor vs. Huber, 13 0. S. of the whole or half blood, and leav- 288 ; Pomeroy's Equity Jurispru- ing no debts whereby the principal dence, § 1154, vol. 3. of said fund descended to S., as their Formerly equity would enforce an next of kin. Held: The trust in accounting, etc. Cram vs. Green, the hands of the executor having 6 O. 428. failed by the occurrence of a con- is § 647, § 648. tingency not provided for by the i8 § 447. 637 DECEASED ADMINISTRATOR §707 the court to collect the assets of the estate, shall not operate as an allowance of further time to tile the accounts mentioned in the preceding sections." [R. S. §6177.]^'' This section has reference to the extension of time that may be granted by virtue of sec. 10684 G. C, previously referred to.'^ The extension of time for the collection of assets and the filing of accounts are usually embodied in one application, and is granted when the account is filed. Although the statute would permit the extension of time for the collection of assets at some other time than at the filing of the account, yet without express permission so to do an administrator has power to collect assets so long as assets are unadministered. § 707. Administrator, etc., of deceased or insane adminis- trator, etc., to file account. "When an executor or admin- istrator dies, or by reason of insanity or other incompetency, is placed under guardianship before the estate is fully admin- istered, the executor, administrator, or guardian of such deceased or incompetent executor or administrator, shall render a final account of such decedent's or ward's administration within six months after his appointment." [R. S. § 6175a.] ^^ While the statute grants a period of six months for an execu- tor or administrator of a deceased or insane executor or admin- istrator to file his account, yet it ought to be done at the very earliest possible convenience. Not to do so may not only em- barrass the estate of the deceased administrator, etc., but also the estate of which he was administrator.-** § 708. Successive administration. ' At common law it was generally held that an administrator de bonis non could not compel an accounting by his predecessors. But this is not the rule in our State. Here it is the duty of a 17 § 10824 G. C. administrators and one diea, it 18 See § 440 et seq. would seem that the accounting ' 19 § 10822 G. C. should be done by the surviving 20 See § 10!)57 G. C, as to the re- executor and not by the adminis- quirements of an administrator of trator of the deceased executor, a deceased guardian; § H'J'J; and See also Jones vs. Williss, 72 0. §208 et seq., as to removed admin- S. 201; In re Sidwell, 67 O. S. 424; istrator; See § 1500. In re Morrison's Estate, 68 O. S. Where there are two executors or 252. § 709 administrator's accounting >a^ siieceeding administrator to demand, an accounting and settle- ment of tlie administration do^T^l to the moment of a death, removal, or resignation of the previous administrator or execu- tor.'' The statute does not make it veiy clear as to the length of time that an administrator de bonis non has, within which to file his first account. Generally the rules applicable to administra- tors and executors are applicable to succeeding administrators. The statute requires that a succeeding administrator should give notice of his appointment the same as an original administrator, and likewise applies the same rule of statutory limitation as to the enforcement of creditors claim."" It would, therefore, seem that it was the intention of the Legislature to apply the same rule as to the time within which accounts should be filed. Generally, it may be said, that the principles and rules which govern the accounting of admin- istrators, are applicable to the accounts of administrators or their representatives settling with their successors. Such ac- counting, where the Court has jurisdiction, is final and conclu- sive,"^ but only as to the rights and liabilities of the estate on the one hand, and the deceased or removed administrator on the other; the administration of the estate as such is not thereby affected, but is to be continued in all respects as if no change in its representation had taken place."* § 709. Joint executors, etc. Accounts may be rendered by one or more joint executors or administrators.'^ The account may be a joint accoimt or it may be the separate account of each. As each one is entitled to receive and keep the assets of the estate, he is entitled to file 21 See chapts. 9, 10 and 14. 63 et seq.; McManus vs. McDowell, 22 See §§ 10755, 10757 G. C. 11 Mo. App. 436; Woerner on Ad- 23 State vs. Gray, 106 Mo. 526 Scott vs. Crews, 72 Mo. 261, 265 Spraddling vs. Pipkins, 15 Mo. 118 rain. 1182; See §1496, Settlement ■with succeeding Gdn. See § 1294, Trustees. State vs. Matson, 44 Mo. 305; State 25 See §201 et seq., for Joint or vs. Thornton, 56 Mo. 325. co-administration. 21 Brooks vs. Mastin, 69 Mo. 58, 639 JOINT EXECUTORS, ETC. § 710 his separate account to show for what part of the estate he is re- sponsible.^*' Wliere, however, a joint account is filed, all will be liable as shown by the account, unless the presumption raised thereby is rebutted. ^'^ And some of the cases go so far as to hold that filing a joint account is more than prima facie evidence of a joint liability f^ th,at it is conclusive, and the fact that a joint account is filed, of itself makes the executors or admin- istrators joining therein jointly liable.^® In this State, when an account is rendered by one or more joint executors or administrators, the Court may, in its discre- tion, allow the same to be verified by any one of them.^" Ac- counts which are joint in form, if really filed by only one exec- utor, wnll not bind his co-executor.^^ AYlien one of two execu- tors presents his account for settlement, his associate mav con- test it.^^ § 710. With what executor or administrator shall be charged. "Every executor or administrator shall be charge- able with the amount of the sale-bill, as hereinbefore provided, and with all goods, chattels, rights, and credits of the deceased which come to his hands, and are by law to be administered, although not included in the inventory or sale-bill ; also, with all the proceeds of real estate sold for the payment of debts or 26 Barclay vs. Morrison, 16 S. A were paid out of assets jointly held, R. 129; Bellerjeau vs. Knott. 4 N. so far as they go; 3rd, that as to J. L. 359; Heyer's App., 34 Pa. St. assets charged severally, each con- 183. tributed ratably to the payment of 27 Suydam vs. Bastedo, 40 N. J. debts credited to both equally. Eq. 433; Conner vs. Mcllvaine. 4 Woerner on Admin. 1180. Del., Ch. 30; Glacius vs. Fogel, 88 29 Haage's App., 17 Pa. St. 181; N. Y, 434; Call vs Ewing, 1 Blkf. Laroe vs. Douglass, 13 N. J. Eq. 301. 308; Young's App., 99 Pa. St. 74. 2s In Delaware, the following pre- 3o When any account is rendered sumptions were held applicable, by two or more joint executors or prima facie, upon a joint account administrators, the Court may, in passed by two executors: 1st, that its discretion, allow the account the balance shown by the account upon the oath of any one of them, was held by them jointly, the ac- [38 v. 146, § 162] ; § 10833 G. C. count including assets jointly held 31 English vs. Newell, 42 N. J. and assets charged to the executors Eq. 76. severally; 2nd, that debts credited 32 Mead vs. Willoughby, 4 Dem. as being paid by both executors 364. § 711 administrator's accounting 640 legacies, and all the interest, profit, and income that in any vvav comes to his hands from the personal estate of the de- ceased." [R. S. §6179.]'' § 711. Amount of sale bill. The first matter particularized with which the administrator or executor is chargeable, is tlie amount of the sale bill. There- fore it is not necessary in the account to set out in detail the prices received for various articles, but merely to state that so much was received as per sale bill. In other States, generally, the inventoiy is the basis upon which the administrator's or executor's account must rest, and in such States in his account the administrator or executor charges himself with the amount of the inventory and then deducts or adds as the case may be, for losses or gains tliat may be had by sale, etc. Our law is simpler, in that it provides that he shall account for the ar- ticles as sold. However, this does not relieve the administra- tor or executor from accounting for everything that has been inventoried, and therefore it may yet be said that the inventory in our State is the basis of accountability of the executor or administrator."* If any of the notes taken at the sale, without fault of the administrator or executor, are uncollectible, the same could be deducted.'^ § 712. Goods and chattels not included, etc. The second item with which the administrator or executor is chargeable, is the goods and chattels, etc., which shall come into his hands whetlier they be included in the inventory and sale bill or not. This is broad enough to include every item of a chattel nature which comes into the hands of tlie administrator as assets of the estate. If such articles have not been sold, they must in some manner be accounted for. Not to do so would be a devastavit. 33 § 10826 G. C. note, the administrator must charge 34 See ch. 27, § 469, and ch. 28, himself with one-half of the note. § 495. In re Lones, 57 Bull. 122. See 35 See § 485. Perkins vs. State, 9 C. C. 207, 6 C. Where an administrator and his D. 229. decedent gave a joint promissory 641 RIGHTS AND CEEDITS § 713 There must be included in the report all property omitted from tlie inventory which has come to the administrator's knowledge, with a statement of its value or the amount received therefrom, even, though he received such property in the life- time of the decedent^® But it is not proper to charge him with property of which he has no knowledge (or cannot obtain the possession ).^^ § 713. Rights and credits of the decedent.^ The next in order of those things with which the adminis- trator or executor stands chargeable, are the rights and credits of the deceased. By this term is meant, all choses in action, that belong to the deceased and are properly an asset of the estate.^^ If he personally owe the estate he must include that in his current report, even if it has not been inventoried.^* But he need not include a debt upon which he is only contin- gently liable, nor one owing, not to the deceased, but to his former representative.*" Although his own debt be included in the inventory or re- port, he may show that it is unjust.*^ In such case he has the burden to show that he does not owe the debt.*^ He may show that the claim is barred by the statute of limitations if the bar be complete' before his appointment,*^ With the statemeint of his own debt he must include interest if it bear interest."** But he cannot be charged eight per cent, interest merely be- 36 stone vs. Stillwell, 23 Ark. vs. Bigelow, 4 O. 138 ; Baucus vs. 444; Hurlburt vs. Wheeler, 40 N. H. Storer, 89 N. Y. 1. 73; Boston vs. Boylston, 4 Mass. ^o Shields vs. Odell, 27 O. S. 308. 318; Uovvnie vs. Knowles, 37 N. J. 4i Everts vs. Everts, 62 Barb. 577; Eq. 513; Smith vs. Jewett, 40 N. Black vs. White, 13 S. C. 37; Wood H. 513; Valentine vs. Strong, 20 vs. Tallman, 1 N. J. L. 153; Lynch Md. 522 ; Merchant vs. Comback, 39 vs. Divan, 66 Wis. 490. N. J. Eq. 506; S. C. 41 N. J. Eq. ■is Dickie vs. Dickie, 80 Ala. 57. 349 (milk of cows) . 43 Wilson vs. Rose, 3 Cr. C. C. 371. 37 State vs. Scott, 12 Ind. 529. ** Calvert vs. Holland, 9 B. Mon. See § 363 et seq. 458 ; Ackerman's Case, 40 N. J. Eq. 38 See § 385. 533 ; Rodenbach's Appeal, 102 Pa. «9Rabb's Estate, 16 0. S. 273; St. 572. Tracy vs. Card, 2 O. S. 431 ; Bigelow 1 § 714 admiivisteator's accounti^^g G42 cause he realized that rate on his own money and did not pay the debt.*^ But the fact that an executor or admims- trator is insolvent does not relieve him from accounting lor what h°! owes the estat^'. Immediately upon the appointment of a debtor as administrator or executor such debt becomes assets of the estate, and it must be accounted for.^" In the item of rights and credits, the accountant should be sure to account for all the moneys on hand at the death of the decedent ag well as for all notes, bills of account, etc.*'' If they are uncollectible the administrator or executor is not respon- sible, but they shoiild be accounted for.*'* § 714. Proceeds of real estate sold. The next in order of the matters required to be accounted for, is the proceeds of real estate sold for the payment of debts or legacies of the deceasd. This applies to all real estate which is converted into money, be the same by virtue of autliority de- rived from a will, or the order of the Court. An executor's items of account of sales made under a power in the will with- out order of the Court should identify each tract. An account merely giving the price and purchaser is not sufficient. The account in these cases, being the only record by which to advise those interested.*^ In the distribution of assets derived from the sale of real estate after the payment of debts it should he applied as the will directs and if there be no will, it is to be distributed aa real estate.*^ § 715. Interest, etc. An executor or administrator is not chargeable with interest on the money received by him in his official capacity unless he 45 Grant vs. Edwards, 92 X. C. *" For various kinds of rights of 442. credits, see ehapt. 21. 40 McGaughey vs. Jacoby, 54 0. 47* See §6181 R. S., §719. S. 487; See § 390; James vs. West, 48 Williamson's Estate, 4 N. P. 47 Bull. 750. 882; 7 Dee. 24. 49 § 10816 G. C, § 905. 643 INTEREST §715 has made some profitable use of tlie money, or has been guilty of negligence in accounting for it/° An administrator is not expected to invest any part of the money belonging to tlie estate; nor is an executor, unless he is required to do so by the will of the testator. On the contrary, it is his duty to collect the assets and pay them over to the persons entitled to receive them as speedily as circumstances will allow." But if he has invested the money and received interest upon it, he must account for it; and the fact that he has received interest, or has made use of the money in his own business, may be inferred from a long delay in settling his accounts, or his neglect to pay over balances after demand made upon him.''^ But if the delay was without negligence on. his part^ he vdll not be chargeable with interest unless he has made profit of the funds.^^ He is not to be charged with interest in any case from the date of his appointment, or of his receipt of the 50 See § 672; James vs. West, 47 Bull. 857; Wyman vs. Hubbard, 13 Mass. 232; Duntap vs. Watson, 124 Mass. 305; White vs. Ditson, 140 Mass. 351. Where executors, without objec- tion, and for the mutual benefit of all interested in the estate, retain the entire fund without reference to the separate beneficiaries, each of the latter is entitled to his propor- tionate share in the income realized from the investment of the entire fund. Foote vs. Bruggerhoff, 21 N". Y. Supp. 509; S. C. 66 Hun. 406; 22 N. Y. Supp. 1105; 67 Hun. 652. Instead of charging him with in- terest, the Court may charge him with the profits he has received by an investment of the trust funds. Wingate vs. Pool, 25 111. 118; Mer- chant's Case, 39 N. J. Eq. 506; S. C. 41 N. J. Eq. 349; Gilbert vs. Welsch, 75 Ind. 557. 51 Executors and administrators, however are charged, with more re- luctance than trustees, for simply letting funds lie idle, since their primary function is to administer and not to invest. Schoul. Exrs., § 538 ; See McCrea vs. Martien, 32 0. S. 38. 52Coosh vs. Irwin, 7 O. S. 23; Wyman vs. Hubbard, 13 Mass. 232; Forward vs. Forward, 6 Allen, 494. 53 Lamb vs. Lamb, 11 Pick. 370. Mere delay in closing the admin- istration, when it does not appear to haA'e been needless, though ac- companied by demands of the exe- cutor for credits which the Court properly disallows, will not justify the Court in charging him with interest on balances in his hands. Nor could he be charged with in- terest merely because he has not reported it, or paid it into Court, when there has been no order of Court requiring him to do so. Du- four vs. Dufour, 28 Ind. 421; Johnson vs. Hedriek, 33 Ind. 129; S. C. 5 Am. Rep. 191. 1 3 715 administrator's accounting 644 monej. He is to be allowed a reasonable time to settle the estate, and the time proper to be allowed for that purpose must depend upon the circumstances of each case. No general rule would do justice in all cases.^* When the administrator employs the funds of the estate in trade, he is liable to be charged with compound interest.^" If an administrator fraudulently fails to account for in- terest received, whether received on notes or bonds or on funds in his hands, he will be chargeable with the highest rate of interest allowed by laAV,^® and may be charged with the whole profits on the fund so employed.^^ Interest mil be charged against an administrator for funds which he is ready to distribute, but can not because the heirs are unknov^ra. It is his duty to invest the money for them. "May," in sec. 10843-5, G. C, means "must."^^ An executor who is indebted to the estate on his indi- vidual note to testator will be charged with interest on the note until its maturity, and he caimot relieve himself of the payment of interest by crediting the note to the estate as collected before maturity, imless the money arising therefrom was used for the benefit of the estate, at the time of the credit.^* An executor who has been prevented, after the death of the life-tenant, from paying over the principal of tlie estate to the remainderman by the pendency of the legal proceedings to de^ temiine their respective rights thereto, is not chargeable with interest for failui^e to invest the principal after the life-tenant's ^* See Clarkson vs. De Peyster, 2 ^7 Utica Ins. Co. vs. Lynch, 11 Wend. 77; Schieffelin vs. Stewart, Paige, 520. 1 Johns., Ch. 020; Jennison vs. If an e.Kecutor mingles the as- Hapgood, 10 Pick. 77. sets of the estate with his own 55 Boynton vs. Dyer, 18 Pick. 1 ; money, and afterwards fails, the Robbins vs. Hayward, 1 Pick. 528 parlies entitled to the estate can note; Schieffelin vs. Stewart, 1 come in and prove against the ex- Johns., Ch. 620. ecutor's estate only on an equality 56 Ray vs. Doughty, 4 Blackf. with his creditors. Little vs. Chad- 115; Scott vs. Crews, 72 Mo. 261; wick, 151 Mass. 109. Lommen vs. Tobiason, 52 la. 665; 58 Thornton's Estate, 5 Dec. D. Perrin vs. Lepper, 40 N. W. Rep. 151; 7 N. P. 335. 859 ; In re Essex's Estate, 20 N. 59 Clifford vs. Davis, 22 111. App. Y. Supp. 62. 316. James vs. West, 07 0. S. 28. 645 INCOME, KENTS, ETC. § 716 death, since he was justified in holding it for distribution among the remaindermen, who were in a position to settle their dispute and demand payment of him at any time.®" An executor is chargeable with profits realized on estate funds loaned to him- self, and any bonus received on loans to others, and if he real- ized less than the legal interest on money used by him he is chargeable with the deficiency.®^ § 716. Profit and income. Rents, etc. If there is any profit arising from any of the personal prop- erty other than that of interest, which is spoken of in the previous section, it must be accounted for. Likewise the in- 3ome of real estate.®^ But it is a well recognized rule that the administrator has no anthority tO' collect the rents of real estate belonging to the estate of the deceased. N^or has the executor, mless authorized by the will of the testator. Real estate vests n the heirs and devisees immediately upon the death of the )wner, and all rents that become due subsequent tO' his death )elong tO' them.®^ Even if the estate is insolvent the heirs ire entitled to the rents and profits until the land is sold by irder of the Court for the payment of debts.®* But rents col- ected by the executor or administrator to b© applied by agree- ^aent with the parties to the payment of claims against the Istate thereby rendering it unnecessary to sell the land are ersonal assets and must be accounted for.®^ § 717. How chargeable Vvith property consumed by him. If an executor or administrator neglects to sell personal prop- rty which by law he is required to sell, and retains, consumes, ir disposes of it for his own benefit, he shall be charged tliere- I 6'' In re Howard's Estate, 23 N. 63 Emblements and rents that are . Supp. 836; S. C. 3 Misc. Eep. earned, although not due, go to the JO. administrator. , «i /n re Richardson's Estate, 23 64 See §§871 and 872, as to rents I. Y. Supp. 978; S. C. 2 Misc. Rep. generally; Overture vs. Dugan, 29 |i8. 0. S. 230. ' I «2 See § 1288, as to profits, etc. c5Turpin vs. Turpin, 16 0. S. ;A8 to assets generally, see §303, 270; Campbell vs. McCormick, 1 C ; seq. C. 504; 1 C. D. 281. § 718 administrator's accounting 646 with at double the value affixed thereto by the appraisers." [R. S. §6182.]*'« ^ 718. Increase or decrease of estate not to affect executor or administrator. "No profits shall be made by executors or administrators, by the increase, nor shall they sustain any loss by the decrease or destruction, without their fault, of any part of the estate." [R. S. §6180.]" § 719. Executor or administrator not responsible for bad debts. "An executor or administrator shall not be account- able for debts inventoried as due to the deceased, if it appears to the court that, without his iault, they remain uncollected." [R. S. §6181.]«8 § 720. Entitled to what credits. In the previous sections we have considered with what the accountant is chargeable. We now come to the other side of the ledger and have for consideration that with which he should credit himself. As a general rule it may be stated that executors and administrators are allowed as proper credits in their accounts and all disbursements made in good faith for any liability of the estate, either arising in the course of the admin- 66 § 10820 G. C. so manage the subject of his trust, 67 § 10827 G. 0. as to make profits or gain there- As to Collection of assets, see from for himself. The beneficiaries § 440 ct scq.; as to Management of in the trust have a right to expect estate, see § 506 et scq.; as to Sale and require the exercise of his best of personal property, see § 469 et judgment, care and diligence, on seq.; as to Money on deposit, see their behalf, and the gains resulting § 378, § 513. therefrom inure to their sole benefit. All the power, influence and skill What such trustee may not do di- of one occupying such a relation rectly he is not permitted to do is to be used for the advantage of through the intervention of an agent the beneficial owner, and not for per- or attorney. Cox vs. John, 32 0. sonal gain; and all increase, gains S. 532. and profits, whether arising from ^s § 10828 G. C. the natural increase in value of the See § 443, Negligence in collect- property, or from the management ^^g; See § 485 More than eighteen t ,, ' . . ,, v 1 ( months allowed, of the trustee, are the absolute Administrator not to be charged property of the beneficiary. Berk- viith money in his hands tied up by meyer vs. Kellerman, 32 0. S. 239. litigation. James vs. West, 67 0. It is a well settled rule in equity J. 28 But a debt owed by ex-^?cutor . * / to estate can not be classed as baa that a trustee is not permitted to debt. Jones vs. Williss, 72 0. S. 189; McGaughey vs. Jacoby, 54 0. S. 487. 647 VOUCHEE, ETC. § 721 istration or existing against tlie estate at the time of decedent's death, and paid in the manner prescribed by the law. It has been mentioned elsewhere,*''' that expenses of administration are necessarily entitled to payment before debts of the deceased, because they are incurred for the very purpose of securing the payment of tlie- debts. The matter of the payment of debts as well as tlie payment of legacies has been fully considered in previous chapters.'^" And suffice to say here that a, debt proper- ly ])aid, and expenses properly incurred are always proper credits in the account.^^ A prerequisite tO' the allowance of a credit as a general rule is a receipt for its payment. This is provided for by the following section of the General Code : § 721. Vouchers to be produced for all debts paid. ' ' In rendering such account, every executor or administrator shall produce vouchers for debts and legacies paid, and for funeral charges and just and necessary expenses, which shall be filed with the account, and they, together with the account, be de- posited and remain in the probate court." [R. S. §6183.]^^ § 722. Voucher, what is proper. The above section as to the requirement of receipts should be strictly enforced against every executor or administrator. The term " voucher," when used in connection with the disburse- ment of moneys, implies some written or printed instrument in the nature of a receipt, note, ac County, Ohio. The undersigned respectfully represents that on the 29th day of April, 1919, he was duly appointed and qualified as administrator of , deceased, by the probate court of Clark County, Ohio, and is still acting as such. That no claims or debts against said estate have been presented to him for payment and he believes there are none. The said died leaving , his widow, and , his child and only heir at law. That said died the owner of 2 shares of the preferred stock, Xo. C. F. 3059, of the International Harvester Co. of the face value of $100.00 each, and also the owner of 6 shares of the common stock, No. C. F. 6677, of the said International Harvester Co. of the face value of $100.00 each. That it is the desire of the said widow, , and the said , that said shares of stock be distributed in kind and transferred to said Wherefore this administrator, , of said estate of , asks that he may assign and transfer the said shares of stock in said International Harvester Co. and distribute the same in kind to said State of Ohio, County, ss: , being first duly sworn, says the above allegations are true as he verily believes. Sworn to and subscribed before me and in my presence this 7th day of February, 1920. Notary Public. We hereby approve of the above request and ask that the order be granted. Even where there was no formal note has appeared in the account, it order of distribution, where a note was held the indorsee could main- was indorsed over by the adminis- tain an action on the note. Maister trator, and where the debts were all vs. Fenerstein, 19 C. C. (N.S.) 460. paid, and the distribution of the §754a DISTRIBUTION IN KIND ENTRY-BORDER TO TRANSFER. 676b In the matter of the Estate of Probate Court County, Ohio. This day of , 1920, this matter came on to be heard on application of , administrator of said estate, to dis- tribute in kind, and assign and transfer 2 shares of preferred stock. No. 0. F. 3059, of the International Harvester Co., and 6 shares of common stock, No. C. F. 6677, of said International Harvester Co, each of the face value of $100.00, to , widow of said decedent, and it appear- ing to the court that the same is not necessary to pay the debts of said estate, and that , the sole heir at law of said decedent, joins in the request of said application, it is hereby ordered that the said , as administrator of said , assign and transfer tb , all right and title that the said or he as such administrator may have in and to said stock to said 677 DEFINITION, ETC. 755 CHAPTER XLIII. DISTEIBUTION OF ASSETS CONVERTED INTO MONEY. § 755 Definition, etc. § 756 Kinds and when made. § 757 Real and personal estate. § 758 Law of domicile controls. § 759 Creditors of heirs. § 760 Set-off against heirs. § 761 How payment of distribution enforced. Petition therefor. § 761a Citation. § 762 Nature of proceedings, etc. § 763 Parties. § 764 Petition. § 765 Form of petition. § 766 Citation. § 767 Entry ordering citation. § 768 Form of citation. § 769 Service of citation. § 770 Service, when executor or ad- ministrator non-resident. § 771 Order for publication. § 772 Form of notice. § 773 Proof of service. § 774 Hearing and judgment. Exe- cution. §774a Lien. § 775 Trial, proof, etc. § 776 Entrj', finding. Judgment. § 777 Probate Court may bring in all necessary parties and de- termine all questions. § 778 Comments. § 779 Probate Court shall on mo- tion of either party send the case to the Common Pleas. § 780 Motion, etc. § 781 Common Pleas to have concur- rent jurisdiction to eitforce order of distribution. § 782 Comments. § 783 Sureties. Their liability. May be made parties to judg- ment. Defense. § 784 Comments. § 785 Appeal from Probate Court and from Common Pleas. Bills of exception. § 785a When an appeal may be taken in enforcement of orders of distribution. § 755. Definition, etc. In the sense of the statute, and in the sense in which the term is generally used, the distribution of an estate has reference to the division and apportionment of the personal property and money arising from the sale of real estate by the administrator among the heirs of the decedent after the payment of all the debts and legacies. Where there is no will, the land is not dis- tributed, but descends directly to the heirs. ISTor where there is a will are the lands distributed in the statutory and ordinary sense; but its descent is controlled by the will. In the absence If there are no intervening equi- ties an executor may maintain an equitable action to have restored to the trust estate which by mistake has been conveyed away. Wentzel vs. Chesley, 7 C. C. (N.'S.) 181; 18 Cir. D. 192; 28 O. C. 0. 192. §756 DISTRIBUTION IN MONEY 678 of anything to the contrary, it will be presumed that the word "distribution" is used in the statutory and ordinary sense,^ The administrator of an estate is a trustee for the person or persons entitled by law to a distributive share of that estate, and such is a direct one.- § 756. Kinds and when made. For reasons satisfactory to the legislative mind, power has not been conferred on the Probate Court when passing upon an account, to de.signate in the final order to whom the residue should be distributed. It is now well settled that the Probate Court has not jurisdiction in making an order of distribution to determine the persons to whom distribution is to be made and the amount going to each. But its power is exhausted in that particular when upon final settlement of the account of an ex- ecutor or administrator it enters a general order of distribution.^ It has no doubt frequently occurred to those upon whom de- volved the execution of our administration laws why the Pro- bate Court should not have such authority. Upon investigation of the subsequent sections it will perhaps suggest itself that the method provided for the enforcement of distribution of shares is better than if made on the hearing of the account. We have what we might term a voluntary and an involuntary dis- tribution. A voluntary distribution would be a distribution made by the administrator or executor without proceedings to enforce the same, and is generally followed where the adminis- trator and the executor is sure of the persons to whom distribu- tion should be made. If he makes payment to a wrong person 1 Beard vs. Loftin, 102 Ind. 408. See § 907 et seq., Descent and dis- 2 Smith vs. Calloway, 7 Blkf. 86; tribution; See §921, Distribution Nugent vs. Laduke, 87 Ind. 482; personal estate; see §810, Sale and Raugh vs. Weis, 138 Ind. 42. distribution. "Anciently the administrator or The fact that upon the filing of ordinary in right of the king, him- his account the Probate Court dis- self appropriated the residue of an cliarged an administrator from fur- intestate's estate, after payment of ther liability on his bond, does not the debts, assuming to devote cer- relieve him or his surety for wrong- tain portions to pious uses, and to fully or illegally distributing any give certain other portions to the part of the personal estate. Har- ^vidow and children, if there were beson vs. Mellinger, 2 0. App. 75; any. Statutes were afterwards 35 O. C. C. 19.5; 18 0. C. C. (N. passed which provided in detail for S.) 504. the distribution of the surplus of all 3 Bank vs. Beehe, 62 O. S. 41. estates. Enactments of this char- Tn re Maholm, 51 Bull. 209. acter are found in all the States." Where the Circuit Court attempt- Sherwood vs. Thomasson, 124 Ind. od to make an order of distribution 541. the Probate Court held that the 679 KINDS WHEN MADE § T56 he does so at his peril.* He might, howevei*, recover the same from such person. If the settlement of a final account of an executor or admin- istrator shows the payment of money to a person not entitled thereto, it is no bar to a subsequent action against him for the recovery of the same by one who is legally entitled thereto. An involuntary distribution might be said to be one made by an executor or administrator by judgment of the Court, and it is a method which an administrator is perfectly justified in hav- ing pursued, if there is any doubt about to whom payment should be made. The statute is ample in its provisions as to the settlement of all claims that may arise as to such a fund. As a general thing distribution is had on a final account, yet it might be required upon an intermediate account where the account shows ^ the debts are all paid and there are assets in the hands of tlie administrator or executor. If a distribution be made before eighteen months from the appointment an in- demnity bond should be given by the distributees to the admin- istrator or executor.'' The action is barred in six years from the time of the admin- istrator's or executor's default.'^ Interest cannot be allowed on widow's distributive share until the distribution is ordered."' The administrator might bring an action under sec. 10857, G. C. (§33), in Court of Common Pleas, if the distributee fails so to do, and have the court determine to whom distribution should be made. Circuit Court did so without author- relation of administrator and guar- ity, that as the Probate Court could dian and it becomes his duty to pay not, in the approval of an account, over tlie fund to himself as guar- make a specific distribution, neither dian, the law will generally presume could the Common Pleas or the Cir- such payment to have been made, cuit Court. Wilson vs. Wilson, 17 0. S. 151 4 Banning vs. Gotshawl, 62 0. S. 6 See §§ 10753-4 G. C, §§ 696-754. 210; In re Estate of Joseph P. 7 Duhme vs. Mehner 3 N. P. 266; Cloud, 7 C. C. 67; 3 C. D. 666; 5 Dec. 107; 18 C. C. 706; 6 C. D. James vs. West, 47 Bull. 750, S57. 78; Lease vs. Downey, 5 C. C. 480; 5 Disney vs. Hawes, 12 Bull. 322. 3 C. D. 235. Where a person occupies a double 8 In re Ilutchens, 21 C. C. 721. § 757 DISTRIBUTION IN MONEY 680 § 757. Real and personal estate. Formerly we had a special section " of the Revised Statutes providing for the distribution of personal estate. This, how- ever, has been repealed and such provision has been inserted in the statute relating to the laws of descent and distribution.^'* When a person dies intestate and leaves no children, or their legal representatives, the widow or widower is entitled, as next of kin, to all the personal property which is subject to distribu- tion. If there are any children, or their legal representative, the widow or wido^ver gets one-half of the first $400 and one- third of the remainder of the personal property. The law re- lating to the distribution of personal property to the next of kin is the same as that applying to the inheritance or descent of real estate, and the only difference being that in real estate the widow or widower, in case there are no children, or their legal representative, and the property comes by descent, has a life interest in the real estate. If there are children, the widow or widower has a life interest in one-third of the real estate. If there be no children, and the title to the real estate came by purchase, the wddower or widow acquires all of it. But for further discussion of this matter the reader is referred to the chapter on descent and distribution.^^ It should not be forgotten, however, that the proceeds of real estate which is converted into money by the administrator or executor for the payment of debts, after such debts have been paid, is to be distributed not as personal property, but as real estate.^^ § 758. Law of domicile controls. It is too well settled now to require discussion other than to call attention to the fact that in the distribution, or descent, if the word may be so used, of personal property and real estate, a different rule applies where the property is not all located at the domicile of the decedent. Personal property is 9 § 6194 R. S. See § 1206. when real estate un- 10 § 8592 G. C, § 938. devised shall be applied to payment 11 § 907 et seq. of debts instead of personalty. 12 § 10816 G. C, §905. 681 LAW CONTROLLING * § 759 always to be distributed according to the laws of the place where the decedent has his domicile at tlie time of his death. Keal estate in its descent is controlled by the laws of the place where it is located." § 759. Creditors of heir. Whatever the law may have formerly been, it is now with- out controversy that the assignee of the share of a distributee or legatee may enforce his claim in the same manner that the distributee or legatee himself could ; and that he is entitled to recover whatever the distributee or legatee^ himself could have recovered, were lie still the owner of his claim. And it there- fore follows that an assignee can have no greater right in the legacy or distributive share than the assignor had ; and that any right of set-off which existed against the assignor, is good against the assignee; and where distributees give their notes to the administrator for property of the estate purchased by them, and then assigned their interest in the estate, the administrator or executor was allowed to set-off the amount of the note against the assignees.^* 13 Evans vs. Beaver, 50 0. S. 190, See § 922, Distribution and per- I 74. sonal estate; § 907, Descent and dis- As to what will constitute domi- tribution. cile, see § 1016, governing wills. i*Woerner on Admin. 1235; Has- Personal property has no fixed kin vs. Teller, 3 Redf. 316; Dull's situs, but adheres to the person of Estate, 137 Pa. St. 116. the owner, and upon his death, the But if the assignee (where the ftucession to it is governed by the Court has such jurisdiction) omit law of his domicile. The final ac- to present his claim before the or- count of distribution made by an der of distribution is made, he will administrator, appointed upon the be bound by the order in favor of estate of a non-resident of this es- the assignor, ( Freeman vs. Rahm, 58 tate, approved by the Probate Court, Cal. Ill), and he stands in the and ordered to be recorded, is no same relation to the estate as the bar to an action brought to compel heir would if he had not assigned; distribution according to the law of hence he is estopped from objecting the decedent's domicile, when the as to any matters to which the heir distribution actually made and ap- could not have objected. proved does not conform to such Vanhorn vs. Walker, 27 Mo. App. law. Swearingen vs. Morris, 14 O. 78. S. 424. § 760 DISTRIBUTION IN MONEY 682 The assignment or sale of one's interest in the estate of a living person does not pass liis distributive share in such per- son's estate after her death intestate; hence such assignee has no interest therein/^ An executor or administrator may be garnisheed by a creditor of a legatee or distributee, and anything coming to him there^ from, on final settlement, will be bound/* ^ 760. Set-off against heirs. From a number of recent decisions of our Supreme Court, I think it may noAv be said to be a settled rule in this State that whatever the indebtedness may be between a legatee or dis- tributee and the estate, the executor or administrator has a right to deduct such indebtedness from the portion coming to the legatee or distributee. This general doctrine was first an- nounced by an inferior Court. ^^ Wliere it was held that a debt due from an heir or legatee to an estate is an asset of such estate, and where the distributive portion of such heir or legatee is equal to, or greater than such debt, the administrator or executor should charge himself with the full amount of the same. In a subsequent case,^^ the Supreme Court held that the per- sonal property of an intestate who leaves neither ^^^fe nor child, passes to such of his brothers and sisters as survive him, and to the legal representatives of those wliO' died before him, and children of a pre-deceased brother take in a representative character and subject to the indebtedness of their principal to the intestate. And later,^^ it was held that when the lands of an intestate descend to his children, there being no personal estate for dis- tribution, the interest of each child in the lands is subject to his indebtednetis to the intestate. In this latter ease the follow- 15 bmitli vs. Baylis, 3 Dem. 567. not be held liable as garnishee be- 16 Sampsell vs. Sampsell, 17 C. C. fore the filing of a final account in 455; 9 G, D. 510. an action brought by a creditor of The Supreme Court now holds the estate. In re Carl Heller, 58 that it can not be attached until Bull. 445. after distribution is ordered. Orloff i^ Estate of Ellis, 5 N. P. 207. vs. Schueller, 4 C. C. (N.S.) 611; See §392, as to Debt due from 16 Civ. D. 127; 72 O. S. 42 (1905). heir, etc. Contra, Bently vs. Strathers, 5 i^ Martin vs. Martin, 56 O. S. 333. Bull. 288. 19 Keever vs. Hunter, 62 O. S. 616. The executor or administrator can 683 SET-OFF AGAINST IIEIKS § 761 ing is cited from Judge Woerner's works with approval: '' The distinction between debts owing by an heir and ad- vancements made to him by the intestate is sharply drawn ; in some States debts so owing cannot be deducted from the share of the heir in the real estate, and from the personal estate only by way of set-off, but the true principle seems to be that a debt owing by an heir constitutes part of the assets of the es- tate, as much as that of any otlier debtor, for which he should account before he can be allowed to receive anything out of the other assets ; and it is so held in the United States." ^" A recent case seems to draw a distinction between property devised specifically and in a residuaiy manner. The distinc- tion being that, as to property specifically devised, the off-set cannot be applied, and that a judgment and levy upon such property specifically devised would have priority over the right of the administrator or executor to a set-off against the same.^^ This decision was made without citing the recent case of Keever vs. Hunter,"" and whether it would have been so held in the light of the decision in that case may be questioned. The doctrine as to advancements is provided for in sec. 8585, G. C, which will 'be discussed in a future chapter in this work.-^ The statute of limitations does not operate the extinguish- ment of debts, but bars the remedy only ; hence such debts may be set off to legacies or distributive shares, notwithstanding the efflux of the statutoiy period of limitation,^* Our Circuit Court, however,^^ has held the contrary of the above doctrine as set forth by Woemer, and it may he said to be somewhat of an open question so far as this State is con- cerned.^® § 761. How payment of distribution enforced. Petition therefor. "After thirty days from the time of the settlement of the account of an executor, administrator, or guardian is made, and an order of distribution made thereon by the probate 20 American Law of Admin., § 71 ; 23 gee § 928, et seq. Keever vs. Hunter, G2 0. S. G19. 24 Woerner on Admin. 1237-8. 21 Woodruff vs. Snowden, 7 N. P. 25 Harrod vs. Carter, 3 C. C. 479; 520. C. D. 274. 22 62 O. S. GIG. 26 See § 796. § 761a DISTRIBUTION IN MONEY 684 court, if such executor, administrator or guardian neglects or refuses to pay to a person interested in such order distribution as creditor, legatee, widow, heir, or other distributee, or other- wise when demanded, his or her share of the estate or property ordered to be distributed, the person so interested may file a petition in the probate court against the executor, administra- tor, or guardian, making such settlement of his or her account, briefly setting forth therein the amount and nature of the claim of the party filing it." [R. S. § 6195.]" § 761a. Citation, "Thereupon the probate judge forthwith shall issue a citation against such executor, administrator, or guardian, setting forth the filing of the petition, the amount claimed by the petitioner, and commanding him to appear before his court on the return day thereof to answer and show cause, if any, why judgment shall not be rendered and execu- tion awarded against him or her for the amount claimed by the petitioner, and found due upon such settlement and order of distribution. Such citation must be made returnable not less than twenty nor more than forty days from its date, and be served and returned by the sheriff or other proper officer, as in the case of a summons. It may issue to any county in the state." [R. S. §6195.]-'* § 762. Nature of proceedings, etc. The above section provides the method of procedure whert an executor or administrator or guardian fails to pay over to the party entitled thereto his portion of the estate in the trus- tee's hands. The remedies provided for this and the subsequent sections are cumulative to those provided in a previous chapter for suit on administration bonds, ete.,^^ and is intended to pro- ride an expeditious remedy against neglectful administrators and executors."^ Proceedings in relation to the settlement of an estate in the Probate Court are generally ex parte.^° 27 § 10848 G. C. See §§ 607, 1303. remedy to the heir to enforce dis- 27* § 10849 G. C. tribution. Bowen vs. Bowen, 38 O. The surviving husband's distribu- S. 426; Gray vs. Case School, 62 tive share in his wife's estate not O. S. 1. asserted until nineteen years after 28 § 260 et seq. the estate has been settled, is barred 29 Dawson vs. Dawson, 25 O. S. by the statute of limitations. Lar^ 443. kin vs. Robinson, 21 Dec. 14. 30 Johnson vs. Johnson, 26 O. S. These sections afford a complete 357. 685 ENFORCEMENT OF § 762 But the provisions of the above section clearly provide for an adversary proceeding; and sees. 10848 to 10856, G. C, furnish a complete, adequate remedy for the recovery by any person who is entitled to a distributive portion of an estate. ^^ While the statute does not say that the proceeding is a civil action, yet it does not seem different in its characteristics from what the Code tenns to be a civil action.^' It retains its char- acter, however, as a proceeding in chancery to enforce the per- formance of the duties devolving upon a trustee ; and is there- fore not subject to a trial by jury. However, it has been held that when the estate is settled and distribution or- dered, the trust terminates — that then a personal liability at- taches ; and that tlie remedies provided for distributees to recover their distributive shares are actions at law and the re- covery had are judgments at law,^^ and that an action will be barred unless brought within six years after the expiration of thirty days from tlie date of the order of distribution made in the Probate Court. In sec. 10851-2, G. C. (§ 774), it is provided that the Prolate Court shall render judgment in favor of such plaintiff, etc. ; and again in sec. 10853, G. C, it is provided that the Prolate Judge may hear and determine all such questions necessary to ascer- tain and fix the amount due the plaintiff in such petition. It would therefore seem that when the action is originally begun in the Probate Court that a jury trial can not be demanded, but if the action were originally instituted in the Court of Common Pleas, under sec. 10855, G. C. (§ 781), where it provides that it shall be governed in all respects as other civil actions, a more diffi- cult question suggests itself. In one case it was held that the right to trial by jury does not depend on the principle upon which relief is asked, but upon the nature and character of relief sought. If the relief sought is a judgment for money only, the fact that before the adoption of our reform system of procedure the 31 Bowen vs. Bowen, 38 0. S. 426. 33 Lease vs. Downey, 5 C. C. 480; 32 In § 10855 G. C, providing for 3 C. D. 325. the Court of Common Pleas to have The judgment may be enforced concurrent jurisdiction, it is re- by execution. McLaughlin vs. Mc- ferred to as a civil action. Laughlin, 4 O. S. 508. ^ 7G3 DISTRIBUTION IN MONEY 686 proper remedy would have been by a suit in equity, does not affect the nght of either party to a trial by jury."** In another case it was held that a suit to compel a trustee to account to the beneficiaries of his trust for a judgment for the amount, upon such accounting, found in his hands, is not an action for the recovery of money only.^^ While the action in this case seems to be an action for the re- covery of money only, it is in fact a method provided for the enforcement of distribution of a trust, and it w^ould hardly seem probable that the legislature intended to place it within the power of a party by bringing the action in the Court of Common Pleas to change the nature of the proceedings, and make it a jury trial instead of a trial by the Court. Another reason for leading to the opinion that the matter is not triable by jury is the fact that the right of appeal, which ordinarily does not exist in juiy trials, is reser\'ed in a trial, under these sections, when the case is brought originally in either the Probate Court or Court of Common Pleas. ^"^ § 763. Parties. The statute confers authority upon any person interested in said order of distribution as creditor, legatee, widow, heir, distributee, or otherwise. This is certainly broad enough to cover any case in w-hich a person might be interested in the recovery of such a share. It would apply, I presume, to a person who had a jpro tanto assignment, as well as to one who had an assignment of the entire fund. A question has some- times arisen whether two or more persons, each entitled to a certain distributive portion, may join as plaintiffs in the pro- ceedings. The better opinion seems to be that they cannot.^®* Neither can other heirs be made parties defendant, unless some matter of dispute arises as provided in sec. 10853, G. C. The action may be brought against the executor, administrator or 34 Gunsaulus vs. Pettit, 46 O. S. 36* See Waldsmith V3. Waldsmith, 27; Black vs. 50 O. S. 46. 2 O. 156. 35 Bricker vs. Elliot, 55 O. S. 577. 36 See § 6203 R. S., § 785. 687 PARTIES PETITION § '''64 guardian making settlement. As before stated, the Court has ample power to make other parties defendants so as to com- pletely determine the rights of all parties to the fund in ques- tion. The action could only be brought in the Probate Court in which the account had been filed, and the general order of distribution made. The usual rules applying to plaintiffs and defendants should be applied in this kind of a proceeding. The person bringing the action being styled the plaintiff and the ex- ecutor or administrator the defendant. It should be brought against the executor or administrator in his individual name and not merely against the executor or administrator of the estate, etc.'' When one of tw^o executors or administrators has m his hands the balance remaining for distributio'n, an action may be maintained against him without joining his co-executor or ad- ministrator.'^ § 764. Petition. The action is to be brought by the filing of a petition, in which should be briefly set forth the amount of the claim and the name of the party filing it. These are the requirements of the statute, yet I apprehend that the petition must have other allegations. It must state that thirty days have elapsed from the time of the settlement of the account at which the order of general distribution was made. It must also set forth that the executor or administrator has neglected and refused to pay, to the person filing the petition, the amount of the claim. It is 37 Suit may be brought against an remaining in the hands of the ad- administrator by a distributee, in- ministrator, is barred' by the Stat- dividually, as for money had and ute of Limitations, unless such ac- received without naming him as ad- tion is commenced within six years ministrator. after the expiration of thirty days Waldsmith vs. Waldsmith, 2 O. from the date of the order of dis- 156. tribution made by the Probate 38Negley vs. Gard, 20 O. 311. Court. Lease vs. Downey, 5 C. C. An action brought and prosecuted 480; 3 C. D. 325. under §§ 10848-9 and 10854 G. C, by See § 1475, et seq., as to CoIIec- the distributees of a decedent's es- tion by foreign guardians. § 10944 tate, to recover an unpaid balance G. C. § T65 DISTRIBUTION IN MONEY 688 necessary to allege and prove a demand made before the filing of a petition.* It would seem to be the duty of the administrator or executor to make payment without a demand. The statute requires a demand in all cases where the same can be made, and such fact becomes jurisdictional and must be alleged in the petition. There may be some doubt whether the petition must be verified, but the safe rule and the one which the Court ought to enforce would be to have it verified as other pleadings. The petition should also state the appointment and qualification of the administrator or executor and the time when the account was heard and passed upon. The person bringing the action should fully state in what character he claims the fund, whether as legatee, next of kin, assignee, or creditor, etc. § 765. Form of petition. {Title.) Now comes A. B. and respectfully represents to the Court that he is a son and heir-at-law of C. D., deceased. That on the day of E. F. was appointed executor of the estate of C. D. by the Probate Court of county, Ohio; and thereafter said E. F., having filed his accoimt in said Probate Court, said Court made an order directing said E. F. to distribute the funds remaining in his hands amounting to dollars, which order of distribution was made on the day of , and that more than thirty days have elapsed since said order of distribution was made ; and the said E. F. has neglected and refused to pay the portion, or any part thereof, belonging to the said A. B., although often requested so to do. That the portion thereof which this plaintiff claims amounts to dollars. Wherefore the plaintiff prays that a citation may be issued against the ■aid E. F. as required by law and that he may have judgment and execution against the said E. F. for the said sum of dollars w'ith in- terest thereon from the day of , and such other relief as the nature of the case requires. State of Ohio, Clark County,ss. A. B., being duly sworn, says that he is plaintiff in the above petition and that the allegations therein contained are true as he verily believes. Sworn to and subscribed before me and in my presence this day of § 766. Citation. Upon the filing of such petition, the Probate Judge shall forthwith issue a citation against the executor, administrator or guardian. Such citation must set forth the fact of the filing of the petition and the amount claimed therein, and command- ing such executor, administrator or guardian to appear before *The Supreme Court affirms this doctrine. Henry vs. Doyle, 82 0. S. 113. 689 CITATION NOTICE § Y67 said Probate Court on the day named to answer said petition. The object and purpose of this citation is that of a summons in an ordinary case. The citation shall be made returnable not less tlian twenty, nor more than forty, days from the date of its issue; and it may be served by the sheriff or other proper officer. It is a requisite of this notice that it be served upon the executor or administrator as summons in ordinary actions. Of course, the administrator or executor might enter his appearance as in any other action. § 767. Entry ordering citation. This day came A. B. and filed in this Court a petition against E. F., administrator (or executor )of the estate of C. D., alleging therein that he is the son and heir-at-law of said C. D., deceased, and that he is entitled under the order of general distribution made in this Court upon the filing of the account of E. F. the sum of dollars, and praying that a citation may be issued against said E. F., and that judgment for said amount may be rendered against said E. F. and he inay have execution thereon as provided by law. Wherefore it is ordered that a citation be issued against said E. F. returnable on the day of , at o'clock, at which time said cause is set for hearing; and that said E. F. be required to show cause why judgment should not be rendered and execution awarded against him for failure to pay the said amount claimed, to- wit: dollars, by said A. B., that said citation be directed to the sheriff of this county returnable according to law. § 768. Form of citation. {Title.) To the Sheriff of said County, Greeting: You are hereby commanded to make known to said that said has this day filed in said Court a petition claiming the sura of dollars, as due to him upon defen- dant's settlement with the Probate Court of this county, as guardian of , and command him to appear on the day of , 190. ., and answer said petition, and show cause, if any he has, why judgment should not be rendered and execution awarded against him for the amount claimed, and interest. You will make due service of this citation, and return the same upon the day last above mentioned. Witness my hand and the seal of said Court, this day of , A. D. 190... (Signed, etc.) 39 § 769. Service of citation. This citation must be served and returned by the sheriff, or other proper officer, as in the case of a summons ; and it may b« issued in any county in the State, that is, when the person is a resident of the State; if he is a non-resident of the State, »» Whittaker's Probate Code. § 770 DISTRIBUTION IN MONEY 690 sen'ice may be made by publication as provided for in the next section. The statute does not seem to make any prorision for service made by any one except a sheriff or an officer. Yet I apprehend that if the Court wxDuld order the service to be made by some otlier officer or ]>erson, it would be binding. In such cases a person making the service should file an affidavit as to the manner and time in which the service was made. § 770. Service, when executor or administrator non-resident. "If such executor or administrator resides out of this state, on being satisfied of that fact, either before or after the return of the citation, the court may order such non-resident to be brought in by publication in some newspaper of the county wherein the petition is filed, for six consecutive weeks before the time fixed for the hearing of such cause." [R. S. § 6196.]**^ § 771. Order for publication. The above section says tliat if the Court is satisfied that the executor or administrator shall reside out of the State, it may order publication in some newspaper. No direction is given as to the manner in which the Court shall be convinced or satisfied of the fact that the defendant is a non-resident. In such cases, I presume, it is the intention of the statute that the ordinary rules applying to ser\dce by publication be followed, that i;', that the plaintiff file in the Court an affidavit setting forth the fact tliat the defendant is a non-resident of the State. If this fact of non-residence was brought to the attention of the Court before the issue of a citation to the sheriff or other officer, the former entry should be made to conform to such fact. If it is made afterwards, the Court should make an additional entry ordering service by publication. In all cases it must appear somewhere that the Court has ordered a sen'ice by publication. The entry may be in the following form : 40 § 10850 G. C Tlip codifiers omit guardian, which was in the original act. 691 PROOF OF SERVICE § 772 {Title.) It appearing to the satisfaction of the Court that E. F. is a non-resident of the State of Ohio, it is ordered that he be brought into Court by publica- tion as required by section 619G of the Revised Statutes. § 772. Form of notice. C. D., who resides in the State of , will take notice that A. B., on the day of , A. D. 190.., filed his petition in the Probate Court in the county of , and State of Ohio, alleging that as one of the creditors of the estate of said X. Y., deceased, he is entitled to the sum of dollars, with inter- est thereon from the day of , 190.. ., under the order of distribution made by said Court upon settlement of the account of said C. D., as executor of the last will and testament (or administrator of the estate) of X. Y., deceased, and that although more than thirty days have elapsed since said order of distribution was made and although payment has been demanded of said C. D., he has neglected and refused to pay said A. B. the amount claimed by him as aforesaid. The prayer of the petition is for judgment and execution against the said C. D. for the amount due said A. B., as aforesaid. Said petition will be for hearing on the (at least six weeks after date of first publication) 190. . A. B." § 773. Proof of service. In these proceedings, like all other proceedings of an adver- sary character, or in which the law requires notice to be given, it is vitally important that proof of service when made either by an officer personally or by publication, be filed with the Court. If made by an officer, he need merely endorse on the original writ the time and method of sei'vice ; if made by private persons personally or by publication, an affidavit should be filed with the writ, or the notice of publication setting forth the fact of its publication. It has been held that where the record says affirmatively that the law in regard tO' service by publication, under sec. 10850, G. C. (§ 770), has not been complied with, all proceedings under the same are void, and may be set aside and vacated on motion of an interested party. In this case the rec- ord showed that publication had been ordered for five weeks in- stead of six, as required by the statute, and it was set aside eleven years after it was made.'*'' In the settlement of an account of a guardian, it is held that the Probate Court, of a coimty in this State having ap- " Whittaker's Probate Code. ■la Estate of Cloud, 7 C. C. 69; 3 C. D. 666. § 774 DISTRIBUTION IN MONEY 692 pointed a guardian for the person and estate of a minor, does not lose jurisdiction of such guardianship by the removal of the guardian from this State, and may compel tlie foreign admin- istratrix of such guardian after his decease to account to said ward, and that service may be had upon such foreign adminis- tratrix by publication/^ § 774. Hearing and judgment. Execution. "On the return of the citation served, or the service of notice by publication, the cause shall be for hearing, unless for good cause shown it is continued for trial and judgment, as in Other cases of con- tinuance. If no good defense be shown to the claim in such petition, the court shall render judgment in favor of the plain- tiff, against such executor or administrator, for the amount found to be due to him, and unpaid, upon the settlement and order of distribution, with interest and costs of suit, and award execution thereon, as in other cases of judgments. Such execu- tion must be served and returned, as if issued from the court of common pleas." [R. S. §6197.]** § 774a. Lien. "Judgments rendered under the next pre- ceding section shall have like liens upon the real estate of the parties as do judgments rendered in the court of common pleas, and be governed by the same rules." [R. S. § 6197.]*** §775. Trial, proof, etc.*M On the day of the return of the citation, the cause shall be heard unless continued, and the usual ground for continuance is applicable, and the court will proceed to hear the matter, and if no good defense be shown, it shall proceed to render judgment. If a defense be made, the usual order of trial would be followed. The court should examine and ascertain that proper service has been made, and that proof of the same is in the court. The court must be satisfied from the proof that the party applying therefor is either by virtue of a will of the deceased, or by relationship, or by valid assignment of the 43 Netting vs. Strickland, 18 C. guardians, which was in original C. 136; 9 C. D. 841. act. 44 § 10851 G. C. . Action barred unless commenced 44* § 10852 G. C. within six years after expiration of 44t Cited approvingly, Jackson vs. thirty days. Lease vs. Downey, 3 Warsignary, 56 Bull. 1. C. D. 236; 5 0. C. C. 480. Codifiers (ISSO) have omitted 693 TRIAL, PROOF, ETC. § '?'75 claim, entitled to the fund or a clain>. It must be proven not only that the party is one of a class entitled to such distribu- tion, but also that there are no other next of kin of the same degree. Thus it has been said where father, mother, brothers and sisters are entitled to equal shares, it must be proven whether the father or mother is living or had died before the intestate, and also how many brotliers and sisters, or descend- ants of deceased brothers or sisters survived him.*' Distribution of an estate will not be delayed by reason of a contingent claim arising, from decedents having signed a title bond to protect a defective title to lands sold.*' In the settlement of an estate before the Probate Court, such Court cannot make provision for claims against the estate which no creditor is asserting, neither can it, in the order of such set- tlement, determine the state of accounts between an administra- tor and the distributee. But in a proceeding by the distributee against the administrator or executor all matters of accounts between them can be gone into and the administrator or execu- tor might set off against them any liquidated demand that he might hold.*^ In some States it is held that the Probate Court has power only to determine who is a primary legatee entitled to receive payment from the executor, and cannot adjudicate as to the right of successive legatees for themselves.*' It seems, how- ever, the object and purpose of our statute is to confer ample power upon the Court to determine all rights between the parties.** 45 Woerner on Admin. 1234, citing An administrator having distrib- Hopkins vs. Claybrook, 5 J. J. uted all the assets under a decree Marsh. 234 ; Delany vs. Noble, 3 N. of Court, finding who were entitled J. Eq. 441; Compo vs. Jackson, 50 thereto, and a will being afterwards Mich. 578; Anson vs. Stein, 6 Iowa admitted to probate, the executor 150. seeks to compel the administrator 46 Bates Estate, 7 N. P. 625; 5 to pay over again, and to compel Dec. 545. purchasers of assets from former See §569. distributees to surrender them: 4'? Cox vs. John, 32 O. S. 534. Held, neither relief can be granted. 48 Woerner on Admin. 1234, 351. The former decree is evidence for 49 The Probate Court has com- tbe administrator, though the com- plete power to determine the rights plainant was not a party to it. of all parties and the administrator The only remedy is to make the is protected by its order. Jackson legatees parties and compel the for- vs. Wasignary, 56 Bull. 1. mer distributees to pay back, and § 776 DISTRIBUTION IN MONEY 694 Where a distributee, pursuant to a private arrangement with one of two joint executors, accepts his individual check for the amount of her distributive share and executed her receipt in full to the executors, it is held she could not maintain an action under tlie provisions of the sections refen'ed to in this chapter. If the check w'as dishonored, she would be compelled to sue the executor for the non-pa^mient of said checlc.°° § 776. Entry, finding. Judgment. The subsequent section provides that the Court may bring in all necessary parties, and such being done, the entry would need to be varied to adopt itself to the circumstances. Very often no other persons are made parties, and the judgment and finding is merely against the administrator or executor, and may be in the following form : ( Title. ) This day this cause came on to be heard upon the petition and the returns of service and testimony. Wliereupon the Court finds that the said E. F., administrator (or executor) of tlie estate of C. D., has been duly served with citation in this case as required by law. That the allegations of the plaintiflF's petition herein filed are true and that there is due the said A. B. from the said E. F., as executor (or administrator) of the estate of C D., on his distributive share thereof the sum of dollars. It is therefore adjudged by the Court that the said plaintiff recover against the defendant as his distributive share of the estate of C. D., the Bum of 51 dollars, with the costs of this suit taxed at dollars; and tliat execution be issued against the goods and chattels of said defendant in the same manner as if said judgment had been rendered in the Court of Common Pleas. § 777. Probate Court may bring in all necessary parties and determine all questions. "If the amotmt coming to an heir, this can be done bv amendment. tors of his existence or make any Barkaloo vs. Emerick] 18 0. 268. claim until eleven years after final . , . 1 i;. i settlement, and brought suit tor nis Where the residuum is left to ^j^^^^ eighteen years after final set- children and their issue, and the ex- tlement: Held,' his action against ecutors had published all statutory the executors is barred. Stewart vs. notices and a grandson by a de- '^^'e^sh, 41 O. S. 4S3. , , , , -ii . XI • And the court can make no order ceased daughter was, without their ^^^^jj account is filed, etc. In re fault, unknown to them, but he knew Cloud. 7 C. C. 67 ; 3 C. D. 667. his relationship before decedent died so Riggin vs. Creath, 60 0. S. 114. and that he might inherit and could ^ '^ ^ P^Jfor. is not entitled to in- . J xT_ X i. f terest until the order of distribution readily have ascertained the fact of jg ^^^^ j^ ^^ Hutehins, 21 C. C. death, but did not inform the execu- 721. 695 JURISDICTION § TTS legatee, widow, or other distributee, under such order of dis- tribution, be uncertain, or in dispute, the probate judge may hear and determine all questions necessary to ascertain and fix the amount due the plaintiff in such petition, and, if necessary, hear, determine, and settle the rights and claims of all parties interested, iu'such order of distribution. For that purpose the probate court may cause all the heirs, legatees, or other dis- tributees, parties in interest, to be made parties to such peti- tion, when necessary, by amended or supplemental petition, and service of notice, as provided in section ten thousand eight hundred and fifty-one and in such case to render judgment and aAvard execution against such executor or administrator in favor of the parties, for the amounts, respectively, found due them, with interest and costs, unless the court is of opinion that the costs should be paid out of the estate to be distributed, or by the parties, in which case it shall make such order respecting costs as seems equitable." [R. S. § 6198.]^- § 778. Comments. The above section confers upon the Probate Court ample jurisdiction to try all questions of dispute in reference to the funds in the hands of the administrator or executor ; and incidentally in that way the Probato Court might be required to give construction to a will as Avell as the effect of a convey- ance, a contract or what would constitute an advancement, and the rights of assignees to all, or part of the funds, and it might be necessary in such a case to make all the heirs or legatees parties, in order to determine the whole controversy. The object and purpose of the law generally being to prevent a multiplicity of suits, and that when a matter is in controversy, to settle all matters pertaining tlicreto. In making such per- sons parties, the general rules of pleading, should be observed, and service of notice is to be made upon any such other person who is made a party, as is provided in sec. 10848, G. C, and sec. 10850, G. C, providing for notice upon executor or admin- istrator. ■'■•-§10853 G. C. Codifiers (1880) It is not exclusive, and adminis- omit guardian. trators may commence action in Com- Furnishcs a complete remedy to mon Pleas. Davis vs. Hutchens, heir. Bowen vs. Bowen, 38 0. S. 8 C. D. 52; 15 0. C. C. 174. 426. § 779 DISTRIBUTION IN MONEY 696 § 779. Probate court shall on motion of either party send the case to the Common Pleas. "In cases relating to the en- forcement of an order of distribution, the probate court before which a proceeding is pending, on motion of any party thereto, shall reserve and send it to the common pleas court for trial, judgment and execution. In case of such reservation, the pro- bate judge forthwith shall make 'out a transcript of his pro- ceedings in the cause, so far as it has progressed, which, with the petition and other papers therein, forthwith shall be filed with the clerk of the common pleas court. Thereafter the cause shall be carried on to final judgment and execution therein as a civil action." [R. S. § 6199.]^3 § 780. Motion, etc. The provisions of the foregoing section seems to be manda- tory, and if a motion be made that a case be transferred to the Court of Common Pleas, the judge must allow it; and he must also make out the transcript of his proceedings and file the same with the clerk of the Court of Common Pleas ; and there- after the case shall proceed as if originally filed there, like any other civil action. The motion may be in the following form : {Title.) Now comes A. B. by X. Y., his attorney, and moves the Court that the proceedings herein be reserved and sent to the Court of Common Pleas of this county for trial, judgment and execution. On the filing of such motion, it will be the duty of the Court to terminate his proceedings in the case by an entry, which may be in the following form: (Title.) On motion of A. B.. one of the parties in this cause, this case is reserved to the Court of Common Pleas of this county for trial and judgment and execution; and it is ordered that a transcript of the proceedings as far as the same has progressed, be made out and, together with the petition and all other papers in this cause shall be forthwith filed with the clerk of the Court of Common Pleas of this county. § 781. Common Pleas to have concurrent jurisdiction to enforce order of distribution. "The court of common pleas has concurrent original jurisdiction with the probate court in all ■-■ § 10854 G. C. 697 COMMON PLEAS, ETC. § 782 cases provided for in the next seven preceding sections and any creditor, legatee, widow, or other distributee, as aforesaid, may bring an action in the common pleas court of the proper county, against such executor or administrator for his or her share of the estate upon such settlement and order of distribution, and it shall go on to final judgment and execution like other civil actions. All persons interested therein may be made parties thereto, if deemed necessary by the court, which shall determine their respective rights, render judgment thereon, and award execution, as in other cases." [R. S. § 6200.]*^* § 782. Comments. This section retains to the Court of Common Pleas original jurisdiction in a suit brought to enforce a distribution of an estate. The case may therefore come into the Court of Common Pleas in three ways. It may be brought there originally, as pro- vided by sec. 10853, G. C. (§ 777). It may be brought there by reservation from the Probate Court, as provided in sec. 10854, G. C. (§ 779). It may be brought there by appeal, as provided in sec. 10859-60, G. C. Only under the provisions of sec. 10853, G. C, does the Court of Common Pleas have actual original jurisdiction, and therefore no appeal will lie to the Circuit Court where the action was brought into the Court of Common Pleas by virtue of the provisions of either sec. 10854, G. C, or sec. 10859-60, G. C.^^ When an action is brought in the Court of Common Pleas, it is brought as any other civil action, and service is had by sum- mons in conformity to the rules applicable to civil actions gen- erally. It differs in this respect from the action when brought in the Probate Court, for there a citation is issued returnable not less than twenty, nor more than forty, days, otherwise the action seems to be similar to that of the Court of Common Pleas. 5* § 10855 G. C. Laughlin vs. MdLaughlin, 4 0. S. Under a former statute when the 508. Probate Court had power in passing 55 Estate of Correy, 4 C. C. 220; upon the account to determine the 2 C. D. 510, matter of distribution, the Common See Puder vs. Azler, 242 Fed. 95. Pleas had no jurisdiction. Mc- § 783 DISTRIBUTION IN MONEY 698 While the question has not been adjudicated so far as we know, yet we are of the opinion, that like the action brought in the Probata Court, it is not triable by jury. If the action were brought against the executor or administrator individually as for money had and received, it would then be triable by jury. Although some of our Courts ^*^ have spoken of the action as a judgment at law, yet it seems that it is more in the nature of the termination of a trust, and is certainly not that kind of an action which was triable by jury at common law. The mere fact that it is refen-ed to as a civil action does not make it a common law action, for under our Code civil action includes both proceedings in chancery and action at law. § 783. Sureties. Their liability. May be made parties to judgment. Defense. "The sureties of every such executor or administrator moreover shall be liable upon the cfiScial bond of the executor or administrator against whom a judgment may be rendered under the pro\dsions of the preceding sections, either in the probate or common pleas court. Such sureties may be made parties to such judgment by petition cr action to be commenced and prosecuted, in the mann':'r above provided against executors or administrators, to final judgment and execution. In cases in which service of process has been made upon such executors or administrators, by publication, the surety shall be permitted to make any dpfense that the executor or administrator could have made." [R. S. §6201.]^^ § 784. Comments. In some matters the above section is clear and in some not. It is evident that it was the intention of the legislature to re- serve all the rights of the plaintilT, which he might have on the bond given by the administrator or executor, and that he might pursue his action on the bond as elsewhere provided.^^ 50 Lease vs. Downey, 5 €. C. 480; 57 § 10S56 G. C. 3 C. D. 325. Camp vs. Eoswick, 26 0. S. 337. 58 § 260 et seq. 699 APPEALS, ETC. § 785 It is also plain that a surety on a bond has a right to appear and make any defense that the executor or administrator could have made where service is made on such executor by publica- tion ; and having made an exception that the surety could only appear v^hen sei'vice is made in that manner, the inference is strong that if service is made on the administrator or executor in any other manner the surety has no right to defend. When the statute provides "' that such sureties may be parties to any judgment by any petition or action to be commenced, and prosecuted in tlie same manner as above provided for the com- mencement and prosecuting causes against executors and ad- ministrators to final judgment and execution, it is not clear ■whether the legislature intended to confer upon the Probate Court jurisdiction to entertain such action or' not^ If an ac- tion is brought against sureties, it must be brought on the bond, and sec. 10874, G. C. (§ 261), specifically provides that an action on the bond must be brought in the Court of Common Pleas or Superior Court of the county in which it was given j and it therefore rather negatives the idea of the above section that an action on the judgment may be commenced and prosecuted as is provided in the preceding sections in this chapter.^^ § 785. Appeals from Probate Court and from Common Pleas. Bills of exception. "From any order, judgment, or decree of the probate court, an appeal may be taken to the court of common pleas, by any person against whom it is made, or who is affected thereby, in the manner provided in other cases. Bills of exception may be taken and allowed upon any decision of the probate, common pleas or circuit court, in such proceed- ings as in other cases." [R. S. § 6203.]'"' ^ 785a. When an appeal may be taken in enforcement of orders of distribution. "An appeal may be taken from an order or judgment of the common pleas court to the circuit court, in proceedings under the provisions relating to the en- forcement of orders of distribution, by executors or adminis- trators by a person against whom it is rendered, or who may be affected thereby, in the' manner provided in other eases." fR. S. §6203.]«°** B9 § 260 et seq. See § 261. so § 10859 G. C. 80* § 10860 G. a ^785a DISTRIBUTION IN MONEY 700 The provisions of the above section, in providing for appeal and proceedings in error, apply only to actions and proceed- ings brought under sees. 10848, G. C. (§761), 10850, G. C. (§770), 10853, G. C. (§777), 10854, G. C. (§779), 10855, G. C. (§781).«i 61 Bair vs. Closterman, 2 C. C. 387; 1 C. D. 546; Ebersole vs. Schil- ler, 50 0. S. 701 ; Miller vs. Miller, 19 C. C. 243; Gartner vs. Meyer, 19 N. P. 353. As to appeals geherally, see § 43, § 11207 G. C. See Kislingberry vs. Donovan, 8 N. P. (N.S.) 476; 11 Dec. 542; Pierson vs. Pierson, 5 N. P. (N.S.) 235; 18 Dec. 825. 701 UNCLAIMED MONEY ^ § 786 CHAPTER XLIV. INVESTMENT OF UNCLAIMED MONEY, AND ACCOUNT OF DISTRIBUTION. § 786 How unclaimed money to be § 794 Judge responsible for safe invested. keeping of certificates, etc. § 786a Disposition of note or bond. § 705 Account of final distribution. § 786b Limitations. § 796 Objects of tlie above provi- § 787 Application for order to in- sion. vest. § 797 Form of account of final dis- § 788 Entry authorizing invest- tribution. ment. § 798 Entry and order of discliarge. § 789 Return of investment. § 798a Probate Court to order re- §790 If fund can not be invested. ceipt for payment of in- § 791 When and how such money cumbrances recorded, etc. paid to owner. § 798b Application to have receipt § 792 Application, and order to pay recorded, etc. money to owner. § 798c Entry. Notice. § 793 Entry ordering money turned § 798d Hearing and order. over to claimant. § 786, How unclaimed money invested. ' ' If a sum of money- directed by a decree or order of the court to be distributed to heirs, next of kin, or legatees, or by a judgment or decree of court in favor of a creditor, remains for six months, unclaimed, the execu- tor or administrator shall loan it on bond or mortgage, as the court directs, to accumulate for the benefit of the persons entitled thereto. Such loan shall be made in the name of the judge of the court for the time being, and be subject to the order of the judge and his successors in office, as hereinafter provided." [R. S. §6191; 103 V. 435.] ^ § 786a. Disposition of note or bond. "The person making such loan shall file in the court a memorandum thereof, with the original bond or note and mortgage, as the case may be, which shall be allowed as a sufficient voucher for such payment under the order or decree. If the amount is not so loaned during another six months, it shall be turned into the county treasury and credited to the general fund, without liability for interest thereon. The receipt of the county treasurer taken for it and filed shall be a sufficient voucher." [R. S. § 6191.]^* 1 § 10843 G. C. 1* § 10844 G. C. § 786b ^ UJsrcLAiMED money 702 § 786b. Limitations. "The statute of limitations shall not be set up as a defense or bar to an action against an executor or administrator who fails or neglects to comply with the re- quirements of the next two preceding sections." [R. S. §6191.]^t § 787. Application for order to invest. The above section is designed to furnish a method whereby an administrator or executor may be relieved of funds in his hands w^hich remain uncalled for after six months from the time the order of distribution is made. If he does not invest it, he will be chargeable with interest whether he has any use of the funds or not. It has been held that the word " may " in this statute means " must," and if an executor or administra- tor fails tO' make the application for the order he must pay interest.^ The matter ought to be brought to the attention of the Pro- bate Court by an application filed for that pui'pose, which ap- plication may be in the following form : {Title.) Now comes A. B., administrator (or executor) of the estate of C. D., and represents to the Coiul that on the. .... .day of . . .' the Court made an order finding that there was in the possession of the said A. B. as administrator (or executor) of the estate of C. D. the sum of dollars.. That more than six months have elapsed since said order was made,- and that there yet remains in his bands the sum cf dollars uncalled for by the parties entitled thereto. He further represents that he is informed that the said E. F.. who he believes is entitled to said fund, has gone to parts unknown. Wherefore he asks that the Court may order and authorize him to invest the said money in his hands in stocks or loan on mortgage as the Court may see best. Sworn to and siibscrilioi] bofnre me nnd in mv presence this day of § 788. Entry authorizing investment. {Title.) This day came A. B.. administrator of the estate of C. D., and filed his application in this Court, praying that the Coiu't might authorize and direct that the funds remaining in his hands uncalled for, as stated in his It § 10845 G.C. 5 Dec. 151. Statute now 2 Thornton's Estate, 7 N. P. 335 ; •'shall" instead of "may." 703 IF CANNOT, BE INVESTED § 7.89 said application, miglit be invested in stock or mortgage loans, and it appearing to the Court that the statements of said application are true, it is ordered that said execirtor invest said sum in (here mention how the same shall be invested), in the name of E. F., judge of this Court, for the time being and report his doings hereunder for further order of the Court. § 789. Return of investment. Til© administrator or executor having invested the fund as the Court has. directed, ought' t'O make a report of his doings, which may be in the following form : (Title.) , - Now comes A. B., administrator (or executor) of the estate of C. D., and reports to the Court that he has invested the funds as directed by the former order of the Court in (here state what), and files herewith the evidoncos of said indebtedness. (Here state whether mortgage or bond, with such a description of it as will identify it.) If the same has been filed in the Probate Court, the judge should make an entrv of the fact, which may be in the follow- ing form : (Title.) This day came A. B., administrator (or executor) of the estate of C. D., And filed herein his report of the investment of funds remaining in his hands uncalled for; and the same appearing to the Court to be regular and correct, it is confirmed and it is further ordered that these proceedings shall be a sufficient voucher to the said administrator (or executor) for his payment of the same, and that the costs of this proceeding be taxed against said fund.s § 790. If fund cannot be invested. The statute makes it the duty of the administrator or execu- tor to invest the fund. If, however, for good reasons the same cannot be invested, then the Court may order the same to be turned into the county treasury, and there it is to be credited to the general fund, and the County Treasurer is to give a re- ceipt therefor, which receipt may be filed as a voucher. If the fund is invested, the statute makes the judge of the Probate Court and his successors a trustee for the fund, and it would be the Judge's duty to look after the same and collect the interest and accumulations thereon, and possibly reinvest the same. As a general rule such funds are turned over to the county treasury. 3 It is usual to ascertain the cost and take them out of the fund before the investment is made. § 791 UNCLAIMED MONEY 704 §791. When and how such money paid to owner. "When a person entitled to the money invested, or turned into the treas- ury, satisfies the court of his right to receive it, the court shall order it to be paid over and transferred to him. In case it has been turned into the treasury, the auditor shall give to him a warrant therefor, upon the certificate of the judge." [R. S. §6192.]* § 792. Application, and order to pay money to owner. Whenever the Court is satisfied that the person has a right to receive the money, it may order it to be paid over to him. The statute does not seem to provide any guidance for the Court as to what will be sufficient evidence that the claimant is the per- son to whom the funds should be paid. It simply provides that the Court should be satisfied. The most difficult matter that is experienced in these cases arise from the unexplained absence of an heir or legatee. And Courts generally in such cases, I be- lieve, have gone on the presumption that seven years of unex- plained absence is sufficient evidence of the death of such heir or legatee to justify the Court in ordering it paid to the next of kin of such absent or unknown heir. Before the Court makes an order it should require an application to be filed set- ting forth the facts upon which the claimant rests his cause. Such application may be in the following form: ( Title. ) 5 Now comes G. H. and represents to the Court that on the day of an order of this Court was made directing A. B., adminis- trator (or executor) of C. D., to invest certain funds in his hands, ordered by the Court to be distributed, the same having remained in the hands of Baid A. B. for the period of six months uncalled for. Thereafter said funds were invested and a report thereof was made to the Court of the eame having been invested in (here state how invested), that said G. H. claims that (here state in what manner party making the application claims that he is entitled to the fund). Wherefore said G. H. prays that the Court may make an order directing that said (here state how the money has been invested) be turned over to him as the person entitled to the same. * § 10846 G. C. ' person, so that all matters pertain- 5 The title to proceedings under ing thereto will be in a connected this chapter, should always be in the manner. name of the estate of the deceased 705 FINAL DISTRIBUTION § 793 Sworn to and subscribed before me and in my presence this day Of § 793. Entry ordering money turned over to claimant. This day this matter came on to be heard upon the application of G. H. for an order of the Court directing that certain funds invested by A. B., aa administrator of C. D., be turned over to him as the person entitled thereto, and the same was heard by the Court. Whereupon the Court finds from the evidence produced that the said G. H. is entitled to said money so invested (here describe same), and that the Court is satisfied that he is the person entitled to the same, and orders that the same be transferred to him as provided by law. If the money has been invested in the county treasury, con- clude the above entry with the following : And that a copy of this journal entry be given to the auditor, and that the auditor issue a warrant therefor directing the county treasurer to pay the same, and the costs of this proceeding be paid by said G. H. § 794. Judge responsible for safe keeping of certificates, etc. "The judge with whom such certificates or evidences of title are deposited, for the time being, and each succeeding judge to whom they come, and his sureties, shall be responsible for their safe-keeping and application, as provided in the next four pre- ceding sections." [R. S. § 6193.] « § 795. Account of final distribution. ' ' When an executor or' administrator has paid over or delivered the money or other property in his hands to the persons entitled thereto as required by the order of distribution, or otherwise, he shall perpetuate the evidence thereof by presenting to the court, within six months after such order was made, an account of such payments or the delivery over of such property ; which, being proved to the satisfaction of the court, and verified by the oath of the party, shall be allowed as his final discharge, and ordered to be recorded. Such discharge shall forever exonerate the party and his sureties from liability under such order, unless his account be impeached for fraud or manifest error." [R. S. §6190; 102 V. 205.] «* § 796. Objects of the above provision. The purpose of the above sections is to enable the administra- tor or executor to place upon record evidences of the completion « § 10847 G. C. See Opening up account, §§ 745, 6* § 10842 G. G. 746. § 797 FINAL DISTRIBUTION 706 of his tiiist ; and to have the same acted upon by the Court and be relieved from all further liability, unless he has in some manner been guilty of fraud or manifest error. In order to impeach the finding for fraud or error, the action must be com- menced within four years from the discovery of the same/ It has also been held that a debt of a distributee to the dece- dent, which was barred by the statute of limitation in the life- time of the decedent, cannot be set off against or retained out of tlie distributive share of such distributee.* Under the provisions of the above section, as it formerly ex- isted, it was within the option of the administrator or executor, whether or not he should file such account of distribution.® Fomierly the words which now read that " he shall perpet- uate the evidence," etc., were " he may perpetuate the evidence," etc. It is evident that th^ legislature by this change intended to make it mandatory upon the executor or admimstratcr to file such account cf distribution within six months from the time the general order of distribution is made, and I have no doubt but what the Court may enforce an account of distribution in the same manner that other accounts are forced to be filed. If an account of distribution were filed and all the distributees were not paid, such as were not paid would not be affected by the filing of such account of distribution.^*' § 797. Form of account of final distribution, of the Estate of , deceased. T« account with said estate, said cnarges h self as follows : Amount found due estate as per final settlement with said Court, made 190 $ Paid Attorney fees preparing this account $ Paid Probate Judge's fees on this account $ Balance for distribution $ Said credits h self as fol- lows : Amounts paid to heirs and legatees, as per distribu- tive order of said Court made , 190. ., viz: To ,..,f^.... . $ T§ 11224 G. C. tributee upon distribution, and the 8 Harrod vs. Carder, 3 C. C. 479; account of the administrator is prop- 2 C. D. 274. erly published and confirmed by the See § 760 where this matter is Probate Court, the evidence thus discussed and it is said that the perpetuated is complete and binding doctrine of this case is contrary to upon the parties so fir as the giving the law as given in Woerner on of the receipt is concerned, but is not Admin. conclusive as to whether the distrib- 9 Negley vs. Girard, 20 0. 310. utee actually received the monev, or 10 Xegley vs. Guard, 20 0. 310. the distribution was made according Where a receipt is given by a dis- to law. 707 ACCOUNT OF § 798 The State of Ohio, County, ss. of the estate of , de- ceased, being sworn, says that the foregoing account presents a true and complete statement of the final distribution of the assets of said estate, as required by the order of this Court, as... he verily believes; and said asks that the same be allowed as h . . . . final dis- charge, and ordered by the Court to be recorded. Sworn to before me and signed in my presence this day of. 190.. Probate Judge. Deputy Clerk. § 798. Entry and order of discharge. The statute does not require that an account of distribution should be advertised as other accounts, and it is the general practice not to advertise tliem. However, it seems that it would not be a bad practice to have them advertised like other ac- counts' and set doA\m for hearing, although the finding would be just as valid in the absence of such notice as with it, for the proceeding is strictly m rem, and the Court has full jurisdic- tion of tlie subject matter. We have seen in a former discussion as to the manner of the termination of an administrator's or executor's trust," that if the estate had not been fully administered upon, the adminis- trator or executor could, even after an order had been made on an account, collect the unadministered estate. The question might arise whether the same rule would be applied to an order made on an account of distribution. In the case of Weyer vs. Watts,^" in which the doctrine was announced that an order made on a general account did not re- lieve the administrator or executor from collecting unadminis- tered assets, it is said that " it is not intended tliat the pro- ceeding in the Probate Court was under or in conformity with sec. 10842 (§ 795) of the General Code, which provides for per- petuating the evidences of distribution. The account filed by the plaintiff was not of that description." The inference to be gathered from this language, as well as the purpose of the statute, leads to the opinion that the entry made on an account But the filing of this account does n See § 231, Termination of trust, not have tiie effect of discharging 12 48 O. S. 54.5. the administrator of his trust where An account of distribution is final there are assets still to be admin- unless impeached for fraud. Henry istered. In re Estate of Koehnken vs. Doyle, 82 O. S. 113. (1903), 1 C. C. (N.S.) 126; 15 Cir. The verity of an account of dis- D. 245; 27 O. C. C. 840. tribution can not be opened up in § 798a KECEIPT FOR INCUMBRANCES 708 of distribution when such account purports to be a complete ad- ministration of the estate acts as a discharge of the administra- tor or executor from further acting in his official capacity ; and thereafter an administrator de bonis non would be required to be appointed to administer upon unadministered assets. The better way, in order to avoid a question of this kind, is to pro- Tide in the entry that the administrator or executor is dis- charged. Upon the filing of such account of distribution, the following may be used as a general form of entry : (Title.) This day came A. B., the executor (or administrator) of the estate of C. D., and presented to the Court his account of final distribution in said estate, duly verified; and the same was examined by the Court. Whereupon it is ordered that the same be allowed as a final discharge of such executor, and be placed on the files of this Court and also recorded in the records of accounts, and the said A. B. is hereby discharged as executor (or ad- ministrator) of said trust. § 798a. Probate Court to order receipt for payment of in- cumbrances recorded, etc. "When any lands or real estate are left incumbered by the provisions or conditions of a deed, will, or other instrument of record, with the payment of money, or the performance of any act or acts, by the grantee or devisee, such grantee or devisee or their heirs or assigns, upon the pay- ment of the money or the performance of the act or acts, may present the receipt of the payment of the money, or the proof of the performance of the act or acts, to the probate court of the county in which the lands or real estate is situated, who must enter such payments and the proof of the performance of such act or acts, on its journal, reqord the receipts and the proof of the performance of the act or acts, on the margin of the will record wherein sucli incumbrances are created, and order that this be done in like manner on the margin of the deed record in the recorder's office by the county recorder, which, when done, will relieve such lands and real estate from the incumbrances except for fraud." [95 v. 571, § 1.]^-^ "No such record of receipts or orders can be made by the probate judge nor shall he enter proof of the performance of such act or acts as hereinbefore required until notice thereof has been given as is required by law for the settlement of ad- ministrators' and executors' final accounts." [95 v. 571, § l.]^^t the Probate Court, when. In re statute of limitations durinsr the Koehnken, 1 C. C. 126. lifetime of the ancestor can not be In order to protect the adminis- deducted from the interest of the trator an account must be filed and heir. TTarrod vs. Caseler, 3 C. C. the court make an order thereon. 47fl; 2 C. D. 274. Fewlass vs. Keesham, 88 Fed. 573. 12* § 8544 G. C. A debt which was barred by the l2t § 8545 G. C. 709 APPLICATION FOR § 798b" § 798b. Application to have receipt recorded, etc. The above act is of recent date, and in order to properij bring the matter before the Probate Court, an application set- ting forth the facts ought to be filed. This application might be in the following form : In the matter of Application of A. ) Probate Court, V Clark County, Ohio. B. to record receipt. ^ APPLICATION. The undersigned respectfully represents that by item of the last will and testament of C. D., deceased, it was provided (here insert the provision of the will, etc.). Said A. B. further represents that he has performed the conditions of said will, a receipt acknowledging the same is herewith attached and marked " Exhibit A." Wherefore he prays that such proceedings may be had as authorized by law, and that said receipt be recorded on the margin of said will in the record of wills in said officc.12* Sworn to and subscribed before me and in my presence this day of § 798c. Entry. Notice. Upon the filing of such sfn application, an entry should be placed upon the journal, ordering that the same should be set down for hearing on a certain date, and that notice thereof be given in some newspaper of general circulation for once a week for at least three consecutive weeks, the law requiring the same to be advertised the same way as accounts of administrators.^* This notice should briefly state the fact that an application had been made in the Probate Court by for an order of the Court to place upon the margin of the will of , a receipt showing the perform- ance of a certain condition in item of said will. The entry therefore might be as follows : (Title.) This day came A. B. and filed herein his application to have a receipt evidencing the performance of a condition in item of the will of , deceased, ordered by the Court to be placed upon 12* If the condition to be per- will, the application should be ac formed is one in a deed instead of a cordingly changed. 13 § 11201 G. C, §729. § 798d RECEIPTS FOR INCUMBRANCES 7lO the margin of said will in the records thereof; and it is ordered that the same be set for hearing on the day of , 190. ., and publication thereof be given as required by law. § 798d. Hearing and order. At the time the same is set for hearing, the Court should as- certain whether publication has been made as required by the former order of the Court, and if no contention arises as to the validity of the receipt, it should order that the same be placed upon the margin of the will record. If no receipt is given, then the Court should hear the testimony of witnesses as to the performance of the condition and order its findings placed upon the margin of the will record or deed record as the case might be. The entry, therefore, might be as follows : (Title.) This day this matter came on further to be heard upon the application ot A. B. to have a receipt evidencing the performance of certain conditions of the will of , deceased, placed upon the margin of the will in the records thereof; and the same was submitted to the Court upon the exhibits and testimony, wherefore the Court finds that notice of the time and hearing of said application has been given as the law requires, and it further appearing to the Court that the receipt marked " Exhibit A " attached to the application is genuine, it is ordered that the same be recorded on the margin of the record of the will of , deceased, in the records of this office, and it is further ordered that the costs of this proceeding, taxed at dollars, be paid by , and that the entire proceedings be recorded in the rfcord of accounts. 711 POSSESSION OF EEAL ESTATE §798 CHAPTER XLY. REAL ESTATE. SALE WITHOUT OEDER OF THE COURT. : 799 Possession of, etc. 800 Land liable for debts. 801 The right to mortgage and lease, etc. 802 When sale is authorized by will no order of sale is re- quired, 803 Sufficient authority. 804 Title. Devise to sell. § 805 Construction of power. § 806 Who can execute. § 807 Expiration of power. § 803 Control of Court over the ex- ecution of the power of sale. § 809 Form of deed of executor or administrator with the will annexed. § 810 Sale and distribution. § 799. Possession of, etc. We have heretofore discussed the power of an administrator or eixecutor to collect rents, etc., arising from the lands of the deceased,^ Generally it may be said that an executor or ad- ministrator has no power over a decedent's real estate except that which may be given to him by statute or by will ; and in the absence of such authority he cannot take or pay out money for it, as such executor or administrator,^ when no authority exists in the will an executor must get an order of Court. Neither can an executor or administrator prevent the heirs and devisees of the decedent from exercising their right to the title and possession of their ancestor's real estate.^ Such heirs may have partition of such real estate and the title will vest in them until it passes to the purchaser at a sale by the admin- istrator or executor for the payment of the debts of such an- cestors.* 1 See § 3G4, § 373. 2 When no authority exists in the will an executor must get an order of Court. Goforth vs. Longvvorth, 4 0. 129; Ludlow's Plcirs vs. Park, 4 0. 5; Newcomb vs. Smith, 5 O. 447; Ludlow's Heirs vs. Wade, 5 0. 494; 18 Cyc. 740; 17 Cyc. 504. Where tlie sole devisee of land is appointed executor and sells land in his individual capacity, the pro- ceeds come into his hands as execu- tor, and if tlie personal property is insufficient to pay the debts he must apply the proceeds. Railway vs. White, 85 O. S. 410. In this case the real estate was sold under a defective petition. 3 Reed vs. Brown, 10 C. C. 44; 6 C. D. 15. See subsequent section, Construc- tion of devise to sell. 4 But no partition shall be ordered by the Court witliin one year from tlie death of tlie decedent, unless the petition shall set forth and it be § 800 LAND LIABLE FOR DEBTS 712 The title to the real estate of the ancestor intestate, vests at the instant of his death in his heirs, and they take and retain such title with all tlie rights and incidents belonging thereto, until the administrator of the ancestor effectively asserts his right thereto for the purposes provided in the statute." And until it becomes necessary to sell an intestate's land tO' pay debts, his administrator's rights therein is a mere naked power resting only upon the contingency that tlie personal property will be insufficient to pay such debts. Until the happpening of that contingency the possession belongs to the heirs ; and if there should be no debts, or sufficient personal property to pay them, the administrator has no right to the possession of the real estate. This same rule would apply to an executor where the power granted him in the will, was a mere naked power to sell for the purpose of paying debts and making distribution. But if the power has a trust connected with it, such for instance, as that the executor may make sale of the lands when in his opinion a sale can be made to good advantage, and the pro- ceeds is devised to children as they become of age, he then is entitled to the possession of lands. ^ Even when a will directs land to be sold and the proceeds divided, the parties may defeat the sale by electing to take the land.'' § 800. Land liable for debts. At common law the title to real estate vested absolutely in the heirs upon the death of the ancestor, and it was not subject to be made assets for the payment of debts. This common law doctrine, however, has been overthrown by statute, and now proved that all the debts and claims Jones vs. Billstein, 28 Wis. 221 ; against the estate of such decedent Overturf vs. Dugan, 29 0. S. 230. have been paid or secured to be paid. 6 Dabney vs. Manning, 3 0. 321 ; Or that the personal property of Roberts vs. Roberts, 1 Diz. 197; said decedent is sufficient to pay Williams vs. Beach, 17 O. 171. the same. § 11943 G. C. See § 1879 7 Holt vs. Lamb, 17 O. S. 374; 9 et seq. Cyc. 857. 5 Shaw vs. Hoadley, 8 Blkf. 165; Where road material is taken an Beckett vs. Selover, 7 Cal. 215: executor or guardian may receive Streeter vs. Baton, 7 Mich. 341; the money. § 7178 G. C. 713 DEBTS, ETC. § 800 the right of a creditor to have the land subjected to the payment of his claim is always regarded as superior to the right of an heir; and although the heir may have sold and conveyed the land, the conveyance made by the administrator under the order of the Court is not in any wise affected or impaired by the pre- vious incimibrances or conveyance by the heir.* The wasting of the personal assets of the decedent by his executor or administrator does not relieve the real estate from liability for the debts.® If, however, such wasting is a wrongful one by the administrator, he would be liable on his bond.^" But if the assets are wasted or destroyed without fault of the execu- tor or administrator ; or by reason of a decrease in the value of such assets, or the insolvency of tlie administrator or executor and their sureties, the loss falls on the estate.^^ A purchaser from the heir acquires precisely the same right and interest which the heir has from whom he tal^es a convey- ance, and nothing more. He is, therefore, bound to know that, until the estate is finally settled, the sale of the real estate may become necessary for the payment of debts. ^" The heir and purchaser alike, however, have the right to insist that the per- sonal property shall be^ first applied to the payment of debts, unless the testator by a testamentary provision has otherwise provided. 8 Sidener vs. Hawse, 37 O. S. 532 ; descended to the heirs^ and some See § 55. have been sold and conveyed by 9 Conger vs. Cook, 56 la. 117; them, and some have not, a court of Smith vs. Brown, 99 N. C. 377 ; Van chancery will so far control a cred- Bibber vs. Julian, 81 Mo. 618. itor of the ancestor in asserting his 10 In re Merritt, 62 Mo. 150 ; Foley lien in chancery as to require him to vs. McDonald, 46 Miss. 238 ; Carlton resort first to land remaining un- vs. Byers, 70 N. C. 691. sold, and if that be not sufficient to 11 Faran vs. Robinson, 17 O. S. liquidate the debt, resort must be 242 ; Evans vs. Fisher, 40 Miss. 643 ; had to the sold lands, in regular or- Lilly vs. Wooley, 94 N. C. 412; May der, beginning with that last sold. vs. Parham, 68 Ala. 253. Pratt vs. St. Clair, 6 0. 227. 12 Piatt vs. St. Clair, 6 0. 227 McDonald vs. Alten, 1 O. S. 293 Weakley vs. Conradt, 56 Ind. 430 Creditors must first exhaust their remedy against the personal repre- sentative, before they can have re- Baker vs. Griffitt. 83 Ind. 411; Fis- course to lands in the hands of pur- cus vs. Moore, 121 Ind. 547. chasers from the heirs. Stiver vs. Where several tracts of land have Stiver, 8 O. 217. § 801 REAL ESTATE, MORTGAGE, ETC. 714 § 801. The right to mortgage and lease, etc. "As the power of an executor or administrator over the lands of a deceased person exist entirely by virtue of the power of some provision in the will or statutory enactment in the ab- sence of such power, it therefore follow^s that unless the statute provides for mortgaging and leasing lands, or the testator has so provided, the executor or administrator can neither mortgage nor lease lands of a deceased. There is no such power con- ferred by the statute in our State. There may be some in- stances when such power might be advantageously used by an ad- ministrator. The prevailing idea of our statute, however, is to have a speedy settlement of an estate. If the conditions were such that the lands should be leased, a receiver might be ap- pointed by the Court for tliat purpose.^^ The weight of authority, apparently, is that power to sell and convey does not carry with it the power to mortgage.^* A power to sell and convey real estate to pay testator's debts can not be exercised by a conveyance to one of the heirs who is to mortgage it tO' secure money for the executors and then re- convey it to the executor subject to the mortgage.^^ A power to distribute after a life estate " by cash sale or division " does not give a power to confirm a lease made by the life tenant." A power of sale cannot be exercised by an exchange.^' The power to sell real estate conferred by will upon executors for the purpose of paying debts of the testator, and dividing his estate, does not authorize the executors to make a perpetual lease of the premises with privilege of purchase.^* § 802. When sale is authorized by will no order of sale is required. "If an executor or administrator, duly qualified, The debts of a decedent are a lien is Arlington State Bank vs. Paul- upon his real estate, and purchasers sen, 57 Neb. 717; S. C. 80 N. W. from his heirs take the same with 263. this burden upon it, and subject to i6 Johnson vs. Grantham, 104 Ga. the maxim caveat emptor. Faran 558. vs. Robison, 17 O. S. 243. " Taylor vs. Galloway, 1 O. 232. 13 See § 372. is Breuer vs. Hayes, 21 B. 29. i4Hoyt vs. Jaques, 129 Mass. 286; See Prathcr vs, Foote, 1 Diz. 434. Arlington State Bank vs. Paulsen, 67 Neb. 717. 715 SALE UNDER WILL § 803 is authorized by will or devise, to sell real estate, no order is required from the court to enable him to act in pursuance of the power vested in him by such will." [R. S. § 6167.]^^ § 803. Sufficient authority. The first question that arises under the above provisions of our statute is, what words in a will are sufficient to authorize an executor or administrator to sell real estate. A power is defined to be ''an authority whereby the person is enabled to dispose of an interest in real estate vested in himself or another."-" A power of sale may be conferred by will with- out the employment of any technical words. Any expression of testator's intention to confer upon the designated persons the power to dispose of testator's property by deed of conveyance will be sufficient.-^ A power of sale is often implied with directions to executors or trustees to divide property, where from the nature of the property or the context of the will it is evident that a division in specie is either impossible or is not contemplated by testator.-- An implied power of sale does not extend any further than the necessity from which the power arises.-^ A power of sale of realty may also be implied from a direction that some part of testator's property, it not appearing clearly what, was to be sold and paid upon testator's debts, where the debts exceeded the amount of the personal property.-* And where the devisees may take personalty but can not take realty, as where they are non-resident aliens, it was held that a general power of sale in the executor imposes on him a duty to convert realty into money and distribute.-^ 19 § 10812 G. C. See Woerner od 22 stoflf vs. McGinn, 178 111. 46; Admin., §1023. §716. Mulligan vs. Lambe, 178 111. 130; 20 Page on Wills, 821. lasigi vs. lasigi. 161 Mass. 7.5; 21 Page on Wills, 821, with col- Thompkins vs. Miller, — N. J. Eq. lection of cases conferring power to — ; 27 Atl. 484; Story vs. Palmer, sell. 46 N. J. Eq. 1 ; Wilson vs. Wilson, It seems that if an executor is 46 N. J. Eq. 321; Parker vs. Seeley, sole legatee and he makes sale in a 56 N. J. Eq. 110; Mimms vs. Delk, defective proceeding, the sale will be 42 S. C. 195. considered valid and he will be re- 23 Smith vs. Hall, 20 R. I. 170. quired to account for the proceeds 24 Sehroeder vs. Wilcox, 39 Neb. to a creditor. Hocking Valley Ry. 136; 57 N. W. 1031. vs. White, 87 O. S. 413. Such power becomes legally in- If the will confers power on an onerative when estate is settled, executor and such power is personal, Ward vs. Barrows, 2 O. S. 241. See it can not be exercised by an ad- Hunter vs. Yocum, 18 N. P. 14; 27 ministrator with the will annexed. Dee 31. If the power is annexed to the posi- When will be set aside. Pollock ticff, and part of the trust, it may vs. Pine, 1 C. D. 529; 2 O. C. C. 350. be. Wcstwater vs. Guidner, 18 N. 25 Greenwood vs. Greenwood, 178 P. 209. 111. 387; citing Hunt's Appeal, 105 § 804 DEVISE TO SELL 716 A power of sale was implied from a devise of the use of certain realty " until the sale and conveyance of said premises by my executor as hereinafter provided," there being no sub- sequent provision."® Power in an executor to convert land into money is a power to sell."^ A devise in trust " to invest, manage and control " as deemed best to combine safety with productiveness, gives power to sell real estate at discretion.^* Investing an executor with " full, ample and complete power to dispose in such manner as he thinks proper," gives him power both to convey and to sell."^ The direction in a will that property be sold and the proceeds divided and the mere nomination of one as executor, has been held does not give such executor authority to sell.^** Where a will provided that an executrix should hold in trust certain property and collect rents for a term of five years, and after the expiration of five years the property was to be sold and divided, there was an im- plied power for the executrix to sell real estate.^^ A power to sell does not authorize an exchange.^^^ §804. Title. Devise to sell. A mere direction to an executor to sell lands for the purpose of paying legacies, or making distribution, does not vest any title to the land in the executor."- To cut off the heir at law Pa. St. 128; Penfield vs. Tower, 1 If the only disposition of real es- N. D. 216: Cook vs. Cook, 20 N. J. tate is directing the executors to sell Eq. 375 ; Frazer vs. United Presby- it and pay the proceeds to a trustee terian Church, 124 N. Y. 479 ; Lent for others, the legal title descends vs. Howard, 89 N. Y. 169; In re lo the heirs subject to the power, Gantert, 136 N. Y. 106. but the right of possession is in the 26 Cahil vs. Russell, 140 N. Y. 402. executors to enable them to carry 27 Dean vs. Lowenstein, 6 C. C. out the will. Elstner vs. Fife, 32 587; 3 C. D. 597; Schaupp vs. Jones, O. S. 358. 12 Dec. 197. No title is vested in executors by 28 Sargent vs. Sibley. 11 B. 177. a naked power to sell and convey to 29 Steele vs. Worthington, 2 0. pay debts if necessary, but the title 182. is in the heirs-at-law until the power 30 Weymouth vs. Irwin, 5 N. P. is executed. Mimmons vs. Westfall, 248; 7 Dec. 291. 33 0. S. 213, 223. As a general proposition, the Where the will gave the widow above mav be a doubtful authority, power to sell, if necessary to main- but see case as to its application. tain herself and children, and she 31 Lawton vs. Lawton, 5 X. P. exercised the power, reciting in the 441 ; 7 Dec. 493. deed that it was necessary to sell 31a Fleishman vs. Shumaker, 2 C. the same to provide maintenance for C. 152; 1 C. D. 415; Taylor vs. herself and children, the burden is Galloway, 1 0. 232. upon attacking parties to show that Where two are named executors it was not necessarv. Haun vs. and one declines to serve, the other Block, 9 C. C. (N.S.) 328; 29 0. may sell. Id. C. C. 460. 32 See § 1192, on Interest devised. See Hiatt vs. Simpson, 5 N. P. 717 NAKED POWER §804 the title must be devised, expressly or by implication, to some other person. "Where there is merely a naked power to sell the estate and distribute the proceeds, it is not necessary that the executor should have the title to the estate to enable him fully to carry into effect the intentions of the testator. In that case the legal title to the estate will be divested the moment the execu- tor executes his trust, but in the meantime, and until a sale is made, the heir is entitled to the profits.^^ The doctrine is thus stated in an old work: **A devise of land to executors to sell passes the interest in it, but a devise that executors shall sell the land, or that lands shall be sold by the executors, gives them but a power, and it seems that even a devise of land by a testator to be sold by his executors, without words giving the estate to them, will invest them with a power only, and not give them an interest. ' ' ^"^ Where the power given to the executor is not merely to sell but vests a discretion in the executor in the nature of a trust, the executor is entitled to possession. ^^ (N.S.) 513; 18 Dec. 390, for con- struction of will where life tenancy was given without disposing of the remainder. 33 H. devised his farm to his wife for the period of 12 years; at the end of 12 years he directed: "All my real estate shall be sold by my ex- ecutor, hereafter named, at public sale, and the proceeds divided in three equal shares, as follows: To my son G. H., one share; to my daughter C, one share; to the chil- dren of my daughter E. A. S., one share. Held, that the fee to the real estate vested in the legatees at the death of the testator subject to be divested, upon the exercise of the power of sale resting in the execu- tor. Barkman vs. Hain, 5 N. P. 508; 5 Dec. 474. 3* Sugden on Powers, 129. In the absence of a will a dece- dent's land is not distributed, but descends to his heirs: nor, wliere there is a will, are such lands dis- tributed in the statutory and ordi- nary sense of the term distribution, but such distribution is made ac- cording to the terms of the will. Where a will gives to the executor a mere naked power to sell the real estate, neither the title nor the right to the possession of such real estate passes to such executor, nor is he liable for the rent thereof. Dunn vs. Renick, 40 W. Va. 349. Where the testator vesta in hia widow a life estate in his lands, with the provision that within a reasonable time after the death of the widow certain land shall be sold the executors named in the will "nd the proceeds divided equally among his five children, or if any child should decease before distribution the share of such child or children should go to his or their heirs, so that the proceeds of said lot may vest in my children and their heirs forever, the power given to the ex- ecutors vests the fee in them. Knisely vs. Young, 33 O. C. C. 439. 35 A bequest to a wife of all prop- erty, real, leasehold and personal, is qualified by a clause directing the executors to lease certain premises and pay ground rents and taxes and the balance to the wife, and shows that her interest is only in the pro- ceeds thereof and that the title is in the executors. Boyd vs. Talbert, 12 O. 212. See also Lessees vs. Veach, 17 0. 171; Dabney vs. Manning, 3 O. 321. On devise to the wife for life, the executors to divide the remainder among children, the fee is in the executors and does not vest in the § 805 SALE OF REAL ESTATE UNDER POWEE 718 § 805. Construction of power. The power to sell must be strictly pursued and must be exe- cuted according to the manifest intent of the testator,^® and the power simply to sell does not include or imply a power to dispose of the same by exchange or barter.^^ Likewise the pow- er to sell must be a sale for cash, yet if land be talcen in pay- ment and received by the estate, authority might be presumed.^' Neither will a power to sell be held to include a power to mort- gage.'^ A power of sale for a specific purpose, such as for the pay- ment of testator's debts and for the support of the donee of the power, does not confer a general power of sale for ail purposes,*" Therefore, a power of sale to pay debts of testator can not be exercised if the personal property undisposed of is sufficient to pay the debts. ''^ And such a power of sale can not be exer- cised where the debts of testator are barred by the Statute of Limitations.*^ A power to sell, to provide for the support of testator's widow in her lifetime, and for her burial, ^vith a provision that the trustees shall divide the residue of the proceeds, does not authorize a sale for the mere purpose of dividing the property.*^ Where an express power of sale is givec, but the purpose for which it is to be used is not specified, it is held to be a power of sale in order to pay the proceeds to the devisees in lieu of the devise.** And, therefore, such a power of sale is not re pugnant to the devise of the property in fee.*^- Where the exec- children. Sinton vs. Bovd, 19 0. S. § 801. 30-35; Roberts vs. Roberts, 1 Dis. 38 Webster vs. Harris, 16 0. 490. 117; Williams vs. Mead, 4 Gaz. 293; 39 Breuer vs. Haves, 21 B. 29: 22 2 Dis. 604. See § 1190. B. 144; Fleiseliman vs. Shoemaker, 36 Taylor vs. Galloway, 1 O. 233. 2 C. C. L52; 1 C. D. 415. A testamentary provision that ^'^ Griffin vs. Griffin, 141 111. 373. "whenever it may be necessary for ^1 Sweenev vs. Warren, 127 X. Y. the welfare of my wife * * * my 426; 24 Am'. St. Rep. 468; Seeds vs. said executor shall have power and Burke, 181 Pa. St. 281. authority to give a good and valid 42 Hemphill vs. Pry, 183 Pa. St. deed or other evidence of title," 593. does not authorize the widow to 43 Hammond vs. Conkright, 47 N. consume the estate. And if author- J. Eq. 447. ity to consume exists, it is an au- 44 Ness vs. Davidson, 45 Minn, thoritv t^iat must be exercised diir- 424. ing the lifetime of the widow. Mc- 45 Sneer vs. Stutz, 93 Ta. 62; dis- Coy vs. McCarthy, 23 Dec. 176. tinsuishing Hallidav vs. Strieker, 37 Cleveland vs. State Bank, 16 78 la. 3^8; Mel 1 en Vs. Mellen, 139 0. S. 236. K Y. 210. 719 CONSTRUCTION OF POWER § 80G utor is given power to sell to pay debts, the purchaser need not inquire as to debts unless the time between the death and sale is SO long that it may l>e presumed that the debts are paid. Seven years will not raise presumption." § 806. Who can execute. If only one of those named as executors accept and qualifies he may execute the power to sell, though such power is not coupled with an interest.*^ But if all are living and acting, all must join in the exercise of the power/® An executor di- rected to sell real estate and pay the proceeds to a trustee can- not exercise such power after he has ceased to act in that capacity.*" In such cases the administrator with the will annexed would have power to complete the sale.^° Before the enactment of sec. 5980, R. S., sec. 10590, G. C, (§ 107), it was held that the power given to an executor named in a will to sell Innds without any trust being attached, could not be exercised by an administrator with the will annexed.^^ Where a power of sale is clearly given, but the will does not provide who is to exercise it, the omission may be supplied by construction. Thus if the context of the will shows that the A testator, whose estate consisted estate in land, in the proportions of a single tract of land, occupied as specified, and not a bequest of the a homestead, and some personal proceeds of said land. That the property, devised and bequeathed to power of sale vested in the executor his wife one-half of all his real and was a naked power only, not a power personal estate, and the other half coupled with an interest in the land, to this brothers and sisters, and the and could only be exercised, if neces children of a deceased sister nam- sary, for the purpose of making dis- ing each, and specifying the proper- tribution among the devisees. Hoyt. tion or share of each. He appointed vs. Day, 32 0. S. 101. an executor, and authorized and em- *^ Smith vs. Mclntire, 13 Fed., powered him to sell and convey " all Dec. 14. said real estate to the purchaser or ■*'^ Taylor vs. Galloway, 1 0. 232. purchasers thereof, if necessary for ^8 Fleischman vs. Shoemaker, 2 C. the purpose ot distributing" it." C. 152; 1 C. D. 415. See § 203. " among the devisees and legatees <» Elstner vs. Fife, 32 O. S. 358. aforesaid." It was held, that this eo § 5930 E,. S., § 107. was a devise in fee, to each of the bi Wills vs. Cowper, 2 O. 124. devisees bv name, on an undivided § 807 SALE OF REAL ESTATE UNDER POWER 720 executors are to receive and expend the proceeds of the sale, it is held that the power of sale is given to them.°^ A power of sale given to tlie executor is substantially com- plied with by a sale by the devisee of the property subject to such power of sale, when the proceeds of the sale are given to the executor and are applied by him to the purposes set forth in the will." The question as to the right of the successors of executors, or trustees to exercise the power, turns entirely upon the intention of the testator as manifested in the will. If he absolutely gives a power of sale, and leaves the executors or trustees only the ministerial duty of carrying this mandatory power into exe- cution, it is generally held that the successors may exercise this power without any suit for that purpose, or without the author- ity of the Court." But if the power of sale conferred is not absolutely and •unconditionally,, but is entirely discretionary with the person to whom it is given, his successors in office can not exercise it.'* § 807. Expiration of power. The power given to executors by will to sell and convey land, becomes legally inoperative and ceases to exist, when the estate is settled, or all claims against it are presumptively satisfied"* 52 Rathbone vs. Hamilton, 4 App. Pa. St. 285 ; Boutelle vs. Bank, 17 D. C. 475; Van Brocklin's Estate, R. I. 781; In re Blakely, 19 R. I. 74 la. 412; Mandlebaum vs. McDon- 324; Smith vs. Hall, 20 R. I. 170; ell, 29 Mich. 78; Ogle vs. Reynolds, Bredenburg vs. Bardin, 36 S. Car. 75 Md. 145; Portertield vs. Porter- 197. field, 85 Md. 663; Belcher vs. Belch- 55 Chambers vs. Tulane, 9 N. J. er, 38 N. J. Eq. 126; Vaughan vs. Eq. 146; Farrar vs. McCue, 89 N. Farmer, 90 N. Car. 607; Collier vs. Y. 139; Page on Wills, 830. Grimesey, 36 0. S. 17; Wood vs. See §10590 G. C. Hammond, 16 R. I. 98. Railroads vs. Hutehins, 37 0. S. 53 Dean vs. Loewenstein, 6 C. C. 282; Sargent vs. Sibley, 11 Bull. 587; 3 C. D. 597. 177; Allen vs. Globe Ins. Co., 19 54Meddis vs. Bull (Ky.), 18 S. Bull. 198. W. 6; Bay vs. Posner, 78 Md. 42; 55a See Clark vs. Xeil, 27 Dec. 26 Atl. 1084; Venable vs. Mercantile 328, for interesting discussion hold- Trust Co., 74 Md. 187; Schroeder ing that the trust continues and the vs. Wilcox, 39 Neb. 136; 5 N. W. executor had power to sell without 1031; Potts vs. Breneman, 182 Pa. order of court. St. 295; O'Rourke vs. Sherwin, 156 721 EXPIRATION OF POWER §807 by lapse of time, and nO' obiect of the testator remains to be attained.'" A power given lor a specific purpose exists until the ac- complishment of such purpose.'^ In a devise to executors to sell realty and to divide the proceeds in four shares, one of which was to be held during the life of the beneficiary, the power of sale existed after division of the realty into four shares. A power of sale to be exercised under specific contingencies can not be exercised unless those contingencies exist.'* Thus a power to sell under direction of the Probate Judge could not be exercised by a sale without such, direction.'^ And where power of sale of certain described property under spe- cific contingencies is given, it is not enlarged by a subsequent general power of sale of testator's property.®** When the con- tingencies have been complied with,- however, the power of sale may be exercised.^^ 5-5 Ward vs. Barrows, 2 O. S. 242. 57 Johns Hopkins University vs. Middleton, 76 Md. 186. (A devise in trust for testator's children to terminate when each should reach the age of thirty, wiih power of sale to make a division of the property between the children, was held to confer a power which lasted after the first child reached the age of thirty.) Hallum vs. Silliman, 78 Tex. 347. (A direction that, upon the ar- rival of the eldest son at majority, the balance of the property left after the exercise of a power of sale, the proceeds to be devoted to the sup- port and education of the children, should be divided, was held to cre- ate a power of sale for the educa- tion of the minor children which did not terminate with the arrival of the eldest son at majority.) 58 Petit vs. Flint, etc., Ry. Co., 114 Mich. 362. (A power to sell land after it was platted does not authorize the exercise of sale before it is platted.) Mersman vs. Mers- man, 136 Mo. 244. (A power to sell a homestead when none of testator's unmarried children desire to reside there, does not authorize a sale to reinvest the proceeds in another dwelling to be used as a homestead by such children.) 59 Bates vs. Leonard, 99 Mich. 296-; 58 N. W. 311. 60 Petit vs. Flint, etc., Ry. Co., 114 Mich. 362. (A power to sell certain real estate when surveyed and platted can not be exercised be- fore survey. ) So Rice vs. Tavernier, 8 Minn. 248; Mersman vs. Mersman, 136 Mo. 244. 61 Harp vs. Wallin, 93 Ga. 811. (A power to sell lands in case de- visee saw fit to send testator's widow to an insane asylum may be exer- cised validly, and will pass good title if in good faith when the de- visee decides to send testator's § 808 SALE OF REAL ESTATE UNDER POWER Y22 A power of sale in a certain time is not destroyed by failure to exercise it within the time limited,*'^ Where a power of sale is given solely as a means of accomplishing some purpose which the law will not permit, the power itself is invalid.^^ However, an absolute power of sale, given, without any reference to its purpose is not avoided by the fact that the disposition of its proceeds may be in part invalid.®* The attachment of the share of the devisee does not defeat the right of the executor to sell.*' Neither does the sale of a share by a devisee defeat the right of the executor to sell.'^'^ § 808. Control of court over the execution of the power of sale. It is a very common method for testators to provide that executors may sell the real estate upon such terms and at such time and in such a manner as they may deem best. Questions sometimes arise as to what control the. Court has over the exe- cution of such a power. It is said that where a power is given to trustees to do or not to do a particular thing, at their dis- cretion, the Court has no jurisdiction to lay a command or pro- hibition upon the trustees as to the exercise of that power, provided their conduct be bona fide and their determination is not influenced by improper motives.^^ But where tlie power is accompanied with a duty, the Court will compel the execution of it.^^ And it has been held where p sale is directed, but the J:ime and manner of the same is reposed in the discretion of executors, such executors must widow to an ayslum and gets an the power of sale was void as given order adjudging her insane, even in order to carry out a scheme which though she may not actually be involved an invalid restraint of sent.) alienation. Huidekoper vs. Perry, 62Fahnestock vs. Fahnestock, 152 14 C. C. 68; 7 C. P. 326. Pa. St. 56; Marsh vs. Love, 42 N. J. 64 Pearson's Estate, 98 Cal. 602; Eq 112, Hale vs. Hale, 137 Mass. Page on Wills, 826. 168. 65 Smyth vs. Anderson,, 31 O. S. 63 In re Piercy ( 1898 ) , 1 Ch. 565 ; 144. 67 L. J. Ch. N. S. 297 ; 78 Law T. 66 Hoyt vs. Day, 32 0. S. 101. Rep. 277; Dana vs. IMurray, 122 N. 67 Lewin on Trusts, Page 773. Y. 604 ; Petit vs. Flint, etc., Ry. Co., 68 Pomeroy's Equity, § 835. 114 Mich. 3G2. (In the above cases 728 COWTKOL OF COURT § 809 exercise such discretion with fidelity to the interest of the beneficiaries and in a reasonable and prudent manner.®" There is no doubt but that a Probate Court has jurisdiction to entertain a complaint by a party interested, but when it should be exercised, is another question/" Creditors undoubt- edly have a right to have real estate sold in a reasonably short time where the personal property will not pay their debts, and no doubt tlie Court would at all times apply the rule made by statute for administrators, that as soon as it is ascertained that the personalty is insufficient to pay the debts action shall be had for the purpose of selling the real estateJ^ But when there is no necessity for selling real estate to pay debts, and the only parties interested are beneficiaries under the will, the Court would be slow in making an order controlling or directing the exercise of what appears to be a discretionary power. In such eases the court would look to the intention of the testator in creating the power. So long as there was no immediate danger of defeating the right of the beneficiaries the Court would not interfere in the discretion of the executor. But as a gen- eral rule the testator means and intends that his real estate shall be sold in a reasonably short time and in a reasonable and proper manner.^^ § 809. Form of deed of executor or administrator with will annexed. Know all Men by these Presents: That, whereas, on the day of 190. ., the last will and testament of , deceased, was admitted to Probate and record in the Probate Court of County, Ohio, and on the day of 190 . . , w duly appointed and qualified as of said decedent by said Probate Court, and now the lawful of the estate of said testat That said last will and testament, among other provisions, contained the following, to-wit: And, whereas, the said testat.... died seized in fee simple of tlie real estate hereinafter described, and in order to carry out tlie provisions of said last will and testament and it is necessary to sell said real estate. 69 Corrington vs. Corrington, 16 7i § 10762 G. C. N. E. Pep. 252. 72 Reynold's Estate, 2 Dec. 11; 3 70 See Gates vs. Pond, 12 C. C, N. P. 292. 66; 5 C. D. 297. § 810 SALE OF REAL ESTATE UNDER POWER 724 Now, therefore, as as aforesaid, in pursuance to the said pro\-isions of the said last will and testament of said , deceased, and by virtue of the statute in such cases made and provided, and of the powers vested in and for and in consideration of the premises, and the sum of dollars {$ ), paid, or secured to be paid to by said the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said . .h. . . .heirs and assigns forever, the following real estate, situated in the county of in the State of and in the and bounded and described as follows : To have and to hold said premises, with all the privileges and appurte- nances thereto belonging, to the said h. . . .heirs and assigns forever, as fully and completely as , the said as such by virtue of said last will and testament, and of the statute made and provided for such cases, might and should sell and convey the same. In Witness Whereof, The said as such ha ... . hereunto set . . h . . . . hand . . , this day of A. D. 190.. Signed and acknowledged in presence of of The State of Ohio, County, ss. Be it remembered, that on this day of 190 . . before me, the subscriber, a in and for said coun- ty, personally came the above named as of the grantor . . in the foregoing deed, and acknowl- edged the signing of the same to be. .h. . . .voluntary act and deed as such for the uses and purposes therein mentioned. In Testimony Whereof, I have hereunto subscribed my name and affixed my official seal on the day and year last aforesaid. § 810. Sale and distribution. The same law applicable to tlie fidelity required of an execu- tor or administrator in the sale of real estate, under an order of the Court, is applicable here. Except that, perhaps, where oroad discretionary power is conferred on the executor by will, the Court might excuse an error of judgment where it was not so great as to impute a gross degree of negligence, or manifest fraud. As the sale is made without confirmation of the Court, therefore, in order that interested parties may be fully informed it has been held that in the executor's account, where different tracts have been sold, it must be so stated, separately, the price received for each tract, as well as the name of the purchaser given." 73 In re Williamson, 4 N. P. 282 : 7 Dee. 24. 725 SALE AND DISTEIBUTION § 810 The Probate Court has full authority upon exceptions being filed to an account to enter into the question as to the proper exercise of a testamentary power to sell lands for the payment of debts. If the executor in bad faith sells them for a price that is manifestly less than their true value, he should, on ex- ception to his account in the Probate Court, be charged with the difference between such inadequate price and the true value of the lands/* An administrator's sale of real estate by order of the Probate Court, is a judicial sale/® But a sale under a power in the will is not strictly a judicial sale/® It would seem, therefore, that when an executor sells by vir- tue of the power in the will, the same rule is applied as to a pri- vate individual. In the distribution of the proceeds of a sale, the executor should follow the rule laid down for a sale made under an order of Court, ''^ so far as debts and expenses of the estate is concerned, unless the will provides otherwise. As to the remainder, the same must be distributed in accordance with the provisions of tlie will ; and if no specific provisions are made, the ordinary rules applicable to descent and distribution should be followed. If the executor has doubts as to how it should be distributed, he may himself bring an action in the Court of Common Pleas to have the will construed,^® or may permit a suit to be brought against him to enforce distribution as provided for administrators.®** 74 Brown vs. Reed, 56 0. S. 264; of taxes; for land sold at a judicial 10 C. C. 44; 6 C. D. 15. sale, all taxes that are on the tax 75 Noland vs. Barrett, 122 Mass. duplicate October first, must be paid 189 ; Maul vs. Hellman. 39 Neb. 322. out of the proceeds of the sale 76Woerner on Admin. 1022, cit- Hoglen vs. Cohan, 30 0. S. 43G; ing in re Pearsons, 102 Cal. 574. Ketcham vs. Fitch, 13 O. S. 201; The dividing line seems to be in Creps vs. Baird, 3 0. S. 278. such cases, that if the Court must See §§ 5635-6 G. C. confirm the sale it is judicial, if the 77 See § 10809 G. C, S 903. Court is not required to pass upon 79 §§ 10857-8 G. C. § 33. such sale then it is not judicial. so See § 755, et seq. This might be important in our See also §§492, 493, as to duties State in reference to the payment in sale of property. § 811 SALE OF REAX ESTATE 726 CHAPTER XLYI. REAL ESTATE. SALE BY COURT PROCEEDINGS. §811 Direction of will. Or statute §822 When real estate fraudulently must be followed. conveyed liable to sale. §812 Nature of the action. §823 How executor or administra- § 813 In what Court action to be tor to get possession of land brought. fraudulently conveyed and § 814 Power of the Court. avoid such conveyance. § 814a May release lien. § 824 Proceedings Avhere property is ! ^V' ^",^*"'"^ ''^ PO"'^!;- , fraudulently conveyed. §816 \\ hen action to be brousrht. sot n a-^- ^ i r -x ui §817 Limitation as to the time of § ^"^ Petition for sale of equitable bringing. interest. § 818 For what the action may be § 825a The order and sale. brought. § 826 Persons interested may give § 819 For the payment of legacies. bond and prevent sale. § 820 What may" be sold. §827 Comments. § 821 When can not be sold. § 828 Form of bond. § 811. Direction of will. Or statute must be followed. In the previous chapter our attention was addressed more particularly to the sale of real estate, by virtue of a power in the will of a decedent. It will be the purpose of this and subse- quent chapters to treat of the sale by virtue of a Court proceed- ings. As we have had an occasion to say before, but which is a matter we think will bear repetition, an administrator or exec- utor has no power to sell real estate except such as is given to him by will or by statute. It, therefore, becomes very essen- tial that all the requirements of the statute be complied ^^'4th.^ In reference to the importance of the exercise of prudence and care in such matters, I cannot do better than to quote from Judge Woemer's most excellent work. " While it is manifest- ly the policy of the law to uphold judicial sales made without fraud, so as not to deter purchasers by encouraging the appre- 1 Such power can not be set up Prior to 1795 our courts Iiad no in a Court of Equity. LieOy vs. power to order a sale of deceuents Parks, 4 O. 469. property, nor between 1805 and Statute strictly construed. Kum- 18U8. At all otiier times there has mer vs. Lapp, 1 JN. P. (JN.S.) 209; been such power. Walkers Am. 13 Dec. 491. Law, 460, note. 727 STATUTE MUST BE FOLLOWED § 811 hension that their substantial rights and interests may be sacrificed to technical considerations, — while Courts will go very far to insure protection to innocent purchasers in collateral proceedings, even in cases of gross error arising out of blunders or carelessness of Probate Courts or their officers, — it is obvious- ly of the gravest importance that every step taken in subject- ing the real estate to sale for the payment of debts be as nearly as possible in literal compliance with the method pointed out by the statute upon which the proceeding is based. Where particular forms are ]X)inted out for the execution of a power, however immaterial they may appear in themselves, these forms are conditions that cannot be dispensed with. It is a perni- cious error, fiiiitful of trouble and mischief, to suppose that any vague, inartificial statement of circumstances is sufficient to authorize an order for the sale of real estate, if the applicant and the judge both know all about the matter ; or that the good faith and honesty with which the application is made are a sufficient safeguard against ruinous complications and litigation that may follow an oversight or mistake. The anxiety of Courts to vindicate the validity of judicial sales should not be relied on as a pretext for the' carelessness of executors and ad- ministrators, or the supineness of Probate Courts, in the sev- eral steps necessary for the sale of real estate. Even if the sale should be held good as against a collateral attack, — and it is distressingly uncertain to what extent the trial, and even ap- pellate, Courts will go in that direction, — yet many acts of commission or omission which will not be allowed to invalidate the transaction in a collateral investigation, may in a direct proceeding subject the administrator to serious liability, the estate to loss and delay, and all parties concerned to vexatious and oftentimes ruinous litigation. No part of an adminis- trator's duty claims more careful attention, and demands more imperatively the advice and assistance of a competent profession- al man, than his relations to and duties concerning the real es- tate of the deceased." ^ See Goforth vs. Longworth, 4 O. Miami Exp. Co. vs. Halley, 7 O. 11 129; Newcomb vs. Smith, 5 O. 447; (pt. 1). 2 Woerner on Admin. 1021. § 812 SALE OP REAL ESTATE 728 § 812. Nature of the action. Previous to the adoption of our present Code, an action to sell real estate was entirely a proceeding in rem. And minor de- fendants not served with process, but for whom a guardian ad litem was appointed and answered, are bound by the decree, as the statute required them to be made parties but did not pre- scribe what notice should be given.^ But whatever the former practice or law may have been, it is now settled that the action brought by an administrator or executor to sell real estate to pay debts is a civil action, adver- sary in its character,^* whether the same be prosecuted in the Court of Common Pleas or the Probate Court ; and the Probate Court has jurisdiction to try any question of fact arising in such action, and to afford the parties a trial by jury when the nature of the issues entitle them to a jury trial or render it appro- priate.'* In this case it was further said, that the proper practice in such cases requires that all persons claiming an interest in, or a lien on the land, be brought before the court and all questions affecting the title adjudicated and settled, in order that the purchaser may buy with safety and the prop- erty may bring its fair value. The case of Doan vs. Biteley " was a pioneer in its line and settled decisively and beyond question the jurisdiction of the Probate Court in such proceedings. However, the action can not be made to include the recovery of the possession of real estate conveyed by a decedent, with the intent to defraud his creditors. Such an action must be brought in the Court of Common Pleas in accordance with sees. 10777 and 10778 of the General Code.« 3 Robb vs. Irwin, 15 O. 680; Sliel- deceased and on her death an ad- don vs. Newton, 3 0. S. 4!)4; Sneve- ministrator de bonis non with the ley vs. Lowe, 18 0. 368: Benson vs. will annexed was appointed, who Cille3% 8 0. S. 604; Biggs vs. Bickel, filed a petition to sell real estate, it 12 O. S. 49. was held this was not the proper 3* Holloway vs. Stuart, 1!) O. S. proceeding. The creditor should 472. Iiave compelled the administrator of The personal representative is the the deceased executor to file an ac- only person authorized to maintain count and therein account for the an action to sell the real estate of a r'-nceeds of snlc. TTockintr Valley Ky. decedent for the pavment of debts. Co. vs. White. 87 O. C. 413. Pvheinfurt vs. Hurr, 98 O. S. 439. A 4 Doan vs. Biteley. 49 O. S. 5f^S. creditor can not maintain such ^ 49 0. S. 588 action. 6 Donev vs. Clark, 8 C. C. 163: 4 Where a person was executor and C. D. 388: 55 O. S. 294; Spoors vs. sole legatee and did not file an ac- Coen, 4i O R. 497. count, but sold the real estate of See § 1619. 729 JURISDICTION OP COURT § 813 § 813. In what court action to be brought. ' ' To obtain such authority, the executor or administrator shall commence a civil action in the probate or common pleas court of either the county in which the real estate of the deceased, or a part thereof, is situated, or of the county in which his letters testamentary or of administration were issued." [R. S. § 6137,]^ In unequivocal language, the above section makes the Probate Court and the Court of Common Pleas, courts of concurrent ju- risdiction in the sale of real estate. This is also specifically de- clared by sec. 10493 G. C. (§ 28). It is a well settled principle of law that where Courts have concurrent jurisdiction the Court first acquiring jurisdiction will retain it to the exclusion of the other. It has also been held that where Courts have concurrent jurisdiction, that that Court will retain jurisdiction which is best able to determine the matters arising in the case; and that therefore where a mortgage lien holder brought an action in tlie Court of Common Pleas to foreclose his mortgage, making the heirs, but not the administrator, a party, and thereafter the administrator brought suit in tlie Probate Court, it was held that the Probate Court would retain jurisdiction. * The action may be brought in the county in which the real es- tate is located, or in the county in which the letters of adminis- tration were issued. The better practice seems to be that if the land is located in the county in which the letters of administra- tion have been granted, the proceedings to sell real estate should be brought in the Probate Court, as all otlier matters of admin- istration are in such court. If the proceedings are brought in a county other than that which granted letters of administration, it might be better to bring the proceedings in the Court of Common Pleas, although the statute is broad enough to permit the action to be brought in the Probate Court. 7 § 10775 G. C. not being bound, lie could bring the 8 Batenian vs. Morris, 4 N. P, action. 397; 7 Dec. 287. An action can not be brought in The doctrine of this case is criti- the Court of Common Pleas if the cised by Kinkead in his work on records of the Probate Court show court practice, page 86. But it cer- that the administrator lias filed a tainly sooms that the administrator final account which disclosed no was not bound by an action to which debts. Hunter vs. Yocum, 18 N. P. he had not been made a party; and 14. § 814 SALE OF REAL ESTATE 730 §814. Power of the Court. "The court in which such action is pending, may determine the equities between the par- ties and the priorities of lien of the several lien-holders on such real estate, and order a distribution of the money arising from its sale, according to the respective equities and priorities of lien as found by the court." [R. S. § 6145.]^ § 814a. Release of lien. "When such action is determined by the probate court, the judge thereof shall make the neces- sary order for an entry of release and satisfaction of all mort- gages and other liens upon such real estate, and enter such release and satisfaction, together with a memorandum of the title of the case, the character of the proceedings and the volume and page of record where recorded, upon the record of such mortgage, judgment or other lien in the office where they appear as matter of record. He shall tax in his cost bill the fee pro- vided by law for entering such release and satisfaction, and also a fee of twenty-five cents to himself for such entry. This section and the next preceding section shall applv to proceedings by guardians, assignees, and trustees to sell lands to pay debts." [R. S. §6145.]'-^* § 815. Nature of power. The above section confers a complete jurisdiction upon the Probate Court to pass upon any equity which might arise in the case.^° As was well said in another case/^ " The policy of our Legislature has long been opposed to the necessity of a resort to different jurisdictions and multiplicity of actions, in order to obtain the full and final relief to which parties may be en- titled, and in favor of clothing tribunals once acquiring control of the subject-matter of a controversy, and of the parties, with jurisdiction, if capable of exercising it, to determine the ulti- mate rights of the parties, and administer to them their com- plete remedy. The policy is a commendable one, with which the statute making actions like that under consideration, civil 9 § 10783 G. C. See § 895, Entry, miiiable. Seitz, In re, 11 C. C. (nS confirmation of sale, etc. S.) 204: 31 0. C. C. 32. 9* § 10784 G. C. The Court of Common Pleas can 10 Borntrager vs. Borntrager, 3 not fix costs of administration and Bull. 891. matters over which the Probate 11 Doan vs. Bitelev, 49 O. S. 594; Court has exclusive jurisdiction. Field vs. Bloch, 4 C. C. (N.S.) 216; Field vs. Bloch, 4 C. C. (N.S.) 216; 26 C. C. 113. 26 C. C. 113. Lien judgment against heir deter- 731 NATURE OF POWER § 815 actions, and giving the Probate Court co-ordinate jurisdiction with, the Court of Common Pleas, is in harmony." But the fact that the action is a civil action and that the Court has power to try every question at law that may arise and that sec. 10783-4, G. C, authorizes it to determine every equity between the parties, does not yet place the Probate Court in all cases on a plane with the Court, of Common Pleas; and there may actions arise in which the Probate Court for want of a general equity power would be unable to give relief. Tlius if two. parties were tenants in common of a certain tract of real estate and gave a joint mortgage on such tract, and one of such joint tenants would die, it is very doubtful whether the administrator of the deceased joint tenant could procure ade- quate relief to all parties in the Probate Court. In such cases the mortgagees' rights would demand a sale of the living ten- ant-in-common's share; and a foreclosure of a mortgage is not within the power of the Probate Court. There has been some contention that the same rule should be applied to the sale of land by an administrator as by an assignee. But the Courts hold that such is not the case.^^ It is not within the power of a Probate Court to order land sold subject to a mortgage," the purpose of the statute being to convey land to the purchaser free from all liens or claims; and therefore the liens are transferred by the action from the land to the fund.^^ The title may be quieted in an action brought by an administrator or executor.^^ It has been held in 12 The question in this case is lie policy, if no other consideration, whether, where a person executes a requires that a construction so long mortgage on real estate and dies, accepted and acquiesced in should the mortgagee can bring and main- not be distributed. Bank vs. Ide, tain a suit, a foreclosure suit, in the 20 C. C. 665: 10 C. D. 800. Common Pleas, making heirs, ad- 13 Stone vs. Strong, 42 0. S. 53. ministrators, executors and lien- l* Bank vs. Carpenter, 7 0. 21. holders defendants, or is compelled 15 Doan vs. Biteley, 49 O. P. 588. to work out his rights through the Partition of deceased's real estate executor or administrator in the can not be had within one year after Probate Court. The Circuit Court his death luiless it is averred and holds that he can bring and main- proved (1) that there is sufficient tain foreclosure in the Common personal property to pay the debts; Pleas. There is nothing in the (2) that all the debts are paid, and claims of the administrator in this (3) that pavment of the debts are case which requires a construction secured. Smith vs. Montaig, 32 of §6108, Revised Statutes, differ- Bull. 153; 1 Dee. 224; Swichart vs. ent from what has been placed upon Swichart, 7 O. C. C. 338; 4 0. C, it by the Courts and the profession D. 624. for more than half a century. Pub- § 816 SALE OF i?J':al estate 732 a case where an assignee brought suit to sell real estate, making a person who held a mortgage in which the property was in- correctly described, that the court might reform the mortgage upon the cross-petition of the mortgagee for that purpose.''^* Whether or not the Probate Court would have such jurisdic- tion in proceedings brought hx an administrator or executor is not so clear. Yet under the general policy of the law, it seems that such jurisdiction might be cntertaiued.'** § 816. When action to be brought. "As soon as the execu- tor or administrator ascertains that the personal estate in his hands will not pay all the debts of the deceased, with the allow- ance to support the widow and children for twelve months, and the charges of administering the estate, he must apply to the probate court or court of common pleas for authority to sell the decedent's real estate." [R. S. §6136.]^" § 817. Limitations as to the time of bringing. It is the duty of the administrator to applj' for a sale of the real estate as soon as he ascertains there is a deficiency in the personal assets,^'' and if he neglects to do so, the creditor may compel him or the heir, or even the court ex moro motu}^ There is no doubt that the court would at once upon suffi- cient cause being shown, order an administrator or executor to sell real estate to paj^ debts of the decedent, and in case of refusal, W'Ould summarily remove him. In order to carrj^ out the general polic}" of the law, which requires a speedy settle- ment of the estate, the administrator ought at the very earliest moment when he ascertains that the personal property will not But an action brought merely to is Abbott vs. Cole, 5 0. 86. settle a dispute is an abuse of the 19 Woerner, Admin. 1027. statute and ought not to be enter- An action to sell real estate must tained. Wood vs. Butler, 23 O. S. be brought within six years from 520. the time that the administrator dis- 15* Adlard vs. Stockstill, 5 N. P. covers the necessity for the sale 487; 5 Dec. 4!13. exists. Kemper vs. Buildina: & Loan 16 See S 1619, Assignee's sale. Co., 5 X. P. (X.S.) 403:" 18 Dec. 17 § 10774 G. C. 484: Ling vs. Strome, Admr., 12 C. See § 829, Real estate sale; §818, C. (X.S.) 161. For what action may be brought. Such knowledge will be attributed Execution levied on land after not later than the filing of his final death of owner is void. Cartney vs. account. Id. Reed, 5 O. 222. It is his duty to bring the action If the will directs that the land as soon as he finds it is necessary, shall be sold and proceeds divided. Stout vs. Stout, 82 0. S. 358. the parties entitled thereto may Right of an administrator to elect to take the land. Holt vs. bring action is barred in six years. Lamb, 17 0. S. 374. after the administrator has discov- Tf there is not sufficient person- ered that the personal propertv is altv to pav debts, the dutv of the insufficient to pav the debts. Linar administrator to file petition is im- vs. Strome. 12 O.' C. C. (X.S.) 161": perative. Andrews vs. Johns, 59 O. 31 O. C. C. ?>(S'^: Kemper vs. Build- S. 65. insr & Loan Co., 5 XL P. (X'.S.) 405; 18 Dee. 484. 733 LIMITATIOXS FOR BRINGING SUIT § 817 pay the debts, file his petition to have the real estate sold. Some states have statutory limitations as to the time in which an action must be brought. In our State there is no special statutory limitation ; and it has been held that tlie statute of lim- itation does not apply to the claims of heirs in such cases; and therefore where the heir brought a suit in partition twenty-one years after the death of the ancestor, it was held that the ad- ministrator could apply for part of the proceeds of the sale in order to pay debts.^° In another case it was held that an action might be brought to sell real estate twenty-three years after the death of the an- cestor.^^ Of course if such real estate gets into the possession of parties other than the heirs, as to such parties, the general stat- ute of limitations would apply, and there the rule laid down by Justice Story that the statute of limitation furnished an analogy which might be safely followed; and therefore held that no application should be entertained to subject real estate to the piayment of debts after the period which would bar the right of entry on lands, would be applied."^ It seems to be the rule in Ohio that as long as there is a valid and subsisting debt due from the estate, no one claiming as heir or dowress of the decedent can successfully object to an order to sell the land on the mere lapse of time.^^ A power given to executors by will to sell "and convey land becomes lei- gally inoperative, and ceases to exist when the estate is settled or all claims against it are presumptively satisfied by a lapse of time,, and nO' object, of the testator remains to be attained.^* The above expresses correctly, the rule that should be ap- plied in determining the limitation to be placed upon the power of an administrator to commence proceedings to sell real estate. If a debt is unknown at the time of distribution, which after- wards is reduced to judgment against the administrator, he is 20 Lafferty vs. Shinn, 38 0. S. 46. If an heir brings a suit in parti- 21 Taylor vs. Thorn, 29 0. S. 569. tion the administrator may come in 22 Ricard vs. Williams, 7 Wheat. by cross-petition and have the real 59^ 115. estate sold, j he partition procecd- 23 See Yandell vs. Pugh, 5.3 Miss. ing will be superseded by the action 295. of the administrator. ]\Iyers vs. Authorities are reviewed in Woer- IMyers. 9 C. C. (N.S.) 449; 19 Cir. ner on Administration, pages 1027, D. 396; 29 0. C. C. 398. 1028. Or the administrator may com- 21 Ward vs. Barrows, 2 0. S. 241. mence an independent action and See note, previous page. have the real estate sold, and he § 818 SALE OF REAL ESTATE 734 entitled to proceed and have the land so'ld to pay such dehts^ even though partitioned among the heirs, and by them sold.*' § 818. For what the action may be brought. The statute provides for two classes of liabilities to be paid by sale of real estate. One is debts,"** and the other is legacies.*^ The question now presented, is what shall constitute a debt of the deceased. Taxes which had accrued before the death of the testator are such debts as may support an action to sell real estate."^ Likewise the executor's commission where properly charged against the estate is a debt for which proceedings may be had.^^ The allowance for the support of the widow and her children is a debt of the estate for the payment of which resort may be had to the lands of the testator.^" Money loaned to an execu- trix to pay off debts of the testator is a debt for which real estate may be sold.^^ But a person lending money to the ad- ministrator gets no lien on the land.^^ A street assessment is not a debt for which real estate may be sold.^^ A buyer of the land from an heir who applies the money to discharge liens thereon and preferred claims will be subrogated to the rights of the holders thereof, against the estate when the land is sold by an administrator.^* A mortgage by heirs to borrow money to pay off a lien on the property is void, as against creditors, bnt t]ie mortgagee will be subrogated to priori- ties of the liens so paid.^° A person lending money to an executor to pay debts, lends on the executor's personal responsibility, and if he does so, it is may do so, even though he be made -^ Williams? vs. Williams, 8 O. S. a party to the partition suit. Stout .^OD. vs. Stout, 82 0. S. 358. Sec Carr vs. Hull, 65 O. S. :'>'.){. 25 Faran vs. Robinson, 17 0. S. so Allen vs. Allen. 18 0. S. 235. 242. In this case the claim had ^'^ Veldman vs. Lindeman. 4 Bull, been presented to the administrator 911; Behrens vs. Leucht, 2 C. S. C. and by him rejected, afterwards a R 217. suit was brought against him and a ^'- Lieby vs. Parks, 4 O. 469. judgment had. See § 10819 G. C. ^^ Wilson vs. Hall, 6 C. C. 570; 34 26 § 10774 G. C. See § 831. Bull. 298. 27 § 10817 G. C, § 819. 31 Sidener vs. Hanes, 37 0. S. 532 28 Welsh vs. Perkins, 8 0. S, 52. ss Cate vs. Peck, 30 Bull. 5. 735 WHEN MAY BE BROUGHT § 819 questionable whether he can proceed to compel the executor to sell the land to relieve the executor of such personal responsi- bility.^® As a general rule where an executor or administra- tor has paid debts of the testator in excess of the personal assets of the estate, he will be subrogated in equity to the rights of the creditors whose debts he has discharged,^^ In such case it is incumbent upon him, says Judge Woemer, to prove, in order to obtain a decree for the sale of the land to reimburse him, ilie validity of the debts which he has paid ; the passing of the account in the Probate Court is not even lyrinia facie proof thereof, or that they would have been chargeable upon the real estate, either at law or in equity. If, however, he has debts barred by the statute of limitations, or fails to make applica- tion until after the time limited for the enforcement of claims of creditors, or pays such debts voluntarily, or with the view of making the heir his debtor, so as to avoid the question of full administration in the proper forum, he will not be entitled to relief in equity. ^^ It seems that under our statute the administrator or executor is to judge in the first instance whether or not the personal prop- erty is insufficient to pay the debts. But the court will not order the sale unless it is satisfactorily shown that such is a true state of facts. While lands may be sold to pay debts of a decedent, and the year's allowance to the widow in case the personal property is insufficient, yet they cannot be sold to pay the costs of admin- istration alone.^'' § 819. For the payment of legacies. "When a testator has given a legacy by will that is effectual to pass or charge real estate, and his personal estate is insufficient to pay such legacy, tcpether with his debts, the allowance to the widow and children, and the costs of administration, the executor or administrator with the will annexed, may be ordered to sell his real estate for •*" teiiuth va. iiaywaid, 5 N. P. Where tlie lieir has a claim 501; 5 Uec. -IttZ; mi., 4o iiull. 2i28. against tae eSLate but Conceals it 3' VVoeiner ou ^^auaii. lUciSJ. lioui ine aumiiusLiaiur and joins iu 3s VVocrner on ^idnun. luoi». a pioeeedmgs in partition, tue ad- 3a Can- vs. Hull, 40 iJull. 271; 47 uiinistrator can nut biuig an action Bull, yi; 66 O. y. 3!J4. to sell real estate to pay sucli claim. bee s 831, l^ssentials of petition; liiley vs. Arnold, ID xs. T. 273; 02 § 84d, Prooi required. JJuil. bUi. § 820 SALE OF REAL ESTATE 736 that purpose, in the manner and upon the terms and conditions prescribed herein for the payment of debts." [R. S. § 6172.]*° The above section of the General Code seems to place the pay- ment of legacies in the same class as a debt against the estate, so that the administrator or executor may proceed to sell real estate to pay such legacy.*^ § 820. What may be sold. As all the property both real and personal, the legal or equi- table title to which is in the man at the time of his death, becomes liable for his debts; it therefore follows that whatever such interest may be, it may be sold by the administrator or executor for that purpose.*- This would include permanent leaseholds and interests which might be held by the testator as tenant in common, and would include all rights and interest which the testator in his lifetime held in any land, tenements or hereditaments. Generally it may be said that a testator may exonerate his personal property from the payment of his debts, and charge the payment upon the real estate.*^ Lands and property given away may be sold; even by gift causa mortis.^* The equity of redemption of a deceased mort- gagor or grantor in a deed of trust may be sold.*^ Even though 40 § 10817 G. C. (N.S.) 403; 18 Dec. 491; affirmed 41 Whether a legacy is a charge 11 C. C. (N.S.) 372; 30 O. C. C. upon the real estate of a testator 700; 80 0. S. 732. is to be determined from the provi- 4 2 See Avery vs. Dufrees, 9 0. S. sions of his will and the condition 145; Biggs vs. Bickel. 12 0. S. 49. of his property as known to him If an administrator sold property at the time of making his will. to which deceased had no title in Authority given by will to an execu- his individual capacity, he would tor to convert real estate into be liable to the purchaser. Fisher monev is the equivalent of authoritv vs. Fisher, 33 O. C. C. 555; affirmed to sell. Dean vs. Lowenstein, 6 C. no op., 80 O. S. 365. C. 587; 3 C. D. 597; Aff. 35 Bull. 43 Scott vs. Morrison, 5 Ind. 551. 79. See § 832. But if it is not a charge on the 44 See Ch. 66. § 1240, Gifts causa real estate it can not be sold to pay mnrth : ^IcGillicuddy vs. Cook, 5 it. Furweson vs. Wentz, 27 Dec. 462 ; Blackf. 179: Wyble vs. McPheters, 20 N. P. 13. See Hunt vs. Haves, 52 Ind. 393. 19 C. C. 151: 10 C. D. 388, when 4D.Tackson vs. iMagruder. 51 Mo. held real estate may be sold. 55: Kenley vs. Bryan, 110 Til. 652: S 674. et ftecf., as to Payment of Jennings vs. Jenkins. 9 Ala. 2'^5: legacies ; §799, et seq., as to Sale Diehl's Appeal, 33 Pa. St. 406: without order of court. Briggs vs. Bickel. 12 O. S. 49; Bol- Kemper vs. Loan Co., 5 N. P. liug vs. Jones, 67 Ala. 508. 737 WHAT MAY BE SOLD §821 proceedings to foreclose the mortgage are pending/^ The heirs can not defeat such sale.^^ Land entries paid for but no patents obtained may be sold/^ So lands to which deceased had no valid title of record, although a title in fact/^ So head-right certi- ficates,''° final-settlement certificates,^^ resulting trusts,^- estates in reversion or remainder,"'-'' lands conveyed by the heirs after the death of their ancestor,^* even if sold to the administrator,^^ or sold on execution against the heir or heirs,^^ even if they have been devised to the vendor.-"'" The consent of the administra- tor to the sale of the land by the heir can not divest the creditor of his right to have his debt made out of the land, although such consent might estop him, were the right of creditors not affected.^8 § 821. What can not be sold. Land that is dedicated to the public can not be sold by an administrator for the purpose of paying debts.^^ Likewise land can not be sold which is set apart as a homestead for the widow and her children as required by sec. 10794 G. C. (§ 857). But the adult heirs are not entitled to a homestead or to any 46 Bateman vs. Morris, 7 Dec. 287; 4 N. P. 377; Fitzsimmon's Appeal, 40 Pa. St. 422. 47 Wolf vs. Robinson, 20 Mo. 459. 48 Avery vs. Uupres, 9 0. 145; McDonald vs. Burton, 68 Cal. 445. 49 Woods vs. Monroe, 17 Mich. 238. 50 Soye vs. Maverick, 18 Tex. 100. 51 Strodes vs. Patton, 1 Brock. 228. 52 Matlock vs. Nave, 28 Ind. 35; Valle vs. Bryan, 19 Mo. 423. 53 Williams vs. Ratcliff, 42 Miss. 145. 54 Fiscus vs. Moore, 121 Ind. 547; Sclierer vs. Ingerman, 110 Ind. 428. 55 ymith vs. Anderson, 31 0. S. 144: Carter vs. Lee, 51 Ind. 292: Ferguson vs. Carson, 9 Mo. App. 497; Fike vs. Green, 64 N. C. 665; State vs. Probate Court, 25 ^linn. 22; Horner vs. Hasbrouck. 41 Pa. St. 169; Clark's Estate, 3 Redf. 225; Cole vs. Lafontaine, 84 Ind. 446: overruling Pell vs. Farquar, 3 Blackf. 331 : Seymour vs. Sevmour, 22 Conn. 272; Camp vs. Sherley, 9 Lea, 255. 56 Smith vs. Seaton, 117 Pa. St. 382; Knowles vs. Blodgett, 15 R. I. 463. 57 Shaw vs. Nicolav, 30 Md. 99; King vs. Kent, 29 Ala. 542: Green- awalt's Appeal, 37 Pa. St. 95; Han- num vs. Spear, 2 Dall, 291. 58 Moncrief vs. Moncrief, 73 Ind. 587. See § 825, Sale of equitable inter- est; § 1409, What may be sold. 59 Brown vs. Manning, 6 0. 298. The Probate Court has no power to order the sale of entailed estates, such power is lodged in the Court of Common Pleas. Jones vs. Wright, 1 O. C. C. (N.S.) 59; 20 0. C. C. 649. See § 11925 G. C. If the administrator has filed a final account, showing all debts paid the action can not be maintained, in such cases the administrator should, if the eight-months period has passed, file a subsequent account and have the showing of all debts paid corrected, and that there are some debts unpaid. Hunter vs. Yoeum, 27 Dec. 31; 18 N. P. 14. § 822 SALE OF REAL ESTATE 738 other exemption cut of the land against the claims of creditors. The land set apart as a homestead for the wife and children may be sold to pay debts of the decedent whenever the mdow remarries, and no unmarried child of the decedent continues to reside en such land.®" The widow unless by reason of an ante-nuptial contract or au election to take under the will, is entitled to dower in the real estate and such dower interest of the widow cannot be disposed of without her consent by the executor or administrator of her husband's estate. The real estate may be sold subject to the claim of the widow for dower or homestead.^^ Real estate cannot be sold to which the owner at the time of his death held neither a legal nor an equitable title, and thus where a husband devised real estate to his wife with power to dispose of tlie same for her use and support, and tlie wife failed to exercise such power, it was held that the administrator of her estate cannot maintain an action to sell such devised real estate for the purpose of paying her debts.*^ It cannot be sold to pay costs of administration only.®^ ^ 822. When real estate fraudulently conveyed, liable to sale. "The real estate so liabh^ to be sold includes all that the deceased conveyed with intent to defraud his creditors, and all other rights and interests in lands, tenements, and heredita- ments ; except that lands so fraudulently conveyed, can not be taken from any who purchased them for a valuable considera- tion, in good faitli, without knowledge of the fraud. No claim to lands, so fraudulently conveyed, shall be made unless within four years next after the decease of the grantor." [R. S. §6139.]«* § 823. How executor or administrator to get possession of land fraudulently conveyed and avoid such conveyance. "If land which has been so fraudulently conveyed, is to be included 60 Taylor vs. Thorn, 29 O. S. 569. See § 829, Commencement of action. 61 See S 10787 G. C, >5 850. 64 s 10777 G. C. 62 Undeported case of Probate This section is intended to enable Court, Clarlv County, Ohio. This the administrator to obtain in one case is supported by Page on Wills, action authority to convert into 836, wliere it is said, "but where money all realty -wliich in equity the donee of the power has not or- ought to be applied to tlie payment dered such sale in lier lifetime, a of the debts of decedent and not sale can not be had at the instance make it necessary that the creditors of her creditors, the power being bring the action. However, in such purely a personal one." case the action must be in the Court 63 Carr vs. Hull, 65 O. S. 394. of Common Pleas. Beebe vs. Canada, 18 G. C. C. (N.S.) 104. 739 FRAUDULENTLY CONVEYED §824 in such action, the executor or administrator either before or at the same time, may bring suit to recover possession of it ; or, in his action for its sale, allege the fraud and have the fraudulent conveyance avoided therein. But when such land is included in the application before recovery of possession, the action shall be in the court of common pleas." [R. S. §6140.]''^ § 824. Proceedings where property is fraudulently conveyed. Several matters are to be strictly observed in proceedings in which an administrator seeks to sell lands which have been fraudulently conveyed away by the decedent. In the first place the action can not be maintained against a purchaser for valuable consideration and in good faith. In the second place it can not be brought unless within the expiration of four years from the death of the testator. Third, the action can not be brought un- less it is necessary to have the proceeds of the real estate so fraudulently sold with which to pay the debts of the decedent.*"' It should also be observed that the Probate Court has no jurisdiction to order a sale of such lands until after a proceeding is had in the Court of Common Pleas, declaring the sale made by the decedent to have been fradulent.^^ If the action is brouglit to sell the real estate before the conveyance has been found and decreed fraudulent, then it must be brought in the Court of Common Pleas."^ 63 § 10778 G. C. 66 McCall vs. Pixley, 48 O. S. 379. 67 Lowman vs. Sewall, 16 C. C. 466; 9 C. D. 177. This same case is reported in 2 IST. P. 37G; 4 Dec. 1, ill' which tlie Common Pleas Court held that wlien the administrator seeks relief, it can only be had in an action brouglit in the Court of ConuiKjn Pleas for the purpose of selling fraudulently conveyed real estate to pay debts. In this case it seems that the Circuit Court or the old District Court having found the transfer fraudulent, dismissed the action intimating tliat the admin- istrator should proceed in the Pro- bate Court to soil real estate. After set aside, action may be brought to pav widow's allowance. Allen vs. A:i"n, IS O. S. 234. Tlie Probate Court has no equity power to set laside a deed. Fleming vs. ]\Tcr4ufrv, 12 N. P. 10; 21 Dec. 3S7. The action CMn only be brought when needed to pav debts. McCall vs. Pixley, 48 0. S. 379. A debt barred by the statute of limitations will not support the action. Jones vs. Lehman, 15 Dec. 541. An administrator may bring his action in the court for the sale of lands to pay debts, and include in such action lands to which the de- cedent never had title but for which he paid and had conveyed to an- other. Beebe vs. Canada, 18 O. C. C. 104. " 68 Spoors vs. Coen, 44 0. S. 497. The reason of this provision doubtless .arose from a persuasion in the minds of the Legislature that a recovery of such lands involved an exercise of jurisdiction that should only be conferred on the Court of Common Pleas, they being courts of general jurisdiction in matters of law and equity, and therefore more competent, from the character of their judges, constantly emploved in the exercise of such jurisdiction, to hear and determine such matters. § 825 SALE OF EEAL ESTATE 740 An administrator may maintain such an action against the fraudulent grantee' to recover the value of the lands, if the latter has conveyed them to an innocent purchaser."^ Such an action would be governed by the statutory limitations that it must be brought within four years from the death of the fraud- ulent grantor, and further upon such a trial either party is en- titled to demand a jury. The action brought by the adminis- trator under the above sections of the General Code is not exclusive. The creditor may also bring such an action and a Court of Equity has jurisdiction to entertain the same. But when tlie assets are reached, they should be placed in the hands of the administrator to be by him administered according to law.'" It would, however, not be proper to bring an action to set aside such a conveyance in the joint name of the administrator and creditor.'^ For foi-m of petition to set aside fraudulent conveyance, the reader is referred to the works on Common Pleas practice.^' § 825. Petition for sale of equitable interest. ' ' When a petition is filed for the sale of an equitable estate, or equit&ble interest, whicli the deceased held in lands, the executor or ad- ministrator shall set forth in the petition the nature of such equitable estate or interest, makinir all necessary parties, includ- ing the persons holdins: the legal title thereto and those who are entitled to the purchase money therefor." [R. S. § 6166.]'^ ^ 825a. The order and sale. "In such case, notwithstanding the preceding provisions of this title, tne court mav make such order for the arinraiseinent and sale of the equitable estate, for the indemnity of the estate of the deceased against the claim for such purchase money, and for the adiustment of the dower of the widow or widower of the deceased in the equitable estate, And so, to avoid a multiplicity of "o Hoffman vs. Kiefer, 19 C. C. suits, it is provided that an action 401; 10 C. D. 304. to set aside a conveyance of lands, "i Webster vs. Ballard, 2 Cleve. that had been made by decedent to Rep. 137. defraud creditors, may be united "2 1 Kinkead's PI. 500. Wliit. with a proceeding for an order of forms 252. sale to pay debts, by resortinor, in ts § insiO G. C. the first instance, to the Court of The Probate Court has no power Common Pleas. Spoors vs. Coen, 44 to order the sale of entailed estates. ^- ^- '501. Jones vs. Wriorht, 1 O. C. C. (N.S.) 69Doney vs. Clark, 55 0. S. 204, 59; 24 O. C C 649 reversing 8 C. C, 163; 4 C. D. 380. 741 PRESENTED — HOW § 826 by estimating and directing to be paid to her or him the value of a life annuity in one-third of it, or otherA\dse, as the court deems just and right, between all parties in interest." [R. S. §6166.]"* A conveyance in trust with a provision for reconveyance is an equitable estate which may be sold under this section. ''* Like- wise a perfect equity may be sold to pay debts.'^'' Section 10810-11, G. C. simply enlarges the rights given by the previous sections which are confined to cases in which the legal title vests in tbe decedent, or where it was fraudulently conveyed by such decedent. It must be an equitable interest or an equitable estate in order to come within the statute. This does not mean an equitable claim which may be had, but it means a claim which is in such a position that it may be considered by the niles of equity to be an equitable estate or an equitable interest in the land. It would likewise be held to be a civil action with- in the meaning of the code, triable by the Court, or by jury as the facts would demand. In such cases the wife's dower inter- est is to be provided for in proceeds out of the sale.^° § 826. Persons interested may give bond and prevent sale. "An order to sell the real estate shall not be granted if any person interested in the estate gives bond to the executor or administrator, in a sum and with sureties to be approved by the court, conditioned to pay all the debts mentioned in the petition, eventually found due from the estate, "with the charges of ad- ministering it, and the allowance in money to the widow, so far as the personal estate of the deceased is insufficient therefor." [R. S. §6146.]" § 827. Comments. This section provides that any person interested in the estate may by giving a bond, prevent an order of sale. But I appre- hend that it is not the intention of the statute to confine the 73* §10811 G. C. 77 §10785 G. C. As to what may he sold, see pre- See Davisson vs. Bnrjjess, 31 0. S. vious §820. 78;' heir, Stout vs. Stout, 82 0. S. 74 Biggs vs. Bickel, 12 O. S. 40. 358; Swihart vs. Swihart, 4 C. D. 75 Avery vs. Dufrees. 0. 145. 624; 7 0. C. C. 338; widow, Corey 76 See Annuity tahles in last vs. Hayes, 7 C. D. 272; 13 O. C. C. chapter. 185. § 828 SALE OF REAL ESTATE 742 right to give the bond witbin the j^eriod existing befoje an order of sale has been granted. For the spirit of the law is, that the real estate is to be taken only to pay debts of the decedent when necessaiy for that purpose, and if some one provides for the payment of such debts, even before the confirmation of sale, it ought to be allowed by the Court; and it has been held tbat a bond given after the order of sale was granted, is valid and binding on the sureties.'* A widow having a dower interest in the real estate of her de- I'eased husband is sufficiently interested in the estate to entitle her in connection with one or more of the heirs of such estate to give the bond provided for in the above section, to obviate a sale of such real estate ; and having given such bond, she is entitled to be subrogated to the right of the administrator and fully reimbursed from a fund arising from the sale of sucli real estate in a proceeding in partition by the heir.^^ The bond having been given and filed in the Probate Court, the judge should make an entry of that fact, which may be in the followina: fonn : {Title.) This day came A. B., an heir-at-law (or other interested person), and filed herein his bond with C. D. and E. F. as sureties thereon with a consideration of dollars (being double the amount of the debts alleged in the petition), unto G. H., executor (or administrator) of the estate of I. J., for the purpose of preventing a sale tf the real estate described in a petition filed in the Court by G. H., and the same was sub- mitted to the Court, and upon examination of the same the said bond is proved and it is ordered that the same be filed in this Court and recorded witli the proceedings; and that the action to sell real estate brought by said G. H., as executor (or administrator) of the said estate be and the same is hereby dismissed. The costs thereon to be paid by said executor and charged as a debt against the estate. § 828. Form of bond. Knoiv all Men hy these Presents: That we, A. B.. C. D. and E. F., are held and firmly bound unto G. H.. ex- ecutor of the last will and testament (or administrator of the estate) of I. J., deceased, in the sum of dollars, to the payment of which we hereby jointly and severally bind ourselves, our heirs, executors and administrators. The condition of this obligation is such that whereas the said G. H., as executor (or administrator) as aforesaid, on the TsDavisson vs. Bnrgess, 31 0. S. to Corey vs. Hayes, 13 C. C. 1S5: 78. ^ 7 C. D. 272. See Stout vs. Stout, S2 O. S. 35S. 743 BOND, ETC. ^ 828 day of , made an application to the Probate Court ol county, Ohio, for an order to sell the real estate of said de- cedent, alleging that the personal estate of said decedent was insufficient for the payment of his debts and tlie charges of administering his estate. Now if the said A. B. shall pay all the debts mentioned in the petition that shall eventually be found due from the estate, with the charges of admin- istering the same, and the allowance in money to the widow so far as the personal estate of the deceased shall be insufficient therefor, then this obli- gation to be void, otherwise to be in full force and effect. (Signed, etc.) Executed in the presence of so •oWhit. Prob. Code. §829 SALE OF REAL ESTATE 744 CHAPTER XLVII. REAL ESTATE. PLEADINGS, PROCESS AND TRIAL. § 829 Commencement of action, etc. § 830 What petition for sale must contain. 8 831 Essentials of petition. § 832 When assets will be marshal- ed in conformity with the will. § 833 Necessary parties. § 834 Parties defendant. I 835 Administrator de bonis non to complete sale made by ex- ecutor or administrator. § 836 Form of petition for sale of real estate to pay debts. § 837 Filing the petition. § 838 Service. Waiver of. Consent of guardian. § 839 Actual service. § 840 Constructive service. § 841 How publication to be made. § 842 Copy of newspaper to be mailed. § 843 Waiver. § 844 W^hen guardian ad litem to be appointed. Such guar- dian can not waive notice, etc. § 845 How appointed. § 846 Other pleadings, widow. Answer of Dower and homestead ex- emptions. § 847 When Court to order real es- tate to be sold. Terms of sale. § 848 Proof required. § 849 Trial if contested. § 850 The estate of the heirs in the land set off to the widow, may be sold. § 851 The whole to be sold when a partial sale would injure the residue. § 852 Judgment and order of sale. § 852a Entry. Appraisement. Dower and homestead. § 853 Effect of order. § 854 Costs, when there are objec- tions to granting order for sale. § 829. Commencement of action, etc. The Courts have held that the action is a civil action/ and the statute provides ^ that the provision of law governing civil proceedings in the Court of Common Pleas shall, as far as ap- plicable, govern like proceedings in the Probate Court, ■where there is no provision on the subject. It therefore follows tliat unless otherwise provided, the general rule of pleadings, proo- ese and trial applicable to other civil actions are applicable to iDoan vs. Biteley, 49 0. S. 588. 2§§ 10743-44 G. C. §36. The filing of the petition gives the court exclusive jurisdiction to try all questions. Baker vs. Laxab- lin, 11 0. C. C. 103; 5 C. D. 54; fciLout vs. Stout, 82 (J. fci. bob; liud vs. Bloch, 4 0. C. C. (N.S.) 216; 26 0. C. C. 113. 745 COMMENCEMENT OF ACTION § 829 proceedings brought by an administrator or executor to sell real estate. The provision of the statute referred to in this and other chapters relating to the sale of real estate are largely those that were provided for the sale of real estate before the adop- tion of the Code ; and while they contain some of the requisites that must be followed in such eases, they do not contain all the law applicable thereto. It will not be within the province of this work to enter into a discussion of the general principles of pleadings. For this matter the reader is referred to other works upon such subjects.^ The action is commenced by the filing of a petition in the proper Court and the issuance of smnmons thereon.* Before filing such petition, the administrator should examine the con- dition of the estate and ascertain whether it is necessary to sell the real estate to pay debts or legacies.^ While the rules of the Probate Court do not generally forbid a person from prac- ticing before it who is not a lawyer, yet in all cases it would be advisable for the administrator or executor to retain com- petent legal counsel in the very beginning of such proceedings.^ The statute of Indiana contains, a provision that before the fil- ing of such petition, the administrator, etc., shall carefully ex- amine the offices of the clerk, auditor, treasurer and recorder in the county in which the real estate of the deceased may be situated, and ascertain the exact character and extent of each lien thereon created or suffered by the deceased in his lifetime and remaining unsatisfied of record.^ This provision, while not in statutory form in our State, should, without exception, be adopted and followed. Formerly it was held, that lien holders might be barred of their lien on the land, although they were not made parties, the Court hold- ing that the proceedings to sell real estate was a proceeding in rem, and that the lien was transferred to the fund, but such is not now the case. The action is adversary in its character, 3 See Kinkead's PI., Kinkead's « See § 811 as to Judge Woerner'a Court Practice, Whittaker's Forms. advice. * Kinkead's Pract. 93. § 508. Employment of counsel. 5 See §§ 816-821. When action 7§ 2290 R. S. of 1894. may be brought. § 830 SALE OF REAL ESTATE 746 and the lien holder not made a party will not be deprived of his lien.^ § 830. What petition for sale must contain. ' ' The petition shall set forth the amount of debts due from the deceased, as nearly as they can be ascertained, the amount of the charges of administration, the value of the personal estate and effects, and a description of the real estate, and its value, if appraised." [R. S. §6141.]^ § 831. Essentials of petition. The above statutory provision contains some of the essentials of a petition, but not all. A petition must contain the name of the Court and the county in which the action is brought.^'' The names of the parties to an action must be stated and fol- lowed by the word " Petition." " This means that the names of all the parties, plaintiffs and defendants, shall be stated in the caption. The names should be set out fully and the plaintiff should describe himself as the administrator of the estate of the deceased peprson. It is a loose, vicious practice to use initials. It is only necessary to give the names in the caption of the pleadings, and they need not therefore be repeated in the body.^^ If the name is un- known, it may be so designated, and it should be averred in the petition that the plaintiff is ig-norant of the true name. The petition must be subscribed by the party or his attorney.^' The petition must be verified by the affidavit of the party, his agent or attorney.^* All matters stated in the petition should be a statement of facts constituting the cause of action, in ordinary and concise language." The petition should state tlie representative capacity of the 8 Holloway vs. Stewart, 19 0. S. order can be issued. Hunter vs. 472. Yocum, 27 Dec. ai; 18 N. x\ 14. 8 § 10779 G. C. One wuo is not aliected can not See § SIG, when action may be question tlie averments of the peti- brought. tiuu. Tirmau vs. Gerhold, i X. 10 ivinkead's PL 40. P. 6G4. An averment that the personal Neither can the fact of the valid- is but , being wholly insuhi- ity of the debts. This must be done cient to pay tlie debts and costs by filing a requisition with admin- aforesaid, is not a sufficient istrator not to allow the claims, averment, especially if it be shown ii § 11308 G. C. that there was some personal prop- 12 Whittaker code forms, p. 1. erty. Railway vs. White, 87 O. S. 13 § 113,51 Q. C. 413. See also Baen vs. Weller, 12 Finch vs. Evers, 25 0. S. 82; Dec. 128. Conn. vs. Rhodes, 26 O. S. 644. If there are do debts, no valid i4 § 11351 G. C. iSKinkead's PI. 50. 747 ESSENTIALS OF PETITION § 831 executor, and although not essential, the fact and date of the death of the decedent. If he left a will in which the plaintiff or defendant was named as executor, it should be stated, also that the will of the deceased was duly probated, giving the daie of the issuance of letters testamentary, that the defendant or plaintiff was duly qualified and entered upon his duties as sucli administrator or executor, and is still acting in that ca- pacity/® Where the petition shows that property has been in charge of two administrators, the letters of one of whom have been re- voked, the petition should state the fact of such revocation/^ The petition must contain the amount that it is necessary to sell to pay debts; it is not sufficient to aver that the land has been fraudulently conveyed/'^* The omission of the word " as," between the name of the plaintiff and the words descriptive of his representative capac- ity, is not fatal/ ^ At common law the issue of representative capacity could be raised only by plea in bar or abatement. The rule remains the same under the Code, it being necessaiy to state the facts relied upon to show that the averment is not true.^^ "Kinkead's PI., §546. don vs. Hoy, 11 How. Pr. 11; Day- In alleging the representative ton vs. Connah, 18 How. Pr. 326; character of an administrator, it is Quinn vs. Newport News Co., 22 S. held to be sufficient if the petition W. Rep. 223 (Ky., 1893.) shows that the plaintiff filed an ap- Under an allegation that a per- plication for letters of administra- son has been appointed administra- tion at a certain time in a desig- tor by proper authority, it will be nated Court, and that such proceed- presumed as against a demurrer ings were had, that he was duly ap- that he has taken the necessary pointed and qualified and that let- steps to secure the appointment, ters of administration were issued Gutridge vs. Vanatta, 27 0. S. 366. to him. Monroe vs. Dredging Co., i7 State vs. Green, 65 Mo. 528. 84 Cal. 515; a. c. 18 Am. St. Rep. it* Baen vs. Weller, 12 Dec. 128. 248. See § 818. Avery vs. Pugh, 9 0. 67, Merely giving the name of the ad- is Beers vs. Shannon, 73 N. Y. ministrator in the commencement of 292. the petition, and attaching the lo Mayes vs. Turley, 60 Iowa 407; words "administrator of C. D., late Ewen vs. Railway Co., 38 Wis. 614; of — — , deceased," being descriptive Contra, Gilmore vs. Morris, 13 Mo. only, is therefore insufficient. Shel- App. 114. § 832 SALE OF REAL ESTATE 748 The proper method of reaching a defect in an allegation of representative capacity is by motion."" If tlie real estate has been appraised by the appraisers of the personal estate, the amount of such appraisement should be stated." The fact should also be stated whether or not the administra- tor or executor has given bond, and if bond has been given, the amount of the bond should be stated. These two matters should be stated for the reason that the Court is to pass upon the question whether an appraisement may be dispensed with, and also whether an additional bond should be required. If the real estate- is liable for debts in a different order from that provided by law, it should be set forth as provided in the next section. The nature of tlie title or interest of the decedent in the real estate should be set forth, as well as a proper descrip- tion of such premises. If there are minor defendants, their ages should be given, and if they have guardians, such fact should be stated. If a husband or wife be living, entitled to dower or homestead exemption, the^ same should be set forth.*' 5 832. When assets will be marshaled in conformity with the will. "If, in the last will of the deceased, there is a dis- position of his estate for the payment of debts, or provision that may require or induce the court to marshal the assets differently from what the law otherwise would prescribe, such devises, or parts of the mil, must be set forth in the petition, and a copy of the will exhibited to the court, whereupon the assets shall be marshaled accordinelv, so far as it can be done, consistently with the rights of creditors." [R. S. § 6152.]=^^ §833. Necessary parties. "In such action the widoAv of the deceased, the heirs, devisees, or persons ha\nng the next estate of inheritance from him, and all mortgagees and other lien holders, whether by judgment or other\^ase, of any of the lands sought to be sold, and all trustees holding the legal title thereto or to any part thereof, and, if a fraudulent conveyance 20 Gillett vs. Fairchild, 4 Denio. 21 This is an essential. See 83 ; 13 How. Pr. 413 ; Bangs vs. Mc- § 10779 R. S., § 830. Intosh, 23 Barb. 591; Neil vs. 22 See §§818, 1686. Cherry, 1 W. L. M. 155; Kinkead's 23 § 10791 G. C. PI. 496. 749 NECESSARY PARTIES § 834 is sought to be set aside, all persons holding or claiming there- under, must be made parties." [R. S. § 6142.]-* § 834. Parties defendant. The above is a provision as to what parties are necessary. It is so headed, but it does not forbid making other persons par- ties. It only provides that tinder all the circxunstances these shall be made parties.^^ And the proper practice in actions to eell real estate by an administrator or executor requires that all persons claiming an interest in, or lien on the land, be brought before the Court, and all questions affecting the title adjudicated and settled, in order that purchaser may buy with safety and the property bring its full and fair value. ^^ A party loaning money to an executor, and taking the execu- tor's note as evidence of such loan, is not a necessary or even proper party in a proceeding brought by an administrator of an heir to sell lands of such heir to pay his debts.^' It has. been held that lien holders against an heir, and pur- chaser of an heir's interest in the real estate, are not necessary or even proper parties to the suit,^* While it may be true tliat under our law the purchaser of the land from the heir would not be a necessary party if the land was all absorbed in the payment of debts, as such pur- chaser takes with full knowledge that the land may be sold to pay debts of the decedent. But if there are any proceeds of the land remaining, he would be a necessary party to enable the Court to determine to whom such remaining proceeds should be paid; and it may be stated as a general rule that a purchaser from the heir or the owner of a judgment which has become a lien on the heir's interest, is a proper and under 24 § 10780 G. C. I)arty. Arnold vs. Donaldson, 46 An administrator's sale made un- O. S. 73. der order of tlie court without show- A party loaning money to execu- ing tliat the heirs were made parties tor for benefit of estate, not a is void. Adams vs. Jeffries, 12 O. proper party. Staith vs. Hayward, 253. If an heir or interested party 5 N. P. 501"; 5 Dec. 462. is unlsnown or can not be found he 27 Smith vs. Havward, 5 N. P. should be made a party, and served 504; 5 Dec. 462; aff. 45 Bull. 228. by publication. Whit, forms 17. 28 Communication in 25 Bull. 102. 25 Biteley vs. Doan, 4 C. C. 10; 2 A judgment creditor of a devisee C. D. 388. is not a lienliolder within the mean- 26 Doan vs. Biteley, 49 0. S. 589; ing of § 10780 G. C, and is not a Tidd vs. Bloch, 4 C. C. (N.S.) 216; necessary party. Kummer vs. Lapp, 26 C. D. 119. 1 N. P. (N.S.j 209; 13 Dec. 491. If a wife has been divorced by His remedy is under § 10816 G. C., reason of the aggression of the § 905. deceased, she ought to be made a If the partv is insane, he may be made a party, if the consent of m § 835 SALE OF REAL ESTATE 750 some circumstances a necessary party."® If the heir has sold out all his interest, the purchaser stands in his shoes, and should be a party so that he may defend if necessary. And it has been held elsewhere tliat an heir who has conveyed his in- terest in decedent's real estate is not a necessary party to an application to sell real estate.^" Where a testator has made a will, it may not be necessary, unless the will be set aside, to make the heirs at law parties, unless they are also legatees under the will.^^ The widow need not be made a party unless she is interested in the real estate.^^ If the widow and the heir at law have no interest in the real estate, they could have no interest in the pending suit; there- fore it would be an idle formality to make them parties. But the better practice would be to make all, who might have a possible interest in the real estate or in the proceeds, parties. I have no doubt but what under the provisions of sec. 10783-4, G. C. (§814), the Court may permit any person possibly in- terested to come in and be made a party. As the title of an heir is subject to be defeated by sale to pay debts of an ancestor, the wife of such heir need not be made a party, her dower follov/ing her husband's rights.^^ § 835. Administrator de bonis non to complete sale made by executor or administrator. "If the executor or adminis- trator, who begins such action, dies, resigns, or is removed, or his powers cease at any time before the conveyance of real estate sold under an order of court, the administrator de bonis non shall proceed with such sale, and may convey land sold before or his guardian can not be obtained, es]3ecially if the heirs are minors. or if he has no guardian and tJmt § 12087 G. C. fact is alleged in the petition. 32 To a suit brought to effect a § 11256 G. C; 2 Bates' PI. 1826, sale of a decedent's land, the resid- As to defense of such person, see uary legatees, among whom a por- § 1384. tion of the proceeds are to be dis- ss Barkman vs. Hain, 5 X. P. 508; tributed, are necessary parties, but 5 Dec. 474. the heirs of the testator are not, More properly speaking he is a when all the testator's estate is dis- necessary party in the distribution, jx)sed of by the will. Pennsylvania and not in making a legal sale. See Co. For. Ins. vs. Baiierle. 143 111. Kummer vs. Lapp, 1 N. P. (X.S.) 459: S. C. 33 N. E. Rep. 166. 209; 13 Dec. 491. See §905. 33 See §943 et seq., Dower. 30 Piatt V. Brickley, 119 Ind. 333. The proceeds left after payment 31 As the statute permits one year of debts, is personalty, although it in which to contest a will, it would descends as real estate. See § 905. be safer if suit be brought within See Harrington vs. Harrington, 13 § 12018 G. C. § 1598, Exempt property. -to Such as the indivisibility of the § 1227, Election under will. land. § 1598, Exempt property. <'§ 12011 G. C. Annuity tables § 1227, Election under will. might be used to accomplish this *3 Wanzer vs. Smith, 2 W. L. M. result. 426. 48 Hillgartner vs. Gebhart, 25 O. ** See Ch. 51, § 943 et seq. on S. 557. dower. See § 846a, Dower and homestead. § 869 REAL ESTATE APPRAISEMENT 784 The widow's right to dower must always be considered, whether she claims it or not. If there are mortgage liens on the real estate in which the wife releases her dower, and there is not sufficient real estate to pay such mortgage lien and allow the widow's dower to be set apart by metes and bounds, then all such lands would have to be sold and the widow's right pro- vided out of the proceeds. If such mortgage debt was a debt of her husband's, she would be entitled to be endowed out of the entire proceeds realized out of tlie sale of the lands,*^ The amount allowed her, however, could not affect the mortgage claim. The mortgage lien must be paid in full. The rule might be different if the debt was a joint one. Growing crops do not pass to the widow on assignment of dower by metes and bounds.^" Where property was insured and burned after the death of the husband, the widow was en- titled to have her dower calculated on the proceeds of the in- surance.^^ Some difficulty may be experienced by appraisers in their setting off a dower, where there is also a homestead to be set apart. In such cases the homestead should first be set apart, then the dower interest in not what is left, but in the entire tract. For illustration, supposing the decedent died owning a farm of one hundred acres worth six thousand dollars. The appraisers would proceed and set apart as homestead the land upon which the dwellings were situated and including two acres of land valued at one thousand dollars. They should then proceed to set apart out of the remaining land sufficient to equal one-third of the whole. That is, the widow would have set apart to her the homestead, one thousand dollars in value, and a dower of two thousand dollars in value ; equaling a life estate in one-half of the entire property. The supreme Court has said that the widow must bear her share of the costs in the Probate Court incurred in settling her dower.^^ 49 Kling vs. Ballentine, 40 O. S. See § 950 as to costs, etc. 391; Society for Savings vs. Drake, 6i Flemming vs. Jordan, 28 Bull. 10 C. C. 59; 6 C. D. 31. 332. so Davis vs. Brown, 4 W. L. M. 52 Kling vs. Ballentine, 40 0. S. 272. 396. See § 947. If the widow dies after filing an 785 REPORT OF APPRAISEMENT § 870 § 870. Dower especially assigned to be a charge on the land. "If the appraisers assign dower especially of the rents and profits, and the purchaser takes, by deed of the executor or administrator, the lands upon which such dower was assigned, the court shall make such orders as will secure to the widow or widower a charge thereon for the dower." [R. S. § 6164.]^^ § 871. Report. The appraisers having attended to tlie duties assig:ned them, that is, having set aside a homestead where the same was re- quired, and also having set apart dower for the widow, and having appraised all the lands subject to such dower and home- stead right, should make a written report of their doings. The form for such report was given in the order issued to them.''* To this order they should attach their fees and the fees of the civil engineer. This matter should be attended to as rapidly as the same can conveniently be done. § 872. Compensation of appraisers. ''Appraisers shall each. be paid one dollar per day, for services performed by them in the county in which they reside, and two dollars per day for services performed without such county." [R. S. § 6158.]^^ It very often occurs that the compensation provided in the above section is entirely inadequate to secure the services of competent men. Where such is the case it would be proper for the administrator to consult the parties in interest as to tlie payment of such compensation to appraisers as would secure competent persons to perform that duty. Generally, however, answer, but before sale, the acticMi should be estimated as of ths time can be revived by her administra- the action is brought to have dower tor and he would be entitled to assigned and a lease of the property whatever it was worth from the at an extravagant rent, furnishes time the answer was filed. Renner no rule binding and controlling the vs. Bird, 2 Bull. 76. commissioners as to the annual See §957, Assignment of dower; rents, issues and profits. Stoddart 8 1625, Assignments; § 1600, Dower. rs. Marshall, 1 Disney, 527. 83 § 10808 G. C. B4 Previous § 859. The rents, issues and profits 55 § 10790 G. C. § 873 KEAL ESTATE APPRAISEMENT 786 persons are willing to sacrifice some of their time and accept such positions as a part of the discharge of their proper duties as citizens, and accept the statutory allowance. § 873. Executor or administrator to give bond, etc. It will very often occur at this stage of a proceeding that the bond heretofore given by the executor or administrator is not sufficient, and therefore the statute has provided that when- ever such occurs the Courts may order additional bond. The following is one section in relation thereto. "Wlien, in cases named in the next preceding section, the executor or administrator is ordered to sell more than is neces- sary to pay debts, before the sale, he must give bond with suffi- cient sureties payable to the state, conditioned to account for all proceeds of the sale remaining after payment of the debts and charges for which the land is sold, and to dispose of them according to law." [E. S. § 6150.] ^« The giving of the bond provided for in this section is not jurisdictional and tlie failure to give the same would not affect the validity of the sale.^^ § 874. Form of bond. Know all men by these presents, that we, A. B., C. D. and E. F., are held and firmly bound unto the State of Ohio in the sum of dollars, to the payment of which we do hereby jointly and severally bind ourselves, our heirs, executors and administrators.* The condition of this obligation is such that, whereas in a certain cause pending in the Probate Court of the county of and State of Ohio, wherein A. B., executor of the last will and testament (or administrator of the estate) of G. H., deceased, is plaintiff, and I. J. and others are defendants, the said A. B. has been ordered by said Court to sell more real estate than will be necessary for the payment of the debts of said decedent and the charges of administering his estate. Now, if the said A. B. shall account for all the proceeds of the real estate so ordered to be sold, that shall remain after the payment of the debts and charges aforesaid, aq'd dispose of the same according to law, then this obligation to be void, otherwise to be in full force. (Signed, etc.) 58 66 § 10789 G. C. 58 Whittaker's Probate Code. 57 See chapt. 15. 16, 17 and §§ 233, 243, 260, as to bonds gen- erally. 787 CONFIKMATION OF APPKAISEMENT § 875 § 875. And give additional bond to secure further assets if required in what Court. "Before such sale, if the court deems it necessary it may require the administrator or executor to give an additional administration bond, to secure the further assets arising therefrom. The bond mentioned in this section and the next preceding section, when so ordered, must be given in the court from which letters were issued. If the action is pending in another court, the latter shall proceed no further till there is filed therein a certificate from the former court, under its seal, that such bond has been given as ordered." [R. S. As a matter of course all such additional bonds must be givBU in the Court which granted tlie letters of administration.^" § 876. Confirmation of appraisement and order of sale. Upon tlie filing of the report of the appraisers in the Pro- bate Court, the judge should carefully examine the same to as- certain that the former orders of the Court have been complied with. He then should place an entry on his journal, confirm- ing the appraisement, and if new bond or additional bond was necessary, approving the bond and order a sale. As a general thing it will be found beneficial to the estate to order a sale at private sale if the full appraised value can be received. If there is any controversy, however, about the matter a public sale should be ordered. The following may serve as a general form of entry : (Title.) This day this cause came on to be heard upon the return of the ap- praisement heretofore ordered in this cause, and the same was submitted to the Court. Whereupon after careful examination of the same, the Court finds that said appraisement has been made in all respects in accord- ance with law and the orders of this Court, and the same is hereby ap- proved and confirmed ; and it further appearing to the Court that the plaintiff has given additional bond in the sum of dollars, with approved sureties thereon, conditioned according to law, the said bond is Hereby approved.si 50 § 10790 G. C. bonds equally liable for proceeds of 60 As to the liability of the sure- sale. Kehnast vs. Daum, 4 N. P. tios on the various bonds, see §258. 3&6; 6 Dec. 401. Sureties in first and additional oi If sufficient bond has already § 876 REAL ESTATE APPRAISEMENT 788 *(If it is desired to have a public sale of the property, proceed as follows.) On motion of the plaintiff and for good cause shown, publication in a German newspaper is dispensed with and said plaintiff is authorized in his discretion to employ an auctioneer to cry said sale at an expenditure not exceeding dollars. He may also advertise said sale by bills or posters and e.xpend therefor not exceeding dollars. It is now ordered that A. B., as such administrator, proceed to adver- tise for sale on the premises (or elsewhere, if so ordered) the real estate in the petition described, as provided by law; and that he sell the same at not less than two-thirds of the appraised value thereof on the following terms, to wit: One-third cash in hand and the balance in one and two years from day of sale, deferred payments to be secured by mortgage on the premises sold and to bear interest. And said plaintiff is ordered to make return to this Court immediately after such sale. If it is desired to have a private sale, follow the above entry from the star as follows : And it appearing to the Court that it would be to the interest of said estate to sell the real estate described in the petition at private sale, it is now ordered that said A. B. as such administrator, proceed and sell said real estate at private sale at not less than the appraised value thereof, on the following terms, to-wit: (here insert the terms as above stated.) been given, say " and sufficient bond plaintiff, additional bond is dii- having already been given by said pensed with." 789 SALE GENERALLY §877 CHAPTER XLIX. REAL ESTATE. ADVERTISEMENT AND SALE. 877 The sale generally. §891 878 Order of sale and report of § 892 sale. Dower. § 893 879 When sale to be public and § 894 when private. § 895 880 Sale of improved lands; un- improved. § 896 880a Re-advertisement. § 897 881 Private sale. §898 882 Affidavit before private sale confirmed. § 899 883 Public sale. Notice of. 884 Notice to contain street num- § 900 ber, or name of township, § 901 etc. 884a Name of township in certain § 902 cases. § 902a 885 Notice of sale in German or Bohemian newspaper. § 902b 886 Points to be observed. 887 Form of notice of public § 903 sale. 888 Conduct of sale. § 904 889 Who may become purchasers. § 905 890 Return. Confirmation, Order for deed. 890a Deferred payments. §906 i890b Sale of notes. Return of sale. Confirmation. Sufficient confirmation. Errors cured by confirmation. Entry confirming sale, and distributing proceeds. Resale. Securing payments. When motion to be set aside to be filed. Deed evidence of validity of sale. Execution and kind of deed. Form of administrator's or executor's deed. Purchasers right and title. Remedy of purchaser if sale invalid. Remedy in other cases of in- valid sales. How money arising from sale of land to be applied. Comments. Surplus of proceeds of sale to be considered as real estate. Appeal and error. § 877. The sale generally. As a sale of real estate by an administrator or executor under the order of the Court is a judicial sale, the law applicable to judicial sales generally will be found applicable to such sales. There are many things connected with the sale of real estate that are merely directory, and, are cured by confirmation of the sale.^ In selling the real estate of a deceased person, the executor or administrator must act within the scope of his power and 1 See subsequent eection, 894, on errors cured by confirmation. See § 876 for entry ordering sale. § 877 KEAL ESTATE ADVEKTISEMEvNT 790 the statute, and according to the direction contained in the order of sale.^ He is personally liable on his bond for the consequences of any deviation therefrom. Thus, if he is directed to sell for cash, a sale on credit is in excess of his authority, and may, therefore, be void, unless confirmed in Court or by the heirs f and the administrat-or is liable to the estate for the price at which the land was sold.* So, if he report that he has complied with the order of the Court, when the fact is other^vise, he is liable for any loss arising »ut of the failure.^ A private sale by him confers no title, unless the order given by tlie Court under its statutory power so direct.® Since he has no power to sell without order or decree of Court, an agree- ment or bond made by him before obtaining such order to sell the land of the deceased is utterly void, incapable of being en- forced at law or in equity. It is held to be against public policy to allow the administrator to place himself in a position where the exercise of his lawful authority would be influenced or controlled by previous contracts binding upon him.^ I The statute does not require tJiat a formal order of sale be issued to the administrator or executor. It is the practice of i some Probate Courts and tends to preserve regularity in the J proceeding to issue such order. This form of an order of sal^i together with the report of sale may be as follows:® 2 See §§811-829. 7 Stuart vs. Allen, 16 Cal. 474; Filmore vs. Eeithman, 6 Col. 120, Bridgewater vs. Brookfield, 3 Cow^ 130. 299; Woerner on Admin. 1055. sMcCully vs. Chapman, 58 Ala. s See §1427, Gdns.; § 162G, As- 325. signees. 4 Richards vs. Adamson, 43 Iowa A copy of appraisement must be 248. made, § 857. 5 Heath vs. Layne, G2 Tex. 68G; It is not error prejudicial to or- Payne vs. Pippey, 49 Ala. 599; der an appraisement and also fis James vs. Faulk, 54 Ala. 184; an upset price, if the sale is raadi Fontenet vs. DeBaillon, 8 La. An. at more than two-thirds of the ap- 509. praisement. Ferguson vs. Ferguson, 6Fambro vs. Gantt, 12 Ala. 298; 3 X. P. (X.S.) 549; 16 Dec. 486. Schlicker vs. Hemenway, 110 Cal. 579. 791 ORDER OF SALE §878 § 878. Order of sale. Dower. The State of Ohio, Clark County, ss. Probate Court. To Greeting : In obedience to an order and decree of the Probate Court, within and for said county, made this day, in a certain cause, wherein you as are phiintiff, and et al. are defendants, you are com- manded to proceed according to law, to sell at s;-le, for not less than the appraised value thereof the dower of widow. . . .of deceased, the following described premises, to-wit : Said sale to be (state where) the and to be upon the fol- lowing terms : The deferred payments to be secured by mortgage on the premises and to bear interest from the day of the sale, payable annually. You will make return of your proceedings to this Court forthwith upon t,efore the confirmation of the sale, although after it had been struck off, and although the confirmation was ex parte/and, notwithstanding the agree- ment by which he became interested is void under the Statute of Frauds.®' bought with his money and the title Marsham, 2 C. C. 471; 1 C. D. 594. put in his wife's name to secure c 4 Armstrong vs. Huston, 8 O. money he owed her. S. filed a peti- 554; Price vs. Morris, 5 McLean 4. tion to compel her step-father's heirs c 5 Woodward vs. Curtis, 10 C. D. to pay her the real value of the prop- 400; 19 C C. 15. erty. Ileld, such petition is demur- 66 Wade vs. Pettibone, 11 O. 57, rable. S. must affirm or repudiate 60. the eonveyanfe, and can not assert a 6 7 Woerner on Admin. 1083. vendor's lien for the full value and es Terwilliger vs. Brown, 44 N. repudiate the actual sale. These Y. 237 ; O'Conner vs. Flynn. 57 Cal. facts do not amount to a sale, and 293; Gibson vs. Herriott, 55 Ark. constituted the step-father a con- 85. If an executor purchases it structive trustee for S. Stewart vs. -will be presumed fraudulent and the 803 WHO MAY Bt: PURCHASERS § 889 An agreement, by an execiitxar selling, with the purchaser bo share in future profits and losses, is a constructive fraud, and he can obtain a voidable title only ; but in the absence of any- thing done to prevent competition in bidding, and if the prop- erty produce all it is worth, such agreement is not an actual fraud, so as to make the sale void collaterally.'''' But where the administrator got the benefit of land sold to another who paid no purcliase-money, the Court, in setting aside the sale, will refuse to allow the claims of the administrator for debts of the estate paid by him, and his own claim allowed by the Probate Court, and will hold him liable for rents and profits ;'^° so it has been held that equity will not permit property sold by execu- tors to be reconveyed to them by the purchaser for the same consideration, before the executor's duties are ended, except for the benefit of the cestui que trustent, or parties beneficially inter- ested.'^ The administrator is prohibited alike from purchas- ing for himself through an agent/^ and from purchasing as an agent for another.'^ A sale to a relative for less than could have been obtained from a stranger is fraudulent; nor can the son of an executrix, having bought land with the understanding that he is to hold it for her use, hold it against creditors ; and a purchaser of land from an executrix, which she had paid for out of the assets of the estate, will, if he had notice, hold in trust for the creditors.'* This rule does not apply to one who was nominated by the de- cedent as executor, but who does not qualify as such.'^ The administrator is not, subsequent to the sale, precluded from dealing with the purchaser, and may acquire from him a valid title to the property sold, if there was no understanding, express or implied, at the time of the administrator's sale, that he should have an interest in the purchase.'® court will set sale aside on applica- "i Boynton vs. Barstow, 53 Me. tion of a party interested. Barring- 3G2. ton vs. Alexander, 6 O. S. 189. See •? 2 Decker vs. Decker, 74 Me. 465; Sheldon vs. Xcwton, 3 0. S. 404; Kruse vs. Stetfens, 47 111. 112. Glass vs. Greathouse, 20 0. 503; 73 Neda vs. Fontenot, 2 La. Ann. Riddle & Parker vs. Roll, 24 O. S'. 782; State vs. Jones, 53 Mo. App. 572; Pratt vs. Lon^wortli, 27 O. S. 207. 159; Caldwell vs. Caldwell, 45 O. S. 74 Woerner on Admin. 1083. 512. 75 Bowden vs. Pierce, 73 Cal. 459- 69 Williams vs. Rhodes, 81 111. 571. 463. 70 Coat vs. Coat, 63 111. 73. 76 Woerner on Admin. 1086. § 890 KEAL ESTATE SALE 804 A bona fide purchaser from an administrator, who indi- rectly buys at his own sale, such purchaser having no notioe thereof, is, of course, protected in his purchase.'^ An exec- utor or administrator, having purchased at his own sale, is treated in equity as a trustee for the heirs or devisees ; hence, if such sale is set aside on their suit, he will be required to ac- count, being chargeable for rents and profits received from the property, or, if converted into money, then for the money, with interest, and to be credited with payments for the purchase, if applied in the administration of the estate, for taxes, neces- sary repairs, and reasonable improvements, also ^vith interest.^* § 890, Return. Confirmation. Order for deed. ' ' The ex- ecutor or adniinistraior shall make reiurn of liis proceedings under the order of sale ; and the court, after careful examina- tion thereof, if satisfied that the sale in all respects has been legally made, shall confirm it, and order the executor or admin- istrator to make a deed to the purchaser." [R. S. § 6162. j''* § 890a. Deferred payments. ' ' The order, in such case also may require that before the delivery of such deed the deferred installments of the purchase money be secured by mortgage. But if after the sale is made, the purchaser offers to pay the full amount of the purchase money in cash, the court may order +'--■♦ it be accepted, if for the best interest of the estate, and direct its distribution." [R. S. §6162.]'^* § 890b. Sale of notes. ' ' The court in such case also may direct the sale, without recourse, of all or any of the notes taken for deferred payments, if for the best interest of the estate, at not less than their face value with accrued interest, and direct distribution of the proceeds." [R. S. § 6162.] ^"f : 891. Eeturn of sale.* The property having been knocked dovm to the highest bid- der, it is the duty of the administrator or executor to report the sale to the Probate Court for confirmation. If he refuses to do so he may be compelled to act by order of the Probate 77 Woerner on Admin. lOSS. 79f lOSOfi G. C. 78 Lagger vs. Bldg. Association, See § 878, for form of report of 146 111. 283; Miles vs. Wlieeler. 43 sale. 111. 123; Ebelniesser vs. Ebelmesser, * Cited, Fitzgerald vs. Welds, 50 99 111. 541: O'Conner vs. Flynn, o7 Bull. 384. Cal. 293: Fisher vs. Bush, 133 Ind. Where an administrator has sold 315. " under order of court he mav convey See § 1625. Assignees. directly to the assignee' of the 79 § 10804 G. C. purchaser. Ewing vs. Higbv, 7 0. 79* §10805 G. C. (pr. 1) 198. 805 RETURN OF SALE § 891 Court, *° or, as it has been held in some instances, a Court of Chancery might confirm. ^^ The course in our State would be to apply to the Probate Court, and if he fail to act, the Court would remove him, and the person appointed in his place could report the sale. Before reporting the sale for confirmation, the administrator or executor should ascertain whether the purchaser desires to pay all cash or whether he desires to pay more in cash than required by the terms of sale. Such fact should be reported so that the Court may make an order in conformity to the wishes of the parties. The object of the re- port is to enable the Court to examine into the doings of the administrator in respect to the sale and to determine whether he has complied with all the requirements of the statute and the orders of the Court touching the same.®^ If there is apparently no contest, the Court may proceed to confirm the sale upon the report. As a general rule, it may be said, that the sale ought not to be confirmed until the parties interested have had a reasonable time to examine the same and make contest thereto, if so desired. Usually parties interested can and ought to make objection at once. The re- port should be signed by the administrator or executor, but .need not be sworn to.^'* The form of such report is attached to the order of sale given in the previous section. If there are several tracts offered, each tract should be reported separately in the return -with the price received for each. A report of sale by an administrator, showing that land be- longing to his decedent's estate has been sold to a designated person, is not conclusive as to who the person was, but the real purchaser may be shown by parol, though the decree of confir- mation, directed that conveyance be made to " the purchaser."^^ The report of sale need not contain a precise and full de- scription of the lands by metes and bounds.^* Reference to the order of sale is sufficient. ^^ But he can not make to another, 82 Woerner on Admin. 1059. if the other is to convej^ to him. 83* If gale is public. Caldwell vs. Caldwell, 45 0. S. 512. 83 Dodd vs. Templeman, 13 S. W. 80 Stow vs. Kimball, 28 111. 83; Hep. 187; ,S. C. 76 Tex. 57. Mason vs. Osgood, 04 N. C. 467. 84 Calvert vs. Alexander (Ky.), 8 81 Rea vs. McEachron, 13 Wend. S. W. Rep. 696. 465. 85 Sullivan vs. Berry, 83 Ky. 198. g 892 REAL ESTATE — SALE 806 A purchaser named Mary Hynod cannot be compelled to pay for a sale returned and confirmed to May and Inott. She is not connected therewith.^® If the purchaser consent, the adminis- trator may substitute some one else as purchaser in his re- port.*^ If the highest bidder fails to comply with the order making a deposit, or for some other good reason is unable to com- ply with the terms of the sale and where the difference between his bid and the next highest is very slight, the name of such next highest bidder might be substituted for the highest bidder, he consenting thereto.^* § 892. Confirmation. The confirmation or approval of the sale by the Court is the judicial ascertainment of its validity and legality, and the de- cree so made cannot thereafter, in any collateral proceeding, be questioned. ®® The matter of confirming the sale rests largely in the discretion of the judge, and the higher Court will not review the same on the weight of the evidence.®** The judge should inquire into all the circumstances connect- ed with the transaction, examine the administrator or executor, the purchaser and other witnesses if necessary, and if he reach the conclusion that the sale was not fairly made or not in con- formity with law, the sale should be vacated. It is not proper 86 Starbuck vs. Hynod, 1 Bull. the sale on execution vacated in the 140. Court's discretion, though the pro- 87 Ewing vs. Higby, 7 0. ( pt. 1 ) ceedings are regular and though R. 198; Thompson vs. McManama, 2 S. §5398 seems to be mandatory. Dis. 213. (Aff'd, no rep., 23 B. 253.) Bear ssWoerner on Admin, 1063. vs. Bookmiller, 3 C. C. 484; 2 C. P. 89Noland vs. Barrett, 122 Mo. 277. 181; Sturdy vs. Jacoway, 19 Ark. Amendment of return giving rea- 199; Thorn vs. Ingram, 25 Ark. 52; sons for not executing order of sale. Osman vs. Traphagen, 23 Mich. 80; Bereman vs. Directors, 4 W. L. J. Camden vs. Plain, 91 Mo. 117; 4 S. 500. W. Rep. 86 ; See also Keller vs. Where a sale had been made for a Amos, 31 Keb. 438. fair price upon competitive bid- But the approval can not by any ding, the court can not set it aside retroactive effect impart validity to merely because the sale was on the a sale which is wholly void. Cun- premises, when the statute provides ningham vs. Andersoh,"l07 Mo. 371; that when not otherwise directed Schlicker vs. Hemenway, 110 Cal. the sale shall be held at the court 579. " house. Smiley vs. Cook, 4 O. L. R. soNiles vs. Parks, 49 O. S. 370. 737; 52 Bull. 156. Confirmation may be refused and 807 CONFIRMATION § 892 for tlie Court to go into and investigate as to the legality of the finding made, upon which the order of sale rests. If a question is to be raised upon that question, it cannot be done in an objection to confinnation. If it was clearly shown, how- ever, that the Court had no jurisdiction to make the order of sale, it should not be confirmed.''^ As a general rule it may be said that the Court wall refuse to confirm the sale if the statute has not been literally complied with.''^ If made on an improper day and the property bring but two-thirds of a low appraise- ment, it should be set aside.**^ A defect in the description where not material and not objected tO' by the purchaser is no ground to resist confirmation."* A very common objection to confirmation is the inadequate price at which the property has been sold. This is never a good reason to refuse confirmation, unless the Court be satis- fied that a better price will be secured. Generally tbe Court of Probate being charged with the duty of seeing that the es- tate receive the most that can be had on such sale, will set aside a sale where a higher price is guaranteed. Such action on the part of the Court sometimes brings on it the ill feeling of the person who bid it ofi^. But a Court mindful of tlie duty de- volved upon it, to look after the interests of infants, widows, and creditors not directly represented, should not be afraid of offending some one who may by its action loose a fortunate chance of speculation. The general practice is in order to set aside such sale by reason of inadequate price, to require that a bond be taken or security given to insure a sale of the premises if again offered for an amount sufficient to equal the present bid and the costs of an additional sale, as well as interest which might accrue on the purchase money from tbe date of the first sale to tlie second."^ 81 See Buckingham vs. Grandville, ss Where corporation property is 2 0. 3G0; Fritsch vs. Van Mitten- bid in at foreclosure sale by a di- dorff, 2 C. S. C. Rep. 262. rector at much less than its value, 92 Craig vs. Fox, 16 O. 563. and a bond holder offers security 03 Banning vs. Pendery. 4 Bull. that he will bid twenty per cent. 912. more if a new sale is ordered, it will »* Wilson vs. Scott, 29 O. 8. 636. be ordered on condition this proposi- § 893 REAL ESTATE — SALE 808 No title can vest until a confirmation.^^* But a confirmation does not of itself constitute the sale.""^ The title of the heirs is not divested until the purchase money is paid and the deed delivered by the administrator."^ If an heir or person inter- ested as provided by statute,''^ appear in Court and offer to give bond to the administrator to pay all the debts of the estate, the sale ought not to be confirmed, as the heirs ought to have an opportunity of preserving the estate to themselves. The object of the sale is to secure funds with which to pay the debts of the deceased and not to divest the heirs of their title for any other purpose.*" § 893. Sufficient confirmation. Where there is any evidence of confirmation, or of some- thing from Avhich an intention to confirm might be inferred, or something entitling the purchaser to have the sale confirmed, the purchaser will be entitled to claim title to the land.^°° The minutes of tlie judge making the approval is sufficient to sustain the sale against a collateral attack. ^°^ An approval of a sale wall be construed also as an approval of the appointment of the administrator.^*^" So ordering the report to be spread of record, accepting an account of the proceeds, and approving the deed, is a confirmation of the report. ^''^ An acknowledg- ment of the execution of the deed taken by the judge of the Court, and charging the administrator with the proceeds of the sale, is a confirmation of the sale,"* and if no formal entry can be found, an approval will be presumed in a collateral attack.^"' tion is put into shape within a week. loi Camden vs. Plain, 91 Mo. il7; Secor vs. Manraee Rolling Mill, 1 N. S. C. 4 S. W. Rep. 86. P. 100; 1 Dec. 80. io2Shuniaid vs. Phillips, 53 Ark. 95* See Johnson vs. Cincinnati, 11 37. g. q. 13 S. W. Rep. 510. C. C. (KS.) 344; 30 0. C. C. 644. 103 Grayson vs. Weddle, 63 Mo. 96 Curtis vs. Norton, 1 O. 278. 523. 97 Woerner on Admin. 1003. io4 Agan vs. Shannon, 103 Mo. »« § 826. 661 ; S. C. 15 S. W. Rep. 757. 9!) The title of the purchaser may Moore vs. Davis, 85 Mo. 464. not be divested by a subsequent re- 105 Jones vs. Manly, 58 Mo. 559. versal of the order of sale. Irwin vs. Jeffers, SOS. 330. looMoodv vs. Butler, 63 Tex. 210. 809 SUFFICIENT CONFIEMATION 894 A confirmation may be made any time after the sale/*" even after suit to set aside the same or deed/''^ If several tracts be sold, the sale of some may be approved and the others disapproved, although there be only one report embracing them all/°^ Long possession of the purchaser under a deed will raise a presumption of confirmation.^"® § 894. Errors cured by confirmation. Where jurisdiction has been acquired in such a proceedings, subsequent errors in the course of its exercise, as in the order of sale and its confirmation, however grave and glaring, will not subject the judgment to successful collateral attack.^^" If a deed be made before confirmation, the fact of confirma- tion will cure the defect.^" If an order be given to two joint administrators, a sale by one is valid after confirmation.^*^ The confirmation cures all defects in the advertisement or notice of the sale,**^ or the failure of the notice to give the terms of sale,*** 106 /„ re Harvey, 16 111. 127. 107 Morgan's Appeal, 110 Pa. St. 271. A confirmation cannot be collater- ally attacked. Sturdy vs. Jacoway, 19 Ark. 499; Thorn vs. Ingram, 25 Ark. 52 ; Os- man vs. Traphagen, 23 Mich. 80; Camden vs. Plain, 91 Mo. 117. los Delaplaine vs. Lawrence, 3 N. Y. 301 ; Bacon vs. Morrison, 57 Mo. 68. 109 Smith vs. Wert, 64 Ala. 34; Neill vs. Cody, 26 Tex. 286; Moody vs. Butler, 63 Tex. 210. In passing on a sale, the Court can not go behind and revise the original order of sale. Allen vs. Shepard, 87 111. 314. The order of confirmation is not void because it does not show to whom each of several tracts was sold. Perry vs. Blakey, 5 Tex. Civ. App. 331; S. C. 23 S. W. Rep. 804. A recital that the sale had been made, and that on inspection it ap- peared it was made according to law, is a sufficient report and con- firmation of the sale. Day Land, etc., vs. N. Y., etc., Co. (Tex.), 25 S. W. Rep. 1089. 110 Bohart vs. Atkinson, 14 O. 228; Spaulding vs. Baldwin, 31 Ind. 376 ; Hammann vs. Mink, 99 Ind. 279. iiiLemert vs. Clark, 1 C. C. 569; 1 C. D. 31S; Hammann vs. Mink, 99 Ind. 279; Contra, Stillwell vs. Swarthout, 81 N. Y. 109. 112 Osman vs. Traphagen, 23 Mich. 80. 113 Jackson vs. Magruder, 51 Mo. 55.' 11* Braubaker vs. Jones, 23 Kan. 411. § 895 REAL ESTATE — SALE 810 or the place/^^ or both the time and place,^^® or any departure from the order of sale,"^ or the fact that the notice was too short/^^ A sale for less than the appraisement is cured by the confirmation,"^ or by selling at private sale when ordered to sell at public sale,^-" or selling upon different terms from the order/-^ or the omission to verify the report.^" A void sale, however, can not be rendered valid by confirmation/^^ § 895. Entry confirming sale, and distributing proceeds. No objection being made and tlie Court being satisfied that a proper sale has been made, an entrj' should be placed upon record reciting these facts. Generally the same entrj^ include? a distribution of the proceeds, but this is not essential and an entry might be made confirming the sale and thereafter another entry distributing the proceeds. For convenience they will both be included in the following, which may be used as a general form : * {Title.) This day this cause came on to be heard upon the report of a public (ot private) sale of the property described in the petition herein; and therf appearing to be no objection to the sale it was submitted to the Court upori. such return of sale, \^hereupon the Court finds, after due and careful examination of the same that said sale has been duly and legally made in conformity to law, and the former orders of the Court. \Yherefore it is ordered that the same be and is hereby approved and confirmed. And it is further ordered that said A. B. as such administrator (or executor) make to the purchaser, E. F., a good and sufficient deed for the premises so sold. (If the purchaser desires to change the terms of sale t!ie entry may con- tinue.) And. the said E. F. desiring to pay all of said purchase money in cash, said administrator (or executor) is ordered to accept the same. 124 11a Blodgett vs. Hitt, 29 Wis. 169. go to his heirs as personalty, and 110 Beidler vs. Friedell, 44 Ark. should be paid to his administrator. 411; Cadwallader vs. Evans, 1 Dis. ^^'^ry vs. Howard, 7 N. P. (N.S.) 585 97; 19 Dec. 71. ,,, „ ,,. , „^ -. , i22Spragins vs. Tavlor, 48 Ala. ii^Haramann vs. Mink, 99 Ind. ^-,^ * * ' ^' 123 Cunningham vs. Anderson iisWyant vs. Tuthill, 17 Neb. (Mo.), 17 S. W. Rep. 972; Temple- 495; S. C. 23 N. W. Rep. 342. ton vs. Falls, etc., Co., 77 Tex. 55; lis Spaulding vs. Baldwin, 31 Ind. S. C. 13 S. W. Rep. 964. 376. See §§ 10783-4 G. C, § 814. 120 Apel vs. Kelsey, 52 Ark. 341; 12* If the administrator or execu- S. C. 12 S. W. Rep. 703; Ex parte ^^^ desires to get an order to sell the Kirkman, 3 Hed 517. ''°*^^ representing the deferred pay- ,0, T 1 , A ^ ^^ -r. oi^ ..,, ments, the entry should state and 121 .Jacobs' Appeal, 23 Pa. St. 477. ' ,, • , '1 :i • 1 * 1 ,„ ' ' ' nuthorize such sale, and might be as Where a devisee of a share dies fQ^lo^ys■. "And it appearing to the before distribution is made, the pro- Court that it would be for the best ceeds of from a sale of the property interest of the estate to sell the 811 CONFIRMATION DISTRIBUTION § 895 And the said M. N., having by her answer elected to receive, in lieu of her dower in said real estate, its value in money, the Court finds the just and reasonable value thereof to be dollars.i-s And it is further ordered that upon satisfaction of the mortgage of O. P. herein set forth in the cross petition of said 0. P., said mortgage being recorded in volume page Mortgage Records of County, Ohio, cancellation be entered on the record thereof in the office of the Recorder of said county where it is recorded. 1 26 And the Court coming now to the distribution of the proceeds of said sale, amounting to dollars, the said E. F., purchaser, having elected to pay the same in cash (or the said administrator having sold the notes and secured the cash therefor), it is ordered that said adminis- trator out of the moneys in his hands pay first to the treasurer of this county, taxes, penalties and interests thereon against said property, to-wit, the sum of dollars. 127 Secondly, costs and expenses incurred in the sale of said land to the sum of dollars, as follows: 1. Probate Court costs, amounting to dollars. 2. The Morn- ing Sun, for advertising said property dollars. 3. James Foley, auctioneer, the sum of dollars. 4. Van Bird, surveyor, the sum of dollars. 5. The per centum of the executor, the sum of dollars.128 Thirdly, to M. N., widow, the sum of dollars, which the Court finds to be the reasonable value of her dower interest in said premises. Fourthly, to 0. P. on the note and mortgage set forth in his cross- petition herein, the sum of dollars, which the Court finds to be due him. And it is ordered that the balance of said sum, amounting notes taken for the deferred pay- ment, it is ordered that said admin- istrator sell the same without re- course for not less than their face value and accrued interest." 120 This dower interest of the widow is calculated by use of the ordinary tables of mortality. See chapt. next to index. i-'6 Tliis entry should always con- tain the volume and page of the record where the lien is recorded. It sometimes becomes a difficult mat- ter and one exceedingly dangerous to the clerk or Probate Judge where such is not done. For perchaiice he might cancel the wrong mortgage, and besides, it is much easier for the attorney when preparing the entry to insert the volume and page of such lien record than it is for the judge or clerk to search through a number of papers to ascertain the same and then fail to find it correct- ly given. §§10783-4 G. C, §814; as to statute providing for distribu- tion, see § 903. 127 As to how money is to be dis- tributed, see subsequent section and § 10809 G. C, § 903. This does not include street as- sessments which are not on the tax duplicate. Makley vs. Whitmore, 61 0. S. 587. Taxes, interest and penalties which by the statute are to be paid out of the proceeds means taxes standing on the duplicate; and taxes are deemed due on October first for tlie purjTOse of being paid out of tlit purchase money on administrators, ci-editors, trustees, or judicial sales though the lien of the same attaches at a prior April. Hoglen vs. Cohan, 30 0. S. 436; Ketchem vs. Fitchem, 13 0. S. 204. 128 As to collection and compen- sation of the executors and admin- istrators, see §§ 654-659. Neither attorney fees of an admin- istrator nor premiums due on the administrator's bond, are costs, un- der § 10809 G. C, § 903, prior to a first mortgage, nor can they be allowed as extraordinary expenses. Sherman vs. Millard, 6 C. C. (N.S.) 338; 27 O. C. C. 181. The author is somewhat inclined to doubt the soundness of this opin- ion. It seems that such expense as the mortgage-holder would have been put to if he had foreclosed his mortgage would have at least been proper to allow the administrator. The recent case of Klimper vs. Klimpcr, 12 0. App. 332, would sup- port the allowance of such costs which supports the view of the author. For taxes, costs and expenses be- § 896 REAL ESTATE RESALE 812 to dollars, be distributed by said administrator as provided by law. 129 § 896. Resale. If there are no bidders, the premises should be re-offered. If offered twice and there are no bidders the Court may then fix the amount for which they may be sold or may order a new ap- praisement. ^^° If the purchaser fails to pay the price bid by him, there must be a resale of the property. The Court may order a resale even after a sale has been confirmed, for it does not lose its jurisdiction until the sale has been actually con- summated.^^^ In all cases where there has been no sale made, either for want of bidders or by reason of a bidder refusing to comply with his bid, the matter should be reported to the Probate Court and the Court should order a resale. Such proceedings tend to preserve a regularity which will prevent errors. If a purchaser refuses to take the property and it is resold he will be liable if it brings a less amount than his bid. The Court may also enforce a purchaser's bid by proceeding against him for contempt. If the Court fixes the value once after the prop- erty has been twice offered, it cannot fix it a second time.^^^ The Court might, perhaps, order a reappraisement if a great length of time had expired between a foi*mer appraisement and the time of the proposed sale, where it is shown that values have changed. The journal entry in such cases might be as follows ordering a reappraisement : ENTRY. (Title.) It appearing to the Court that the real estate herein ordered to be sold has been twice offered for sale under the present appraisement and not sold for want of bidders, it is now on motion ordered that said ;..ppraise- ment be set aside and re-appraisement of the same be made by (name the ing prior to dower, see § 950. See § 1626, Assignees. See § 814, Power to determine 130 § 10802 G. C, § 880. liens. 131 GreiTet vs. Willman, 114 Mo. 129 After distribution lias been 106; Woerner on Admin. 1064. made in payment of costs and liens 1^2 Brown vs. Conn. M. L. Ins. Co., on the property the remainder 6 C. C. 62 ; 3 C. D. 350. should be applied in payment of See § 888, Conduct of sale. debts, etc. 'See § 646 et seq. The beneficiary may apply for a If anything remains after debts resale. Caldwell vs. Caldwell, 45 have been paid it must be distrib- O. S. 512. uted as real estate. See § 6171 R. S., §905. 813 SECURING PAYMENTS § 897 persons), three judicious, disinterested men of the vicinity, who are free- holders. 133 If the court is to fix the value the following may serve as an entry : {Title.) It appearing to the Court that the real estate herein ordered to be sold has been twice offered for sale under the present appraisement and not sold for the want of bidders, it is now on motion ordered that said real estate may be sold for the sum of dollars (at private sale or public auction, etc). § 897. Securing payments. Before the delivery of the deed, or at the same time, the administrator or executor must secure payment for the real es- tate sold. Having delivered the deed he is responsible for the purchase money unless it should be a loss through deferred pay- ments secured as provided by law. The statute provides that with the permission of the Probate Court the purchaser may pay all cash. Otherwise he must make payments as directed in the order of sale. If the administrator trusts the purchaser or takes notes in any otlier method tlian that directed by law, he is responsible. The deferred payments must be secured by mortgage on the premises, and must bear interest at six per cent, and must not exceed two years from the date of sale.^^* Some care should be exercised in the drafting of the mort- gage. The purchaser's wife or husband need not sigTi the same unless he or she be joint purchasers, although it will do no harm to have them to do so. Being a purchase money mortgage their dower does not attach until the purchase money is paid. The mortgage should be made to the administrator, his heirs, suc- cessors and assigns. If the word " heirs " is not used in the granting clause, or in habendum clause, or in the covenants, no fee simple is conveyed, but only a. life' estate.^^^ The' only instance in which the word successors can be used instead of the word heirs, is when the mortagee is a corpora- 133 This entry may be changed to mere fact that he does not conduct suit where appraisement is ordered tlie sale would not prevent the for any other reason. court from granting the writ direct It is not generally necessary to to him. See Bates PI. and Pr., p. have a writ of possession, and there 2218; § 11634 G. C. might be a doubt whether, in an "4 § 10786 G. C., § 847. administrator's sale under order of 135 Stephenson vs. Sedam, 12 C. 'court, a writ of this kind could C. 40S, 414; 5 C. D. 609. See case issue directed to the sheriff. But for application. the sheriff is the executive offleer of See Stambaugh vs. Fox, 16 C. C. the Probate Court as well as the 427; 8 C. D. 625. Court of Common Pleas and the § 898 REAL ESTATE SALE 814 tion. The administrator has no power to make a valid agree- ment with a partial nimiber of the heirs to deduct a part of the purchase money for an alleged deficiency in the quantity of the land sold, nor can an heir retain the purchase money until his share to which he may be entitled out of the estate be ascer*- tained, if the money is needed for purposes of administration. The same is equally true with a creditor/^® The administrator's claim for the purchase money constitutes a vendor's lien as in other cases of sale/^^ § 898. When motion to be set aside to be filed. Until a sale is confirmed, the Probate Court undoubtedly has power to entertain a motion to set aside the appraisement or to refuse to confirm, and for equal reasons the Court should entertain a .motion, for such purposes until the deed has been delivered to the purchaser. The general rule being that all judgments are subject to vacation or modification during the term at which they are pfonounced.^^* The difficulty in the application of this rule is, as» to whether or not the Probate Court has terms for such purpose. What- ever terms the Probate has are those given by sec. 11643, G. C. (see § 5), and consist of three terms of four months each, com- mencing on the first of January of each year.^^^* In this section it specifically applies to new trials and other relief after judg- ment, and the reasoning is cogent that if the Probate Court shall have terms for a new trial after judgment it should also have tej'ms for all adversary proceedings before judgment.^^^ If relief is had after the terra, the practice provided for Common Pleas Courts should be followed. In some States it has been held that when a sale is confirmed by the Probate Court it has no further jurisdiction in the premises ; "^* and generally it is said the power to review or set aside the judgment or decree confirming 13G Woerner on Admin. 10G3. 139 Potter vs. Jenman, 4 X. P. 78; 137 Woerner on Admin. 1065. 4 Dec. 444. 138 1.5 Ency. of Plead, and Prac, 139* State vs. Probate Court, 19 205; 19 Ency. of Plead, and Prac. Minn. 117; State A's. Probate Courl, 904. 33 Minn. 94. 138* S'ee § 5, Terms of court. 815 MOTION TO SET ASIDE § 898 a sale after the expiration of the term at which it was rendered does not in the absence of statutory enactment to that effect, reside in Probate Courts,"" Sales will b© set aside in equity where there has been fraud ;^*^ or where the purchase was made by an appraiser •,^*^ or for great and manifest inadequacy of price, from which fraud may be presumed ;^*^ or where the property was bought by the executor or administrator himself, or by one of his relatives. But in such cases application for the vacation of the sale must be made wathin a reasonable time,"* and all the heirs must be made parties ;"° nor will the sale be set aside if the rights of a stranger or innocent purchaser have attached. ^*^ The form of a motion to set aside an appraisement or sale may b© as follows: FORM OF MOTION. {Title.) Now comes I. J., defendant herein and as heir at law of C. D., deceased, and moves the Court to set aside the appraisement (or sale) heretofore made of the real estate described in the petition for the following rea- sons : First, because ( here state reason ) . Second, because ( set out rea- son). Wherefore he asks that said appraisement (or sale) be set aside and such proceedings be taken as authorized by law. The hearing of such a motion is usually had upon affidavits, although the Court may hear the matter by oral testimony. The practice of the various Courts are not alike in this respect and no uniform rule can be given. If the motion is sustained, a journal entry should be made sustaining the same and grant- ing the relief to which the party is entitled. Before a sale of land will be vacated relief will not be granted until the full 140 Woemer on Admin. 1062. i**Haynes vs. Swann, supra; 1*1 Van Horn vs. Ford, 16 Iowa, Murphy vs. De France, 105 Mo. 53. 578; Smith vs. Chew, 35 Miss. 153; ""'Hoe vs. Wilson, 9 Wall. 501. Tillman vs. Thomas, 87 Ala. 321. I'to Sivley vs. Summers, 57 Miss. 1*2 Armstrong vs. Huston, 8 O. 712; Adams vs. Toomer, 44 Ark. 552 271; Jones vs. French. 92 Ind. 138; 1*3 Haynes vs. Swann, 6 Heisk. Adams vs. Thomas, 44 Ark. 267 ; 560. Woemer on Adminis. 1062 Sec Kinkead's Pract. 574. §899 REAL ESTATE SALE 816 amount paid by the purchaser is returned to him/*' He is en titled to recover from the heirs for taxes paid/*^ If the purchase money has been applied to the payment of the debts, and the sale is set aside, the heirs will be liable to the extent of tbe property they have received, if necessary, to re- imburse the purchaser/*^ If the purchase money did not go to pay the debts the heirs are not liable except for taxes/^** He cannot recover for improvements made after notice to set aside the sale/'' § 899. Deed evidence of validity of sale. "The deed of the executor or administrator, made in pursuance of the order of the court, shall be received in all courts as prima facie evidence that the executor or administrator in all respects observed the directions and complied with the requisitions of the law, and shall vest the title in the purchaser, in like manner as it" con- veyed by the deceased in his lifetime." [R. S. § 6163.]^=^ § 900. Execution and kind of deed. A deed made by an administrator or executor in pursuance of aji order of Court for real estate sold, conveys and vests in the purchaser the title which the deceased possessed. It is not a warranty deed. The Court has no power to authorize an ad- ministrator to make a deed of that kind,'^^ and therefore in no instance could an administrator or executor make a deed of general warranty, unless a power expressly so to do. was given in tlie will of the testator. If any effect at all can be given to 1 IT Longworth vs. Wolfington, 6 796; Schaefer vs. Causey, 8 Mo. O. 9; Fisher vs. Bush, 133 Ind. 315; App. 142; Jones vs. French, 92 Ind. Burdett vs. Silsbee, 15 Tex. 604; 138; Smith vs. Knoebel. 82 111. 392. Neel vs. Carson, 47 Ark. 421; S. C, i5o Nowler vs. Coit, 1 0. 519 (2d 2 S. W. Rep. 107; Scott vs. Dunn, ed.). 1 Dev. & Eq. 425 ; Wilson vs. Holt, is^ Snider vs. Snider, 3 W. Va. 83 Ala. 528; S C, 3 So. Rep. 321; 200. Bennett vs. Caldwell, 8 Baxt. 483. 152 § 10807 G. C. 148 Schaefer vs. Causey, 6 Mo. 365. 153 Lockwood vs. Gilson, 12 0. S. i49Wehrle vs. Wehrle. 39 0. S. 529. 365; Jayne vs. Boisgerard^ 39 Miss. 817 DEED § 900 a covenant of warranty in a deed it is personal, and it can only be enforced against an administrator or executor/^* As a general rule, it may be said that executors and adminis- trators are tbe mere agents and instruments of law for conveying the title of the deceased, and therefore it may be said that cove- nants of warranty contained in such a deed do not bind these/^^ But the executor or administrator may bind himself by an ex- press and voluntary covenant collateral with his official act, and if he chooses, in order to make a good sale, he may make a war- ranty that will bind him. But in order to bind the estate it must be shown first that he was authorized by will to give a war- ranty deed. Second, that it appears clearly from the instrument that he made a warranty collateral to his official act.^^* The deed must be executed with the formalities of any other deed. It should show on its face the autliority under which it was given, with suificient certainty to enable the act done to he traced to the authority for that purpose. It should have the essentials given in the form hereinafter given. An administra- tor's deed, even if made under order of Court with but one wit- ness, conveys no legal title.^^^ " If the deed conveys the equitable interest " of the deceased and all his " right, title and interest," it is sufficient to carry the legal title, if the decedent possessed a legal title. An adminis- trator's sale passes no title until a deed is executed and deliv- ered. But where the sale is otherwise complete, equity will compel the delivery of a deed and the payment of the purchase money ; and the Probate Court might indirectly at least enforce the execution and delivery of a deed. It could make an order directing the executor to perform such an act, and if he failed, 154 Lockwood vs. Gilson, 12 0. S. A covenant by executors in a deed 526; Dunlap vs. Robinson, 12 O. S. made by order of the Probate Court 530. vi^arranting the title " as far as ex- An agreement to protect the title ecutors are bound by law to do," is or indemnify the purchaser against not a personal covenant. Day vs. incumbrances, orally made by the Brown, 2 O. 345. executor, does not bind the estate iss Woerner, Admin. 106G. without authority from the will or ise Woerner, Admin. 1067. Court. Arnold vs. Donaldson, 46 O. i'''^ Miami Exp. Co. vs. Halley, 7 S. 73. O. (1 pt.) 11. § 901 REAL ESTATE SALE 818 could remove him and appoint some one who would comply with the orders of the Court. Where there are several executors or 1 administrators, the deed should be made hy all. An executor cannot make a deed hy power of attorney, but if he dies or is removed his successor could make the sale.^^^ § 901. Form of administrator's (or executor's) deed. Know all men by these presents: That, whereas, on the clay of , 19 ... , w. . .duly appointed and qualified as of the estate of deceased, late of County, Ohio, by the Probate Court of said county; and afterwards, to-wit: on the day of , 19. . ., said filed his certain petition and then and there commenced an action in the Probate Court of County, Ohio, against and numbered on the Docket of said Court as Case No praying among other things, for an order of sale of certain real estate therein mentioned and hereafter described. And, whereas, such proceedings were had in said action, on the day of , 19. . ., said Court finding the allegations of the peti- tion true, and that said real estate ought to be sold as prayed for in said petition.* And the Court having found that said property had been appraised with the personal property of said estate, ordered that said proceed according to law to sell the real estate at public (or private) sale, as provided hy law, free from the dower estate of therein (if said real estate has been appraised in the Real Estate Pro- ceedings, commence at the star above, and the following should be inserted in the deed) . * And on the same day, in pursuance of said order and judgment, an order of appraisement was issued out of said Court under the seal thereof to the said as as aforesaid directed, commanding him to execute the said order, and of the same, together with his pro- ceedings thereon, to make due return; And, whereas, said having caused said premises to be ap- praised; and having on the day of returned said ap- praisement, the same was by the Court confirmed, and said Court ordered that the said proceed to sell said property at public (or pri- vate) sale, as provided by law; and thereafter, to wit, on the day of said made a report to this Court of a sale mad* of the premises in the petition described to for the sum of dollars. And, whereas, on the day of , 19..., the said Court having examined the proceedings of the said aforesaid, under said order of sale, and it appearing to the Court that said sale was in all respects legally made, ordered that the same be approved and confirmed, and that said should execute and deliver a proper deed to the purchaser, of the real estate so sold. 158 Woerner, Admin. 1068. cree it. Piatt vs. Bank, 7 O. (pt. 2) § 10776 G. C, § 835. 165. An administrator's deed may be The proceedings of the Probate voidable in the hands of a first pur- Court will be presumed to be regu- chaser and good in a subsequent lar, and where the order shows tliat purchaser. due notice was given, it will be pre- Though an administrator's deed sumed all parties had notice and contain no words of perpetuity, yet the court had jurisdiction. Hamil- if the sale was in fact made of the ton vs. Stewart, 5 N. P. (N.S.) 558; whole estate, chancery would so de- 18 Dec. 133. 819 purchaser's right and title § 902 AH of which will more fully appear by the records of said Court, to which reference is here made. Now, therefore, the said of the estate of deceased, aforesaid, by virtue of said judgment, order of sale, sale and confirmation and of the statute in such cases made and provided, and of the powers vested in and for and in consideration of the premises, and the sum of dollars ($ ) , paid or secured to be paid to by said , the receipt whereof is hereby acknowledged, do hereby Grant, Bargain, Sell and Convey to the said his heirs and assigns forever, the following real estate, situated in the County of in the State of and in the and bounded and described as follows : the dower estate aforesaid. To have and to hold said premises, with all the privileges and appur- tenances thereto belonging, to the said his heirs and assigns forever, as fully and completely as he, the said as such by virtue of said judgment, order of sale, sale and confirmation, and of the statute made and provided for such cases, might or should sell or convey the same. In Witness Whereof, The said as such has here- unto set his hand, this day of A. D. 19 ... . Signed and acknowledged in presence of (Signed.) The State of Ohio, Clark County, ss. Be it remembered. That on the day of , 19. . ., before me, the subscriber, a in and for said county, personally came the above named as of the grantor in the foregoing deed, and acknowledged the signing of the same to be his vol- untary act and deed as such for the uses and purposes therein mentioned. In testimony whereof, I have hereunto subscribed my name and aflSxed my official seal on the day and year last aforesaid. §902. Purchaser's right and title. The sale being a judicial sale, the doctrine of caveat emptor applies in all its rigor.^^" 159 ifj however, there is no title Caveat Emptor, "Let the pur- and the administrator represents chaser take care" is a legal maxim that there is, and the purchaser in expressive of the rule at common ignorance pays tlie purchase price, law that a purchaser of proi^erty the administrator is personally buys at his own risk as to title and lial)le. Fisher vs. Fisher, 33 U. C. quality, unless the seller gives a C. 525; affirmed, 86 O. S. 365. warranty or the law implies one. The facts in this case are not Wright vs. Hart, 18 Wend. (N. Y.) reported and it seems to me that 449. it is going a good way to hold the Caveat venditor, "Let the seller administrator liable if he does noth- take care" expresses the civil-law ing more tlian make representations rule, which contrary to the common- in his petition, that deceased ivas law doctrine, required the seller to thr oirner. protect himself from future respon- Meclianics, etc., vs. O'Connor, 29 sibility by a particular agreement 0. >S. 651; Riddle vs. Bryan, 5 O. with the purchaser. Wright vs. 48; Vattier vs. Lytic, 6 O. 477; Mc- Hart, 18 Wend. (N. Y.) 452; 5 Am. Louth vs. Kathbone, 19 O. 21; Cor- & Eng. Ency. of Law, 778 (2d ed.), win vs. Benliain, 2 O. S. 36; Creps The purchaser, after his bid is vs. Baird, 3 O. S. 277, 279; McKin- accepted, can not refuse to take the '.ic vs. Perrill, 15 0. §. 162, 108; property because there are liens, Drcsliach vs. Stein, 41 0. S. 70; etc., upon it. He is bound to ex- fJoal vs. Price, 13 0. 368. amine the records before bidding, § 902 REAL ESTATE SALE 820 A sale does not carn^ a sound title, but only the deceased's title, a title clear and free, but only as free and clear a title as the deceased had."° It was foraierly held to be the law in Ohio that a sale made by an administrator conveyed the property free from incum- brance to the purchaser/*'^ But since the law of 1858, requir- ing mortgagees and other lien holders to be made parties in the petition for the sale of such land, a mortgagee who was not made such party retains his rights unaffected by the administra- tor's sale, and the purchaser is liable therefor.^®' And where a purchase was made by one who was advised by his counsel that the land was clear and unincumbered, and that the wife had no dower estate therein, and thereupon he bought tJie lands at their full value and paid over tlie money to the executor and entered into possession, and afterwards the Court of Common Pleas found that tlie wife was entitled to dower, it was held, that tlie purchaser could not recover back sufficient of the pur- chase money to compensate him for the loss he sustained,^®^ The rights of a purchaser at a judicial sale as to the payment of taxes out of the proceeds are fixed by date of sale, after con- firmation it relates back to that date,^"* and consequently the purchaser is entitled to all the rents that accrued after that date.^°^ Emblements, however, do not pass to the purchaser.^^® Similar to a sale made on execution, the purchaser is entitled to a writ to put him into possession. The rights of a purdiaser to appear in Court and ask' for confirmation of the sale are not very clearly detennined. By courtesy the Court generally al- lows him to be present and protect his o^^^l interests so far as they may be involved. But it seems he has no rights in the or failing so to do, must bear the i^s Arnold vs. Donaldson, 46 0. consequences. Mull vs. Typewriter S. 73. Co., 1 X. P. (N.S.) 509; 14 Dec. ic4 Scheid vs. Schcid, 5 Dec. 559. (1904) 455. lo-^Dcjd vs. Longworth, 11 0. 205; This may be good law, but the Oviatt vs. Brown, 14 0. 2S5. policy of its enforcement may be ice [Mason vs. Lemon, 4 Dec. 322; questionable. 3 !N. P. 116. iGo Vattier vs. Lytle's, 6 0. 477. As to what are emblements, see 161 Miller vs. Greenham, 11 0. S. §368. As to when a trade mark 486; Muskingum vs. Carpenter, 7 0. wi'.l pass to the purchaser, sec Burk- 21. hardt vs. Burkhardt, 4 X. P. 358; 9 iG2Holloway vs. Stuart, 19 0. S. Dec. 84. 472. 821 purchaser's right and title § 902a matter superior to whatever tho Court may deem for the best interests of the estate/^^ A statement made by tlie administrator at tlie sale that the crops are not reserved cannot prejudice the rights of the heirs in the crops sowed by them or their tenahts.^"^* The purchaser acquires no title to cordwood on the land sold, nor to growing crops sowed by tlie heirs or tlieir tenants after the decedent's death/®^ As against prior unrecorded liens and secret trasts, the pur- chaser acquired a free title/*'® The administrator is not bound to reveal defects in the title/^" The purchaser is bound to pay his bid, although there is a defect in the title, unless the administrator has misled him/'^ His title is superior to an unrecorded deed of which he had no notiee.^^" The administrator cannot insist on rescinding the sale on the ground that the title is defective/^^ But a purchaser may in- sist that it be not confirmed. It seems that a purchaser ought not to be required to take a defective title, and if such appear to be tlie fact before confirmation, he ought to^ be^ relieved. After confirmation it is probably too late to raise the question. ^^* § 902a. Remedy of purchaser, if sale invalid. "Upon the sale of property on execution, if the title of the purchaser is invalid by reason of a defect in the proceedings, he may be subrogated to the right of the creditor against the debtor, to the 167 As to purchasers' rights in 200; Corbitt vs. Daukins, 54 Ala. general, see Woerner, Admin. 1071 282. to 1091. iT2Barto vs. Bank, 15 Hun 11; 167* Barrett vs. Cohen, 119 Ind. Emerson vs. Ross, 17 Fla. 122. 56. I'^a McCulloeh vs. Weaver, 14 La. 16S Barrett vs. Cohen, 119 Ind. 56; Ann. 33; Peele vs. Chever, 8 Allen Law's Estate, 7 Pa. Co. Ct. Rep. 89. 605. 174 See § 493, Warranty of title. 169 Lumpkin vs. Adams, 74 Tex. A purchaser who loses a title 96; S. C. 11 S. W. Rep. 1070; Banks which depends on an administra- vs. Ammon, 27 Pa. St. 172; Love tor's sale, can set up no equity on vs. Berry, 22 Tex. 371. the estate of the decedent by reason 170 Thompson vs. Munger, 15 Tex. of appropriations of the purchase 523; Hawpe vs. Smith, 25 Tex. Supp. money to pay debts of decedent. 448. Beal vs. Price, 13 0. 368. 171 Mellen vs. Boarman, 13 Sm. & A purchaser, however, is not di- M. 100; Burns vs. Hamilton, 33 Ala. vested of title by a subsequent re- 210; Bishop vs. O'Conner, 69 111. versal of the order of sale. Irwin 431; Jones vs. Read, 1 La. Ann. vs. Jeffers, 3 O. S. 389. § 902b REAL ESTATE — SALE 822 extent of the money paid and applied to the debtor's benefit, and, to the same extent have a lien on the property sold, as against all persons, except bona fide purchasers without notice. This section shall not require the creditor to refund the pur- chase monev, br reason of the invalidi'V of such sales." [R. S. § 902b. Remedy in other cases of invalid sales. ' ' The next preceding section shall apply also, to sales by order of court, sales bv executors, administrators, guardians, and assignees, and to 'sales for taxes." [R. S. § 5411.] ^'"^ § 903. How money arising from sale of land to be applied. "The money arising from the sale of real estate shall be applied as follows : "1. To discharge the costs and expenses of the sale, and the per cent and charges of the executor or administrator thereon, for his administration ; "2. To the payment of mortgages and judgments against the deceased, according to their respective priorities of lien, so far as they operated as a lien on the estate at the time of his death ; which shall be apportioned and determined by the court, on reference to a master or otherwise ; "3. To the discharge of claims and debts, in the order men- tioned in this title." [R. S. § 6165.] ^^^ § 904. Comments. The above section omits one very important item which is always considered a first lien on the funds of such a sale, to-wit, taxes. The rule is that at judicial sales all the taxes which stand charged against the property on the tax duplicate are to be paid out of the proceeds of the sale, and this duplicate is made up on October 1st. In such a sale street assessments paj-able in installments are not to be placed on the tax duplicate except those payable at the end of September of any year. And only those properly on the duplicate can be paid out of the proceeds of judicial sales. Those falling due later must be paid by the purchaser of the land.^'*^ As to the costs of expenses of the sale and percentum, the same rule is applied as to personal property.^" 174a § 11703 G. C. Subsequent re- iTSMakley vs. Whitmore, 61 0. S. versal does not affect judcrment. 587. Smith vs. Dixon, 27 0. S. 477: In- "7 See §§653, 663. surance Co. vs. Sampson, 38 0. S. See note 906. 696. Neither attorney fees of an ad- 174b § 11704 G. C. Where wronj? ministrator, general costs of an ad- tract included Court of Equity will ministrator. nor premiums due an protect, etc. Stites vs. Wiedner. 35 insurance company are included in O. S. 555. See Endel vs. Leibrock, costs and expenses prior to a mort- 33 0. S. 270; Timmerman vs. Hurell, gage lien. Sherman vs. Millard, 6 2 C. C. 27: 1 C. D. 342. C. C. (N.S.) 338: 27 C. C. 175. 175 § 10809 G. C. A piircbaser in The administrator was not dis- possession after judicial sale liable turbed in his commissions, however, for care of premises while in his in above case. possession. Christ vs. Lay, 37 0. See Alms vs. Felton, 6 C. D. 415; C. C. 312. ■ 9 0. C. C. 255. 823 APPEAL AND ERROR § 905 After taxes and costs of administration and liens are paid on the property, the remainder is to be applied in the payment of debts, as set forth in the previous chapter.'" § 905. Surplus of proceeds of sale to be considered as real estate. "In all cases of a sale by an executor or administrator of part or the whole of the real estate of the deceased, under an order of court, whether such executor or administrator has been appointed in this state or elsewhere, the surplus of the proceeds of sale remaining on the final settlement of the account, must be considered as real estate, and be disposed of accordingly." [R. S. §6171.]i'« It has been held under the alx)ve section, that although the ■.urplus goes to the heirs in the line that real estate would go, such proceeds are personalty and are held as personalty by the heir, and as such passes from such heir/^° The widow is not entitled to a distributive siiare in such pro- ceeds.^^^ However, land directed by a will to be sold and oon- yerted into money is treated as personal property.^*^ § 906. Appeal and error.^^'' It is specifically provided that appeal may be taken from the Probate Court to the Court of Common Pleas in proceedings for the sale of real estate for the payment of debts.^''* And it has been held that as an administrator's petition to sell real estate may properly be brought in the Court of Common Pleas, an appeal would lie to the Circuit Court from the Court of Com- mon Pleas.^*^^ See Klimper vs. Klimper, 12 0. property. Pence vs. Fence, 11 O. S. App. 332 (Jan., 1920), where 295. The wife of the heir lias no premiums on bond and auctioneer dower interest therein, fees were allowed. 181 Griswold vs. Frink, 22 0. S. 178 S 646, et seq. 79. See § 895, distribution of proceeds. 182 Furguson vs. Stuart, 14 O. 179 8 1 OS 16 G. C. 140; Collier vs. Collier, 3 O. S. 369. 180 Tuttle vs. Nortlirop, 44 0. S. As to wliom distribution should 178. be made of such proceeds, see sub- An action commenced in the Pro- sequent chapter on descent and dis- bate Court to sell real estate, and tribution. appealed to tlie Court of Common S 927. Pleas, the jurisdiction of the latter See § 1429, Guardian's sale, is the same as if the action had 183 See § 40. been commenced in that court. Tidd IS* § 11206 G. C, § 39. vs. Block, 4 C. C. (N.S.) 216; 26 0. 185 Dalton vs. Davis, 18 C. C. 878; C. C. 113. 6 C. D. 133. If the heir had been an adult, and I do not know whether the ques- dicd leaving a wife and children, tion has been raised under the pres- while the money so remained there, ent constitution as to the right to it could not be dou])t('d tliat the appeal to tlie Court of Appeals, but same would, in distribution between I am inclined the rule remains the the children and the widow of such same. It would probably be held a intestate, l)e governed by the law re- "chancery case." See Wagner vs. garding personal rather than real Armstrong, 93 O. S. 443. § 906 REAL ESTATE SALE 824 As there are several different hearings and entries made in such proceedings, such as the finding of the necessity to sell, the confirmation of appraisement, and confirmation of sale, it will be important to know whether this entire proceeding is to be regarded as an entirety or whether, if appeal and error be taken, each order is to be regarded as a final order, or an interlocutory one. In some States the proceeding is regarded as an entirety, and all orders made before confirmation, as interlocutory ones/** But in our State it would seem that the order made upon the pe- tition, finding it necessary to sell real estate, would be a final order as to the questions< passed upon in such an order,^®^ ana that tiie finding made on confirmation of appraisement, and confirmation of sale, would also be a final order/** And there- fore, if appeal is tO' be taken from any one of these orders, it must be taken within the time limited from the date of each order; and the same rule would be applied in proceedings in error. It has been questioned whether the right of appeal ex- ists as to tlie order confinning tlie sale.^*** If tliere is an order of distribution included in the order of confirmation, then it might be appealable.^®" However, in a recent case in the Supreme Court it was held that an appeal lies from the Court of Probate and the Court of Insolvency to the Court of Common Pleas, from an order, decree or judgment con- firming a sale of real estate at private sale by an assignee revers- ing the inferior Court,^"^ and the same principle would hold that an appeal might be taken from tlie confirmation of an admin- istrator's sale,^®^ but exception must be taken at the time of the confirmation.^®^ 186 Staley vs. Dorset, 11 Ind. 367; dates, and there seems to be no par- Love vs. Mikals, 12 Ind. 439; Simp- ticular reason why the same rule son vs. Pearson, 31 Ind. 1. should not apply to proceedings to 187 Potter vs. Jennman, 4 N. P. sell real estate. §1721. Reversed 78; 4 Dec. 444. in Bro\ra vs. Wallace,, 69 0. S. 188 See Evans vs. Dunn, 26 0. S. 179. 439; Kelley vs. Standberry, 13 O. i9o Spence vs. Basey, 34 0. S. 42. 422. 191 Browne vs. Wallace, 60 0. S. 181 Norwood vs. Park Co., 4 N. P. 177; Kev. 16 0. C. 124; 8 C. P. 764; 240; 6 Dec. 341. 4 N. P. 240; 6 Dec. 341. Ib condemnation proceedings the 192 See Kinkead's PI. 1175. supreme court held that the final i93McArthur vs. Cen. Trust Co., judgment is the "final order" and 21 C. C. 654: Ail. 44 Bull. 287. the time from which appeal, etc., See § 1626, Assignee. 825 APPEAL AND ERROR §906 It is likewise very doubtful whether a court, iu proceedings in error, would reverse an order of the court confirming a sale, where there was not a manifest abuse of discretion. And, in order to vacate such an order, it must appear from the record that said judgment and order was clearly and palpably against the weijT-ht of the evidence.^^* 194 Brigel vs. Kittredge, 5 N. P. 412; 3 Dec. 512. The Appellate Court, in reversing an order of distribution made by the Probate Court, should either make the order of distribution or, in re- manding the case to the Probate Court, specifically indicate the items to which the fund for distribution should be applied. Sherman vs. Mil- lard, 6 C. C. (N.S.) 33S; 17 Cir. D. 175; 27 C. C. 175 (1905). It would seem from analogy to the decision of the Supreme Court in condemnation proceedings, that the final order from which the time limited for appeal would be the order confirming sale and distribu- tion. However (note 187), the text is quoted with approval in Mans- field vs. Cole, 16 N. P. 222, where a judgment is vacated, the order vacating same is not appealable. If review is had it must be by error. The successive steps in proceedings to vacate a judgment, after term, under §§ 11631-11643 G. C. are: (1) an application, styled a petition, filed in the original case, averring the ground for vacation and a state- ment of the defense, upon which ap- plication a summons shall issue; no pleading to such application is required; (2) pleading upon the application; (3) if ground for vacation exists and if a valid de^ fense be found averred in the appli- cation, and the order of vacation suspended pending trial on the merits, this proceeding to the lien of the original judgment in case the defense fails; (4) a pleading to that ixpon which the judgment was taken, setting up the defense of the move- ment for vacation, and a trial upon the issues then made up as if no judgment had been rendered; (5) judgment thereon, either restoring the status of the old judgment or extinguishing it, as the facts in the trial demand. Bank vs. Mullen, 25 Bull. 28; 18 Dec. 637. §907 DESCKKT AND DISTKIBUTIOJN 826 CHAPTER L. DESCENT AND DISTRIBUTION. § 907 Introductory. § 908 Ancestor. § 909 Descent and devise. § 910 Deed of gift. § 911 By purchase. §912 Legal representative. § 913 Next of kin. §914 Relict of deceased husband or wife. § 915 Order of descent of real estate where title came by descent, devise or deed of gift. § 916 Comments. § 917 Order of descent where estate came by purchase, etc. § 918 When real estate to pass to husband or v/ife; when to next of kin of intestate. § rtin \Mien real estate to pass to cliildren of former husband or wife, etc. § 920 Descent of estate which came from former husband or wife. § 921 Distribution of personal es- tate. § 921a Wlien personal property to escheat. § 922 Comments. § 92.3 Wlien estate to descend to children of intestate and how. § 924 Descent when all descendants of equal degree of consan- guinity. § 925 When there are living both children and heirs of de- ceased children of intestate. § 926 Extent of application of last section. § 927 Previous sections apply to real and personal propel ty. § 928 Advancements by intestate to be considered as part of es- tate. § 929 Definition, etc. § 930 What constitutes an advance- ment. § 931 How proven. § 932 When advancement is greater or less than heirs' share. § 933 When advancement is wholly real or personal estate. § 934 When value of advancement expressed in deed, etc. § 935 Heirs of aliens may inherit; aliens may hold lands. § 936 Capability of bastards as to inheritance. § 937 When illegitimate children deemed legitimate, etc. § 938 Amount of personal estate to which a widow or widower is entitled upon distribution. § 939 Comments. § 940 Construction of words, " liv- ing ■' and " died." § 941 I'osthumous child of intestate to inherit. § 942 Permanent leases to descend same as estates, in fee.i 1 See § 1180, et seq.. Construction case; § 1031. Rule as to perpetui- of wills; § 1189, Rule in Shell v"s tics. 827 REGULATED BY STATUTE § 907 § 907. Introductory. Descent and distribution is the method pointed out by law for the transmission of a person's property after his death, ^ when such person has failed in the manner provided by law to desig- nate the manner and the persons to whom the same should be transmitted. Technically speaking, by descent we mean the transmission of real property, and by distribution the passing of personal property. Under our law, both kinds of property vest alike on the death of the ancestor in the heir. But per- sonal property is not directly transmitted for reasons originate ing with the common law itself. Such property is to be trans- mitted through a legal representative, known as an administra- tor or executor. For the same common law reason, personal property was made primarily applicable to the payment of all debts of the decedent. As the executor or administrator must distribute the remainder as provided by law, after the payment of debts and costs of administration, it will be necessary to at least insert the statutes providing for the same in this work whatever is left must be distributed as real estate where the real estate is sold.* It will likewise be necessary to insert the statutes relating to descent. In these statutory provisions there are some terms used which may be advisable to define in order to properly un- derstand the statutes themselves. Preliminary to such matters it may, however, be repeated that these statutes only apply where a person dies intestate ; that is, dies without having made a valid mil disposing of his property. Where there is a will, the administrator or executor must look there and not to the statutes for his power and direction to distribute the estate. " Intestate," therefore, means the person who was seized of the property at the time of his death, and who made no valid dis- position of such property. A person may die testate as to some 3 The statutfi of descents embraces * § lOSlG G. C, § 879. tlie whole subject, and is intended Where a testator provided that to provide for all poss.ible cases. all her property should go as the Penn vs. Cox, 16 0. 30; Drake vs. law directs, with the following modi- Rogers, 13 0. S. 21, 31; Spangen- fications, all the property goes by berger vs. Guiney, 2 N. P. 39. devise and not by descent. Huber The Legishiture may change the vs. Carew, 2 N. P. (N.S.) 81; 7 course of descent, such laws are not C. C. (N.S.) 609; 26 0. C. C. 389. retroactive nor impairing the obliga- Affirmed. tion of contract. Tarvin vs. Brough- ton, 8 Bull. 21. § 908 DESCENT AND DISTRIBUTION 828 of his property and intestate as to other. If he makes no pro- vision for a person who has an absolute right to some portion of his property, as to such person, he will die intestate.^ But a child has no such right in his parent's estate that a failure to provide for him will in any manner affect the testamentary' dis- position of the parent's estate. But if a posthumous child is born, for whom no provision is made as to such child, the parent will be held to have died intestate." In distribution of real estate the law of the place where it is located controls.'^ The course of descent of real property is always controlled by the legal title, ^ § 908. Ancestor. A word in common use in these sections is the word " ances- tor." This word, within the meaning of the statute of descent, means the person from whom tlie claimant has the capacity to inherit. That is, the claimant must be one, who, had tliere been no nearer relation, might have inlierited from the person claimed to be an ancestor, had such ancestor died intestate.^ 5 Thus, if a man dispose by will the same couple of common ances- of all his propertj- without making tors." 2 Black. Com., 220, note 9. any provision for his wife, as to her Any one from whom an estate is he would die intestate, and she derived by act of law and right of would receive the distributive share blood, is in a proper legal sense an provided by law. Doy^.e vs. Doyle, ancestor. This appears from the 50 O. S. 330. definition of the term " descent " in 6 s '"^" ■ 's 110".. authorities. "It signifieth, when 7 Evans vs. Beaver, CO 0. S. 190. lands do by right of blood fall unto 8 Russell vs. Bruer, 64 O. S. 1; fmy after the death of his ancestors; Patterson ^s. Lamson, 45 O. S- 77. or a descent is a means whereby one See § 755, 757, as to Distribution, doth derive him. title to certain etc. lands, as heir to some of his an- Springer vs. Fortune, 2 Han. 52. cestors." Co. Lit., 13 b.; 2 Thomas' The statute refers to the ancestor Coke, 156. from whom the estate came for the " This is the noblest and worthi- purpose of limiting the inheritance est means whereby lands are derived to the blood of that ancestor. To from one to another, bcause it is be of the blood of any person, " is wrought and vested by the act of either to be immediately descended law, the right of blood, unto the from him, or to be descended from worthiest and next of the blood and kindred of the ancestor." 829 ANCESTOR DESCENT DEVISE § 909 In another case it was said that " ancestor " meant in the statute any one from whom the estate was inherited, and that the phrase *' ancestor from whom the estate came," was he from whom it was immediately inherited.^*' " Ancestral property " is a term used to mean property that comes by inheritance, devise or deed of- gift, as contradistin- guished from a title by purchase. There are no limitations in our State upon tlie power of a person to receive or transmit property. ^^ Where a person is seized of property by both a legal and equitable title, the legal title controls the descent.^^ The statute of descent is not applied on equitable principles, but by rules of law.^^ An ancestor need not be lineal. An uncle may be an ancestor if the devisees, being nephews, would have inherited from him had he died intestate.^* § 909. Descent and devise. These terms are used in the statute to describe the devolution of what may be considered ancestral property. By descent is meant the receiving of property by virtue of the rules of law. Devise means the receiving of property by virtue of the act of 10 Pricket vs. Parker, 3 O. S. 395. 12 Stembel vs. Martin, 50 O. S. That the word ancestor, as used 495. in this act, is not to be understood i^ Patterson vs. Lamson, 45 O. S. as when used in common parlance, 77. is well settled in Ohio. That an 1* Brewster vs. Benedict, 14 O. uncle of the intestate, from whom 368. the latter inherited, was his ances- Land descended from father to tor in the sense of a statute like son and from son to grandson — that before us, in this respect, being the grandson died, leaving only the aniendatorj' act of 1835, was brothers of his grandfather and of held in Brewster vs. Benedict, 14 0. his grandmother. Held,, the ances- 68. That a father, who took the tor from whom the estate came estate by deed of gift from his means the immediate ancestor, viz., father, was the legal ancestor of the father, and such ancestors ma- his son and heir, not the grand- ternal and paternal uncles, are father from whom the estate came equally near to him. The civil law, through the father, was held in Cur- and not the common law determines ren vs. Taylor, 19 O. 36; Id. 3 0. S. who arc next of kin. Clayton vs. 396. Drake, 17 0. S. 367; Prickett vs. 11 Deem vs. Milliken, 6 C. C. 357 ; Parker, 3 0. S. 394 ; Curren vs. Tay- 3 C. D. 491: Aff. 53 O. S. 668. lor, 19 O. 36. § 910 DESCENT AND DISTRIBUTION 830 the o^ATier by provisions in his last will and testament* These J statutes are intended to cany into execution the general desires of mankind as to who should enjoy their property after their death ; and are construed with that end in view.^^ § 910. Deed of gift. The statute places property acquired by a " deed of gift " in the same line as property acquired by descent or devise. It may be defined as the receiving title from an ancestor by virtue of a deed, without payment of a valuable consideration there- for; and it is a recognition of the distribution of a person's property in his lifetime, and the law has considered that prop- erty acquired in such a manner from the ancestor should be considered, as to its inheritable qualities, the same as if it had been transmitted by operation of law or the last will of the ancestor. The consideration mentioned in a deed of " love and affections " presume a gift, but if the consideration be one of money, then it is valuable and the title transmitted becomes one of purchase to the recipient, and the Courts have held that parol evidence is not competent to vary or contradict the considerations stated in a deed when the same will affect the transmission of the title. ^*' A deed from a parent to a daughter, in consideration of " love and affection, dutiful obedience and faithful service, and one dollar, is not a deed of gift. To constitute ancestral prop- erty, the consideration must be blood or marriage without other consideration.^' 1" See § 911. Title by purchase. consideration of blood or marriage, A title as devisee is a new title and that a deed for a consideration as distinguished from a title by other than blood, that is a valuable inheritance, and is not acquired un- consideration, should be regarded as til the probate of the will. Doug- a purchase. 58 0. S. 668. lass vs. Miller, 3 N. P. 220; 4 Where the consideration expressed Dec. 414. in a deed is a valuable one, the ic Nave vs. Marshall, 6 N. P. title comes by purchase, and it is 488; 9 Dec. 415; Kerr vs. Paul, 37 not competent to show by parol Bull. 171. that the deed is in fact a deed of 17 Brown vs. Whaley, 58 O. S. gift — was to change the line of de- G54. scent. Ossman vs. Schnetz, 4 C. C. The Legislature seems to have (N.S.) 502; 14 Cir. D. 709; 24 had tliese distinctions in mind in O. C. C. 709. framing our statute of descents as The title of a devisee relates back to deed of gift, and intended that to the probate of the will, and takes a deed of gift from an ancestor efl'ect as of the time of the death should be supported alone, by a of the testator. Miller vs. Miller, 831 BY PURCHASp; § 911 § 911. By purchase. Property acquired by purchase means property acquired in any other manner than h}^ descent, devise or deed of gift.^^ The law seems to favor the acquisition of an estate by pur- chase, and in pleading it will be presumed that tlie land acquired was acquired by purchase and not ancestral, unless it be averred to be ancestral.^" Land acquired by descent, devise or deed of gift, which is partitioned among the heirs by division of tlie same, does not lose its ancestral qualities.'" But if such persons, after the division is made, trade the properties between themselves, re- citing a money consideration, this destroys its ancestral charac>- ter, and the title held by them is one of purchase. ^^ If an heir elects to take an estate in partition, then he holds his original share by descent and that acquired by purchase.*^ Where land was inherited by an infant and converted into money by his guardian, it loses its ancestral qualities and descends as personalty. ^^ Likewise it has been held that the proceeds remaining, in the sale of real estate sold by an administrator or executor, while the same is to be distributed by such administrator or executor as real estate, yet in the hands of the heir, it is personalty, and 9 C. C. (N.S.) 242; 30 0. C. C. title. McBain vs. McBain, 15 0. S. 666; affirmed, 77 O. S. 643. 337; Tabler vs. Wiseman, 2 0. S. 18 All intestate estates are by onr 208. ■ law divided into two classes, and the Purchasing of property at a sale line or order of succession is to be in partition by a tenant in common determined by the class to which extinguishes the title cast upon him they belong. The first section ere- as heir at law by the laws of ates, defines and prescribes the descent, and rests in him a title by course of the first class, and all es- purchase. Lawson vs. McDougal, 22 tates embraced within this section Dec. 618. have been appropriately called an- A farm divided subject to the cestral. All estates not included in payment of legacies is an estate by the first class necessarily belong to purchase. Royer vs. Trumpler, 38 the second, are nonancestral in O. C. C. 190. their character, and pass under the l!' Mathews vs. Krisher, 59 0. S. second section. Persons claiming as 502. heirs to an intestate can not trace 20 Carter vs. Day, 59 O. S. 96; their title to the same estate partly Smith vs. Carver, .30 B. 189. under the first and partly under 21 Brower vs. Hunt, 18 O. S. 311. the second section. Brower vs. Hunt, 22 Freeman vs. Allen, 17 O. 8. 527. i 18 0. S. 334. 23 Armstrong vs. Miller, 6 O. 118. ( , At common law, property acquired Now changed by statute. See I in any other way than by descent, § 4163 E. S'., § 921. was acquired by purcliase. Black But if the guardian invests in Com., vol. 1, p. 215. real estate it then becomes non- Parties in partition where the ancestral. See § 921. ■ premises are sold acquire no new §912 DESCENT AND DISTRIBUTION 832 descends from him as personal property.'* However^ if an owner conveys away property and immediately receives it back, if he does it solely to break the descent, it will not change his title, and it will still remain as it was before such conveyance.^^ In construing a conveyance, the last conveyance is alone looked to to determine whether the title is one by purchase or deed of gift."*' Where the legal title is acquired by purchase and an equity by inheritance, they at once unite, and on the death of the owner, descend as title acquired by purchase."^ § 912. Legal representative. The words " legal representative " have several meanings in thd administration of estates. It is used by text book writers as a common tenn to include both executors and administra- tors. But as used in the statute of descent it has an entirely different application. It here means the lineal descendants of an intestate's children.'^ In other places it may mean the lineal descendants of the children of the ancestor."^ Generally, throughout these statutes of descent, the word " legal representative " is meant to include a lineal descendant of some desipmated person or class of persons.^" § 913. Next of kin. Next of kin of a decedent are the persons or person nearest in degree of blood surviving him.^^ In ascertaining " the next 24 Pence vs. Pence, 11 0. S. 290. See § 905. 25Helftnger vs. Wolf, 30 B. 383. Where the father bought a piece of property and had it deeded di- rectly to a daughter from the per- son from whom he purchased it, it was held, although the father fur- nished all the consideration that the daugliter held a title by purchase. Patterson vs. Lamson, 45 0. S. 77. See Burnett vs. Felt. 3 Bates Dig. 457. 28Kihlken vs. Kihlken, 59 0. S. 106. 27 Higgina vs. Higgins, 57 0. S. 239; Olmstead vs. Douglass, 16 C. C. 171; 8 C. D. 465. See § 1879, Partition. 28 Thomas vs. Lett, 4 N. P. 393; 6 Dec. 429. 29 Gosling vs. Rupp, 7 N. P. 185; 6 Dec. 345. See Hague vs. Thompson, 11 C. C. (N.S.) 407; affirmed, without report, October 5, 1909 (81 O. S. — ;) 30 0. C. C. 628. 30 See §1196, as to Construction of the word heirs in will. 31 § 1199. Construction in wills; § 121, Appointment administrator. 16 Am. & Eng. Ency. of Law, 703i "The words " 'next of kin' are 833 NEXT OF KIN § 913 of kin to the intestate," mentioned in the sixth clause of sec. 8517 G. C. (§ 915), the degree of consanguinity are to be, com- puted according to the rule of civil law. The words "next of kin" in this clause are descriptive of a particular person, or of a class of persons related to the intestate, in an equal degree of consanguinity. They exclude the more remote kindred, and do not imply the principle of representation,^^ Xo one is included within the term " next of kin," who does not come within the statute. As above stated, our Court adopts the rule of the civil law. In determining lineal consanguinity each step up or down from the decedent counts as one degree. Thus an intestate and his son or father are related in the first degree ; an intestate and his grandson or grandfather are related in the second degree. In determining collateral consanguinity, the rule is to count up from the intestate, to the common ancestor and then down to the person whose kinship with the intestate is sought tO' be ascertained. In this computation each step, both in tlie ascending and descending lines, counts as one degree. Thus an intestate and his brother are related in the second degree, an intestate and his cousin in the fourth degree. ^^ In cases of distribution, relatives of the intestate on the father's side and the mother's side stand on an equal footing. It follows from this that there may be relatives, distant from the intestate by an equal, number of degrees, who are not re- lated to each other, but who have equal rights in the distribution of the intestate's estate, and stand on an equal footing as to rights of administration.^* limited in legal meaning, as in com- 32 Clayton vs. Drake, 17 0. S, 368. nion use, to blood relations, and do 33 2 Black Com. 202; Lee vs. Sedg- not include a iiusband or wife, nn- wick, 1 Koot (Conn.) 52. less accompanied b_v other words ^4 Kearney vs. Turner, 28 Md. clearly manifesting a purpose to ex- 408; 16 Ency. of Law, 703. tend tlieir signification; and the The distinguishing rules of the mere addition of a reference to the common law doctrine of descent are statutes of distribution is not suf- the converse of those in this coun- lieient." Per Gray, C. J., in Hara- try. They consist of the following den vs. Larrabee, 113 Mass. 430; 16 principles of law, viz.: preference of Am. & Eng. Ency. of Law, 70.5. males to females; primogeniture Brothers and sisters of the de- among the males; the inheritance ceased fatlier are nearer of kin than shall never lineally ascend; the ex- tiie grand-parents. Ampy vs. Heish, 27 Dec. 410; 20 N. P. 1. § 914 DESCENT AND DISTRIBUTION 834 § 914. Relict of deceased husband or wife. The. words ' ' relict of deceased husband or wife, ' ' as used in the General Code of sec. 8577,^'^ are used to designate the relationship to a former married pair, of the survivor of a marriage union ; and such relationship is not destroyed or changed by the subsequent marriage of such sur^'ivor. And therefore it was held that where a man who had acquired prop- erty by purchase died witliout diildren, and his wife remarri'ed and died without children, the second husband did not acquire the title of the real estate as being ihe relict of his deceased wife; but that in such a case the second husband had a mere life estate, and the fee of the property belonged to the brothet-s and sisters of the wife and the brothers and sisters of the first husband.^® Where such relict dies, the property is subject to his or her debts,' and the brothers and sisters of such relict and the de- ceased consort take the property subject to the payment of such debts.^^ However, if the first husband had no brothers or sisters, and the relict had no brother or sister living at her death, the property then passes to her second husband.^* The surviving husband or wnie takes under the statute only where the intestate spouse dies seized. Hence, if a daughter dies before her father, her husband inherits nothing from her father's estate as her legal representative.^^ elusion of the half blood ; the strict ss Thomas vs. Lett, 4 N. P. 393 ; adherence to the doctrine of succes- 6 Dec. 429. sion. per stirpes; the collateral heir A widow who inherits her hus- of the person last seized, to be his band's property under R. S. § 4159, next collateral kinsman of the whole he dying without children, or broth- blood; and kindred derived from the ers and sisters, and she dies without blood of the male ancestors, how- children, her brothers and sisters pver remote, to be preferred to kin- take the whole estate, to the exclu- dred from the blood of the female sion of his uncles and cousins. § ancestors, however near, unless the 4162 R. S. does not apply. The land came from a female ancestor. last words therein, " or their per- 2 Bl. Comm. c. 14; Kent's Comm. sonal representatives," refer to 412. brothers and sisters, and not to hus- 35 § 920. band or wife. Ellis vs. Ellis, 3 C. 36Spitler vs. Heeter, 42 O. S. 100. C. 186; 2 C. D. 105. 37 Gosling vs. Rupp, 7 N. P. 185; "^ 9 Lane vs. McKinstn,', 31 O. S. 6 Dee. 345. 640. 835 WHERE TITLE COMES BY DEVISE § 915 The term "'any former deceased husband," in see. 8577 G. C. (§ 920), refers to any husband who has deceased leaving a widow to whom any real estate or personal property has passed by virtue of the provisions of said section, and is not confined in its application to cases where the widow has had two or more husbands who are deceased. ■'° § 915. Order of descent of real estate v^^here title came by ^^^^^^ descent, devise or deed of gift. "When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred in the following course : "1. To the children of such intestate, or their legal repre- sentatives. "2. If there are no children or their legal representatives living, the estate shall pass to and vest in the husband or wife, relict of such intestate, during his or her natural life. "3. if such intestate leave no husband or wife, relict of himself or herself, or at the death of such relict, the estate shall pass to and vest in the brothers and sisters of the intestate who are of the blood of the ancestor from whom the estate came, or their legal representatives, Avhether such brothers and sisters be of the whole or half blood of the intestate. "4. If there are no brothers or sisters of the intestate of the blood of the ancestor from Avhom the estate came, or their legal representatives, and the estate came by deed of gift from an ancestor who is living, the estate shall ascend to such ancestor. "5. If the ancestor from whom the estate came is deceased, the estate shall pass to and vest in the children of the ancestor from whom the estate came, or their legal representatives ; if there are no children of the ancestor from whom the estate came, or their legal representatives, the estate shall pass to and vest in the husband or wife, relict of such ancestor, if a parent of the decedent, during the life of such relict. On the death of such husband or wife, or if there is no such husband or wife, the estate shall pass to and vest in the brothers and sisters of such ancestors, or their legal representatives ; and for want of such brothers and sisters, or their legal representatives, to the brothers and sisters of the half blood of the intestate, or their legal representatives, though such brothers and sisters are not of the blood of the ancestor from whom the estate came. 41 Anderson vs. Gilchrist, 44 0. S. See § 920, § 8577 G. C. 440. §916 DESCENT AND DISTRIBUTION 836 "6, If there are no such half-brothers and sisters of the in- testate, or their legal representatives, the estate shall pass to the next of kin to the intestate of the blood of the ancestors from whom the estate came, or their legal representatives." [R. S. §4158.]*^ § 916. Comments. The distinguishing features between the above section and the next subsequent section is that the above section provides for the devolution of property acquired by descent, including devise and deed of gift. The object and purpose running through the entire section is to confine the devolution of such property tJ persons who are of the Mood of the person from whom the irr testate received it. As to children and their representatives, the first subdivision of the above and subsequent sections are tie same. The second clause differs only that where it comes by descent, the husband or wife acquires a life estate; where H oomes by purchase, the entire estate. For all ordinary cases, a careful reading of the sections of the General Code will indi- cate to an administrator or executor the person to whom distribu- tion is to be made. If a person receives property by purchase, as to all persons receiving an inheritance under him, he is an ancestor. If such person receives the title by descent, etc., be is not an ancestor, but the person from whom it came is the ancestor, and the policy running through all of our statutes of descent in respect to ancestor's estates is not to prefer the blood of the ancestor to the exclusion of the blood of the intestate. But to prefer those of the kindreds of the intestate who are of the blood of the ancestor.*^ Eeal estate acquired by descent from a paternal ancestor of one who dies intestate, leaving neither widow, children, broth- ers, sisters, nor parents, passes under this section to the brothers and sisters of the father or their legal representatives, whether 41 § 8573 G. C. 42Brow€r vs. Hunt, 18 0. S. 311. Ground rent is a freehold estate and goes by descent. McCamnion vs. Cooper, affirmed 1 N. P. (N.S.) 154; 12 Dec. 677: 69 0. S. 367. Half brothers and half sisters of the ancestor are included in the words brothers and sisters of such ancestor, etc. Stockton vs. Frazier, 81 0. S. 227. See § 911, Title by purchase. 837 WHERE TITLE COMES BY PURCHASE § 917 such brothers and sisters are of the whole or half-blood of the father.''^ § 917. Order of descent where estate came by purchase, etc. "If the estate came not by descent, devise, or deed of gift, it shall descend and pass as follows : "1. To the children of the intestate and their legal represen- tatives. "2. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate. "3. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representa- tives. "4. If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half-blood, and their legal representatives. "5. If there are no brothers or sisters of the intestate of the half-blood, or their legal representatives, the estate shall ascend to the father and mother equally ; if one of them be dead, then to the other. "6. If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate." [R. S. § 4159 ; 108 v. 69.]** Real estate purchased with partnership funds and used for partnership purposes, is thereby converted into personalty, and so continues after death of one of the partners until complete settlement of partnership business.*^ § 918. When real estate to pass to husband or wife ; when to next of kin of intestate. "When a person dies intestate, having title or right to any real estate or inheritance, as pro- vided in section eighty-five hundred and seventy-three, and <3 Burdwick vs. Shaw, 10 Dec. 45 Fisher vs. Lang, 10 Dec. (Re.) 533; 8 N. P. 22. 178; 19 B. 130. Where an estate conies by devise See § 438, What is partnership and there are no children on the real estate. death of the wife, etc., it is divided The next of kin of one wlio died one-half equally between tlie wife's leavinfj no issue and whose father brothers and sisters and one-half and mother are dead and left no equally between the husband's broth- issue, are decedent's grandparents ers and sisters. or great-grandparents as far back 44 § 8.')74 G. C. as may be necessary to go. Chara- This sect'on provides how personal plain vs. Walsh, 37 0. C. C. 534. estate shall be distributed. See §§ 8578-n G. C, § 921. § yi9 DESCENT AND DISTRIBUTION 838 leaves husband or wife, relict of himself or herself and there is no person who, under the provisions of that section, would be entitled to inherit it, or an estate therein, save and except such husband or wife, relict of such intestate, then the estate shall pass to and vest in the husband or wife of the intestate as an estate of inheritance. If there is no such person, and no hus- band or wife relict of the intestate, then the estate shall pass to and vest in the next of kin of the intestate, though not of the blood of the ancestor from whom the estate came." [R. S. § 4160.]« § 919. When real estate to pass to children of former hus- band or wife, etc. "When a person dies intestate, having title or right to any real estate or inheritance, whether by de- scent, devise, or deed of gift from an ancestor, or acquired, and there is no person entitled to inherit it under the next three preceding sections, then the estate shall pass to and vest in the children of any deceased husband or husbands, wife or -udves, of the intestate, whose marriage with the intestate Avas not annulled prior to his, her, or their death, or their legal representatives. If there are no children, or their legal representatives, living, then the estate shall pass to the brothers and sisters of any such husband or wife, or their legal representatives ; if there are no brothers and sisters, nor their legal representatives, the estate shall pass to the next of kin of such intestate ; and if there are none such, then the estate shall escheat and be vested in the state of Ohio." [R. S. §4161.]*^ § 920. Descent of estate which came from former husband or wife. "When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such intestate from a former deceased husband or wife by deed of gift, devise or bequest, or under the provisions of section eighty-five hundred and seventy- four, then such estate, real and personal, shall pass to and vest in the children of such deceased husband, or wife, or the legal representatives of such children. If there are no children or their legal representatives living, then such estate, real and per- sonal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to 46 § 8.575 G. C. 47 § 8576 G. C. Heirs of a de- This section is only intenrled to ceased wife do not inherit any inter- provide for cases where there was est in the estate of the husband a faihire of persons canahle of tak- when he leaves heirs. McCune vs. ing under the precedins section. Larkin. 25 C. C. (N.S.) 118; 36 Lathrop vs. Young, 25 O.'S. 451. C. C. 357. 839 PERSONAL ESTATE § 921 the brothers and sisters of such deceased husband or wife froin which such personal or real estate came, or their personal rep- resentatives." [R. S. § 4162.]" It will be observed that the above section makes provisions for property that was inherited or received by a mfe or husband from her deceased consort by virtue of the provisions of sec. 8574, G. C. (§ 917), providing for the devolution cf a title ac- quired by purchase. It is essential under this section that the wife or husband shall die intestate and without issue, and in possession of the property which she received from her husband. If she has parted with the property in any manner, the above section would not apply — that is, if she had converted real estate into money or vice versa, the above section would not apply. The identical property must remain.*'' § 921. Distribution of personal estate. "When a i:>erson dies intestate and leaves personal property, it shall be distrib- uted in the manner prescribed in section eighty-tive hundred and seventy-four, as to real property which came not by descent, devise or deed of gift from an ancestor; saving, however, such right as a widow or widower may have to any part of such per- sonal property. But a fund in the hands of an administrator, guardian, assignee or other trustee, arising from the sale of real estate which came to such intestate by descent, devise or deed of gift from an ancestor, shall descend according to the course of descent prescribed by section eighty-five hundred and seventy- three, for ancestral real estate." [R. S. §4163.]^<» § 921a. When personal property to escheat. "If there be no person living to inherit it by the provisions of this chapter, such personal property shall pass to and be vested in the state. The prosecuting attorney of the county, in which letters of administration are granted upon such estate, shall collect and pay it over to the treasurer of such county ; to be applied ex- clusively to the support of the common schools of the county in which collected, in such manner as is prescribed by law." [R. S. §4163.]^°* 48 § 8.577 G. C. See previous 5i> § 8578 G. C. See § 755, et seq. § 914; Fay vs. Scott, 14 N. P. 241; 50* § 8579 G. C. 23 Dec. 4'64; Spitler vs. Heeter, 42 See Marshall vs. Bash, 17 K. P. 0. S. 100; Anderson vs. Giicliiist, 428, where the section was applied 44 0. S. 440; Seney vs. Schmith, 25 in case where wife and husband C. C. (N.S.) 185; Gosling vs. Rupp, were both deceased each owning both 7 N. P. 185. real and personal property. 49 See Bruer vs. Johnson, 04 O. It lias recently been held tliat if S. 7. This seetion points out the a guardian sells real estate and then course of descent and distribution reinvests the funds in real estate, the of personal property. Lingler vs. real estate so held would descend a3 Wesco, 79 0. S. 225. § 922 DESCENT AND DISTKIBUTION 840 § 922. Comments. The above section is one brought intO' question most frequently in the administration of estates. According to its provisions, personal property may always be considered as coming to the decedent by purchase and is never ancestral. It provides that such personal property shall be distributed in the same manner as real estate acquired by purchase, excepting only the right that the widow may have tlierein.^^ While personal property does not immediately pass to the dis- tributee, yet the right vests at the death of the decedent.^' The provisions in the above section in reference to a fund that may be in the hands of an administrator, and which has arisen from the sale of real estate, shall in certain cases be dis- tributed as real estate, are no doubt inserted into the statute because the Supreme Court had decided that in such cases the property had lost its ancestral character and was to be distrib- uted as personalty. ^^ The latter part of the section merely provides when such property escheats.^* § 923. When estate to descend to children of intestate and how. "When a person dies intestate leaving children, and none of the children of such intestate have died leaving children or their legal representatives, such estate shall descend to the children of such intestate, living at the time of his or her death, in equal proportions." [R. S. § 4164.] ^^ § 924. Descent when all descendants of equal degree of con- sanguinity. "When all the descendants of an intestate, in a direct line of descent, are of an equal degree of consanguinity to the intestate, whether children, grandchildren, or great-grand- • land acquired by purchase and not 34 Personal property is always dis- by descent. McCammon vs. Cooper, tributed according to the law of the 12 Dec. 677; affirmed 1 N. P. (X.S.) domicile of the decedent. Swear- 154; 12 D. 677; 69 0. .S. 367. ingen vs. Morris, 14 0. S. 424; 2 This decision seems to the author Kent's Com. 571. to be questionable. See § 758, Law of domicile. 51 See § 8592 G. C. § 938. ss § 8580 G. C. 52 Armstrong vs. Grandin, 39 0. The purpose and object of the S- 368. above section is not easily perceived. 53 Pence vs. Pence, 11 0. S. 290; In the absence of statute, where Armstrong vs. Miller, 6 0. 118. property descends to a class, it would go to them in equal portions. 841 CHILDREN AND HEIRS OF DECEASED CHILD § 925 children, or of a more remote degree of consanguinity to such intestate, the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguin- ity may be." [R. S. §4165.]^-' § 925. When there are living both children and heirs of de- ceased children of intestate. "If some of the children of such intestate are living, and others are dead, the estate shall descend to the children who are living, and to the legal representatives of such as are dead, so that each child of the intestate who is living will inherit the share to which he or she would have been entitled if all the children of the intestate were living, and the legal representatives of the deceased child or children of the intestate inherit equal parts of that portion of the estate to which such deceased child or children would be entitled if such deceased child or children were living." [R. S. § 4166.]^'^ § 926. Extent of application of last section. ' ' The provi- sions of the next preceding section shall apply in all cases in which the descendants of the intestate, entitled to share in the estate, are of unequal degree of consanguinity to the intestate, so that those who are of the nearest degree of consanguinity, will take the share to which he or she w^ould have been entitled, had all the descendants in the same degree of consanguinity with him or her, who died leaving issue, been living." [R. S. §4167.]^« § 927. Previous sections apply to real and personal prop- erty. "The provisions of the next four preceding sections shall apply, both to personal and real estate. [R. S. § 4168.]'^^ 56 § 8581 G. C. as well as real estate. D — died This section disturbs the cencral leaving six children — two other chil- rule that property descends per dren having previously died, one stirpes and not per capita. Under leaving a family of three children this statute, when all the descend- and the other five; these eight ants are of an equal degree of con- grandchildren are not entitled to sansruinity, they should share eqnr.l. participate equally, but the three of That is, supposing a brother died one family are each entitled to 1-24. before his father, leaving three chil- and the five of the other each 1-40. dren, and another brother died loav- Dutoit vs. Doyle, 16 0. S. 400. ing nine children, the estate then 5S § 8583 G. C. would be divided into twelve equal 59 § 8584 G. C. parts, the children of one brother. Applies to nonancestral property receiving one-fourth and the other and to collateral as well as lineal three-fourths. Tf one brother would descendants. Goff" vs. Dispeunlt, 33 have been living at the death of lii,? O. C. C. 234; 23 Dec. 66G: 20 N. P. parent, the estate would then hnve 666, where an ancestor dies seized been divided into two equal part=!. of nonancestral real estate leaving the livincr brother receiving one imrt as next of kin. nephews and nieces, and the children of tlie riead brother the inheritance descends per capita , the other. S'ee next section. Ewers to nephews and nieces, the issue of vs. Foil in. fl O. S. 326. one deceasefl takes a share by repre- 57 S 8582 G. C. Rcntation. Treat vs. Bessey, 35 O. Th's anrl the preceding section C. C. 366. would apply to personal property § 928 DESCENT AND DISTRIBUTION * 842 § 928. Advancements by intestate to be considered as part of estate. "If any estate, real or personal, has l)eeu given by an intestate in his lifetime as an advancement to any child or children of his, or their descendants, it must be considered a part of the estate of the intestate, so far as it regards the division and distribution thereof among his children or their descendants, and be taken by such child or children or their descendants toward his or her share of the estate." [R. S. § 4169.]'^'* § 929. Definition, etc.* An advancement is a gift by a person to a presumptive heir of certain property with the intention that the value of such property shall be deducted from the portion that such pre- sumptive heir would otherwise be entitled to receive out of such person's estate after such person was deceased. The statute ap- plies to both real and personal property and limits its applica- tion to the case of an intestate. The reason for this is that a person dying testate and having provided for the disposition of his estate after his death, is presumed to have had in mind the claims upon his bounty of those to whom he leaves legacies, as well as of those whom he excludes ; "^ and all advancements made by a testator prior to the making of the will, and not re- *Cited and quoted from Fisher vs. (K.S.) 125; 15 Dec. 576 (1005), Fisher, 11 C. C. (N.S.) 375; af- In this case it is held that creditors firmed, without report (80 0. S.), can not acquire a prior lien on a 30 0. C. C. 607. child's share until his advancement 60 § 8585 G. C. has been deducted from such share. The law presumes in the absence As between parent and child, a deed of an expressed intention to the of gift from the former is presumed contrary, that a person's children to be an advancement. Cowden vs. are alike in his affection and are Cowden, 7 C. C. (N.S.) 277; 18 Cir. entitled to receive an equal portion D. 71, and 28 0. C. C. 71. of his estate. With this object in A debtor heir who claims a share view, the above section was enacted of the estate must account to it for into law, and in order to accomplish advancements by him received, al- this purpose should be so construed. though some are evidenced by notes In partition of lands of a de- that are barred by the statute of ceased's farm among his children, a limitations. No interest is calcu- child receiving an advancement lated after the death of the ancestor, should be charged with the same. Tobias vs. Ricluirdson, 5 C. C. Parsons vs. Parsons, 52 0. S. 470. (N".,S.) 74; 26 0. C. C. 81; affirmed iSee § 1065, Absent child— wills. 72 0. S. 626. § 760, Set-off against heirs. The law of advancements can only 61 Woerner on Admin. 1215. ^Ppl.Y where decedent died intestate. The doctrine of advancements In re Bullock, 15 Dec. 783; reversed does not apply to collateral rela- 3 N. P. (X.S.) 190; SOB. 160. tives. Waldron vs. Taylor, 45 S. E. Advancements made by a father 336 (1913). ' to his daughter are gifts if) ^rr t^ji'os, See interesting article in 58 Cen. and when actually delivered can not L. J. 42, on "Tlie conversion of the be recovered back, and parol evi- debt of a child into an advancement dence is admissible to show that it by the parent." was an advancement. JSIartin vs. "Defined in Dow vs. Dow, 3 N. P. Scudder, 14 Dec. 283. 843 ADVANCEMENTS § 930 ferred to therein, cannot be reckoned against the donee, al- though tliey would have been deducted if there had been no will ; nor can parol evidence be received to show that the contrary- was intended.''" A testator may, h-owever, provide that his estate shall descend as if he had died intestate, in which case advancements are to be reckoned as if there were no will. The gift, in order to consti- tute an advancement, must be irrevocable,''^ divesting entirely all of the ancestor's interest,*'* and forming no part of the property to be administered ; "^ hence, the donee can in no case be com- pelled to refund what he has received.'"' The statute does not apply to unintentional intestacy."^ But the fact that there is a partial disposition of the estate will not prevent the statute applying to the property of which the person died intestate."® An oral advancement of real estate is ineffectual notwith- standing the grantor's intent, by reason of the statute of frauds.'® § 930. What constitutes an advancement. Whether a gift or conveyance is to be regarded as an ad- vancement is to be determined by the donor at the time the gift is made. A person may convey property to a presumptive heir which may result, as to the rights of such heir, in three dif- ferent ways. First, he may make an outright gift to the heir, 62 /ji re Lyon, 70 Iowa, 375. 163; ^Manning vs. Planning, 12 Rich. Recitals in a will of certain ad- Eq. 410. vanccnients to certain children, sr. Miller's Will, 73 Iowa, 118, which are to be deducted from their per Bradley, J., in Ritch vs. Haw- shares, can hot be disproved by the hurst, 114 N. Y. 512; Black vs. children either as to the fact of any Whitall, 9 N. J. Eq. 572; Barrett advancement or their amount. vs. Morriss, 33 Gratt. 273; Metcalfe Farmer vs. Cope, 37 Bull. 132 vs. Colles, 43 N. J. Eq. 148. (Supr. Ct., not rep.). 6g Marston vs. Lord, 65 N. H. 4; 63 Herkimer vs. McGregor, 126 Woerner on Admin. 1214. Ind. 247; Harly vs. Harly, 57 Md. Dow vs. Dow, 3 N. P. (N.S.) 125; 340; Dugan vs. Gittings, 3 Gill. 15 Dec. 576. A child may sell TOO nT-11 ) A 1 oi Ti 04. property received as an advance- 138; Miller's Appeal, 31 Pa. St. ^^^^ 337; Fellows vs. Little, 46 N. H. 67 Needles vs. Needles, 7 0. S. 432. 27; Darne vs. Lloyd, 82 Va. 859. es Dittoe vs. Cluney, 22 0. S. 436. „ .,^ m T 1 69 Williams vs. Nears, 2 Dis. 604. 64 Joyce vs. Hamilton, 111 ind. g^^ ademption of legacies, §685. §930 ADVANCEMENTS 844 in whicli case the heir is to be held to no accountability whatever for the same, except to creditors of the intestate where the es* tate is insolvent. Secondly, property may be loaned to the heir, in which case the heir is held bound to repay the same in full, no matter what his portion of the estate may be, and our Court has held tliat sums voluntarily paid by an ancestor for the heir, " as where he was surety for the latter," are not advance- ments, but debts, and as such are entitled to be off-set against any claim that the heir may have against the estate.^" And the third way in which an ancestor may convey property to an heir is by the method under discussion, to-wit, by advancement. In such a case the heir is not bound to return to the estate any portion he has received, but he is not entitled to receive any from the estate until his portion exceeds the amount he has already received. Such advancement is not tO' be considered as an asset of the estate, but in order to determine the portion coming to each heir, it is to be added to the amount to be distributed. Thus if a person die intestate, leaving four children, and an estate amounting to three tliousand dollars, having made an advancement of one thousand to one of his children. For the purpose of calculating the portion coming to each child, his estate would be considered as of the value of four thousand dol- lars, one-fourth of which, to-wit, one thousand dollars, would be the portion of each child. The administrator or executor is not entitled to charge commission on an advancement.'^ A purchase in a child's name is presimiably an advance- ment.^^ But such presumption can always be rebutted.^^ On the question of whether a deed from father to son was an 70 Keever vs. Hunter, C2 0. S. 616. '■i Woerner on Admin. 1168. 72 Myers vs. Warner, 18 0. 519; Creed vs. Bank, 1 0. ,S. 1 ; Vanzant vs. Davies, 6 O. S. 52.- 73 Intention must determine whether a transfer is a gift, debt, or advancement. If in a partition case a deduction from an heir's share is demanded by reason of ad- vancements, and the only proof is decedent's account book, charging payments for the heir and credits of payments by him, this is prima facie a debt only, and can not in such proceeding be deducted. Fels vs. Fels, 1 C. C. 420; 1 C. D. 235. In the case of a gift from a child to a parent, undue influence may be inferred from the relation of the parties, but never when the gift is from the parent to the child. Mc- Adams vs. McAdams, 8 0. S. 244. 845 HOW PROVEN § 931 advancemeoit, or for a consideration still due, the relation of the parties and tlie circumstances. of the father are relevant/* A gift to a son-in-law, intended as an advancement to tlie daughter, would be charged against her if she, knov^dng the in- tention of the gift, acquiesced therein/^ But a conveyance to a son-in-law to advance him in life, in consideration of love and affection for the daughter, creates no trust in favor of the daughter.^® Delivering money to a daughter to build a home, she to pay interest during her parent's life, and to own the principal at his death, is not an advancement.^^ § 931. How proven. There is no statutory provision in our State providing spe- cifically ho'w an advancement shall be shown, and therefore the general rules of evidence as to such matters would be applicable, and the declaration of the grantor at the time of making the advancement as a part of the res gesta would be admissible; and as a declaration against interest, the admission of the person receiving the advancement would be competent. Book entries made, or caused to be made, by the father, although the child T4 Harrison vs. Castner, 11 0. S. against the husband. Stayner vs. 339, 346. Bower, 42 0. S. 314. A father conveyed land to his " Medill vs. Fitzgerald. 15 C. C. son, and for part of the price took 415; 8 C. D. 129. Where a dece- . , ,, -D • J j; +V, dent, at his death, holds promissory a receipt, tnus; Received or the ,' , ' i. i t , ,, f.,' ^ ,, .,, , notes and a mortgage executed co father $1,000 for the use without j^.^^ ,,^^ ^^.^ daughter and her hus- interest received by me, signed by ^.^^^^^ \^^ ^^.jgj. ^^ establish a claim the son. Held, not an advancement, that the money for which such in- but payable to the father when re- struments were given was a gift to quired. Overholser vs. Wright, 17 the daughter by way of advanee- 0. S. 157. ment or otherwise, the evidence must T5 Dittoe vs. Cluney, 22 0. S. 436. '^e clear and convincing. Medill vs. ToTliompson vs. Thompson, 18 O. I^tzgerald, 15 C. C. 415; 8 C. D. ^- ' ^- See Tobias vs. Richardson, 5 C. C. If the husband of an heir re- ^j^g^ 74. ge C. C. (1904), as to ceives from her father property as ^^5,^^ a note may be treated as an an advancement, she may compel advancement. the father's administrator to pay Parol evidence is not competent 'her share in full or may collect to show that an advancement from lier husband. If siie elects to charged in a book of advancements, take the former remedy, the admin- ^':f^^"°* ™^^^- Younees vs. Flory. istrator is subrogated to her claim 77 0. S. 71. §932 ADVANCEMENTS 846 charged had no knowledge thereof, and contemporaneous memo- randum and book accounts are admissable.'^ The relation of the parties may be sho\vn, and whatever tends to show the true purpose of the act, and the grantor's family relation, property relation, and other matters, may be given in evidence where the same will tend to throw light on the nature of the transaction. It will be competent for the child to show that the charges made for claims have been by him repaid. But a declaration made by a parent in tji© absence of the child, and not agreed to by the latter or communicated to him, must be excluded. But if made in the presence of the child and not controverted, they are competent.''^ Where in a will a certain gift is stated to be an advancement^ no evidence is competent to disprove such a fact.*° In the absence of evidence shomng testator's intention, prop- erty conveyed by him as a pennanent provision for donee, is regarded as an advancement. But gifts of small sums to donor's children, to be used for actual support and maintenance, will not be regarded as an advancement in the absence of evidenc») of testator's intention.®^ § 932. When advancement is greater or less than heir's share. "If the amount of such advancement equals or exceeds the share of the heir to whom it M'as made, he shall be excluded 78 Woerner on Admin. 1222. See Construction of wills. 79 Woerner, Admin. 1223. Gifts of property by a parent to his children in such proportions as they, considering their states of health and the circumstances of each seemed to need, if not designed by him as advancements, will not be so treated, although his entire ob- ject fails by the refusal of one to accept. Burbeck vs. Spollen, 10 Rec. 491. Where a father having an equita- ble right to land causes the deed to be made to his son, the father's ex- ecutors, claiming the land, may in order to rebut the presumption of an advancement or gift, put the deed in evidence wherein the son i»» called trustee, and may show tho father's prior declarations and in- structions that it was to be made to the son in trust for the father. Paddock vs. Adams, 56 0. S. 242. 80 Farmer vs. Cope, 37 Bull. 132. An allegation that deceased ad- vanced to H. B., husband of M. B., his daugter, is not an allegation of an advancement to his daughter and heir-at-law. Boyer vs. Boyer, 7 Dee. 525; 7 N. P. 153. 81 Carmichael vs. Lathrop, 112 Mich. 301; Page on Wills, 935, S 788. See § 934, When stated in deed, etc. 847 WHOLLY IN REAL OR PERSONAL ESTATE § 933 from any further part in the division or distribution of the estate, but not be required to refund any of such advancement. If the amount so advanced is less than his full share, he will be entitled to as much more as will give him his full share of the estate." [K. S. §4170.]^' § 933. When advancement is wholly real or personal estate. "If such advancement is made in real estate, the value thereof must be considered and taken as a part of the real estate to be divided; if in money or other personal estate as a part of the personal estate to be distributed. In either case, if it exceeds the share of the real or personal estate that would have come to the heir to whom the advancement was made, he need not refund any part of it, but shall receive so much less out of the other part of the estate as will make his whole share equal, as near as can be estimated, to that of either of the other heirs who are in the same degree of consanguinity with him." [R. S. § 4171.]^^ § 934. When value of advancement expressed in deed, etc. "If the value of the estate, real or personal, so advanced, is ex- pressed in the deed of conveyance, or in the charge thereof, made by the intestate, or in the receipt in writing, given by the person receiving the advancement, it must be considered of that value, in the division and distribution of the estate, other- wise, at its estimated value when advanced." [R. S. §4172.]** The latter part of the above section places in statutory form the rule which prevails in the absence of statute.^^ Of course, as the gift is irrevocable, the donee is not chargeable with any interest, or for any increase in the advancement, unless ex- pressly given on such terms ; and if the advancements are made 82 § 8586 G. C. 8* § 8588 G. C. See Moore vs. Freeman, 50 O. S. 85 Woerner Administration 1222. 592, A debtor heir, who makes If the heir transfers his interest, claim tor distribution, is required ' to account to the estate for the debt ^^^ grantee will take the interest he owes. Lockwood vs. VVitlesly, 23 the heir would have taken had the cFo ^ '.F'J, ^*^" same not been transferred, and the »3 § 8587 G. C. 1 1 1 1 T ., • . By virtue of § 4171 R. S., an ad- ^^""^ ™^« '^""^^ ^PP^^ '^ *'^^ ^^t^'" vancement is first to be taken out est of the heir was attached. Dow of the same kind of property in vs, Dow, 3 N. P. (N.S.) 125; 15 which it was given. But in all y>cc. 576. cases tlie full amount of the ad- vancement is to be charged to the heir. Reeves vs. Hunter, 62 O. S. 619. 5 935 DESCENT AND DISTRIBUTION 848 by will, and the will states that they are of a certain sum, such sum as fixed by the will must be taken to be the value of the advancement.^^ § 935. Heirs of aliens may inherit ; aliens may hold lands. "No person who is capable of inheriting shall be deprived of the inheritance by reason of any of his ancestors having been aliens. Aliens may hold, possess and enjoy lands, tenements, and here- ditaments, within this state, either by descent, devise, gift, or purchase, as fully and completely as any citizen of the United States or this state can do." [R. S. § 4173.] «^ § 936. Capability of bastards as to inheritance. "Bastards shall be capable of inheriting or transmitting inheritance from and to the mother, and from and to those from whom she may inherit, or to whom she may transmit inheritance, in like man- ner as if born in lawful wedlock." [R. S. § 4174.] ^^ § 937. When illegitimate children deemed legitimate, etc. ""When, by a woman a man has one or more children, and after- ward intermarries with her, such issue, if acknowledged by him as his child or children, will be legitimate. The issue of parents whose marriage is null in law, shall nevertheless be legitimate." [R. S. §4175.]«9 86 Farmer vs. Cope, 37 Bull. 132. See Page on Wills, 935. 87 §8589 G. C. This section removes all dis- abilities of aliens as to inheritance. Ky. vs. Naylor, 73 O. S. 115. 88 § 8590 G. €. Under previous laws it was held, that bastard's estate did not pass maternal line and gave no right to inherit from mother's relatives. But under the above provision it would seem that so far as through the mother, the bastard would be in tlie same position as a legitimate child. The following are cases con- struing the former acts: Little vs. Lake, 8 0. 289; Lewis vs. Eutsler, 4 0. S. 354; Gibson vs., McNeely, 11 O. S. 131; Hawkins vs. Jones, 19 0. S. 22; Bruner vs. Briggs, 39 O. S. 478. 89 § 8591 G. C. Again the language of the statute is too clear to require construction: "When a man has by a woman one or more children, and afterwards intermarries with her," etc. A "man" means any man, and a "woman" means any woman. There are no exceptions. If he is a man and she is a woman, no matter what their previous lives may have been, they come within the language of the statute, and when legally mar- ried and the former issue acknowl- edged by him as his child, such issue becomes thereby legitimated, even though it is an adulterine bastard. (Ives vs. McNicoll, 59 0. S. 402.) This case is also reported in thp Circuit Court (12 C. C. 297; 5 C. D. 555), and in the Court of Com- mon Pleas (3 N. P. 6; 4 Dec. 75). And a person legitimized in the manner provided by statute is the lawful issue of his parent and en- titled to take under a devise "to the heirs of his father's body." Kniffin vs. Schaffer, 12 C. C. 753; 4 C. D. 62. See Miller vs. Anderson, 43 O. S. 473; Wright vs. Love, 12 0. 619; LaRoche vs. LaRoche, 29 O. C. A. 113. 849 WIDOW 'S SHARE § 938 § 938. Amount of personal estate to which a widow or wid- ower is entitled upon distribution. "When a person dies in- testate and leaves no children or their legal representatives, the widow or widower, as next of kin, will be entitled to all the personal property which is subject to distribution upon settle- ment of the estate. If the intestate leaves any children or their legal representatives, the widow or widower will be entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution." [R. S. §4176.] 9° § 939. Comments. It will be observed that the above section provides for that portion which is to be distributed to the surviving consort. It does not therefore include any part of the assets of the deceased which are set apart to the widow by the appraisers of the per- sonal estate of the husband.^^ This right to a share of the estate on distribution, I have no doubt, could be relinquished by the widow or widower by either an ante-nuptial or post-nuptial contract,^^^ provided that it was shown clearly to have been the intention of the parties when the contract was made.^- And it may be stated as a general rule that the right to a dis- tributive share in personal property may be barred in the same manner as the right to dower in the real estate, except that as to personal property a man or woman might defeat the right of his wife or her husband to share in his personal property by dis- posal of the same during his lifetime either by sale or valid See § 1887, Adoption, etc. cided. There is a dissenting opinion 90 § 8592 G. C. See § 921. by C. J. Nichols, and it is not im- Where a husband sold land and probable there will be some legisla- on demand of his wife he gave her tion in the future on the subject, one-third the purchase money, this 92 Miller vs. Miller, 16 O. S. 527; did not keep her from receiving Smith vs. Smith, 57 O. S. 27; Ward her distributive share of his per- vs. Ward, 63 0. S. 125. sonal property, although such per- See Election of widow, § 1227 sonal property was the remainder of G. C, as to right to share in pro- the purchase price of said land. ceeds of real estate, when the same Barber vs. Hite, 39 0. S. 185. is directed to be sold, etc. The right to such distributive A widow is entitled to dower in share accrues at the time of the the real estate and a share of his deatli of the husband or wife. Con- personal property subject to distri- ger vs. Barl § 10888 G. C. plies when the contingency may be ^^ § 10889 G. C. terminated within four years. If it *" § 10906 G. C. 891 BARRED CLAIMS § 986 demand that is not entitled to preference, it may be discon- tinued without the payment of costs ; or, if the demand is dis- puted, the action may be tried and determined, and judgment be rendered thereon, in the manner and with the effect pro- vided in the ease of an appeal from the award of commissioners ; or, the case may be continued until it appears whether the estate is insolvent. If it proves not to be so, the plaintiff may prosecute the action as if no such representation had been, made." [R. S. §6246.]*^* § 986. Comments. It will be observed that the above section protects the admin- istrator or executor against suit, while the estate is in progi*ess of being settled by the methods provided by this section. Speci- fically, no action can be brought unless first it is for a demand that is entitled to preference, and therefore it would not be af- fected by the solvency or insolvency of the estate. But I ap- prehend tliat it could not be brought even if it were such a de- mand, unless it was first presented to the administrator and by him rejected. The second, exception given above is, that no ac- tion shall be brought unless the assets are more than sufficient to pay all the debts. Or giving a tliird reason, if the claim has been disputed by the executor or administrator before the estate is represented insolvent. Or fourthly unless suit is brought against the executor or administrator upon a claim which was disallowed by such executor or administrator. These cover all cases in which the suit may be brought against an administrator or executor after the estate has been declared insolvent. § 987. Claims not presented as required, barred unless, etc. "Every creditor of an estate that proves to be insolvent, wiio has not presented his claim for allowance, in the manner pre- scribed herein, shall be forever barred from recovering it, unless assets of the deceased come to the hands of the executor or administrator, after the order of distribution, in which case his claim may be proved, allowed, and paid, in the manner and with the limitations provided for the case of contingent debts." [R. S. §6247.]*« 47* § 10907 G. C. See § 607 et seq., as to Limitation See State vs. 'Scliott, 22 Dec. 320. of actions against administrator, etc. 48§ 10908 G. C. § 988 INSOLVENT ESTATES 892 § 988. If surplus remain after paying debts allowed, other creditors may claim it. "After the report of the commission- ers of insolvency, or of the executor or administrator acting in their place, if the assets prove to be sufficient to pay all debts allowed under the commission, or under the report of the ex- ecutor or administrator, as the case may be, the executor or administrator must pay them in full. After such order is made, if other debts be recovered against him, he shall be liable there- for only to the extent of assets then in his hands." [R. S. §6248.]*^ § 989. How divided between two or more such creditors. "If there be two or more such creditors, the assets, if not suffi- cient to pay their demands in full, shall be divided among them, in proportion to the amount of their respective debts." [R. S. § 6249.] 5° § 990. Executor or administrator liable only for assets in his hands. "In such case, the executor or administrator may prove the amount of the assets in his hands, whereupon judg- ment must be rendered in the usual form. Execution shall not issue for more than the amount of such assets ; and if there is more than one judgment, the court shall apportion the amount between them." [R. S. §6250.] § 991. Creditor may sue after two years in case, etc. ' ' At the end of two years after granting letters testamentary, or of administration, if it is not ascertained whether an estate rep- resented insolvent, is or is not so in fact, any creditor whose claim was not presented before the commissioners, or to the executor or administrator acting in their place, may commence an action for it against the executor or administrator, which may be continued for the defendant until it appears whether the estate is insolvent. If it should not prove to be so the plaintiff may prosecute his action as if no such representation had been made." [R. S. § 6251; 102 v. 205.]" § 992. When and how executor or administrator may be compelled to render his account to court. "If an executor or administrator neglects to render and settle his accounts in court, within three months after the return is made by the commis- sioners, or by the executor or administrator, in their place, or after the final liquidation of the demands of the creditors, or *9 § 10909 G. a 51 § 10911 G. C. eo § 10910 G. C. 52 § 10912 G. C. b93 ACCOUNT, ETC. § 992 within such further time as the court allows in which to col- lect the debts and assets, so as to delay an order of distribution, he may be compelled to render such account, in the manner hereinbefore directed, to compel the return of an inventory. The same proceedings may be had to attach and to discharge him, and the like revocation of the letters to him be made as in case of a party absconding or concealing himself, so that no order can be personally served, or of his neglecting to render an account within thirty days after being committed. New letters shall be granted with the like effect, and remedies on the administration bond, as in those cases." [R. S. §6252; 102 v. 205.] ^3 63 § 10913 G. 0. §993 INSOLVENT ESTATES 894 CHAPTER LIU. SETTLEMENT OF INSOLVENT ESTATES BY COMMISSIONER, ETC. § 993 When estate insolvent, Court § 1003 to appoint commissioners to audit claims. § 1004 § 994 Comments. § 995 Duties of administrator, etc.. when commissioners appoint- § 1005 ed. § 1006 § 996 Commissioners to give notice of their appointment, etc. § 1007 § 997 Form of notice, etc. § 998 Time allowed creditors to pre- § 1008 sent and prove claims. Com- missioners to report to § 1009 Court. § 1010 § 999 Presentation of claims. § 1000 Commissioners examine claimants on oath. r jqII § 1001 Any one of commissioners to administer oath. § 1002 Hearing and action on claim. § 101"2 Report of the commission- ers. Appeal from decision of com- missioner, how perfected. Hearing and costs. Procedure and appeal. Form of bond, and notice of appeal. Duty of commssioners when bond or notice is filed. How persons should proceed who have omitted to appeal. Comments. Allowance of appeal not to disturb distribution previ- ously made. Distribution among creditors after commissioners return. Compensation of commission- ers. § 993. When estate insolvent, court to appoint commission- ers to audit claims. "AYhen, from the representation of an executor or administrator, it appears to the court that the real and personal estate of the deceased will probably be inisufficient for the payment of his debts, it may appoint two or more fit persons to be commissioners to receive and examine all claims of creditors against the estate, including claims presented and allowed by the administrator or executor, and other claims duly verified and presented to them, and return to the court a list of the claims thus laid before them, with the sum they allowed on each claim. Before entering on the duties of their office, the commissioners must be sworn to the faithful discharge thereof." [R. S. §6224.]! 1 §§ 10884 to 10914 G. C, deal wholly with creditors and not for the heirs, for the reason that the heirs have no beneficial interest in an insolvent estate. Insurance vs. Bank, 172 Fed. 390. 895 BY COMMISSIONERS § 994 § 994. Comments. By the above section of the General Code, the Probate Court is permitted in the case of insolvent estates to appoint a board of quasi judicial character to determine the validity of claims against the estate." There seems to be very little use for the appointment of such board, and except in very large and complicated estates it would be far better to allow the adminis- trator or executor to serve as a commissioner. The right to appoint commissioners vests solely in the Probate Court and no appeal would lie from action of the Court thereon.^ Upon receiving their appointment and before entering upon their duties, they must be sworn to the faithful discharge of the same. The form of the oath to be administered may be as follows : State of Ohio, Clark County, ss. E. F. and G. H., being duly sworn, say that they will faithfully and impartially discharge all of the duties devolving upon them by law, as commissioners to receive and examine all claims of creditors against the estate of A. B., deceased, and report the same to Court as provided by law, and according to their best understanding and ability. Sworn to before me and subscribed in my presence this day of 190... There is no statutory requirement as to the ineligibility of a person to act as commissioner, but the Court should select only such as are competent by knowledge and experience, to properly perform their duties, and free from influences by relation or otherAvise, which Avould affect their judgment in the discharge of the trust devolving upon them. It is presumed that the com- missioners will as soon as they are informed of their appoint- 3 As to form of application to be 3 Putney vs. Fletcher, 140 Mass. filed, see § 962. 596. An entry thereon can easily be The commissioners shall act and adopted to suit an appointment of have the power of a quasi judicial oommissioners. tribunal. 'Cromwell vs. Herron, 11 C. C. 452; 5 C. D. 196. § 995 INSOLVENT ESTATES 896 ment, enter upon the discharge of their duties. ISTo formal method is prescribed as to the manner in which they should be notified. It is presumed that the Court or parties interested will convey to them this information. § 995. Duties of administrator, etc., when commissioners ap- pointed. The only power that the commissioners have is to receive and audit the claims against the estate and report the same to the Probate Court. It only interferes with the ordinary duties of the administrator or executor, that it takes away from him the allowance or rejection of claims against the estate. Otherwise he acts as if no commissioners had been appointed. He will proceed to collect all the assets and convert the real estate into money, and after the report of the commissioners has been passed upon by the Court, it will be the duty of the administra- tor or executor to make distribution of the funds in his hands in conformity with the order of the Court. It would be the duty of the administrator to turn over to the commissioners all evidences of indebtedness against the estate which are in his possession. It would likewise be his duty to attend the sessions of the com- missioners, and if a claim was allowed which in his judgment should not have been allowed, to appeal the same to the Probate Court. If he is guilty of corrupt conduct in not opposing the allowance of illegal claims, he will be liable to an action on his bond.* It is held under the Massachusetts law, that the individual claim of the administrator or executor is not to be presented to the commissioners, but to the Court for allowance.^ § 996. Commissioners to give notice of their appointment, etc. As soon as the commissioners have received notice of their appointment, they must fix a time and place, where they will ♦ Parson vs. Mills, 2 Mass. 80. 536; Newell vs. West, 149 Mass. B Green vs. Russell, 132 Mass. 520. 897 APPOINTMENT OF COMMISSIONEES § 997 hold their session for the purpose of examining claims and creditors. The statute relating thereto is as follows: "The commissioners of insolvency shall appoint convenient times and places for their meetings, to receive and examine all claims of creditors as provided for in the next preceding section, and give notice thereof, in writing, to each of such creditors by mailing it to his postoffice address; and further, by causing notification to be posted up in some public places where the de- ceased last dwelt, or in such other manner as the court having regard to the situation of the creditors of the estate, may order.'* [R. S. §6225.]« § 997. Form of notice, etc. No particular form of notice is required. The notice provided in sec. 10898, G. C, would be sufficient with the matter added, fixing the time and place where the commissioners will meet for the purpose of receiving and auditing the claims. In addition to sending a notice in writing to each of the creditors, it further provides that the notice shall be put up in some public place in the vicinity where the deceased last dwelt, or in such other man- ner as the Court may provide. Generally the Court will pro- vide that notice shall be given in a newspaper of general circu- lation for such a length of time as it may think fit. A copy of the notice sent to the creditors and the date of its mailing as well as a copy of the notice published with proof of its publi- cation should be filed with the report of the commissioners. The commissioners ought perhaps to fix, especially where the estate is large, two or three different days on which they will be in session.'^ § 998. Time allowed for creditors to present and prove their claims; commissioners to report to court. "After the appoint- ment of the commissioners, three months shall be allowed to creditors to present and prove their claims. The court may allow such further time for this purpose, not to exceed one year from the date of the commission, as it thinks necessary. e § 10885 G. C. 7 § 966. § 999 INSOLVENT ESTATES 898 At the expiration of the time for proof of debts, the commis- sioners must make their written report to the court." [R. S. §6226; 102 V. 205.] « § 999. Presentation of claims. All kinds of claims against the estate ought to be presented to the commissioners ; even claims reduced to judgment. Also all claims that have been previously presented to the administrator or executor ; likewise claims which have a preference ought to be presented, for it is the intention of the statute that this board of commissioners should audit and receive all the claims against the estate and if creditors fail to present their claims they shall be forever barred from recovering the same/ If a person hold a claim against the estate which was secured and he did not present it, the estate would be relieved and the creditor would be obliged to look to the security alone for its payment. Contingent claims as well as those fixed must be presented.^" The commissioners cannot allow claims after the expiration of the time limited by statute or fixed by the Court^^ For a good reason the Court may extend the time.^^ But such exten- sion of time does not relieve a creditor from the obligation to commence the prosecution of his claims.^^ It is provided by a subsequent section,^* that a person who by accident or other- wise fails to appeal his claim may prosecute an appeal to the Probate Court. But this does not apply to cases where claims have not been presented at all. As was said in a previous chap- ter,^^ the creditor in order to protect his rights must strictly pursue the line marked out by the statute. Any other course is dangerous and may defeat his right. Necessarily in cases where e § 10836 G. C. 12 § 10886 G. C. §11899 G. C, This section is very much similar § 967. to § 10899 G. C, § 9G7. 12 Walker vs. Lamins Admr., 6 9 § 10908 G. C, §987. Pick. 458; Towie vs. Banister, 16 10 § 10887 G. C., 982. Pick. 255. iiBascon vs. Butterfield, 1 Mete. i* § 10891 G. C., § 1008. 536. 15 § 552 et seq. 899 EXAMINATION OF CLAIMANTS § 1000 an estate is insolvent, there must be a reasonably short limit upon the presentation of claims so that the same can be expedi- tiously distributed. § 1000. Commissioners examine claimants on oath. "When they think it proper, the commissioners may require an oath to be administered to a claimant, and thereupon examine him on all matters relating to his claim. If he refuses to take such oath, or to answer fully all questions lawfully put to him, the commissioners may disallow his claim. On an appeal from the award of the commissioners, the court shall examine the claim- ant on oath, and disallow his claim, if he refuses to take the oath, or to answer fully upon his examination thereon." [R. S. §6233.]i« § 1001. Any one of commissioners to administer oath. "Any of the commissioners may administer the oath to the claimant, and also the oath to all witnesses produced and exam- ined before them." [R. S. §6234.]^^ § 1002. Hearing and action on claim. At the time set for hearing, or at such other time as the board of commissioners may adjourn to from time to time they shall proceed to hear in an orderly manner the witnesses to the claims presented. They shall have power to administer oaths to the claimaiut himseK and question him concerning his claims.^® And if he refuses to answer, the penalty attached is a rejection of his claim. They may also administer oaths to all witnesses produced. The statute does not give them the authority to sub- poena witnesses. This-examination should be carried on under the same rules of evidence applicable to any Court of justice. The commissioners shall liquidate and balance all mutual de- mands subsisting between the deceased insolvent and his credi- tors. If the balance is found in favor of the creditors, it should be allowed by the commissioners, and included in their reports ; te § 10893 G. C. »8 § 10883 G. C. § 593. IT § 10894 G. 0. § 1003 INSOLVENT ESTATES 900 but if the balance is found to be against tbe creditors, it is not a subject of theiV report, which is to include claims against the estate only/'' § 1003. Report of the commissioners. At the end of three months after their appointment they must make their written report to the Court. This report should be very much similar to that made by the administrator or execu- tor when he is acting as such commissioner. It should have filed with it, a proof of the notice given to creditors, when given by mail, or publication or posting up, for if no such notice "be given, the creditors will not be barred of their right to present claims. The form provided in sec. 975 of the previous chapter can easily be adopted for report by commissioners. Likewise the entry of distribution would be very much similar,^** and the commissioners may be compelled on motion of an interested party to make a return-'^ § 1004. Appeal from decision of commissioners, how per- fected. Hearing and costs. "A person -whose claim is disal- lowed in whole or part, by the commissioners, and an executor or administrator who is dissatisfied with the allowance of any claim, may appeal from the decision of the commissioners to the probate court. If the creditor appeals, within ten days after the decision, he must file with the commissioners a bond to the executor or administrator, with surety to be approved by the commissioners in the sum of one hundred dollars, con- ditioned to pay all costs adjudged against him on such appeal. 19 When the defendant in a suit falls due pending the suit, though brought by the administrator of an not due when the action was com- insolvent estate files in set-off a menced. Ibid; Boyden vs. Mass. claim larger than that on which he Life Ins. Co., 153 Mass. 548; Smith is sued, he is entitled to judgment Pro. Law 198. for the balance, and need not pre- 20 Equitable liabilities shall be sent his claim to the commissioners. deemed to be debts provable against The judgment is to be presented to insolvent estates of deceased per- the judge of Probate, and by him sons. added to the claims allowed by the 21 Blanchard vs. Allen, 116 Masa. commissioners. Bigelow vs. Fowler, 447. 2 Met. 255. In such suit the de- See § 1568, Form citation, fendant may set off a note which 901 APPEAL, ETC. § 1005 The executor or administrator may appeal by giving notice to the commissioners within ten days. In case of an appeal, as soon as practicable the court shall hear and determine the allow- ance or disallowance of the claim, and adjudge the costs against the party failing on such hearing." [R. S. § 6230.] 22 § 1005. Procedure on appeal. The statute furnishing relief to creditors makes a distinction between where there is a board of commissioners, and where the administrator or executor is acting in that capacity. Where there is a board of commissioners, the creditor whose claim is not allowed must seek his remedy by appeal to the probate Court. If it is not allowed where the administrator is acting as commis- sioner, he must bring suit within three months. If no one ap- peals as provided in the statute, the report of the commissioners is conclusive.'^ The right of appeal is given to both the creditor and the ad- ministrator. If the creditor appeals, he must within ten days after the board of commissioners have rendered their decision, file a bond as provided in the previous section. If the executor or administrator wdshes to appeal, he must give notice within ten days and the Probate Court must try the case at as early a date as the same can practicably be done, and the costs must be charged against the party who fails on appeal.^* § 1006. Form of bond, and notice of appeal. If the administrator or executor intends to appeal, he should file a notice with the commissioners, which must be done within ten days. The following may serve as a notice : 22 § 10890 G. C. 24 Pierce vs. Saxton, 14 Pick. 274 ; The Supreme Court cannot take Perkins vs. Fellows, 136 Mass. 294. jurisdiction in an appeal from the If the creditor, on appeal, does not decision of the commissioner. Mc- receive a sum greater than that al- Curdy vs. Legally, 14 O. 391. lowed by the commissioners, the ex- 23 Boardman vs. Smith, 4 Pick. ecutor shall recover his costs of suit 211; Se6 Wright vs. Dunham, 9 against such creditor. Dodge vs. Pick. 37. Breed, 13 Mass. 537. § 1007 INSOLVENT ESTATES 902 (Title.) To E. F. and G. H., commissioners of the estate of A. B., deceased: You are hereby notified that I, as administrator (or executor) of the estate of A. B., deceased, intend to appeal to the Probate Court from your decision rendered on the day of ,allowing as a valid claim against said estate, the clam of J. K. for dollars. When such notice is filed or when a bond is filed, the commis- sioners should endorse the fact and date of filing thereon. If a creditor wishes to appeal, instead of the notice he must file a bond which may be in the following form : FORM OF BOND. Know all Men by the Presents. That we, L. S. and P. Q., are bound unto C. D., executor of the last will (or administrator of the estate) of A. B., deceased, in the sum of dollars; to the payment of which we do hereby jointly and sev- erally bond ourselves, if default be made in the conditions following: Whereas L. R. and C. H., commissioners appointed by the Probate Court of county, in the State of Ohio, to receive and examine claims against the estate of the said A. B., deceased, have refused to allow i claim of dollars against the same, presented by the Baid L. S., from which decision the said L. S. has appealed to the Probate Court in and for said county of Now, if the said L. S. shall prosecute his said appeal to effect, and shall pay the costs that may have accrued thereon, and that may accrue thereon in the Court of Common Pleas, in case the claim shall be disallowed by the said Court, then this obli- gation shall be void; otherwise, it shall be and remain in full force and effect. Signed by us this day of A. D. 190 . . . § 1007. Duty of commissioners when bond or notice is filed. There seems to be no provision in the statute as to how the Probate Court is to have notice or get jurisdiction of a claim when an appeal has been taken. It is probably the duty in such cases of the commissioners to notify the Court of such action and transmit with such report, the claim presented and all mat- ters connected therewith, which might be something in the following form: ( Title. ) To the Probate Court of County, Ohio : The undersigned commissioners, appointed by your honor, beg leave to report that in pursuance of the duties devolving upon them, on the 25 No reasons of appeal are re- 2fl Giauque's Settlement of Es- quired to be filed. Jacobs vs. Ja- tates. cobs, 110 Mass. 229. 903 WHEN FAILURE TO APPEAL § 1008 lay of they did allow (or reject) the claim of in the sum of dollars. That thereafter said filed with them a bond to appeal the same, which bond was approved by us. (If the administrator or executor is the appealing party, say the administrator gave written notice of his intention to appeal in said matter.) We therefore report the fact of such appeal to your honor and transmit herewith the papers filed with us in reference to said claims. Commissioners.2T § 1008. How persons should proceed who have omitted to appeal. "A person whose claim is disallowed by the com- missioners, and who by accident, mistake, or otherwise, and not by his own neglect, omits to claim or prosecute his appeal, as before provided, upon his petition and notice thereof to the executor or administrator, may be allowed by the court to prosecute his appeal in manner aforesaid, upon such terms as it imposes, if it appears by affidavit that justice requires a further examination of his claim. No such petition shall be sustained, unless it be presented within two years after the return of the commissioners, and within four years after the date of the administration bond, and before final distribution." [R. S. § 6231.] 28 § 1009. Comments. The above section is one which saves to a person the right to perfect an appeal when by reason of accident or mistake or some other good reason he has neglected to perfect his appeal within the time pennitted by law. Such a right will rest largely in the discretion of the Court. In the application for such an ap- peal the reason why the same was not perfected should be set out in detail and the Court should be satisfied by affidavit that such want of appeal was not by neglect. There should be strong and urgent reason in behalf of justice and right before such a claim should be allowed. This section does not permit the Court to pass upon a claim that was not presented to the commis- sioners, it is confined to claims that were disallowed, etc.^° 27 Upon receipt of such notice of the time when it will be heard from the commissioners the Probate and proceed thereafter as in any judge should docket the claim and other case, set it down for hearing, and notify 28 § 10891 G. C. the creditor and the administrator 29 See § 1003. § 1010 INSOL\^NT ESTATES 904 § 1010. Allowance of appeal not to disturb distribution pre- viously made. "The allowance of such appeal, and the judg- ment that follows thereon, shall not disturb any distribution ordered before notice of the petition, or notice of the intention to present it was given to the executor or administrator. The debts, if any, proved and allowed in the case last mentioned shall be paid only out of such assets as remain in or come to the hands of the executor or administrator after paying the sums due on such prior order of distribution." [R. S. § 6232.]^° § 1011. Distribution among- creditors after commissioners return. "After the expiration of thirty days from the return made by the commissioners, the court shall make such order for the distribution of the effects among the creditors as the case requires. If, before making an order, the court has notice of an appeal from the commissioners, then made or pending, it may suspend any order until the determination of such appeal, or order a distribution among the creditors whose debts are allowed, leaving in the hands of the executor or administrator a sum sufficient to pay the claimant, whose demand is disputed, a proportion equal to what is paid to the other creditors." [R. S. §6235.]=^! When the commissioners have filed their report, then their duties cease and the orders made thereafter are to be enforced by the administrator or executor in the same manner as if such administrator or executor were acting as commissioner.^- § 1012. Compensation of commissioners. ' ' The court shall allow the commissioners such compensation as it deems reason- able, for their services, which the executor or administrator must pay as a part of the costs of administration." [R. S. §6253. 1=^3 30 § 10892 G. C. similar to an order inade under 31 § 10895 G. C. § 10904 G. €., § 976. This section is very much similar ^- See § 977 for form of entry to § 10904 G. C, § 976, and the order which can be readily adopted to meet made in reference thereto would be an entry under the above section. 33 § 10914 G. C. 905 WILLS DEFINITIONS §1013 CHAPTER LIY. WILLS — GENERALLY. § 1013 § 1014 § 1015 § 1016 § 1017 § 1018 § 1019 § 1020 § 1021 § 1022 § 1023 Definitions, etc. Distinguishing characteris- tics. Confusion between wills and other instruments in writ- ing. Law governing will. Right to make. Who may make a will. Any person. Full age. Sound mind and memory. Idiots, imbeciles and luna- tics. Blind, deaf and dumb per- sons. § 1024 Person under guardianship. § 1025 Not under any restraint. § 1026 Having property. § 1027 May give any person. § 1028 Bequest or devise to chari- table purpose, when void. § 1029 Corporation and charitable uses. § 1030 Entailed estates pass to is- sue of first donee. § 1031 Rule against perpetuities. § 1032 Contract to make a will. § 1033 Statutory meaning of certain words as applied to wills. § 1013, Definitions, etc. It can not be within the province of a work of this character to enter into an extended discussion of the subject of wills. But such examination of the subject will be given as is most likely to be useful in the practice of law in the Probate Court.^^ A " will," " last will," or more accurately, " last will and testament," may be defined, in the present condition of the com- mon and statute law, as the legal declaration of a man's intention which he wills to be performed after his death, touching either the disposition of his property, the guardianship of his children, or the administration of his estate.^" 21 For full discussion of this sub- ject, the reader is referred to works exclusively devoted thereto. The most voluminous is Jarman on Wills. The most recent and a very excellent work is Page on Wills, which has been used liberally in this work. Schouler's law on Wills is also a very good work. 22 Am. & Eng. Ency. of Law, Wills. The expressed wish of the testator that all the property shall go as the law directs with certain modifica- tions, is a testamentary disposition. Huber vs. Carey, 26 0. C. C. 389; aftirmed, 74 O. S. 469; Huber vs. Carew, 7 C. C. (N.S.) 609; 16 Cir. D. 389; affirming, 2 N. P. (N.S.) 81; 14 Law D. 656; affirmed, no report, etc. Will defined. Hall vs. Hall, 2 O. L. R. 328; 15 Dec. 167. See § 1033, Statutory meaning of certain words. §1013 WILLS DEPIi^ITIONS 906 The above definition seems to be a broad one and permits an instrument to be classed as a will which does not make a disposition of property. Upon this question the Courts are not in accord ; one of our Probate Judges held that it was not a will unless it disposed of property,"^ and a Common Pleas Judge held to the contrary."* Our statute, however, gives an infer- ence towards the idea that in order to be a valid will, it must contain a disposition of property.^^ Of course there can be no valid will, unless it is executed in conformity to the statute, which recognizes only written wills and nuncupative wills. A number of terms or words are used in the making and construction of wills, which may be defined as follows: " Testament " — An instrument which disposes of personalty only, is called a '' testament," and an instrument disposing of both realty and personalty is known as a " will and testament." The popular meaning of " will " has so far encroached upon the technical meaning, that " will," is used indiscriminately of instruments passing realty or personalty or both. " Testa- ment," however, is almost never used of an instrimient passing realty only. " Testator " — The word " testator " is very commonly used of the person making either a will or a testament. " Devisor " — " Devisor " is, according to derivation, the cor- rect term for one who makes a will, but, while used, is not com- mon.'^* " Devisee," on the other hand, is the word regularly used to denote one to whom realty passes by will. " Legatee" is properly used to denote one to whom personalty passes by will.^^ 23 See §1026, Having property; daughters, L. and B., each equal In re Williamson, 5 N. P. 1 ; 6 Dec. heirs with my own children — held 505. the instrument was dispositive and 24/n re Williamson, 6 N". P. 79; devised to each of the grand- 8 Dec. 47. daughters an equal share with the 25 § 5914 R. S., § 1018. children. In Moon vs. Stewart, 87 O. S. 25* Coke on Littleton, vol. 11, 349; below 33 0. C. C. 337. When chapt. 10, § 17. a will properly executed and an 26 Xeville vs. Dulaney, 89 Va. 842. executor appointed "after my death There is no property in a dead to settle up all my property both body, therefore it can not be dis- real and personal," the second item posed of bv will. Herold vs. Herold, being — I hereby make my two grand- 3 N. P. (N.S.) 405; 16 Dec. 303. 907 WILLS — CHARACTERISTICS § 1014 "Legatee" and "devisee" are frequently interchanged in popular usage, however. "Devise" and "'bequeath" — Of the verbs used to denote the act of making a will, " devise " is properly used of realty, and " bequeath " of personalty. " Devise " — Of the nouns used to name the various forms of gift, " devise " is used of a gift of realty. " Legacy " — " Legacy " is used of a gift of a sum of money. " Bequest " — ^' Bequest is used of a gift of personalty in general."^ None of these words have so fixed a legal meaning, however, that a gift will fail because testator does not use the words de- scriptive of the gift or the act of giving with technical accuracy. 'A '' devise " is often miscalled a " bequest," "* or " bequest " is often used to include both realty and personalty,^^ or is used of a gift of money alone.^° So the verb " devise " is often used to refer to personalty alone. ^^ § 1014. Distinguishing characteristics. The Probate Judge will be sometimes called upon to pass upon the question whether a paper properly attested and signed is after all a will or not. In such cases where the paper submitted for probate, is otherwise entitled to be probated as a will, the Court should, if any doubts exist, resolve the doubt in favor of the will and probate it and let the matter be settled on con- test. There are some qualities in a will which are termed in- herent. They are those which cannot be altered without de- stroying every idea of a will, and entirely altering its place in our law. These inherent elements are grouped under two gen- eral heads., first the animus testandi, second the revocability. Animus testandi means the intention of making a testamentary disposition. This matter is not gathered from the words that the testator may use entirely, but from the instrument itself. A man might make a valid will and yet call it a deed.^^ 27 Keating vs. McAdoo, 180 Pa. ai /^ re White, 125 N. Y. 544; St. 5. Clark vs. Clark, 46 S. Car. 230. 28 In re White, 125 N. Y. 544. Page on Wills, 3. This work is 29 Evans vs. Price, 118 111. 593; made use of quite frequently herein. Allen vs. White, 97 Mass. 504 ; Lamb Sco § 1026. vs. Lamb, 131 N. Y. 227. *» See Page on Wills 38. 30 White vs. Maes. Institute of Technology, 171 Mass. 84. § 1014 WILLS CHARACTERISTICS 908 A distinguished author divides, as to what constitutes this animus testandi, in three separate ideas. The first is, that the will may deal with any or all of three things : (a) It may deal with property of the testator either real or personal. (b) It may appoint an executor to take charge of the estate of the testator, and deal with it according to the law and the will. (c) It may appoint a guardian for the minor children of the testator. ^^ Accordingly the formal expression by the testator of his wishes as to any matter not included under a, b and c as above given is not a will, because the subject matter is not testamentary in its character. The second idea is, that the instrument must express the wishes of the testator in reality as well as in outward form, that is, the testator must be able mentally to make a will and not under restraint, etc.^* And the third idea included under the term animus testayidi is, that the will can take effect only at the death of the testator. This is one of the important distinctions between a will and an instrument whereby title to property is conveyed. Revocability, heretofore given as the second of the inherent elements follows very closely the last idea of animus testandi, that the will does not take effeot until the death of the testator. So essential a feature of a will is revocability, that the insertion in the instrument which is clearly a will of a clause providing that it is not to be revoked, has no effect whatever in preventing revocation.^** If an instrmnent is executed as such, that the maker cannot revoke it, it may be a deed or contract, but cannot be a will. An instrument which unites the elements included and discussed un- der the heads animus testandi and revocability, is a will as far as the inherent elements are concerned. An instrument which pos- sesses any number of these elements less than all is not a will.^* 53 Page on Wills 39. , See § 1082, What may be pro- «*Page on Wills 41. bated; § 1173. Revocability of joint 84* Page on Wills 48. wills; § 1224, Gifts causa mortis. 85 See in re Williamson, 5 N. P. 1 ; 6 Dec. 505 ; 6 N. P. 79 ; 8 Dec. 47. 909 WILLS CHARACTEKISTICS § 1015 § 1015. Confusion between wills and other instruments in writing-. I cannot go into detail on this subject, but a few examples may be given. Thus an instrument in form of a warranty deed, but containing a clause, " This paper to be in full force till I desire to act," or " to alt," possess a present estate, though with a possible right of revocation, and is a covenant, to stand seized to uses, i. e., a deed.^" In another case an instrument, in form a warranty deed, con- tained a clause : " Conditions of this deed is such as said party of the second part that this land shall not be encumbered in any way, or this deed shall be void. The party of the first part is to hold said property his lifetime." This was held a deed.^' Where the grantor deeded his estate in trust, reserving a life estate to himself, and also reserving the power of revoking the trust deed as to some of the objects of the trust, for fifteen years, it was held a deed.^^ Where, on the other hand, testator's intention is manifest from the whole instrument that it shall not take effect until the death of the maker and shall not pass any property right, till that time, it is held to be inherently a will, no matter what out- ward form it may assume. ^^ Thus, where the maker executed the following instrument: " Know all men by these presents that I, Joseph Robinson, for the consideration of one hundred dollars to me in hand paid, as well as my affection, do hereby assign and set over to my 30 Watson vs. Watson, 24 S. Car. 38 Pres. of Bowdoin College vs. 228. Merritt, 7.5 Fed. 480; Stewart vs. See 13 Green Bag, § 567, for Stewart, 5 Conn. 317; Page on Wills quaint and curious wills. 49. 37 Gates vs. Gates, 135 Ind. 272; 39 Mosser vs. Mosser, 32 Ala. 551; Bevins vs. Phillips, 6 Kan. App. Walker vs. Jones, 23 Ala. 448. 324. § 1015 WILLS CHARACTERISTICS 910 daughter, Elizabetli Jane Brewster, all of my property, both personal and real, to have the same after my death. Attest : his A. S. Post, Joseph X Robinson. E. McClellan. mark." Such instrument was held to be a v/ill.**' In determining whether an instrument in doubt is a will or a contract, the same test applies as in the case of con- fusion between wills and deeds. The test is not the time of performance, but the time at which by the terms of the in- strument a property right under the instrument attaches. If by the terms of the instrument no property right is to attach under it, until testator's death, the instrument is a will, pro- vided, of course, it is properly executed, but if a property right attaches during testator's lifetime, the instrument is a contract, even though the time of performance may be postponed till the death of testator.^^ If an instniment possesses all the elemeaits of a contract, the fact that the time of performance is fixed at testator's death, or within a given time thereafter, does not make it a will.*" Where the defendants' intestate executed the following pa- per : " For value received, I promise to pay to Mrs. Hamor, wife of John Hamor, the sum of $300, as a small recompense for the kindness shown to me by her. Thfi. executors of my last will and testament are hereby directed to pay the above to Mrs. H., or her sons, Moses and John, after my decease. Attest: Philip Riggs. John R. Moore." February 28, 1850. And delivered the same to the subscribing witness, with in- junctions to deliver it to Mrs. Hamor after his death, which was done. Held : 1, That this was not a gift inter vivos, nor a gift causa mortis, nor was it good as a testamentary dis- position. 2, That the " kindness " mentioned in the paper, ■to Robinson vs. Brewster, 140 111. Aff. 71 111. App. 587; Hegeman vs. 649; Page on Wills 51. Moon, 131 N. Y. 462. § 1214, Gifts causa mortis. The reader will find the matter *i Page on Wills 55. very fully discussed as to these dis- <2 Beatty vs. College, 177 111. 280; tinctions in Page on Wills. Miller vs. College, 42 L. R. A. 797; 911 WILLS LAW GOVERNING § 1016 being acts of friendship and hospitality merely done and ac- cepted at the time as gratutious, does not in law constitute a good consideration to support the express promise/^ § 1016. Law governing will. Where a person has made a will in conformity to the law, then in force, and the law is changed before his death, the law in force at the time of his death will govern the execution and construction of the will.** When a testator is domiciled in one State at the time of his death, and leaves property in anotlier State, the question arises as to which law is to prevail. As a general rule except where modified by statute, so far as concerns the capacity of the testator or form of tlie will when the same devises real property the law of the place where the property is situated controls.*^ And tJie same may be said to be the prevailing law as to the construction to be given to the will in devising real estate. Our statute, however, provides in our State that if a will is executed and proved according to the laws of anv State or territory of the United States, etc., an authenticated copy may be placed on rocord and it would have the same validity as a will probated here.*® As to personal property, the validity of the will, is to be de- termined by the law of the testator's domicile at the time of his death. But a will not recognized by our laws or against the policy of our statute, even though valid where made, could not lie effective.''^ 43 Hamor vs. Moore, 8 0. S. 231). In this case, M. domiciled in Ohio, 44 Root vs. Stuvesant, 18 Wend. made a will of personalty in the 257; Redf. Sur. Prac. 146. olographic form valid by the laws of 45 Page on Wills, 27. Louisiana, while in New Orleans for 40 §§ 10535, 10536 (J. C, § 1119. business purposes. He returned to 3 Am. & Eng. Ency. 632. his domicile in Ohio and died here, The lex rei sitae controls the con- the will was sent to New Orleans truction of a will executed in an- and there admitted to probate. It other State by a resident thereof was held that the copy of the will devising land in this State. Ilorten was improperly admitted to record vs. Haines, 7 C. C. (N.S.) 261; 28 in this State. It will be observed 0. C. C. 79. Reversed, but not on that in this case, the maker of the this ground. 76 0. S. 588. olographic will had his actual domi- 47 Manuel vs, Manuel, 13 0. S. cile in Ohio. If he would have had 458. liis domicile in Louisiana it is prob- able that an authenticated copy of § 1017 WILLS RIGHT TO MAKE 912 And generally it may be said that questions of construction are controlled by the law of the testator's domicile in a be- quest of personal property. If a testator makes a will which is valid by the laws of the place where he then lived and after- wards moves to another place, by the law of which latter place his will is invalid and he died, at tlie latter place, his will will be controlled by the place of his death and would be invalid.*^ Where a devise of land creates a trust its validity is to be de- termined by the law of the place where the land is situated. A bequest of personalty is to be determined by the law of the domicile of the testator, and not of the place where the property is situated. In determining the validity of the execution of a power given by will, the law of the domicile of the testator con- trols.*'' When no evidence is given as to what the law of the domicile is, the Court trying the case will take judicial notice that the State of testator's domicile recognizes the common law as the basis of its system, if such be the case, ami will construe the will by the common law.^" If the law of the State of testator's domicile is not based upon the common law the Court will, in the absence of evi- dence as to what such foreign law is, treat the will as con- trolled by the law of the forum. ^^ § 1017. Right to make. The right of testamentary disposition, depends solely on the municipal law and has never been regarded as a natural or inalienable right. It has always been subject to the control of legislative power and sucli power is not limited in this State by constitutional provision.'^" The right to make a will may be the olographic will would have been wills; §758, Distribution, etc; Page admitted to record in our State. on Wills 31. Thus an olographic will made in ^9 Page on \YiIls 35. New York by one domiciled in Que- 5o Benbow vs. Moore, 114 N. Car. bee, while on a short visit to New 263; 19 S. E. 156. York is valid by the Quebec law. si Davison vs. Gibson, 56 Fed. Page on Wills 30. 443; Page on Wills 35. 48 See § 1180, Construction of 52 Patton vs. Patton, 39 0. S. 590. See § 1119. foreign will. 913 WILLS WHO MAY MAKE § 1018 limited or regulated m any manner the Legislature sees fit or taken away altogether."^ And as heretofore said it is the law in force at the time of a testator's death that controls.^* § 1018. Who may make a will. ' ' A person of full age, of sound mind and memory, and not under restraint, who has property, or an interest therein, may give and bequeath it by last will and testament lawfully executed." [R. S. §5914.]^'^ § 1019. Any person. The statute gives the only restriction as to what person may make a will, when it says that he must be of full age and of sound mind and memory and not under any restraint. For- merly there were other restrictions, such as aliens, married wom- an, or a person convicted of a heinous offense, outlawry, etc. Of course the words " any person " means a natural person and not an artificial one. § 1020. Full age. In Ohio, all male persons of the age of twenty-one years and upward, and all female persons of the age of eighteen years and upward are considered to be of full age, any law or custom, to the contrary notwithstanding.^® The ecclesiastical law had settled the matter that males of fourteen years of age and females of twelve years of age could make testaments dis- posing of personalty, but no such distinction exists in Ohio.^^ 53 Folsom vs. Haas, 9 C. C. 473; testamentary purposes, the day of 6 C. D. 460. his birth is included. As the law 54 Page on Wills 18; See Woerner does not recognize fractions of a day, on Administration 19 and 6. but directs both the day of the birth f'5 § 10503 G. C. and of the anniversary to be reck- f'S § 8023 G. C. oned as full days, it results that a S7 Page on Wills 100. person born on the first day of Jan- A rule of computing time should uary, 1800, in the last hour of that be noticed in connection with the day, will attain majority on the first question of infancy and majority, instant of the thirty-first day of De- which is a departure from the or- ccmber, 1900. — nearly two days less dinary rule. At common law, in than twenty-one years. 1 Jar. on computing the age of a person for Wills 45 ; Woerner on Admin. 25. §1021 WILLS SOUND MIND AND MEMORY 914 § 1021. Sound mind and memory. A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent per- ception and understanding of tlie disposition he desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he should collect these in one review. If he understands in detail what he is about and chooses with understanding and reason between one disposition and another, it is sufficient for making a will.^'^ The real test of capacity has finally been agreed upon by the great weight of authority, as follows : The testator must have strength and clearness of mind and 68 Wilson vs. Mitchell, 101 Pa. St. 495: Miller vs. Oestrich, 157 Pa. St. 2G4; Hoopes' Estate, 174 Pa. St. 373. The expression "sound mind" does not mean a perfectly balanced mind. The question of soundness is one of degree. Bougliton vs. Knight, 42 L. J. P. 25. "Sound and disposing mind" means a mind of natural capacity, not unduly impaired by old age, or enfeebled by illness, or tainted by morbid influence. Smith vs. Teb- betts. 36 L. J. 97; 16 W. R. 18. The term "unsound mind" includes every species of unsoundness. Wil- lett'vs. Porter, 42 Ind. 250. A "sound mind" is one wholly free from delusion. Tittel's Estate, Myr. Prob. (Cal.) 12. A person may not be of "sound mind," and yet be of "disposing mind," and capable of making a will. Freeman vs. Easly, 117 111. 317. "Sound and disposing mind" means the power of understanding the nature of the property, the fam- ily, and the rest of the will. Sefton vs. Hopwood. 1 F. & F. 578. Under the statute providing that persons of "sound mind and mem- ory" may make a will, an instruc- tion in those terms can not be com- plained of because it makes no dis- tinction between "sound mind" and "disposing mind." Keithley vs. Statlord, 126 111. 507. The words "mind" atid "mem- ory," as used in the New York stat- ute regarding testamentary capacity, are convertible terms. Forman's Will, 54 Barb. (X. Y.) 274. "The words 'unsound mind' in- clude every species of mental de- fect, and are not confined to idiots, non compotes, lunatics, monomani- acSj or distracted persons, though so defined bv statute. Durham vs. Smith, 120 Ind. 463. A person may be of "sound mind and memory" though his recollec- tion be impaired. Y'oe vs. McCord, 74 111. 33; 25 Am. & Eng. Ency. of Law 971. See West vs. Kroppenberger, 4 C. C. (N.S.) 305; 26 0. C. C. 168. A person eighty-four years of age who can enumerate all his property without suggestions, etc., and in his instructions in reference to his will, shows himself to be acquainted with its value and disposition, is compe- tent. Revell vs. Warden. 4 C. C. (X.S.) 545; 24 O. C. C. 344. Mere eccentricity will not be suflS- cient to destroy power to make a valid will. Ketteman vs. Metzgar. 3 C. C. (N.S.) 224; 23 0. C. C. 61. What undue influence is sufficient to set aside a will. Hall vs. Hall, 2 O. L. R. 328; 15 Dec. 161. 915 WILLS IDIOTS^ IMBECILES § 1022 memory sufficient to know in general, without prompting, tiie nature and extent of the property of which he is about to dispose, the nature of the act which he is about to perform, and the names and identity of the persons who are the proper ob- jects of his bounty, and his relation towards them.^" Greater capacity than this the law does not demand ; less than this is insufficient ; and in each case it is a question of fact or of mixed law and fact whether the testator possess the requisite capacity.®" Woerner gives the following as the rule : " While the law does not undertake to measure a person's intellect, and define the exact quantity of mind and memory which a testator shall possess to authorize him to make a valid will, yet it does require him to possess mind to know the extent and value of his prop- erty, the number and names of the persons who are the natural objects of his bounty, their deserts with reference to their "wnduct and treatment toward him, their capacity and neces- )ity, and that he shall have sufficient active memory to retain all these facts in his mind long enough to have his will prepared and executed ; if he has sufficient mind and memory to do this, the law holds that he has testamentary capacity ; and even if this amount of mental capacity is somewhat obscured or clouded, still the will may be sustained." ®^ § 1022. Idiots, imbeciles and lunatics. Following very closely the facts which constitute a sound mind and memory is the capacity of idiots, lunatics, imbeciles, etc., 60 make a valid will. Idiots are defined to be persons who ar-^, born without reasoning and understanding. As a matter of Incapacity to make a will is not testator's will made under such cir- ehown by pliysical helplessness. cumstances should be upheld the law Gregg vs. Moore, 23 0. C. C. 534; will make a new will for him. In nor a delusion whicli does not siiovv re Burrows, 8 N. P. 358. lack of testamentary capacity. Want of mental capacity on the Foreign Missions vs. Bevan, 17 O. part of the testator is not shown C. C. (N.S. ) 275; 2 O. Ai)p. 182. by a recital of circumstances and 59 Campbell vs. Carnaham, 13 S. incidents which go no further than W. 1098; Tliompson vs. Ish, 99 Mo. to indicate physical weakness, or 160. failure of memory, or mistake of an 60 Page on Wills 114. unimportant character in business 61 Woerner on Admin. 31. affairs, nor because he did not make A testamentary disposition should a will as in tlie judgment of indicate the wishes of a man abso- witnesses he ought to have made, lutely free from pains that are in- Wilson vs. Wilson, 22 O. C. C. 498. cident to death, and rather than the § 1022 WILLS — IDIOTS, IMBECILES, ETC. 916 course a person of that kind could not make a valid will. The trouble in these cases is not whether the person has any in- tellect but whether he has sufficient intellect, and in order tc> determine this, we must go back to the definition of what con- stitutes a sound mind and memory. While there must be intel- lect, a high grade is not absolutely essential. It is not even necessaiy that he should possess the average intellect. The fact that the testator was competent to transact the ordinary business of life conclusively establishes his capacity so far as ^ charge of idiocy or imbecility is concerned.®^ Imbecility is the same as idiocy except that it is a failure and not a want of mental powers. Senile dementia is merely a form of imbecility applicable to persons in old age. The test here is whether the testator had mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will. If testator does not possess mental capacity of this degree he can not make a will, even if h© ^vi-ote it out himself, and has carried on business transactions with apparent ability.'^ But old age alone never deprives a testator of testamentary capacity. Insanity is defined to be a prolonged departure without any adequate cause, from the states of feeling and modes of thinking usual to the individual in health.** Of course if a person is insane, he could not be said to be possessed of testamentary capacity. A person might be generally sane and yet seized of an insane delusion which has been defined to be " a false belief for which there is no reasonable founda- tion." ^^ Some Courts have defined an insane delusion as a belief in facts that no rational person would believe.*® 62 Page on Wills 120. Car.) 229; Trezevant vs. Rains, 85 63 Bever vs. Spangler, 93 la. 576; Tex. 329; Sehr vs. Lindemann, Mo. Campbell vs. Carnaham, — Ark. — ; (1899), 54 S. W. 537. 13 S. W. 1098; O'Connor vs. Madi- 64 Bouvier's Law Die. " Insan- son, 98 Mich. 183; Norton vs. Pax- ity." Mundway vs. Croft, 3 Curt. ton, 110 Mo. 456; Clifton vs. Clif- Ecc. Rep. 671 (Eng.). ton, 47 N. J. Eq. 227; Waddington 65 Kimberly's Appeals, 68 Conn. vs. Buzby, 45 N. J. Eq. 173; Blair's 428. Will, 16 N. Y. Supp. 874; Naple's 66 Duffleld vs. Robeson, 2 Harr, Estate, 134 Pa. St. 492; In re Bow- (Del.) 375; Nicewander vs. Nice- yer's Estate, 166 Pa. St. 630; In re wander, 151 111. 156; Orehardson vs. Loesor's Estate. 167 Pa. St. 498; Cofield, 171 111. 14. McKnight vs. Wright, 12 Rich (S. 917 BLIND, DEAF AND DUMB § 102»^ In an Ohio case, Judge Longworth charged the jury that if the testator did not believe that any woman was virtuous ; that all women were prostitutes ; that they were created simply for the purpose of gratifying the lusts of man ; that they were therefore able to support and maintain themselves out of the wages of sin ; and that tlierefore no provision ought, in any case, to be made for them, and that acting on this belief he gave the bulk of his property to his son and not to his daughters, and that he made this disposition of his property by reason of this belief, then the jury would be justified in finding that his will is void.^^ It will not be within the province of this work to enter into a discussion of what will constitute imbecility or insanity in its various forms. Somewhat in the same line is drunkenness, delirium, etc., they are all more or less a species of insanity. No matter what the condition of the mind of the testator may have, at some time, been, the question is, what was the condition of the mind of the testator at the time the will was made. If at such time he has a disposing mind and memory, he may make a valid will. It, therefore, follows that a person generally insane might make a valid will^ and likewise if a person made a valid will while insane, the fact that he after- wards became sane would not make the will a valid one.^^ § 1023. Blind, deaf and dumb persons. At common law it was held that persons who were deaf, dumb and blind, were not capable of making wills. " They are incapable," says Blackstone,*"* " of having animum testandi and their testamentary acts are therefore void." Those who were only deaf and diunb were likewise held incapable of having that understanding which is necessary to make a valid will. From ol)9ervation of persons laboring under these disabilities, it has been discovered that this common law doctrine is founded «7 Joslyn vs. Sedam, 2 Bull. 147; es See § 1361 et seq., Gd. of imbe- Page on Wills 127. dies, etc. «9 2 BIks. Comm. 497. g 1024 WILLS UNDER GUARDIAJfSHIP 918 upon an untruth, and it is now held, that such persons are not to be considered as lacking testamentary capacity.'" The question now in reference to such persons is the same as if they were not under such disability ; and if it is shown that they have mental capacity, sufficient that they may make a valid will they may do so. Deaf and dumb persons are gen- erally capable of reading, and some few have shown themselves capable of reading, although they were deaf, dumb and blind."^ There is a chance of imposition when a blind person signs a will, but perhaps no more than where one is unable to read. It is said to be the best test, where a blind person executes a will, that the act must be done in such proximity to the person, that he can by means of his remaining senses, know what is being done.''^ In executing a will of this character, great care should be taken to convey in some way, the contents of the will to the testator ; and the testator by express signs or otherwise, indi- cate to the witnesses, that he understands and knows what is in the will. § 1024. Persons under guardianship. A suggestive as well as a practical question to Probate Judges and lawyers engaged in probate practice is what effect will an adjudication of guardianship have upon the testamentary ca- pacity of the person adjudged a proper subject of guardianship. Some no doubt would say that a person under guardianship could not make a valid will, but such is not the law.^" Such person may make a valid will if he has, at the time his will is made, a testamentary capacity which is required by law in such cases. But the fact of such guardianship is prima fa- cie evidence of the party's incapacity, and the adjudication would make a prima facie case of the testator's incompetency 70 Weir vs. Fitzgerald, 2 Bradf. Guardianship, for intemperance, (N. Y.) 42. does not raise a presumption of 71 Helen Kellar for instance. testamentary incapacity that might 72 866 Page on Wills, §117, p. arise from 'insanity or imbecility. 138; § 214, p. 234. Fagan vs. Welsh, 19 O. C. C. (NvS.) 73 Page on Wills 136. 177. 919 WILLS NOT UNDER RESTRAINT § 1.025 from the date of the guardianship and during its continuance/* and where the guardianship is made on the ground of insanity, very clear evidence is required to overthrow the presumption of insanity arising from such an adjudication ;^° but the record of a guardianship which did not exist for several years after the will was made, is incompetent.^® The record of discharge from a guardianship of insanity as cured is also only prima facie evidence of such cure.''' Whether there would be a distinction drawn where the guar- dian was appointed for some of the other statutory grounds, such as habitual drunlcards, etc., is a question without judicial light. It would seem that tlfe presumption ought not to be as strong against the testamentary capacity of a person who is adjudged an habitual drunkard as against one found to be a lunatic. ^^ § 1025. Not under any restraint. • " 'Not under any restraint " means that the testator acted in conformity to the conclusions of his own judgment when such conclusions were formed by the free exercise of his reasoning power. Our Supreme Court in passing on this question makes use of the following: Restrictions are imposed upon none, but all are alike left to the exercise of their own free wills and inclinations in the disposition of their property. The power thus given to dispose of property does not depend upon the disposition thereof, nor is it restricted to those who may employ it only for just and wise purposes; but all upon whom the right is conferred may use it without " any restraint." Indeed, it is contemplated by the statute that this is the only way in which, it can be exercised. 74Millcn vs. Young, 18 C. C. 575; See §1511, Effect of finding of 8 C. D. 394; Page on Wills 478. disability. 75 Stevens vs. Stevens, 127 Ind. A person weakened by sickness 660. ttiay be capable of making a will if 76 Entwistle vs. Meikle, 180 111. 9, he has sninciont memory to under- 77 Page on Wills 479. stand fully what he is doing. Stark 78 § 1538, Incapacity to contract. vs. Cress, 22 O. C. C. (N.S.) 88; 4 O. App. 92; 14 N. P. 545. § 1025 WILLS NOT UNDER RESTEAINT 920 Freedom from restraint is essential to the validity of a will. So careful is the law in this respect, that it will not uphold a will that has been induced by restraint upon the testator, whether in the form of fraud practiced upon him, or any other influence that destroys the free exercise of his own will/^ It would be inconsistent with the right conferred by the statute, and with the spirit of the construction it has hitherto received, to sanction restraints upon a testator, based alone on the character of the motives or causes that may have induced any disposition of his property that he may make while in the free exercise of his own inclinations and judgment. He may give his property to whomsoever he pleases, and his motives or reasons therefor, so long as he is " not under any restraint," are matters of his own conscience, for which he is not account- able to the law. His will, executed in conformity to the stat- ute, if it be his own, and not in any sense the will of another, cannot be invalidated, however much its provisions may be dis- approved by others. It is claimed, in the proposition under consideration, that the will, upon the facts therein assumed, would be void for " illegal influence." In the solution of the question made by this proposition, much of the difficulty disappears when we con- sider what " influence," as applied to the invalidation of wills, is " illegal." Every will, as before remarked, is the result of influences strong enough to produce it. Since, then, it is the policy of the law to secure to every one the right to dispose of his prop- erty in accordance with his individual will, that influence alone is illegal which places the freedom of a testator's will under some kind of restraint. If this be so, it follows that it matters not what may be the origin or character of any influence oper- ating upon, a testator, if it does not place him " under any re- straint." It would seem to follow, also, that it would be equally immaterial how an individual may have acquired an 79 Redf. on Wills 524, 527. not herself given an undue portion. Undue influence over the testator O'Rourke vs. Kinney, 22 Dec. 56. on the part of his second wife is Changing a will, even if it makes not shown by the fact that her chil- an unfair and unreasonable disposi- dren fared better than a child of a tion of testator's property is alone first wife since the second wife was insufficient to show undue influence. Gregg vs. Moore, 33 O. C. C. 534. 921 WILLS — NOT UNDER RESTRAINT § 1025 influence over a testator, unless such influence is exerted in a manner that tends to restrain the free exercise of his will in the disposition of his property,^** Under this subject of restraint may be included a will that was caused to be executed by practicing a fraud or deceit upon the testator. The question at issue always is, does the paper purporting to be the will of a testator convey or declare the real intention of the testator. If for any reason it does not convey the real intention of the testator, it is not his will. Thus if he was induced to sign a paper which is supposed to be his will, but is not,^^ or by falsei representations is induced to make a ■^ill of a certain character,®^ and likewise if he is under such X)ercion. that he makes what purports to be a will,^^ in all 3 ^hese cases it must be shown that the power or the undue m l3uence which causes the testator to make his will, are exercised \t the time or before its execution. If exercised after its ex- cution no matter how overpowering, even if it goes to prevent the testator from revoking his will when he wishes so to do, it will not be held to affect the disposition already made. Where it is shown that undue influence existed before the will was made it must also be shown that the influence existed up until the time of its execution.®* 80 Monroe vs. Barclay, 17 O. S. mand asserted and yielded to for 302. the sake of peace and quiet; or of es- " To make a good will, a man caping from distress of mind or so- must be a free agent. But all in- cial discomfort, — these if carried to fluences are not unlawful. Persua- a degree in which the free play of sion — appeals to the affections, or the testator's judgment, discretion, ties of kindred — to a sentiment of or wish is overborne, will constitute gratitude for past services, or pity undue influence, though no force is for future destitution, or the like either used or threatened. In a — these are all legitimate and may word, a testator may be led, but not be fairly pressed on a testator. On driven; and his will must be the off- the other hand, pressure of what- spring of his own volition, but not ever character, whether acting on the record of some one else's. Hall the fears or hopes, if so exerted as vs. Hall, 37 L. J. P. 40; Woerner on to overpower volition without con- Admin. 45. vincing the judgment, is a species si Page on Wills, 143. of restraint under which no valid 82 Page on Wills 144. will can be made. Importunity or 83 Page on Wills 154. threats such as the testator has not 84 Page on Wills 151. the courage to resist — moral com- § 1026 WILLS HAVING PROPERTY 922 § 1026. Having property. Formerly there were limitations upon the power of disposi- tion of property by will, but these have all been taken away until now both in England and America, the right to dispose of property by a will is as broad and comprehensive as the right of disposition while living. ^^ The provisions of our statute would seem to convey the idea that if a person had no property, then he could not make a will, and the reason why such should be the law is very palpable, for if he possess no property there is nothing to devise.*® How- ever, it would take a very small amount of property to give the right to make a will. Of course, no property can be dis- posed of by testator's will except such as belongs to him. The line of decision in all such cases is, was it such property that the testator could have disposed of in his lifetime ; if it was, then he'can convey it by will. Thus if a person was given cer- tain property for support during his life, the accumulation of the income over and above such support could not be devised by him.^^ Neither can a testator by will pass the proceeds of insurance policies upon his own life where the policies are by their terms made payable to specified persons. But if the pol- icy is made payable to his executors or administrators, then it may be disposed of by will or where the name of the beneficiary is left in blank. jSTeither husband nor wife can by will, with- out the consent of the other, make such disposition of his real estate as will destroy the dower rights of the other therein. Neither can the husband or wife by will destroy the right of the other to a distributive portion of the personalty.** Neither could the right to a year's allow^ance or property set apart to the widow be affected by a will; such as is provided for imder sees. 10654, 10656, General Code.*® In some States it is held that the husband could not devise away the rights of the widow or children to have a homestead set apart in the real estate. But these decisions are generally P'- Sec §1030, Definition, etc.: so See § 319 c/ sc^'. VVoerner on Admin. 20. There is no property in a dead 86 See § G8. body. Herold vs. Herold, 16 Dec. 87 Page on Wills, 157, 700. 303! 88 See §§ 327, 039. 923 WILLS HAVING PROPERTY § 1027 upon statutes which give the widow and children a right to a homestead during the testator's life, such that the testator could not dispose of it without the consent of his wife."" In our State there being no restriction upon the power of the husband to sell the same during his life time he would have the power to dispose of the same by will. A legacy might, how- ever, be defeated by the claim of homestead made by the widow, where the personalty was insufficient to pay the same. In such a case, the real estate would need to be sold in order to pay the legacies and in tlie proceedings to sell such real estate, it would be the duty of the appraisers to set apart to the widow and children the homestead as provided by law.®^ The question has never been passed upon to my knowledge by our Courts.°- At common law it was settled that a will could only operate on real property which was owned by the testator at the time that he executed the will. But it is now provided by statute that after acquired property shall pass in the same manner as if held or possessed by him at the time of making the will if such shall appear to have been the intention of the testator,^^ after acquired personalty, could by the common law be dis- posed of by will.^* Likewise, estates to commence in the future might be devised,*^^ but a mere possibility, such as the hope of an heir to succeed to his ancestor's estate, could not be devised.®' § 1027. May give any person. At common law there were some limitations upon the capac- ity of a person to receive a devise or bequest, such as a rule, that an alien could not acquire realty, etc. But such laws have never existed in this country. The only limitations upon the power to receive under ^ will are those which will be found in the statutes presented in the subsequent sections of this chapter, 80 Pratt vs. Pratt, 161 Mass. 276. o* Page on Wills 162 91 See §§819, 868. ss See previous § 1013. Page on 02 This question is discussed in Wills 165. Page on Wills 160. 96 Needles vs. Needles, 7 O. S. 93 § 10579 G. C, § 1191. 432. § 1028 WILLS CHARITABLE USES 924 where a provision is made against perpetuities, and certain in- stitutions receiving under a will where the will is executed within one year of the testator's death. As a general rule, un- less ultra vires a corporation can receive property under a will. It has been held that the State may be a beneficiary, but whether the United States may take property by devise is a question upon which the Courts are at variance.®^ § 1028. Bequest or devise to charitable purposes, when void. "If a testator dies leaving issue of his body, or an adopted child, living, or the legal representative of either, and the will of such testator, gives, devises or bequeaths the estate of such testator, or any part thereof, to a benevolent, religious, educational, or charitable purpose, or to this state or to any other state or country, or to a county, city, village, or other corporation, or association in this or any other state or country, or to a person in trust for such purposes, or municipalities, corporations, or associations, whether such trust appears on the face of the in- strument making such gift, devise, or bequest or not ; such will as to such gift, devise, or bequest, shall be invalid unless it was executed according to law, at least one year prior to the death of the testator." [R. S. § 5915.] »« § 1029. Corporation and charitable uses. It will be observed that three things are necessary to consti- tute a bequest to charitable uses, void. First, the testator must die leaving issue of his body or an adopted child,^® or the legal representative of either. Second, the will must be made less than one year prior to the testator's decease. Third, the bequest must be for benevolent, religious, educational or charitable purposes, either directly or indirectly. Very little trouble will be experienced in the application of the first two. The latter may sometimes afford considerable ingenuity in deter- mining whether the bequest is made for a charitable purpose. 97 Page on Wills 174. See § 1321. 98 § 10504 G. C. 99 The gift to a religious denomi- This statute does not include heirs nation is a gift to a public charity. designated under § 8598 G. C., First German Church vs. Winkel, § 1902. 19 Dec. 239. Theobald vs. Fugman, 64 O. S. 473. 925 WILLS CHARITABLE USES §1029 The above section no doubt had its origin in the statute of mort- main/"" The statutes of mortmain were never in force in this coun- try, and with us the corporation may receive property by be- quest the same as a private individual, unless expressly pro- hibited by law.'"' The object of the limitation that a bequest for the purpose mentioned in the previous section shall be void if not made one year before the testator's death, is to prevent persons in- terested in such purpose, from, by reason of the testator's dan- gerous illness and proximity of death prevailing upon him, to make a disposition of his property which he would not other- wise have done."^ 100 These statutes are known by the name of the statutes of mort- main, and they applied only to real property; and were introduced dur- ing the establishment and grandeur of the Eoman church, to check the ecclesiastics from absorbing in per- petuity, in hands that never die, all the lands of the kingdom, and there- by withdrawing them from public and feudal charges. The earlier statutes of mortmain were original- ly levelled at the religious houses; but the statute of 15 R. II., c 5, declared that civil or lay corpora- tions were equally within the mis- chief and within the prohibition; and this statute made lands con- veyed to any third person, for the use of a corporation, liable to for- feiture in like manner as if con- veyed directly in mortmain. Kent's Com. 282. loiWoerner on Admin. 910; Page on Wills, 172-173; 4 Am. & Eng. Ency. of Law, 235. 102 The reason of the limitation placed upon the power of the testa- tors, under § 5915 R. S., to devise or bequeath their property to relig- ious, benevolent, educational, or charitable purposes, only in wills executed more than a year before their death, was founded upoij a broad public policy; it was for the protection of the testators against the importunities of designing per- sons, and against themselves, as well as for the protection of their families, and the interest of the State. Folsom vs. Haas, 9 C. C. 474; 6 C. D. 460. § 10504 of the General Code, which avoids legacies and devises of the character therein mentioned upon the happening of the specified event, was designed specially for the pro- tection of the children of adopted child of the testator and their repre- sentatives, though it inures to the benefit of the collateral lieir when the lineal heir survives the testator and then dies. Davis vs. Davis, 62 O. S. 411. 40 Cyc. 1056, 1565, 1047. It does not apply to a person designated as an heir at law under § 8598 G. C. Theobald vs. Fugman, 64 O. S. 473. §1029 WILLS CHARITABLE USES 926 A statute of this character is constitutional,^**^ and gifts to charitable uses are to receive the most liberal construction."* These provisions in reference to benevolent, religious, educa- tional or charitable purposes seem to have their origin in an En- glish statute which defined what should constitute a valid chari- table trust/**^ Our statute is more specific and includes benevolent, religious, and educational, together with charitable purposes. The support and propagation of religion is clearly a charitable use."*^ Thus devises for the erection of buildings for public worship or keeping them in repair are upheld as char- itable devises. Devises in aid of the poor and destitute are al- ios Patton vs. Patton, 39 O. S. 590. lo-t Zanesville Canal and Man. Co. vs. Zanesville, 20 0. 483. A fund given to establish " a school in the to\^Ti of Zanesville for the poor children of said town," is not limited in its benefits to the children of pareats residing in that locality which constituted the cor- porate of Zanesville at the decease of the testator. The charity will be administered for the benefit of poor children in the town of Zanesville, according to the most general and popular sense of the term. 20 Ohio 483. To same effect, concerning same fund. Mclntire vs. Zanesville, 17 O. S. 352; 9 O. 203. 105 The general objects which come within the description of " charitable uses," and which may therefore constitute a valid charit- able trust, were enumerated in the " statute of charitable uses," passed in the reign of Queen Elizabeth, as follows : " The relief of aged, im- potent, and poor people, the main- tenance of mained and sick soldiers and mariners ; the support of schools of learning, free schools, and schol- ars of universities; repairs of bridges, ports, havens, causeways, churches, sea banks, and highways; education and preferment of or- phans; the relief, stock, and main- tenance of houses of correction; marriage of poor maids; aid and help of young tradesmen, handi- craftsmen, and persons decayed; re- lief or redemption of prisoners and captives; aid of poor inhabitants concerning payments of fifteenths, setting out of soldiers, and other tax- es." It will be seen that this list omits some most important and fa- miliar charitable objects — as, for example, the support and propaga- tion of religion. The English and American courts have never regard- ed this enumeration as exhaustive, but as designed to be merely illus- trative. Numerous objects analogous to those mentioned in the statute, are held to be charitable. The doc- trine is settled that all particular objects, embraced within the general spirit, intent, and scope of the stat- ute, are to be considered as charit- able, unless they violate some rule of public policy, or the provisions of some positive statute. Pomeroy'9 Equity, 586. loii Pomeroy's Equity, 587. 927 WILLS CHARITABLE USES § 102!} ways upheld as charitable devises if the other requisite elements of a charity fire present."^ The beneficiaries may be limited to the poor of a certain area/"^ and in some States the beneficiaries may be restricted to the poor of a certain chiirch,^"^ or to the poor of a non-char- itable association. ^^° But in some States a devise to the poor of an unincorporated church or association is held void as too indefinite."^ The other use of specific designation is charity to educa- tion."^ Education is held to be a charitable use, where the re- cipients of the gift are so indefinite as to render the grant char- itable."^ Thus, a devise to a State to establish a permanent 107 In re Geek, 69 L. T. N. S. 819 (a devise "to the poor"). Duggan vs. Slocumb, 83 Fed. 244; Wood vs. Paine, 66 Fed. 807; Strong's Ap- peal, 68 Conn. 527 (devises to the " worthy poor of said town ") : Phil- lips vs. Harrow, 93, la. 92 (a devise to the " poor and needy people " of a given city " who are dependent on their own labor for a livelihood") ; Doughten vs. Vandever, 5 Del. Cli. 51; Hunt vs. Fowler, 121 111. 269; Dascomb vs. Marsten, 80 Me. 223; McAllister vs. Burgess, 161 Mass. 269; 24 L. R. A. 1,58; Ballard vs. Chandler, 149 Mass. 532; 5 L. R. A. 104; Kelly vs. Nichols, 18 R. I. 62: 19 L. R. A. 413; Tichenor vs. Brew- er, 98 Ky. 349; 33 S. W. 86; Fox vs. Gibbs, 86 Me. 87; Wardens, etc., of St. Paul's Church vs. Attorney General, 164 Mass. 188; Chadwick vs. Livesey, 56 N. J. Eq. 453; 41 Atl. 1115, affirming 55 N. J. Eq. 204; Trim's. Estate, 168 Pa. St. 395 (a devise " for the benefit of the poor" of a named township); Staines vs. Burton, 17 Utah, 331; 53 Pac. 1015. los See some cases especially quot- ed in last note; and Urmey vs. Wooden, 1 0. S. 160; Scott V3. Trustees, 39 O. S. 153; Trim's Es- tate, 168 Pa. St. 395; Sheldon vs. Stockbridge, 67 Vt. 299; Sawtelle vs. Witham, 94 Wis. 412; 69 N. W. 72. 109 Bird vs. Merklee, 144 N. Y. 544 (a devise to certain named churches " according to the number of members to buy coal for the poor of said churches ") ; O'Neal vs. Caul- field, 5 N. P. 149; 8 Dec. 248. iioWilley's Estate, 128 Cal. 1; 56 Pac. 550 (a devise to the "wid- ows' and orphans' fund " of a non- charitable association) ; Guilfoil vs. Arthur, 158 HI. 600. iiiYingling vs. Miller, 77 (Md.) 104; 26 Atl. 491; Page on Wills, 755. ii2Pomeroy's Equity, 590; Woer- ner on Admin. 925. 11-' Birchard vs. Scott, 39 Conn 63 ; Doughten vs. Vandever, 5 Del Ch. 51; Fox. vs. Gibbs, 86 Me. 87; Grand Prairie Seminary vs. Mor- gan, 171 111. 444; John's Will, 30 Ore. 494 ; Attorney-General vs. Parker, 126 Mass. 216; De Camp vs. Dobbins, 29 N. J. Eq. 36; Cle- ment vs. Hyde, 50 Vt. 716; Dodge vs. Williams, 46 Wis. 70; Almy vs. Jones, 17 R. I. 265. §1029 WILLS CHAKITABLE USES 928 school fund is a cKaritable devise ;^^* so a devise for the benefit of public schools generally is a charitable devise, even though taxation provides such schools already ;^^^ so is a devise to existing educational institutions of a private nature,^^® and to parochial schools,^^^ and a devise to trustees for paying the tuition of poor children ;^^® so are devises to educate young men, one at a time, for the priesthood.^^^ Public libraries are recognized by the Courts as a most valuable means of education, and devises for such purposes are upheld as charitable.^^" A devise to maintain a cemetery is generally upheld as char- ity/^^ Likewise the establishment of a public park or play- ground was held to be a charitable devise. So have bequests for the advancement of woman suffrage been upheld as valid, and a devise for the purpose of promulgating the views of Henry George as to land ownership is upheld as valid/^^ Where bequests are void because made within one year of a testator's death the heir at law is not the only party who may 114 Sears vs. Chapman, 158 Mass. 400; Almy vs. Jones, 17 R. I. 265. 115 John vs. Smith, 91 Fed. Rep. 827; John's Will, 30 Ore. 494; 47 Pac. 341 ; 36 L. R. A. 242 ; Page on Wills. 753. 116 Abend vs. Endowment Fund Commission, 174 111. 96; Curlings vs. Curlings, 8 Dana (Ky.) 38; Blackburn vs. Tucker, 72 Miss. 735; 17 So. 737 (though void as to real- ty, yet valid as to personalty). 117 Hanson vs. Little Sisters of the Poor, 79 Md. 434. 118 Dye vs. Beaver Creek Church, 48 S. Car. 444. 119 O'Neal vs. Caulfield, 5 N. P. 149 ; 8 Dec. 248 ( Gen. Edu. ) ; in re Rymer (C. A.), (1895), 1 Ch. 19; 64 L. J. Ch. (N. S.) 86 (Theolog- ical Seminary) ; Barnard vs. Adams, 58 Fed. Rep. 313 (2 at a time) ; Field vs. Drew Theol. Sem., 41 Fed, 371. 120 Page on Wills, 7.54. 121 Page on Wills, 758. i2:i Page on Wills, 759. The following Ohio cases have in one way or the other considered this question. Thus in Mclntyre vs. Zanesville, 17 0. S. 352. The one to be applied for the support of a poor school. See also same case, 9 O. 213. Another case is a Board Ed. vs. Ladd, 26 0. S. 210. Where property has been devised for a charitable purpose, the Court of Equity will see that the trustees perform their business. Cincinnati vs. Mc^Iicken, 6 C. C. 188; 3 C. D. 409. As to when a Court of Chancery will supply the defect, see Urmey vs. Wooden, 1 O. S. 160. The trustees of a township may receive the bequest. Scott vs. Mar- ion Township, 39 O. S. 153. So may County Commissioners. Christy vs. County Comm'rs, 41 0. S. 711. 929 WILLS— ENTAILED ESTATES | 1030 object to such bequests, but any party interested in the estate may do so.^-^ § 1030. Entailed estates pass to issue of first donee. ' ' No estate in fee simple, fee tail, or any lesser estate, in lands or tenements, lying within this state, shall be given or granted, by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail." [R. S. § 4200.]^-* § 1031. Rule against perpetuities. The above section is the law in Ohio against what is com- monly known as a law against perpetuities. This term is de- fined as follows : In the technical sense a perpetuity is a grant of property " wherein the vesting of an estate or interest is unlawfully postponed ; and they aro called perpetuities not be- cause the grant as written would make them perpetual, but because they transgress the limits which the law has set in re- straint of grants that tend to a perpetual suspense of the title of its vesting."^^^ Oui' Supreme Court in passing upon this question, makes use of the following language: " If the devise in question is not within the limitation, it is valid under the general author- ity. This supersedes inquiry as tO' the scope of the rule of the common law upon the subject. The statute does not contem- plate mere possibilities. It forbids devises to persons who are in fact more remote than the immediate issue of persons in being at the time of the testator's death. That further issue of the first donee in tail might come into being, is immaterial." ^^* 123 Davis vs. Hutchings, 15 C. C. in fee. Pollock vs. Speidel, 17 O. 174; 8 C. D. 52. S. 439; 27 0. S. 86. 124 § 8622 G. C. 123 Page on Wills, 728. Where an estate is devised to cer- i26 Phillips vs. Herron, 55 0. S. tain trustees, and their successors, 478. the limitation over is void. Miles Under § 8622 G. C, the issue of vs. Fisher, 10 0. 1. the donee in tail during the life Where land is conveyed "to A, of such donee, has no interest or the heirs of his body and assigns estate in tlie lands inlierited that forever," tlio grantee takes an es- he can alienate. Dungan vs. Kline, tate tail, and under the statute the 7 0. L. R. 578; 81 0. S. 371. issue of A take an absolute estate As to sale of entailed estates, see § 11925 G. C. § 1031 WILLS RULE AGAINST PERPETUITIES 930 The expression, " time of making a will," is construed to me«&i the death of the testator, and the words, " immediate is- sue or descendants," includes grandchildren of one in being where the parent of such grandchildren, who was the child of such person in being, dies before such person in being,^"^ and a person in ventre sa mere is, of course, a person in being within the meaning of the statute/"^ This rule is applicable to all persons holding property, except a charitable devise, as to such a devise it is held that the statute against perpetuities does not prevail/^® There seems to be no limitation in Ohio as to personalty,^^" yet an inferior Court held that the common law rule against per|>etuities as to personalty is in force in Ohio/^^ izTMcArthur vs. Scott 113 U. S. 340; Stevenson vs. Evans, 10 0. S. 307; Turley vs. Turley. 11 O. S. 173. 12« Phillips vs. Herron, 55 O. S. 478; Page on Wills, 738. 129 O'Neill vs. Caufield, 5 N. P. 149; 8 Dec. 248; Page on Wills, 747; Woerner on Admin. 919. A devise to one for life and then to his children, or to the children lawfully begotten of the body of such children, held, the remainder is not void for vmcertainty. The desig- nation is of persons in being at the end of the life tenancy, either chil- dren, or the children of predeceased children, and not of a succession, first to children, and then to their children. Stevenson vs. Evans, 10 O. S. 307. A will may be good in part and void in part. Limitations illegal as creating entails or perpetuities do not invalidate the rest of the will. Hears vs. ]\Iears, 15 O. S. 90, 95. That in a devise of successive es- tates some are void under our stat- ute against perpetuities, R. S. 4200, does not invalidate the intermediate ones, which are not too remote. Hatch vs. Hatch, 31 B. 57. 130 Smith vs. Lowenstein, 50 O. S. 346. 131 Dayton vs. Phillips, 28 Bull. 327. No interest, subject to a condition ])recedent is good, unless the condi- tion is to be fulfilled, if at all, with- in twenty-one years after some life, or lives, in being at the creation of the estate. The number of lives upon which the vesting of the estate depends is immaterial if all the lives are in existence at the time the estate is created. To this length of time is added the period of gesta- tion, whenever gestation in fact ex- ists, whether it is the gestation period of a person in ventre sa mere, who is the person in being whose life determines the estate, or the gestation period of the person whose minority is the twenty-one year period after a life in being. By the wording of the rule it can not apply to invested estates; but it does apply to every sort of property right other than a vested interest, such as a contingent remainder, or an execu- tory devise; and it includes both legal and equitable estates. Page on Wills 730. See Pollock vs. Speidel, 27 O. S. 86: Harkness vs. Corning. 24 O. S. 416; Poor vs. Hart, 11 N. P. 49; 931 CONTEACT TO MAKE A WILL § 1032 § 1032. Contract to make a will. While our Supreme Court has declared that contracts by an owner in respect to a disposition of his property to take effect after his death, and different from such as the law would pre- scribe in a case of intestacy, are of no validity unless made through (he medium of a last will and testament,^^^ yet the right to make a contract agreeing to make a certain disposition of one's property has on several occasions been upheld by the sajne Court/^^ It must, however, be in writing/^* Our Court has not only recognized the validity of such con- tracts, but has snstained an action against the heir to compel a specific performance of the contract.^^^ The enforcement of such a contract does not prevent the will itself, if there be one made, from being revocable. If it is irrevocable it is not a will. A will made in pursuance of a contract to make a will, as far as the Probate Court is concerned, should be treated as a will, and whatever objections are made thereto, must be made in some other tribunal. The remedy that a person has against the testator must be an action at law against his estate for dam- ages, for breach of contract, or a suit in equity, to have the heirs and next of kin, or the beneficiaries under the will, if the testator has left another will, declared trustees for the promisee,"® or as above stated, a suit for specific performance. It is said " that while such contracts are enforceable as valid contracts, they do not stand upon a special favorite footing. In order to be enforceable they must have all the essential elements of any valid contract."^ The contract to make a will must, in order to be enforceable, be clearly proved and be certain and unambiguous in all its terms.^^^ ♦ 21 Dec. 260; Naylor vs. Loomis, 9 ham vs. Swan, 48 O. S. 25; Hopple C. C. 96; 6 C. D. 41; Harris vs. vs. Hopple, 3 C. C. 102; 2 C. D. 59. Maholm, 20 N. P. 439 ; 28 Dec. 228. ici KHng vs. Bordner, 45 Bull. A devise to a son "and his heirs 44^2 to the third generation," is an en- i"-'-, T?rr,r.,-TT -..o T^n,.i;r,„ r.n rt c , ., , ..f. XI • £ i"> iLmcry vs. Dariing, 50 U. b. tailment witiun the meaning of ,„rv §6222 G. C. Under the provisions ^^'^- , ^ of that section the son takes a life "" Pa?e on Wills, 79. estate in fee simple. Naylor vs. ^^t Page on \A ills, 80. Loomis, 9 C. C. 96; 6 C. D. 41. As to tha various kinds of consid- 132 Phippg vs. Hope, 16 0. S. 586; eration wl-ich will support a con- 40 Cyc. 1134. tract, see Page on Wills, § 72, p. 80, i33Phipps vs. Hope, 16 0. S. 595; iss Shaham vs. Swan, 48 0. S. 25; Emery vs. Darling, 50 0. S. 160; page on Wills, §73, p. 83. Norris vs. Clark, 3 Bull. 994; Sha- ^ > ^ , i- - § 1033 STATUTORY MEANING OF CERTAIN WORDS, ETC. 932 A question which frequently arises in these cases is, whether the action comes witliin the statute of frauds, and the Courts hold that it does;^^® and also hold that where the contract is entire and some part of tlie matter agreed to, if it stood alone, would not be within the statute, yet in such case it all comes within the provisions of the statute of fraud. ^**' There is some controversy among courts, as to what will constitute a part, performance that will take it out of the statute of frauds."^ Of course, in such case the death of the prom- isor not having made tlie provisions agreed upon, will constitute the breach of the contract. The promisee has several remedies. He may sue on the contract, in which case the measure of dam- ages will be the value of the property which by the terms of the contract was to have been devised or bequeathed to him. Or he may treat the contract as rescinded and sue on quantum meruit for the reasonable value of his services,^*^ or he may maintain an action in specific performance."^ The right of such an action accrues at the death of the testa- tor and the statute of limitation must be calculated from that date."* § 1033. Statutory meaning of certain words as applied to wills. "In the interpretation of part third, unless the context shows that another sense was intended, the word 'person' in- cludes a private corporation; 'writing' includes printing; 'oath' includes affirmation; 'of unsound mind' includes every species of mental deficiency or derangement; 'bond' includes an under- taking; 'and' may be read 'or,' and 'or' read 'and,' if the sense requires it. Words in the present tense include a future tense, and in the masculine gender include the feminine and neuter genders. Words in the plural include the singular, and in the singular include the plural number. This enumeration shall not be construed to require a strict construction of other general words in this part." [R. S. §4947, 5913.] ^"^ Definition of terms, "In this title the term 'will' includes codicils." [R. S. §5913.]"^* 139 Shaham vs. Swan, 48 0. S. 25. worth more when paid for in the 140 Shaham vs. Swan, 48 0. S. 25. future. Norris vs. Clark, 3 Bull. 1*1 See discussion of this subject, 994. § 75, Page on Wills, 86. l« Emery vs. Darling, 50 O. S. 142 Page on Wills, 90. 160; Page on Wills, 91; 36 Cyc. On promise to pay by will, the ^^^• damages are the value of the serv- i** ^^ge on Wills, 97. ices when rendered, but without in- |*^^ ^'^^ Schouler on Wills, 451, terest until after the death. It is a j^g p ioq-io p p question of fact whether services are i45» s 10502 G C 933 WILLS HOW MADE § 1084 CHAPTER LY. WILLS. EXECUTION. § 1034 How will made. § 1035 In writing. § 1036 Will being on several pieces of paper. § 1037 Signed at the end. § 1038 By party making the same. § 1039 Signed by other person. § 1040 Attestation. § 1041 Subscription. § 1042 In presence of testator. § 1043 Two or more competent wit- nesses. § 1044 Effect of a person being a devisee or legatee. § 1045 Who saw testator subscribe or heard him acknowledge. § 1046 Suggestions for drawing wills. f 1047 Form of will. §1034. How will made. "Except nuncupative wills, every last will and testament must be in writing, but may be hand- written or typewritten. Such will must be signed at the end by the party making it, or by some other person in his presence and by his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge it." [R. S. §5916.]^ § 1035. In writing. In our State there can be no valid will except it conforms to the provisions of the above section. Except nuncupative wills, every will must be in writing. It may be written by a pen as in ordinary writing, or it may be printed or lithographed or typewritten.^ " In writing," as used in this section, would include a will which was partly printed and partly written.^ 1 § 10505 G. C. A faulty execution of a will may be remedied by a codicil. See § 1177. See Sears vs. Sears, 77 O. S. 104. In the interpretation of the statute the intention of the legislature con- trols. 2 Page on Wills, § 159, p. 181. sRouseh vs. Wenzel, 15 C. C. 133; 8 C. D. 141. A testamentary clause in a will disposing of the testatrix's property after death, in case she does not recover, is a contingent will, and valid if recovery does not happen. Underwood vs. Rutan, 65 Bull. 268; Supreme Court (1920); 101 0. S. A will may be executed on the [Lord's day. Bennett vs. Brooks, 9 Allen (Mass.) 118. § 1036 WILLS EXECUTION 934 It may also be "uritten in lead pencil,* and it may be written on any material which can be used to write upon. But it has been held that a will written on a slate is so easily altered, that it should not be recognized as a valid will.^ Where, in accordance with the custom of a country, a will was written in a book, it was held proper, and if the book could not be produced an authenticated copy could be admitted to probate.® The will may be written in any language; it is not necessary that it be the English language ncr that it be a language with Vvhich the testator is acquainted, but it must be shown that he understood what the will contained. If a will was written in a language that the testator did not understand, it seems that the burden would be upon the person propounding the will to establish the fact that the will was made in conformity to the idea of the testator, A will ought also to be written in the simplest and plainest words that express the intention of the testator, and the person drafting the will should be careful to use the words that will carry into effect the ideas of the testator. '^ § 1036. Will being on several pieces of paper.'^ A will is valid if written upon several pieces of paper.' It is valid even if the testator's signature is on a piece of paper separate from the dispositive clauses of the will ; and it is held that it is not necessary that these papers be fastened together if their sense connects them. But it must be shown from the several pieces of paper themselves that they constitute but one entirety.® 4 Harris vs. Pue, 39 Md. 535 ; Where a disposition clause is Myers vs. Vanderbilt, 84 Pa. St. placed in the margin before it is 510; Knox Estate, 131 Pa. St. 220. signed by the testator, this Avill 5 Reed vs. Woodward, 11 Phila. make the will void, as it is not 541. then signed at the end. Fac simile 6 Faber's Estate, 7 X. P. 561; 5 of will, on page 3r8, of Irwin vs. Dee. 575. Jacques, 71 0. S. 395. 7 Page on Wills, 182. The mere fact that the testator 7a Cited Chaney vs. Coulter, 29 O. writes the will himself will not do C. C. 186. away with the requirement that he See § 1046. must sio^n at the end. Sears vs. 8 Bond vs. Seawell, 3 Burrows, Sears, 77 O. S. 104. For criticism 1773; Barnewall vs. Murrell, 108 of this case, see 5* Bull. 137. Ala. 366; St. John's Parish vs. Where a will is written on a Bostwick, 8 App. D. C. 4'52: Jones blank form, and there is a space vs. Habersham, 63 Ga. 146; Harp of twenty-one inches between the vs. Parr, 168 111. 459; Ela vs. Ed- last disposition part and sisnature, wards, 16 Gray (Mass.) 91; Burn- it is sicrned at the end. Mader vs. ham vs. Porter, 24 N. H. 570; Apple, 6 N. P. (X.S.) 592; 80 0. S. Grubb, Estate of, 174 Pa. St. 187; 691; reversing 18 Dec. 301. Ginder vs. Farnum, 10 Pa. St. 98; tjpg Cruft vs. Wilber. 9 N. P. Wikoflf's Appeal, 15 Pa. St. 281; (X.S.) 161; 19 Dec. 421. Gass vs. Gass, 3 Hump. (Tenn.) 9 Page on Wills, 182, §161. 278. 935 IN SEVERAJ. PIECES • §1037 From the proposition that a will may be written on several pieces of paper, follows the doctrine that a document or writing may be made a part of the will by reference, the same as if copied in the will. " In order to incorporate," says a distin- guished author,^" " three things are necessary. 1. The will itself must refer to such paper to be incorporated (a) as being in existence at the time of the execution of the will, and (b) in such a way as to reasonably identify such paper in the will, and (c) in such a way as to show testator's intention to incorporate such instrument in his will and to make it a part thereof. Thus a paper placed with a will is not a part thereof where the will shows no intention to incorporate it " 2. Such document must, in fact, be in existence at the time of the execution of the w^ill. If this were not the rule testa- tor could, by executing a will and incorporating therein a docu- ment to be executed in the future, create for himself a power to dispose of his property in a testamentary manner by an instru- ment not executed in accordance with the statute of wills. " 3. Such instrument must correspond to the description thereof in the will and must be shown to be the instrument therein referred to."* § 1037. Signed at the end. It is the obvious and general recognized object of the Legis- lature in requiring a testamentary paper to be signed at the foot or end thereof, to prevent the possibility of fraudulent interpo- lation between the will and the signature of the testator after execution.^^ The general meaning attached to the requirement that the testator must sign at the end, means that he must sign at the end of the dispositive parts of the will ; and it has been held to comply with the law where the testator signs either before or after the attestation clause. And where there are blanks in a 10 Page on Wills, 183, § 162. hered to the face of the sheet, and 11 Judge Dickman, in Baker vs. underneath this attached paper orig- Baker, 51 O. S. 217. inally there were written other A will executed on Sunday is words which are entirely covered valid. See Gedding vs. Schmid, 37 and obscured by it, and there is no Cyc. 565; 20 0. C. C. (N.S.) 142. testimony showing when or for what See Thompson on Wills, § 152, purpose this change was made in the where authorities are cited on in- original construction of the paper, corporation by reference. Newton but the words vipon the attached vs. Seaman's Friends, etc., 130 Mass. slip are proved to have been writ- 91. ten by the testatrix and are so ^Vhere in the physical construe- framed in the will with reference to tion of a will, a piece of paper, ruled what precedes and follows that the and very similar in all respects to literary construction is complete, it the body of the paper, has been ad- will be presumed that the paper, § 1037 WILLS EXECT/TION 936 will, even though such a blank would permit interlineation, yet a will signed after the last clause of such an instrument is held to be signed at the end thereof.^^ Although the Courts do not look with favor on wills executed in this manner, for wide blanks in a will permit the very thing which it is the object of the statute to prevent, to-wit, inter- lineation. Yet where the writing is incorporated by reference, and the original writing is signed at the end, this complies with the statute. It is sometimes a matter of no little diflBculty where the writing is placed on a will after the testator's signa- ture, to determine whether such writing invalidates the entire will because it is not signed at the end. In an Ohio case it was held, where a decendent in his life- time drew a will and signed it, but without having it witnessed, and afterwards added thereto a clause making an additional devise of the property mentioned in the will, and then caused it to be subscribed by two witnesses, but without again signing the same himself " at the end thereof," as required by the '' act relating to wills :" that the whole instrument was invalid as a last will and testament.^^ Generally in such cases if the writing added was a part of the original will, as intended by the testator, subsequent matter written thereon will not aifect the original will unless it is signed and witnessed as a codicil. In such a case the ques- tion of the intention of the testator must govern. If the part added to the will after the testator's signature, even though made at the time of its execution, does not make a disposition of his property, the same will not atfect the will. Thus it has been held in our State that where the testator wrote after his signature, "My sister-in-law is not required to give bond when probated," that it did not invalidate the will.^'* Where, after signing his name the testator added a clause, directing the executor to sell certain realty, and devote the pro- ceeds to pay the debts and legacies and then the witnesses signed, it was held that the will was invalid as not signed at when it was intended to be made to. In re Buffington's Will, 88 Atl. final by subscription and attestation, 1093 (N. J., 1914). contained tlie attached slip in ques- 12 Page on Wills, §§ 183 and 184, tion. Estate of Nicholson, 49 Bull. p. 202. 379; reversed, 72 0. S. 104. 13 Glancy vs. Glancy, 17 0. S. 134. Where an interlineation was made i^ Baker vs. Baker, 51 0. S. 217. after the will was subscribed, but The recent case of Irwin vs. Jac- before it was published or the ques, 71 0. S. 1905, will no doubt signature acknowledged, the will, be the leading case in Ohio, as to with the interlineation, was signed wliat constitutes signing at the end. at the end though the testator did In this case, at the suggestion of not again subscribe his name there- the testator, and before he signed the same, a clause disinheriting any 937 SIGNED AT END § 1038 the end." In our State, however, the Court would probably have held that such a direction did not invalidate the entire will/' § 1038. By party making the same. It has always been absolutely essential that the testator must in some way sign the will. To write out '^ One's own name in full," says Schouler, " is doubtless the safest course as vwll as the most natural ; for such compliance best indicates a ra- tional mind, free will, and physical power at the date of exe- cution. But, undoubtedly, the making of his mark or cross by the testator will satisfy the statute ; and that, too, as various cases rule, notwithstanding he was able to write at the time.^** The testator may sign his name by writing it out in full or by abbreviating it, or by writing the initials of his Christian name, or by using an assumed name where not done with in- tent to deceive. Misspelling the name signed does not in- validate the will. The signature may be in ink or with a pen- cil, or with a stamp, or a seal.^' The testator may sign by mark if he is in good health. How- ever, it is not a safe thing to do, as it may give rise to suspicions of fraud or forgery ;^^ but such a mark must be made with the intention of being considered the signature of the testator.^® If the name by the mark is written incorrectly, such mis^- take does not invalidate the will. Where a person guides the course of a pen or traces his own name while the name is writ- ten by another, this would be his own signature and made by himself. If the right instrument is intentionally signed as one's own will, a mere misnomer or discrepancy of signature does vitiate the paper, provided its genuineness be duly established. As where the will of T. D. describes the testator throughout by child that should contest the will, clause and it was held that the will was written on the margin, opposite was signed at the end. The holding to the name of the testator, and it goes to the extreme and justly sub- was held the will was not signed at ject to the criticism made in 53 the end, althougli it was admitted Bull. 137. that the testator intended it to be a l^* Schouler on Wills, 303. part of his will. 17 Page on Wills, 191, § 172. 15 In re Blair, 1.52 N. Y. 645. 18 Page on Wills, 193. 16 See Page on Wills, 203, § 186; 19 But where testator tried to sign Schouler on Wills, 312; Woerner on the will himself, and was unable to Admin. 64. do so from weakness, a small line See note § 1036. Tn the case of made by him in such unsuccessful Sears vs. Sears, 77 O. S. 104, the attempt, not intended by him as a testator attached her name in the signature, is not a mark within the attestation clause and not after or meaning of the law. Page on Wills, immediately below the testimonium 192. § 1039 WILLS — EXECUTION 938 a wrong name, such as C. D., and he signs it by his righf- one, or where against the testators mark a "wrong name is written, the will describing him by the right one.^° § 1039. Signed by another person. If the testator for some reason is unable to attach his signa- ture, it may be done by some other person in his presence, and by his express direction. It will be observed from the statute, that two things are essential in thus attaching the signature of a testator : it must be done in his presence and by his ex- press direction. In the absence of statute, the signature could not be so attached. As t-o what shall constitute his presence, will be discussed under a subsequent section when treating of how a will must be witnessed. The' same rules apply in order to constitute " in the presence of the testator " in both cases. As to what shall constitute au express direction, it must be such action either by words or otherwise on the part of the testator, as will convey to the person who is to attach his signa- ture, the idea that it is the will of the testator to which the tes- tator wishes such person to attach his signature. Thus it was held that where an attorney had drawn a will and then said to the testator, " you can make your cross, and I can sign for you if you so direct," and the testator said, " very well ; do so," that this was. a sufficient request."^ Under our statute there need be no special reason why the signature is attached by another person, although, as was said in a previous section, when a person is able to attach his own signature, and does not, it gives suspicion of fraud. There is no particular limitation as to who may attach such signature in our Sti'fp.'"" 20 Schouler on Wills, 310; Woer- space in the printed attestation ned on Admin. 63. clause immediately under dotted Where a testatrix did no writing lines intended for the signature, and in the presence of the witnesses of the will was not otherwise sub- her will and they did not observe scribed or acknowledged, said signa- her signature thereto because the ture is signed at the end thereof in paper was folded in such a manner compliance with the requirement of that they could not see whether it §5916 Rev. Stat. E-state of Xich- was signed or not, but both were olson. 49 Bull. 379 (1904). perfectly cognizant of the fact that ^^i Page on Wills, 195, § 176. they were subscribing and attesting 22 See Trembly vs. Trembly, 11 a will and not any other document, Bull. 59, where it was held that a and the testatrix's name is written witness to a will could write the at the end of the paper writing, name of the testator, but so placed as to be within a blank 939 ATTESTATION § 1040 "Tlie best method in signing a will in such a case," says Page,-^ "is to write the name of testator, followed by the state- ment that it was written ])y subscriber, naming such subscriber, in the presence of testator and at his express request. But such accuracy of statement is. not indispensable unless demanded by the provisions of the statute." It has been held that if the name of the testator be written by another in the will and a place, is left for the testator to make his mark, which is not done by the testator, that this would not invalidate the will, if it was shown that the testator had adopted such signature as his own."* The fact of such signing and the authority to sigTi, when done in the absence of the attesting wit- nesses, may be shown by tlie acknowledment to the witnesses, or by other competent testimony, or may be presumed from the. facts and circumstances of the case.^^ § 1040. Attestation. The signature of the testator, whether made by himself or by another for him, must be attested and subscribed by two or more witnesses, etc. Unless statute required, it would not be necessary that the wrll be attested or subscribed by witnesses.^^ Some Courts have been inclined to treat these two words, at- test and subscribe, as synonymous,^^ but I think it may be safely 23 Page on Wills, 196, § 178. 26 Page on Wills, § 188, 207. 24 Cleveland vs Spilman 25 Ind. 27 " it would be difficult, no doubt, 95; Page on Wills, 198, § 179, pro- ^ ^. . ^ •, , ^ ^v,\ , 1 vidpd it is signed at the end. ^^ satisfactorily define that element 25 Haynes vs. Haynes, 33 0. S. in the attestation of a will which 598. is not also present in the mere sub- Where a will has been signed for scription to a will. No physical act the testator by another person, in is required in the one which is not his presence and by his express di- also required in the other, and it is rection, in the absence of the attest- not clear what mental act or fact ing witnesses, the acknowledgment appropriate to the one is absent of the fact by the testator in the from the other, and the definitions hearing of the witnesses, which is of the most recent lexicographers do requisite, is not required to be made not make it quite perspicuous. The in any particular form of words of Century Dictionary defines an at- any specified manner; but, if by testing witness to be a person who signs, motions, conduct, or attending signs his name to an instrument to circumstances the attesting witness- prove it and for the purpose of es are given to understand, by the identifying the maker or makers. _ testator, that he acknowledges the The Standard Dictionary defines at- signature thereto as his^ and the in- testation to be the subscription by st.rument itself as his will, it is suf- a person of his name to a written in- ficient. Haynes vs. Haynes, 33 O. S. strument to signify that the same 698. §1040 WILLS — EXECUTION 940 said from the syllabus of the case of Keyl vs. Feuchter,^^ that they are not to be treated as synonymous in this State. Attesta- tion is the act of perceiving the performance of the various acts necessary to the legal execution of a will; and while our stat- ute has not in expressed terms provided that the witness must know that the paper he is signing is a will, yet our court has followed those courts which hold that in order to constitute a valid execution, the witness must know that it is a will.-^ In other words, our court has declared, although the statute does not in express terms, so require, that the testator must make a publication of his will, and by attesting the will, therefore, the witness attests that the paper he signs is the will of the testator, and not merely that it is the signature of the testator; and further he also attests that the testator is of legal age, has a sound mind and memory and not under any restraint.^" Draftsmen in making a will too often neglect this important feature, and witnesses often sign such an instrument when they think they are only attesting the signature. The distinction between attestation and subscription has been clearly drawn by the Supreme Court of Kentucky.^^ It certainly is very was executed in his presence, or that it is correct. Since it is well settled in this state t -^t it is not necessary to the validity of a will that the witnesses at the time when they at- test it, shall know the nature of the instrument that they are attesting (Allen vs. Griffin, 69 Wis. 529), it is not clear what, if anything, attestation is intended to add to the mere fact of subscription." Skinner vs. American Bible Society, 92 Wis. 209; Page on Wijls, 209.' 28 56 O. S. 424. Recently the Supreme Court has held that it is not necessary for the witness to know that it is a will, the second syllabus being: "Where two sub- scribing witnesses have seen a testa- trix subscribe her name to a will by directing another to sign her name thereto in her presence, the testatrix attaching her mark there- to, and the signature so made is then attested and subscribed by said witnesses in the testatrix's presence, the will is properly executed. In such case it is not necessary that the testatrix declare that the instru- ment is her will or that she has signed it." Kevl et al vs. Feuchter et al., 56 Oliio St. 424, distinguished Underwood vs. Rutan, 65 Bull. 268; 101 0. S. — (June 8, 1920). 29 Keyl vs. Feuchter, 56 0. S. 424; Missionary Society vs. Ely, 42 Bull. 273; Page on Wills. 247, ■^§ 227. 30 See Page on Wills, 228, § 208. 31 "To attest the publication of a paper as a last will," observed Rob- ertson, C. J., of Kentucky, in 1840, "and to subscribe to that paper the name of the witnesses, are very dif- ferent things, and are required for obviously distinct different ends. Attestation is the act of the sense; subscription is the act of the hand; the one is mental, the other me- chanical; and to attest a will is to know that it was published as such, and to certify the facts re- quired to constitute an actual and legal publication; but to subscribe a paper published as a will, is only to write on the same paper the names of the witnesses, for the sole purpose of identification. Schouler on Wills, 330. Acknowledgment by the testatrix of either the will itself, or of her signature, is a sufficient acknowledg- ment or publication of the will, as required by § 5916 Rev. Stat. Keyl vs. Feuchter, 56 Ohio St. 424, explained. Estate of Nicholson, 49 Bull. 379. 941 SUBSCRIPTION § 1041 questionable whether a person can attest a will without being conscious of the fact that the paper to which he attaches his signature is a will.^^ § 1041. Subscription. Subscription is the act of tlie attesting witness in signing his name upon the will to identify the instrument thus attested. This subscription, like that of the testator's, should be made in his full name, but such is not indispensable. The witness may sign his initial or an assumed name, unless such name is as- sumed for the purpose of deceit or a witness may sign by his mark,^^ but the statute does not permit the signature of a wit- ness to be made by another. This does not prevent the witness from signing by mark or even tracing his own name, for this is not the signature of another, but the signature of the witness.^* It is not required that the witnesses sign at any particular place on the will, but it must appear that their names were signed with the intention of attesting and subscribing the in- strument. Of course, the witnesses cannot sign their names before the testator signs his, unless the signature of the testator and witnesses are all made at the same time and form one transaction.^^ It is usual in the mailing of a will to add a full attestation clause.^® While it is not indispensable, it is said,^^ " a full at- testation clause is of the highest value. It removes all doubt as to the animus attestandi, and on proof of the signature is 32 An inferior court has held that clause is as follows: "Signed, and if the witness attests the signature foaled by the said testator, as and " for his last will and testament, in of a party to an instrument, al- ^-^^ presence of us, who at his re- though he does not know that it is quest and in his presence, and in a will, that it will be sufficient to the presence of each other, have entitle the will to probate. In re l^fjeunto subscribed our names as attesting witnesses. Ihis. it is per- Wilhamson, 6 N. P. 81; 8 Dec. 47. ceived, recites some details useful See Missionary Soc. vs. Ely, 42 on such an occasion, but not under Bull 273 most of our codes absolutely indis- 33 Page on Wills. 238, § 219; P^^^'^J^^^' ^' w^r oL ^loo^ ^*^' ^ ' *" ' 37 Page on Wills, 244, § 223. Schouler on Wills, 331. Tj^j^ j^ ^^ ^iH j ^^^^ ^^^ ^ 3* Page on Wills, 239, § 220. witness it, is a sufficient acknowl- 35 Page on Wills, 241, § 222. edgement. Eggleston vs. Gardner, 36 A good form of attestation ^^ ^- ^- ^- ^^^' § 1042 WILLS EXECUTION 942 prima facie evidence that the acts therein recited have all been properly done. This is true even where the subscribing wit- nesses have forgotten what took place at the time of executing the wilh"'« § 1042. In presence of testator. The statute requires that if a person signs the name of the testator by his request, it shall be done in his presence and also that the witnesses sliall sign their names in his presence.^^* The question arises, what constitutes " in presence of testator ? " This matter has been a subject of extended discussion by Courts and text-book writers. In the first place, the testator must be in a condition to know and understand what is being done before an act can be said to be done in his presence. Thus if he is so faint or asleep or in a stupor or dying, so that he is not able to know what is being done, it cannot be said to be done in his presence.^® The design of the Legislature in requiring witnesses to sign in presence of the testator, was, as English authorities state, tliat the testator might have ocular or other bodily evidence of the identity of the instrument subscribed by them : and this de- sign the Courts have kept steadily in view, while fixing upon the legal sense of the word " presence."*" Carrying into effect this idea above stated, the English Courts have held with strictness that a signature of a witness attached to a will at a place where it was impossible for the testator to see the act done, was not in the testator's presence. A difficult question that Courts have contended about is, where the signature of the witnesses was attached in such a place that there was no visible obstacle preventing the testator from seeing the act done. If the act is done in the same room with the testator, it is prima facie done' in his presence,*^ while if done 38 Page on Wills, 244, §223; 4i Ayres vs. Ayres, 43 N. J. Eq. Schouler on Wills, 347 ; Randebaugh 565; Stewart vs. Stewart 56 N. J. vs. Shelley, 6 0. S. 307; Carpenter Eq. 761. vs. Denoon, 29 0. S. 379. A witness signing before the tes- 38* But witnesses are not required tator signs does not invalidate the to sign in each other's presence. will where the signing was one 39 Page on Wills. 229, § 209. continuous transaction, Slemmons 4oSchoulpr on Wills, 340; Jarm. vs. Toland, 25 O. C. C. (N.S.) 485: Wills, 86, 87. 5 0. App. 201. 943 IN PRESENCE OF TESTATOE §1042 in another room, it is prima facie done out of his presence."* In either case the presumption is only prima facie, and may be rebutted,*" for one who can see, the test of presence, as far as physical proximity is concerned, is that the act must be done where he can, with reasonable effort, see what is being done, so as to identify the whole act. If he can, with reasonable efforts, see what is being done, it is not necessary that he actually see it." As before stated, the general rule seems to be, that the act must he done within the range of the vision of the testator. Our Supreme Court has not passed upon this question. There has been a departure from this rule by some of the courts, which hold that if the testator was in such a position that he knew w^at was taking place, and that he knew, or acknowl- •ti* Lamb vs. Girtman, 26 Ga. 625; Lamb vs. Girtman, 33 Ga. 289. 42 Hopkins vs. Wheeler, 21 R. I. 533; 45 Atl. 551; Page on Wills, 230, § 210. 43 Page on Wills, 231, § 210. Page on Wills says, that an an- alysis of the adjudicated cases will show that the weight of authority established the following proposi- tion: 1. If the person in whose presence the act is to be done can see what is taking place by changing the di- rection of his gaze, without moving from the place where he is at the time; and he is able to change the direction of his gaze without pain, discomfort or danger, the act thus done is done in his presence. 2. If the testator is so situated that he can not see what is taking place without leaving his place, and he does not leave it, the act is not done in his presence; even though he was able to move with comfort. Thus, where a door-shutter was par- tially closed so that testator could not see the witnesses sign without moving, and he did not move, it was held that the act was not done in his presence. Where the witnesses: signed in an adjoining room, and testator could have seen them sign by walking to the door and looking into the next room, v/hicli he did not do, the will was not attested in his presence. 3. If the exertion necessary for such person to change the direction of his gaze, is painful but not dan- gerous, it seems that the act is not done in his presence, unless it is done where he can see the transac- tion without making svich painful exertion to change the direction of his gaze. 4. Likewise, if the exertion neces- sary for him to change the direction of his gaze, is dangerous to his life, an act done where he does not in fact see it, but where he could see it by changing the direction of his gaze, can not be said to be done in his presence. 5. If it is physically impossible for him to move, so as to see the act done, such act can not be said to be done in his presence. Page on Wills, 232, §211. See Piggs vs. Riggs, 135 Mas9. 238; Eaymon vs. Wagner, 178 Mass. 315. §1042 WILLS EXECUTION 944 edged that he knew, the witnesses had attached their signatures to his will, it would be sufficient.** Where the strict rule is in force, it is held that if the witness sign out of testator's presence and afterwards acknowledge in his presence that they signed their names, the will is in- valid ; and retracing their signature' with a dry pen is nothing more than an acknowledgment, and to retrace the former signa- ture with a dry pen is not a signature by the witness.*'^ It seems that a proper rule to adopt in such cases would be, dia the testator know that tlie witness had attached his signature to the testator's will, or was the witnesses signature attached at such a p]ace that it is reasonable to presume that the testator did know that the witness attached his signature as a witness to his will. Where a person is blind, the act must be done in such 44 Page on Wills, 234, cites the following cases : In Riggs vs. Riggs, 135 Mass. 238, the witnesses signed in the same room with the testator about nine feet away from him. He lay on the bed flat on his back, and by reason of an injury to his neck could not turn his head so as to see the witnesses sign the will, though his sight wao unimpaired. He knew what was taking place and had re- quested the witnesses to sign. Held, such signature was in his presence, citing and refusing to follow Aiken vs. Weckerly, 19 Mich. 482; Downie's Will, 42 Wis. 66; Jones vs. Tuck, 3 Jones (N. Car.) 202; Graham vs. Graham, 10 Ired. Law, 219. On similar facts the same view of what " presence " means was taken in Cook vs. Winchester, 81 Mich. 581; 8 L. R. A. 832. In Smith vs. Holden, 58 Kan. 535, the evidence developed that a wit- ness had been inattentive and ap- parently had gone into an adjoining room at the moment of signature by testatrix and returning had found the act done. The Court held that even if the witness did not see the signature written and heard no ac- knowledgment thereof, it was never- theless signed in his presence. Speaking of the witnesses, the Court said: "If not at all time within her (the testatrix's) sight and hear- ing, they were within the circle and continguity of her presence." In Cunningham vs. Cunningham, 83 N. W. (Minn.), (1900) 58, testator signed the will in the presence of the witnesses. They then stepped into the next room to a table and subscribed their name to the will. Testator could have seen them sign by arising from the chair in w\iich he was sitting and stepping forward about three feet; but by preference he remained in the chair from which he could not see the table. In less than two minutes tlie witnesses re- turned with the will and painted out their signatures to testator, who looked over and pronounced it " all right." This was held to be a valid attestation in the presence of tes- tator. 45 See Page on Wills, 235, § 215, and cases there cited. 945 COMPETENT WITNESSES § 1043 proximity to the testator, that he can, by means of his remain- ing senses, know what is being done/" § 1043. Two or more competent witnesses. In order to be a valid will, it must have two or more compe- tent witnesses. If it has a less number than two, the will is not sufficiently attested. By " competent witnesses " is meant that the persons subscribing their names are qualified to testify under the rules of evidence in force at the date of the execution of a will.*'' In our State there is no disqualification except as provided in. the subsequent section. Where a person is a legatee, he disqualifies himself by being a witness to receive un- der tlie will. As a general rule it may be said that idiots, lu- natics and insane persons would be incompetent to serve as subscribing witnesses to a will. But even in a case of this kind, where the. insanity was of a mild form, it would be a question whether the witness would be incompetent. Infants less than fourteen years of age might be presumed to be incompetent, but this incompetency might be removed by proof to the con- trary.*^ An executor is a competent witness to a will. So may an attorney whom the will provides shall be employed by the executor.*^* § 1044. Effect of a person being a devisee or legatee. **If a devise or bequest is made to a person who is a witness to the will, and the will can not be proved except by his testimony, the devise or bequest shall be void. The witness shall then be competent to testify to the execution of the will in like manner as if such devise or bequest had not been made. If he would have been entitled to a share of the testator's estate, in case the will was not established, he shall have so much of such share as does not exceed the bequest or devise to him. The devisees and legatees must contribute for that purpose in the mode here- 46 Page on Wills, 235, §214; relation or otherwise. A person un- Schoiiler on Wills, 24.3. der fourteen years of age or of weak -17 Page on Wills, 210, § 191. mind, should never be taken as a '** Schouler on Wills, 352. witness 'to a will, except where no 4Ha\Vyni!in vs. Synines, 10 Allen. others are obtainable. No person (]\Iass.) 153. should be a witness who receives 4si)/,j re Richards Estate, 143 N. property under the will. Pease vs. W. (Iowa 1914) 1100. AUis, 110 Mass. 474. Neither wife The draftsman of a will ought to or child should be a witness, yet it exercise care in the selection of per- was held that a child who was dis- sons asked to become witnesses to a inherited by the will might be com- will. It is better in all cases not petent. Sparhawk vs. Sparhawk, only to take what might be termed 10 Allen (Mass.) 155. And a mem- competont witnesses, but also those ber of a corporation to which prop- that are disinterested, by way of erty is given for charitable uses, § 1045 WILLS EXECUTION 946 inafter directed for an absent or after-born child." [R. S. §5925.]*^ The above section of the Revised Statute does not destroy the competency of a witness, but invalidates whatea^er portion the will may have giVen to him. If he is an heir it places him in the same position as he would have been in if the testator had died intestate; and the statute would also apply only to where the bequest or devise was made to the witness in his own behalf, and would not defeat a bequest or devise which was made to him in trust or otherwise.^" § 1045. Who saw testator subscribe or heard him acknowledge. In order for the witness to be competent, he must either have seen the testator write his name to the instrument or heard him acknowledge the same. The ordinary meaning of this lan- guage would be, that by acknowledging the same, the testator acknowledged that the signature to the will is his. Our Su- preme Court, however, seems to have given a wider significa- tion to this term " acknowledge."^^ For it is said that " one essential to the admission of a paper or writing, purporting to be a will, to probate is, that it shall be acknowledged by the maker as his will, and his signature also acknowledged, in the presence of two subscribing witnesses. °^ So in our State, whatever the rule may be elsewhere, it is necessary that the testator acknowledge that the instrument to which the witness is to attach his signature, is his will ; and if the testator has previously attached his signature he must also acknowledge that the signature to the paper presented is his. This rule in effect, requires the testator to malce what is known as a publication of his will. This may be done in any method held competent. Loring vs. Park, Co. vs. Lushev, 11 C. D. 52; 20 C. 7 Gray (Mass.) 1856. C. 198. 49 § 10515 G. C. 51 Keyl vs. Feuchter, 56 O. S. 424. This section is not applicable to See Curry vs. Horner, 43 Bull. 273. verbal wills. Vrooman vs. Powers, 52 Id, 47 0. S. 191. See § 1040 G. C. Estate of Xicli- As to what will constitute proper olson, 49 Bull. 379. witnesses to a nuncupative will. In Tims vs. Tims, 32 0. C. C. § 1158, et seq. 589, it is expressly held that the 50 Page on Wills, 213, §194; witness must know' at the time he Schouler on Wills, 353, 358. is attaching a signature that it is This section does not repeal a will. See 40 Cyc. 1115. § 10503 G. C, but simply places a Other courts have declined to limitation upon it. German Ins. follow this decision. See § 1040, recent holding of Supreme Court. 947 SUGGESTIONS DEAWING WILLS § 1046 whereby he communicates to the witnesses that the instrument is his wilL^^ In the same manner he may maJ<;e an acknowledg- ment to the signature already made. The acknowledgment by the testator that it is his will or his signature, must be made by himself or by some one else in his presence and by his knowledge.^* § 1046. Suggestions for drawing wills. In drawing a will, the following suggestions are given. 1. In the first place, let me say, that too much care cannot be exercised in the making of a will. It differs from other instruments, in one important feature, in this, after the death of the testator it cannot be changed, it must stand as it has been written, and Courts can only give construction to the words it contains. If a mistalvc has been made, no matter how clear and how satisfactory it may appear, yet the will must stand as it is written. Furthermore, where not required by tlie exigencies of the case, it should not be written hurriedly. 2. In the second place, the draftsman should require the testator to give him full information as to all the property he possesses, where it is situated, and by what title he holds the same. Also whether it is incumbered by mortgage' or other- wise. 3. In the third place, the draftsman should get from the testator, the real purpose and manner in which he wishes to dispose of his property. 4. He should explain to the testator, the claims that the law places upon his property, which he has no power to alter by testamentary disposition. That is, the testator should be in- formed that his debts must be paid, and that his wife has a 53 Haynes vs. Ilaynes, 33 0. S. liis will, if the witnesses were 50'8 ; Page on Wills, 246, § 226. present when the testator subscribed 5* Pago on Wills, 224, 227, § 205; the same. The Court says the stat- /n ?-c Williamson Estate, G N. P. 81; ute requires either and not both. 8 Dec. 47, in the Common Pleas This seems to be in conflict with the Court, reversing the decision of the decision of the case of Keyl vs. Probate Court, held that it was not Feuchter, 56 0. S. 424. necessary that the testator had to See Estate of Nicholson (1904), acknowledge the instrument to be 49 Bull. 379. § 1046 WILLS EXECUTION 948 dower in his real estate, and is entitled to a certain portion of the personal property on distribution, and that certain prop- erty will be set aside to the widow and children for their year's sustenance. 5. He should inquire of the testator if any property is to be sold, whether the same is to b© done by the executor without order of court. The draftsman should then place in writing, the express wish of the testator. He should be careful that the words used axe understood by the testator, and tliat they are such words as the law will construe to carry into effect the in- tention of the testator. If any technical words are used, he should be careful that the testator understands their meaning. The draftsman should remember that he is making the testator's will and not his own, and not to influence the testator in any manner. 6. In the execution of the will, the draftsman should see that the testator signs the same at the end thereof, and that two witnesses attest the testator's signature, and that the witnesses either see the testator write his name or hear him acknowledge that tlie signature is his. He must further see that the testator, or some one for him, infoiTns the witnesses that the paper which they are attesting is testator's will. 7. The draftsman should call the witnesses' attention to the fact whether the testator is in his right mind, and understands the nature of the transaction, as well as to the fact, whetlier the will is the free expression of the testator — that is, that it is not made under restraint. 8. The will should be written on one piece of paper, or if on several, they should be^ so attached as to constitute one entirety. If any interlineations are made, it should be stated that they were made before the will was sigTied by the testator. The will should be so written that interlineations or changes can not easily be made without detection. Mr. Jarman suggests the following considerations: 1. That in a devise of real estate there be accurate descrip- tion, and that where the same estate is described by boundaries, 949 FOBM OF WILL § 1047 and the name of the occupant, care be taken that both, precisely concur. 2. That where an estate is devised to a class not certain to be in existence at the death of the testator, provision be. made for the disposition of the intermediate profits of the estate. 3. That where any particular funds are set apart for the pay- ment of debts, it should be clearly defined whether it is the in- tention of the testator to thereby exonerate the general per- sonalty from being primarily liable to that charge. 4. Instructions for wills should be taken from the testator himself, rather than from third persons, particularly where such persons are interested. § 1047. Form of will. I, A. B., of Cincinnati, Hamilton County, Ohio, do hereby make my last will and testament. I appoint my son, C. D., sole executor of this will and direct that he shall not be required to give bond in qualifyng as such executor. I give and bequeath to E. T., G. H. and I. J. the sum of one thousand dollars each. I give and bequeath to my servant, K. L., the sum of one hundred dollars. All the residue of my estate, real and personal, I give, de- vise and bequeath to my children, C. D., M. N. and 0. P., to be divided among them in equal portions. In testimony whereof, I have hereunto set my hand this first day of September, in the year of one thousand, eight hundred and ninety-four. A. B. Signed, published and declared by the above-named A. B. as for his last will and testament in presence of us, who in his presence and in the presence of each other, and at his request have hereto subscribed our names as witnesses. Q. R. S. T.BB B5 The object of this full attesta- tation clause to contradict such per- tion has been referred to in the sons, or possibly without it, wills previous § 1040. As to the advan- have been established in proof, tage of such a full attestation against the concurring statements of clause, Schouler says : " The ad- both subscribing witnesses or the vantage of an attestation clause statement of either, that the legal with suitable recitals is shown in requirements of execution were not many of our decisions relating to fully complied with. And wher- the proof of wills. Where, indeed, ever these witnesses fail to recollect there is nothing but a formal attes- and give no positive testimony, or tation clause on one side, and the cannot, both or all, be produced in testimony decidedly adverse of all Court, the clearer the recitals of an Bubscribing witnesses on the other, attestation clause, the stronger be- probate of a will has been refused. t-omes tlie presumption that the will But, with the aid of a proper attes- was executed in all details as th« U047 WILLS EXECUTION 950 law requires. It matters little, un- der such circumstances, that sub- scribing -witnesses can not testify affirmatively to the facts thus re- cited; that the memory fails; that details are not orally shown with clearness. And though the attesting witnesses were all dead cr beyond the reach cf process, proof of their handwriting would in general make out a prima facie case of due exe- cution, which, if aided by the re- citals cf a full attestation clause, would afford a very strong presump- tion, unless the contrary appeared on the face of the will. Schoulcr on \Yills, 347. The testator should be asked in the presence of witnesses if the in- strument they are asked to witness is his will, and the witness might also be asked to notice the condi- tion of the person making the will. See Missionary Society vs. Ely, 42 Bull. 273, where the Supreme Court confirmed without report a Circuit Court decision, holding that the wit- ness must see the testator write his name or hear him acknowledge the same and know that the instrument he is witnessing is a will. See Haynes vs. Haynes, 33 0. S. 598. The draftsman should especially call the attention of the witnesses to the matters recited in this full at- testation. If such is done many troublesome questions arising in the probate of a will, will be avoided. 951 JEIBVOCATION OF WILLS §1048 CHAPTER LVI. REVOCATION OF WILLS. § 1048 General principles. § 1059 § 1049 How will expressly revoked or cancelled. § 1050 Tearing, etc. § 1051 Interlineation. § 1060 § 1052 By some other will or codicil. § 1053 Destruction of second will § 1061 not to revive first, unless, etc. § 1002 § 1054 Revocation of latter will, § 1063 etc. § 1055 By other instrument in § 1064 writin^r. § 1056 Revocation bj^ sales, or con- veyance of property, etc. § 1057 Property sold by bond, sale § 1064a or agreement not a revoca- tion, etc. § 1065 § 1058 Charge or incumbrance not deemed a revocation. Conveyance, etc. Altering but not divesting estate, not a revocation unless, etc. When provisions of instru- ment are inconsistent with terms of will. Marriage will not revoke the will. Revocation by birth of child. Having child and making provision, etc. Child absent, reported dead, or born after will made to have portion of estate. How portion raised. How contribution appor- tioned. Advancements to be taken into account in such set- tlement. § 1048. General principles. Revocability is one of tbe characteristics that distinguishes a will from other instruments in writing. A paper that is not revocable in its character is not a will. By revocation of a will is meant the annulling or destruction of the will. A revoked will has no legal effect whatever. It leaves the testator's prop- erty just as if the will had never been in existence. A will may be revoked by acts of the testator or by operation of law, resulting from changed conditions in his circumstances or his property. For a testator to revoke a will by his own acts he must possess the same capacity as is requisite for him to make a valid will, and he must act under similar conditions — that § 1048 KEVOCATIOlSr OF WILLS 952 is, he must be of sound mind and memory, and not under any restraint when the act of revocation is carried into execution. Similarly to the execution of a will, it can only be revoked in the method provided by statute. Two things are essential in our State to constitute a revocation of a will, when the same is done by the act of the testator, otherwise than by codicil or a paper executed as provided by statute. In the first place, the act must be done with the intention of the testator to revoke his will. If this intention is wanting, no matter how complete the destruction, it will not be a revocation, provided its substance can be otherwise proved, and it could be probated as a spoliated will. The second essential in Ohio is that tlie intention must be carried into execution by a physical act to or upon the will which is sought to be revoked.^ A written will can not be revoked by the mere wishes of the testator, and therefore is not affected by a subsequent nuncupa- tive will.^ If a will is valid when executed and afterwards revoked, as provided in sec. 10555, G. C.,^ it should nevertheless be admitted to probate and recorded, that any person interested in having it set aside as valid may contest its validity by proceeding under the statute. That is, where the will is revoked by operation 1 "Revocation is an act of the and admitted to probate. Held, that mind, which must be demonstrated such facts do not amount to a revo- by some outward and visible sign or cation under the statute, no sign or symlx)! of revocation. Tlie statute symbol of such attempted revoca- has specified the form of these (burn- tion appearing upon the paper itself, ing, tearing, cancelling or obliterat- Id. 204. ing), and if these or any of them 2 M'Cune vs. House, 8 0. 144. are performed in the slightest man- ^ § 1049. ner, this, joined with the declared To effect a revocation there must intent, will be a good revocation. be some positive act, either a total Kent vs. Mahaffey, 10 0.' S. 213. or partial destruction or obliteration A testator, being blind, told J. to concurrent with intent to revoke, bring his will, and J. handed it to Coghlin vs. Coghlin, 9 C. C. (N.S.) testator inclosed in an envelope with 3S5 ; 29 0. C. 0. 257. tliree seals. Testator, having felt A clause in a will can not be the seals handed it back, with the revoked by drawing a line through seals unbroken, to J., directing him it. In such cases the erasure will be to throw it into the fire- and burn it. disregarded and such clause will be J. pretended to do so, but, in fact, regarded as a valid part of the put the will linto his pocket, and will. Porterfield vs. Portertield, 4 threw another paper into the fire X. P. (N.S.) 654; 17 Dec. 448. calling upon testator to listen and Where a will is found among the hear it burn, and the testator, smell- papers of a deceased person with the ing the paper burning, believed the name torn off or his name erased, it will destroyed, as he had directed, will be held to be revoked. Crosby and died in that belief. After tes- vs. Crosby, 10 C. C. (N.S.) 67; 30 tator's death, the will was produced O. C. C 14. 953 TEARING, ETC. § 1049 of law. If it is revoked by the acts of the testator, then it ought no ^ to he admitted to probate.* Where a will was in the testator's custody and can not be found after death, the presumption is that he destroyed and revoked it, but this may be rebutted by recent declarations of the testator, as that he had made a will and was glad he had done so, and spoke of its contents, and gave reasons for making it, coupled with proof of inability to destroy it thereafter." § 1049. How will expressly revoked or canceled, ' ' A will shall be revoked by the testator tearing, canceling, obliterating, or destroying it with the intention of revoking it, by the testator himself, or by some person in his presence, or by his direction, or by some other will or codicil, in writing, executed as pre- scribed by this title, or by some other writing, signed, attested, and subscribed, in the manner provided by this title for the making of a will, but nothin- Paris, France. osition. "B. Gerguad, n Schouler on Ex. 60; Page on 32 Ave de I'Opera, Wills, §314, p. 359. Paris, France." 12 Sometimes testators make di- § 1083 WILLS PROBATE 976 § 1083. When should be presented. Our statute has no provision limiting the time in which a will should be presented for probate. In the previous chapter we have seen that if a will is left on deposit with the Probate Judge, and if it is uncalled for within two months, it is the judge's duty to open the will and notify the executors or next of kin of the fact of such will being there. But it makes no provision for the enforcement of a probating of the will. A delivery of the will can be compelled, but if no one applies to have it probated, it seems that the Court of its own motion has no right to probate it. It might therefore be said that the rule adopted in Massachusetts, from which State our testamen- tary and administration laws have largely been taken, would be the rule in our State. In that State a will may be ad- mitted to probate at any time in order to establish title to real estate, etc.^^ In the same State it was held that a codicil to a will which had escaped attention and was not passed upon, at the time of the probate of the original will, might be admitted to probate fourteen years after the original was probated.^* In a recent case a will was admitted to probate sixty-one years after the death of the testator. ^^ vision of their property among their children and execute deeds for the same and simultaneously make a will and reference is mad* to such deeds. Usually the deeds are left in the control of the testator and therefore, as deeds they are wanting in the essential character of delivery and convey no title to the children. In such cases it becomes very im- portant that the deeds are presented with the will and made .a part of it and placed upon the record. The expressions of a man stand- ing upon the verge of eternity, with the grave yawning before him, with every indication of dissolution, can not be said to be those of a man of sound mind and memory, and a will made under such conditions will not be admitted to probate. In re Bur- rows, 8 N. P. 358. 13 Shumway vs. Holdwood, 1 Pick. 114; 11 Am. Dec. 153. 1* Waters vs. Stickney, 12 Allen 1. 15 Haddock vs. Boston Ry. Co., 146 Mass. 155. In this case it was said " So long as one can produce the evidence necessaiy to obtain the probate of a will, we can see no legal reason why one who relies upon it should not be allowed to prove it as he would be permitted to prove a deed, however ancient, under which he claimed a title. The fact that he 977 WHEN SHOULD BE PRESENTED § 1084 Of course, as a matter of good practice a will ought to be presented for probate as soon as a decent observation of the ceremonies attending the death of the testator have been ob- served. Many reasons might be given for prompt execution of this matter, such as tlie destruction of the will or its loss, or the effect it might have upon various persons. The only provision that our statute seems to have is one made inflicting a penalty upon a devisee' for withholding a will, which is as fol- lows: § 1084. Effect of devisee withholding will from probate for three years. "No lands, tenements, or heriditaments, shall pass to any devisee in a will, who for three years knows of its existence and has it in his power to control it, unless, within that time, he causes it to be offered for, or admitted to, probate. By such neglect, the estate devised to such devisee shall descend to the heirs of the testator." [R. S. § 5943.] i« The above limitation does not refer to the record or admis- sion to probate of a will probated in a sister State.^^ The fact that a devisee has held the will for three years has no effect upon the will itself, and it shall be admitted to probate when presented, even after that time, provided it meets the other requirements.^^ § 1085. Who should present will for probate. In earlier procedure it was often said that the executor was the proper person to propound the will for admission to pro- bate; and he is no doubt a very proper person under our law to make the application. But any one may make the application who has an interest in the will, or the estate of the person de- could not offer in evidence a will i^ Carpenter vs. Denoon, 29 O. S. not admitted to probate, as he might 379. an ancient deed, would certainly af- is Will of Blymyer, Goebel 14. ford no reason why its authority A custodian of the last will and should not be established in the testament, probated it within thirty Probate Court by its regular course days after a lapse of more than of procedure." 10 Am. & Eng. Ency. three years upon the setting it aside, of Law 179. second probate of an earlier will ifi § 10542 G. C. This section is also left in his possession is not punitive and should be strictly con- deprived from holding as legatee, strucd — mere delay may not Ije suf- because his withholding it more than ficient. Mitcbel vs. Levy, 9 N. P. iliree- years. Avery vs. Howard, 7 (X.S.) 113; 20 Dec. 41. N. P. (N.S.) 97j 19 Dec. 71. § 1086 WILLS PKOBATE 978 ceased." Whoever has a right to offer the will in evidence, or to malce title under it, may insist on having it proved.^** § 1086. In what court wills should be probated. Of course, the will must be filed in some Probate Courtj as no other Court has jurisdiction. If a resident of Ohio dies living in one county and having an estate in another, in which county should the will be presented for probate ? It is a sin- gular fact that the statutes of our State do not present a direct answer to this inquiry. In see. 10511, G. C.,^^ it provides that where real or personal property is devised, a person interested may cause the same to be brought before the Probate Court of the county in which the estate may be. It does not say here that the will shall be probated in such a Court, but merely states that such Probate Court has jurisdiction to compel the production of a will. The will having been produced, it might be taken to some other coimty for probate so far as the direc- tions of the statute are concerned. But from the fact that a subsequent section "" provides that " said Court shall cause the witnesses to such will," etc., to go before it for the purpose of having the will probated, the inference is strong, if not irre- sistible, that it was the intention of the legislature to confer jurisdiction to admit a will to probate in the Probate Court of 19 Page on Wills, 363, §317. See law authorizes him to do so-, and § 1082. j(^ jg unimportant that the petition- It is a matter of public interest ,. j iu 4. t *. ., , ,, 11 1, 11 1 1 A er applies under the wrong statute, that the will should be produced. ^'^ ° Anyone expecting a legacy may thus Schober vs. Pro. Judge, 49 Mich, petition, as the old books say, "to 323; Schouler on Exrs. 65. the intent that they may thereby -o Steibbus vs. Lathrop, 4 Pick. 33. be certified whether the testator The devisees and legatees under left them a legacy." Godolph pt. 1, a will, which after the decease of chapt. 20, § 2 ; 3 Redf . Wills, 2d ed. the testator has been wrongfully 45; 1 Wms. Exrs. 318-320; Foster spoliated, may maintain proceed- vs. Foster, 7 Paige, 48. ings in the Probate Court to have The jurisdiction of the local Pro- the will admitted to probate and bate Court for thus subserving pub- record. Taylor vs. Bennett, 1 C. C. lie policy is usually detailed by the 95; 1 C. D. 57. See § 1142, Spoliate] local statute. A probate judge ed wills, should entertain a petition for the 21 § 1072. allowance of a will wherever the 22 § 10515 G. C, § 1095. 979 WHERE SHOULD BE § 1086 the county in which there was an estate of testator's.^^ The statute makes no reference whatever to the admission of a will to probate in the county where the deceased had his domicile. Yet from the fact that the statutes provide that a deceased may deposit his will in the county in which he lives,^* and also makes provision that if letters testamentary be issued, they must be issued from the county in which he was a resident. '° The inference is strong that the will may be probated in the county of the testator's domicile,^® even though his estate be in another county ; and such has been the holding of our Su- preme Court. '^ Admitting that a will might be admitted to probate in any county of this State where the testator had property, yet the law certainly favors the jurisdiction of the Court located in the county, in which the testator had his domicile."^ If there is to be an administration of the estate, as a matter of convenience a will ought never to be probated in any other county, when the testator was a resident of Ohio, except in the county of his domicile. If it be probated in any other county, a certified copy must be filed for record in the county in which letters of administration are issued. If a resident of Ohio dies in another State, in order to affect property in this State, the will must be probated in the county of his domicile. It can not be probated in the foreign country and an authenticated copy produced here for record.^** / 23 Limes vs. Irwin, 16 0. S. 488. without regard to where the will 21 §§ 1050G-7 G. C, § 1067. was made or where such person died. 2s§ l()(]()4 G. C., §72. Manuel vs. Manuel, 1.3 0. S. 459; 28 It takes very little estate to Story's Conflict of Laws, §§ 467, confer jurisdiction and the presump- 468; Converse vs. Starr, 23 O. S. tion is that a testator on his death 491. has an estate at the place of such 28 A will disposing of property death, sufficient to at least give jur- should be offered for original pro- isdiction to probate his will there. bate in the Court within whose ju- Will of Blymeyer, 1 Goebel 16. risdiction testator was domiciled at 27 The will of a person whose the time of his death, irrespective of domicile, at the time of his death is whore he might have died. Paige on in this State, is a domestic will, and Wills, 361, § 315. properly admitted to original pro- 29 McNeal vs. Ross, 39 Bull. 353; bate at the place of such domicile, Manuel vs. Manuel, 23 0. S. 459. § 1086 WILLS PROBATE 980 If a non-resident dies owning property in this State, can the will be presented for original probate in this State, or must it be presented for original probate in the State of the testator's domicile, and an authenticated copy presented here for record ? It seems to the writer that in such a case the will might be of- fered for original probate in any county in this State in which there was found to be property of the testator. A recent deci- sion of one of our Common Pleas Courts seems to hold to the contrary.^" But it is questionable whether this case is well re- ported. Judge Goebel held that such a will could be pro- bated.^^ I can see no reason why a will, although executed in another State by a resident of such State, if it be executed in accordance with the laws of Ohio, should not be entitled to original pro- bate in this State.^^ As to what mil constitute a " person a resident of a county," such as to give jurisdiction, see discus- sion of the same under letters testamjentary.^^ In the absence or disability of the Probate Judge, the Judge of the Court of Common Pleas may take the proof of wills.^* 30 Fleming vs. Hoffman, 8 N. P. pone the probate of a foreign will, 86; 10 Dec. 5G0. until the instrument has been sub- See § 1118 G. C. niitted to the proper judicial tribu- In the Supreme Court tliis ques- nal of the decedent's domicile. Redf. tion is suggested but not passed Sur. Prac. 126. upon. Hoffman vs. Fleming, 47 Bull. ^2 Provided, of course, there is an 4G0. estate in the county where the same 31 Will of Blymyer, 1 Goebel 14. is presented for probate. Stee Thomp- A foreign will in the sense that son on Wills, § 487. the same is used in our statutes ^^ § "4. means that it is a will not only ^ person who was born here executed but admitted to probate and lived here until 23 years of age, in another State or country. Page and thereafter in France for 40 on Wills, §§ 355 423. years until he died, but who kept And therefore until such will is ^"s valuable securities here, and oc- prohated in the foreign country it casionally returned on visits, and is not a foreign will within the declared in his will that he was a sense that it must be admitted to ^^*^^^" ^f this place, was domiciled probate or record in this State as '^•^^^' ^""^ ^"^ ^^^^ ^*" ^^ admitted provided by §§ 10535, 1053G. 10538 ^^ probate here. Williamson's Will, G. C, §§1119, 1125. 8 Dec. 47; 6 N. P. 79. The jurisdictional facts existing, '' § 1590 G. C, § 10. See § 1094, the Court here is not bound to post- Essentials to be proven. 981 CONTEST OF JUBISDICTION § 1086a § 1086a. Persons interested in probate of will may contest jurisdiction of Court to entertain application; appeal from decision. "When a will, claimed to have been executed by a person domiciled in this state, is presented for probate in a county thereof, persons interested in its probate may contest the jurisdiction of the court to entertain the application." [R. S. § 5929a. J^'^ § 1086b. Contest. ''When such contest is made, parties shall have the right to call witnesses and be heard upon the question it involves. The decision of the court as to its juris- diction may be reviewed on error." [R. S. § 5929a. ]^^* The above section is of recent date. The intention seems to be to give a contesting party the right to raise the question of jurisdiction and prosecute error from the Courts ruling there- on, making the finding of the Court as to its jurisdiction or right to entertain the application a final order. I am not sure but what this could have been done without the provisions of the above section. If a person wishes to raise the question of jurisdiction, as provided in the above section, he should file an answer; and the Court should proceed to hear the question raised by such an answer before calling witnesses to pr^ve the will. The answer might be in the following form : (Title.) Now comes A. B. and represents to the Court that he is interested in the following manner (here state how) in the estate of E. F., deceased, applica- tion to probate whose will has been filed in the Probate Court of county, Ohio. The said undersigned hereby denies that said Court has jurisdiction to entertain said application and asks that the same may be dismissed. Sworn to before me and subscribed in my presence this day of 190... § 1087. Application for probate. The statute contains no direct provision that there shall be a formal application filed to admit a will to probate; and yet it seems doubtful if the' statute contemplates that the Court should sua sponte order a will to be probated, for in sec. 10510, G. C.,^^t it is provided that if a will is opened, it shall remain in the office of the Probate Judge until offered for probate. 35 § 10520 G. C. See Wilberding vs. Miller, 90 O. 35* § 10521 G. C. S. 281; Iline vs. Cowles, 18 O. C. C. 35t § 1070. (N.S.) 578; affirmed, no op., 86 O. S. 350. § 1087 WILLS PKOBATE 982 Whether or not the statute contemplates that a formal applica- tion be filed, the practice now is that such an application should be filed.'*' The advantages of having such an application are many. It gives the Probate Court the jurisdictional facts upon which its action must rest. These facts are, first, that the testator is dead ; second, that he left a last will and testament ; third, that the paper offered is his last will and testament ; fourth, that he resided in the county at the time of his death, or had an estate therein. In addition to these jurisdictional facts, the applica- tion should show whether or not the testator left a surviving consort, and should give the name of such sur^'iving consort, as well as the names, ages and address of all of the testator's next of kin. These matters are proper, in order that the Court may order notice to be given as provided in a previous section.'^ This application should not only state the names of the next of kin, resident in the State, but should give all the names whether resident in the State or not. It is matter of informa- tion that may be useful to the Court and others interested in the estate in future proceedings. As tlie Court acts upon the information contained in this application, it should require the same to be swora to. The application may be made by any one who knows the facts and has some interest in the estate. 3 6 Usually, however, the petition residence of the surviving widow for probate embraces that for the or husband and next of kin, and, al- appointment of executor or admin- leging that the paper or papers istrator with the will annexed, and presented constitute the last wilJ is presented by the party claiming and testament of the deceased, the office; and imder the simple prays his appointment, making due probate practice of our American reference to the foundation of his County Courts, the petitioner sets claim for the office, and his willing- forth, in a printed blank, the facts ness to qualify according to law. of death and last domicile of the Schouler on Exrs. 65. deceased, the names and places of '" §§ 10506-7 CJ. L., § 10G7. 983 APPLICATION FOR § 1088 § 108S. rorm of application for probate of will. Probate Court County, Ohio. In the Matter of The Last Will and Testament of , deceased. Application to Admit to Probate. To the Probate Court of said County.- Your petitioner respectfully represents that , late a resident of the township of in said county, and leav- ing an estate therein, died on or about the day of A. D. 190 . . , leaving an instrument in writing, herewith produced, purport- ing to be h. . . . last will and testament: That the said died leaving h . . . widow. . .who resides at and the following named per- sons h...only next of kin, to-wit; AGE OF MINORS. DEGREK OF KINSHIP. P. O ADDRESS. Your petitioner offers said will for probate and prajs that a time may be fixed for the proving of the same, and that said above named persons, resident in this State, may be notified according to law of the pendency of said proceedings. . , Petitioner. The State of Ohio, County, ss. The above named being first duly sworn, says that the facts stated and allegations in the foregoing application contained, are true as... he verily believes. Swora to before me and subscribed in my presence this day of 190... Probate Judge.sT* We, the undersigned of the within named dece- dent, hereby waive further notice, and consent to the probate of said will. Dated this day of 190 § 1089. Time of hearing. The statute, see § 1067, relating to wills does not fix the kind of notice that must be given or when the case should be set for hear- ing, or what length of time should intervene between the filing of the probate of the will and the time when the witnesses should be heard to testify. It therefore comes under the provisions of a general section,^^ and the Court may fix the time of hearing and order notice thereof to be given for such a length of time as it shall deem reasonable. This practice varies in different Courts. Some require at least one day to intervene between the filing and the probate of the will, unless all parties in in- terest agree to the immediate action of the Court. Others re- "• See § 1092. See § 1067. 38 § 1120.5 G. C, §37. § 1090 WILLS PKOBATE 984 quire a greater length of time to intervena The length of time between the offering for probate and the time when the will would be heard should be sufficient to allow any person who is interested in the will, or required to be notified, time and op- portunity to reach the Probate Court after service of notice was given to such person. Indeed, while sec. 11206, G. C, pro- vides that the Court may fix the time and length of service, it is not to be left arbitrarily to the Court. The Court must fix a reasonable time. § 1090. Entry fixing time, etc. The will having been produced in Court, and the proper ap- plication filed, the Court should then determine, first, when the testimony would be heard for admitting the will to pro- bate ; second, how service of notice should be made on those required by statute to be notified ; third, that testator died a resident of the county in which the will is offered or had an estate therein ; and fourth, the length of time that should inter- vene between the service of the notice, and the time of probat- ing the will. The entry for probating the same may be in the following form : {Title.) This day came A. B. and filed in this Court the will of C. D., and his application therewith to have the same duly probated. Whereupon the Court finds that the allegations of said application are true and it is ordered that the time set for hearing the testimony of witnesses to probate the same be on the day of at o'clock. And it is ordered that said A. B. notify (here insert the names of next of kin) by delivering to each of them personally a written notice of the time when said will will be for hearing, which notice shall be served upon them at least days before the time so fixed. § 1091. To whom notice should be given. In the absence of a statutory requirement, the Court might admit a will to probate without giving any notice, as the pro- ceeding to probate a will in our State is that kind which was kno^vTl at common or ecclesiastical law as being in " common form." Xo notice being required, other than that mentioned in the statute, when the statute is followed, it will be sufficient Prior to 1878 the statute did not require any notice to be given. 985 SERVICE OF NOTICE § 1092 and therefore the proceedings are binding on infants and per- sons non compos mentis. The statute directs that no will shall be admitted to probate without notice to the widow or hus- band and next of kin of the testator being a resident in the State.^' It is never necessary m any case in the probate of a will to appoint a- guardian ad litem over an infant or person under disability. *•* If a party has no notice and the will is refused probate, such party may offer the will again for probate.**^* § 1092. Service of notice. No provision is made as to who shall make the service, or in what manner it shall be made, except that it shall be in such a manner and for such a time as the Probate Court shall direct or approve. Usually it is made by the person filing the appli- cation, and it is the general practice of Courts to require the notice to be delivered personally. It is the practice of some Courts that where there are no persons resident in the State who are by law required to be notified, to give notice by publica- tion ; and even some Courts have adopted this form of notice when some of the" next of kin are non-residents of the county, but residents of the State. I presaime that such a notice would be legal, as the entire matter is left in the discretion of the Court. But the better practice is, in all cases, to require the notice to be served personally on the next of kin resident in the State, If they are quite numerous, and the estate is small, the Court might be justified in ordering a notice to be given by pub- lication. If such a notice be given by publication, it ought to be for at least three weeks in a newspaper of general circula- tion in the county where the will is offered for probate. The 39 §§ 10506-7 G. C., § 1067. not familiar with any such statutory 4f' In Feuchter vs. Keyl, 48 0. S. provision. 370, Minshull, J., intimates that no- ■lo* Feuchter vs. Keyl, 48 0. S. tice must be given the executor, and 357. that the statute so requires. I am §1093 WILLS PROBATE 986 person making the service should make an affidavit of the time and mode of making the same.*^ § 1093. Form of notice. State of Ohio, County, ss. Probate Court. To A. B., of County: We command you that you notify ." (five days* notice required in Hamilton county) that a paper purporting to be the last will and testament of C. D., late of said county, deceased, has been filed in the office of the Probate Court of said county; and that the same will be offered for probate and record before the judge of the Probate Court at the Court House in iii said county, on the day of A. D. 190... at o'clock M. In witness whei-eof, I, , judge of the said Court, have hereunto set my hand and affixed the seal of the said Court, at this day of A. D. 190 Probate Judge, By Deputy Clerk. State of Ohio, county. Personally appeared before me, the undersigned, judge vi the Probate Court, in and for the county of A. B.. who upon oath deposes r.nd says that on the day of 189. ... he served the persons named herein personallv with a true copy of the within notice. A. B. Sworn to and subscribed before me, this day of A. D. 189 Probate Judge. By Deputy Clerk.*2 § 1094. Essentials to be proven in probate of a will. In order to justify the Court in admitting a will to probate, the following essential points should be proven by the pro- ponent: First, the death of the testator must be shown. This is an essential without which there can be no valid probating of a will, for until a person is dead there can be no last will and testament, and any proceeding had during the lifetime of a testator would be of no effect whatever.*^ The second essen- tial is that the testator at the time of his death was either a resident of the county in which the will is offered for probate or had an estate therein," The third matter to be shown is 41 Persons of age may, when not ^3 See Schouler on Wills, 55, under disability, in writing, waive § 119, service of notice. See form in a See previous §§ 10S6, 10S6a, § 1088. §§ 72, 74, where the decea=ed was a 42 Whit. Prob. Code. See §1145, resident of t!-.e state tlie brtter Spoliated wills. doctrine is that it must be probated in the county of testator's domicile. 987 ESSENTIALS TO BE PROVEN § 1095 that the parties required by statute to be notified have been notified in the manner required by a former order of the Court. This fact should not he. overlooked. While the Couil; can fix the manner in which the parties are to be notified, the statute is positive in its direction as to who shall be notified. Fourth, it must be proven that the instrument presented is the will of the testator, and that it was by him executed as provided by our statutes — ^ that is, he must have signed it at the end; he must have attached his signature himself, or some one else have done so for him at his request. The testator must have signed it or have acknowledged his signature to two witnesses, who must have attached their names as witnesses to tke will, knowing at the time they did so that it was the will of tbe testator ; **^ and furthermore, it must be shown that at the time the testator signed the will, lie was G-f full age, of sound mind and memory, and not under any restraint. How these matters may be proved will be discussed in subsequent sections.*^ § 1095. Examination of witnesses to will. ' ' The court shall cause the witnes.ses to the will, and such other witnesses as any person interested in having it admitted to probate desire, to come before the court. Such witnesses shall be examined in open court, and their testimony reduced to writing and filed." [R. S. §5926.]^" § 1096. What witnesses may be heard, etc. As a matter of course, the Probate Court has authority to com- pel by subpoena all witnesses who are within its jurisdiction ^'^^ to attend court and give their testimony the same as in any other proceeding in the court. The above section, soon after its adoption, was construed by our Supreme Court,*'' where it was held "that under the proceedings authorized for admitting a will to probate, persons interested to resist the probate of the will, are not allowed to introduce evidence to contest its validity." So it may be said that under the provisions of 44a There is some controversy as 46a This now extends to persons to wliethcr the witnesses must know residing in the adjoining county, that it is a will tliey are signing. 47 Matter of Hathaway, 4 0. S. See § 1040 et seq., note. 383; Kamman vs. Kamman, 6 O. 45 See §110(5. App. 455; Barr vs. Cloisterman, 3 46 § 10516 G. C. See §§ 1086, C. C. 441; 2 C. D. 251. 1086a, As to jurisdiction. § 1097 WILLS PROBATE 988 the above section, the Court should call the witnesses to the will, and it has been held that it is proper to call all the witnesses to the will, but if only two are called, it will not be en-or for which the proceedings might be reversed.'*® The provision of the above section as to the mode of proving a will are conclusive, and they must be strictly pursued in pro- ceedings to probate a will. In addition to the witnesses who have attached their signatures to a will, the Court may hear sucii other witnesses as any person interested in having the will probated may desire to have brought before tlie Court for that purpose. A person who is not interested in having the will ad- mitted to probate could not call a witness. He must not merely be interested in the result of the admission, to probate, but must ha\"e an interest in having the will probated, and not have an. interest in having it fail. It is not always clear what range of examination should be allowed of the witnesses called to prove the will, but it seems, if the power be limited, so that only witnesses, may be called by a person interested in having the will admitted to probate, that any interested person should be pemiitted to cross-examine such witness within reasonable limits, and assist the Court in ascertaining whether the testi- mony offered is sufficient to justify the Court in making an order admitting the will to probate. The matters to be in- quired into are as to the capacity of a testator to make a will and whether it was made in. accordance with the statute. A further matter may be gone into as to the jurisdiction of the Court, but usually this matter rests upon the application filed for probate of the will.*^ § 1097. Form of testimony. It will be observed by the provisions of sec. 10516, G. C.*^* the testimony must be reduced to writing and filed in the 48Mosier vs. Harmon, 29 0. S. nesses mav be heard. §§10520, 220; Wadsworth vs. Purdv, 12 C. 10521 G. C\, § 1086a. C. (N.S.) 8; 31 C. C. IIO." Due execution of a will may be 49 See extended opinion in the proven by witnesses independent of Estate of Jones, 2 N. P. 190; 2 Dec. the subscribing witness, and even in 409. contradiction of such witnesses. The issue of jurisdiction to enter- Watts' Will, 19 N. P. 225 ; 27 Dec. tain the application may now be 87. made, and upon that question wit- ^^* § 1095. 989 FORM OF TESTIMONY § 1098 Court The usual form of such, testimony is as follows, al- though, if there be additional testimony, it must all be written and filed with the proceedings: Probate Court, Clark County, Ohio. In the matter of ) jjo the Will of i J ^ deceased. ) Testimony of Witnesses. The State of Ohio, County, ss. Personally appeared in open Court, A. B. and C. D., who being first duly sworn to testify to the truth, the whole truth, and nothing but the truth, in relation to the execution of the last will and testament of E. F., deceased, depose and say : That they were present at the execution of the instrument of writing now before them bearing date the day of A. D. 190. . , purporting to be the last will and testament of E. F., deceased; that they respectively subscribed their names thereto as witnesses at the request of said testator and in his presence; that they saw said testator sign said instrument at the end thereof, and heard him ac- knowledge the same to be his will; and that said E. F. at the time of executing the same was of full age, and of sound mind and memory, and not under any restraint. Sworn to before me and signed in my presence by said witnesses in open Court this day of 190 .. . Probate Judge. Deputy Clerk. § 1098. How will proved, if witnesses unknown or incom- petent, etc. ' ' When a will is offered for probate, if it appears to the court that a witness thereto is gone to parts unknown ; or if the witnesses were competent at the time of attesting its execution and afterward became incompetent, or the testimony of a witness can not be obtained -^^dthin a reasonable time, the will may be admitted to probate and allowed upon such proof as would be satisfactory, and in like manner as if such absent or incompetent witness were dead." [R. S. § 5927.]^° § 1099. Sufficient testimony where witnesses are dead or absent. The requisites of the above section are, first, that the witness has gone to parts unknown. If known, the testimony must either be had in open Court, as provided by sec. 10516, G. C, or by a commission, as provided by sec. 10518, G. C. ; or sec- ondlj^ the witness must have become incompetent or have be- come so situated that his testimony could not be obtained in 60 § 10517 G. C. § 1099 WILLS PROBATE 990 any reasonable time. This might allow testimony to be taken of an absent witness' signature, even though his place of residence was known, if his testimony could not be obtained in a reasonable length of time. However, the Court should re- quire the direct testimony of the witness where the procuring of the same would not delay the matter to such a length of time that it might result in injury to the estate. If the above mat- ters appear to the Court, then the will shall be allowed upon such proof as would be satisfactory in like manner as if such absent or incompetent witness were dead. But nowhere does the statute say in what manner the proof should be offered if a witness is dead. In such cases, says a recent law writer,^^ and which accords with the practice in our State : " If one or more of the subscribing witnesses to a will are dead, or absent from the jurisdiction of the Court before which the will is offered for probate, proof of the genuineness of the signatures of such attesting witnesses and of testator is sufficient, with the aid of this presumption that the remaining acts were properly done, to establish the validity of tke wall." ^' The same rule applies where one of the subscribing wit- nesses is dead or beyond the jurisdiction of the Court, and the rest do not remember the facts of execution. Proof of the gen- uineness of the signatures of testator and the witnesses will, with the aid of the presumption under discussion, establish the validity of the will.^^ This legal presumption is, of course, greatly aided by the direct testimony of such subscribing witnesses as can be pro- duced at probate, or whose evidence can l>e taken by deposition, that the acts necessary to a legal execution actually took place. Under these circumstances a will may be admitted to probate upon such evidence." ^^ 51 Page on Wills, § 373, p. 442. 12 Cush. 332; Sullivan's Will, 114 52 Citing Barnewall vs. Murrell, Mich. 189 ; Jackson vs. Van Dusen, 108 Ala. 366; Robinson vs. Brew- 5 Johns (N. Y.) 144. ster, 140 111. 649; Hobart vs. Ho- 53 Tyler's Estate, 121 Cal. 405; bart, 154 111. 610; Taylor vs. Cox, Slingloff vs. Brimer, 174 111. 561, 153 111. 220; Scott vs. Hawk, 107 la. 55 (Jones' Will), Jones vs. Rob- 723; Allison's Estate, 104 la. 130; erts. 9fl Wis. 427. 73 N. W. 489; Nickerson vs. Buck, In Matter of Dreyer (N. Y. Law 991 SUFFICIENT TESTIMONY § 1100 Tbe Court is not limited to witnesses who can testify to any one particular fact, but may hear such testimony as will tend to complete a chain of testimony which will establish the fact that the will presented for probate is the last will and testament of the deceased. § 1100. Form of testimony of subscribing witnesses. The testimony given where witnesses absent or dead must be reduced to writing the same as if the witnesses were present. The following is a general form : Probate Court County, Ohio. In the Matter of ) jjo The Will of C \ Testimony. The State of Ohio County, ss. Personally appeared in open Court , who being first duly sworn to testify to the truth, the whole truth, and nothing but the truth, in the matter of the will of deceased, depose and say: That whose name appears as one of the subscrib- ing witnesses to the last will and testament of , deceased, hereunto annexed, has since the date of said will A. D. 100. .... deceased that we are each of us well acquainted with the handwriting and signature of said deceased witness, and that the signature of said purporting to be his, as one of the subscribing witnesses to said will, is the true and genuine signature of the said deceased witness Sworn to before me and signed in my presence in open Court this day of 190. . . Probate Judge. 5; 1101. When Court may issue commission to take their testimony. "The court may issue a commission with the will annexed, directed to any suitable person or persons, to take the deposition of a witness to a will who resides out of its jurisdic- tion, or who resides within it, but is infirm and unable to attend J., Feb. 21, 1892, ) the will was made either could be found. Probate was in 1867. Neither of the witnesses denied, " although," said Ransom, S., were produced, the testator's son " I am morally convinced that the and daughter (proponents) proved paper was properly executed." Redf. his signature; in their younger days Sur. Prac. 1,39; See Woerner on Ad- they knew the two witnesses, but min. 474. Stephen Dig. Ev., art. 66; were unable to prove the signature Rice Probate Law, 84 ; 1 Green. Ev. of either, and did not know where § 572. §1102 WILLS PROBATE 992 court. Every deposition so taken, certified, and returned by one or more of the persons named in such commission, shall be as valid as if taken in open court." [R. S. § 5928.]=*' § 1102. Order to take testimony of absent witness. WTien it is made to appear to the Court that some witness re- sides out of the jurisdiction of the Court, or is infirm and un- able to attend Court, then the Court shall direct that a oommis- sion be taken, to take the testimony of such a witness. The following may be used as an entry : {Title.) It appearing to the Court that A. B. and C. D., subscribing witnesses of the last will and testament of E. F.. are now residents of Chicago, 111., and without the jurisdiction of this Court. It is therefore ordered that a commission be executed, with the said will thereto annexed, to X. Y. of Chi- cago, 111., to take the deposition of said subscribing ^vitness and return the same duly executed with all convenient speed into our said Court.s^ § 1103. Form of commission. State of Ohio, County, ss. To X. Y., Greeting: Know ye, That we, in confidence of your prudence and fidelity, have appointed you, and by these presents do give to you full power and authority to examine and take the depositions of A. B. and C. D., subscrib- ing witnesses to the last will and testament of E. F.. deceased, hereto annexed, late of the county of , in the State of Ohio, de- ceased, and therefore we command you that at certain days and places appointed by you, you cause the said A. B. and C. D. to be brought before you. and then and there examine them on oath or affirmation first taken before you touching the due execution of said will of the said E. F., deceased, and that you reduce such examination to writing, and return the same, together with this commission and the will of the said E. F., deceased, thereto annexed, closed up under your seals and our said Probate Court, with all convenient speed. In testimony whereof, I, , judge of the said Court, have hereunto set mv hand and affixed the seal of said Court, at this day of A. D. 190. .. . Probate Judge.ss 56 § 10518 G. C. takes the statement of parties to 57 Statute does not say how it that effect. It may be required by shall appear to the Court that a affidavit. witness is without the jurisdiction 58 Whittaker's Probate Code, of the Court. Usuallv the Court 993 COMMISSION, ETC. § 1104 § 1104. Keturn of commissioner. In the matter of the last will and testament of E. F., deceased, I, X. Y., duly appointed and commissioned by the judge of the Probate Court of the county of , in the State of Ohio, to take the testimony of A. B. and C. D., the subscribing witnesses of the last will and testament of E. F., deceased, late a resident of said county of , in the State of Ohio, which commission and the said will are hereunto annexed, do hereby certify, that in pursuance of said commission I caused A. B. and C. D., said subscribing witnesses as aforesaid, to come personally before me, at , who being by me first duly sworn according to law, to speak the truth, the whole truth, and nothing but the truth, concerning and in relation to the execution of said will, depose and say that they were present at the making of said will, hereto attached, marked " A," and at the request of the deceased, subscribed their names to said will as witnesses in the presence of the deceased, (and of each other) ; that they saw the said E. F., deceased, sign said will (or heard) ; him acknowledge the same to be his last will and testament; that the said E. F., deceased, was, at the time of making, signing and sealing said last will and testament, of legal age, and of sound mind and memory, and under no undue or unlawful restraint whatsoever. I, X. Y., , do further testify that said testimony was re- duced to writing by myself, in the presence of said witnesses respectively, and subscribed by said witnesses in my presence, on the day of 190.. .. In witness whereof, I have hereunto set my hand, , this day of 190 , Commissioner.5» § 1105. Admission of will to probate. "If it appears that such will was duly attested and executed, and that the testator, at the time of executing it was of full age, of sound mind and memory, and not under restraint, the court shall admit the will to probate." [R. S. § 5929.]*^° § 1106. Sufficient proof, etc. The previous section of the General Code merely requires that the Probate Court shall find that the will has been executed as provided by sec. 10503,*'^°* G. C. The thoughtless manner in which wills are sometimes executed, and the informality surrounding such execution, failing to leave an impression on the witnesses of the importance of the document they have at- tested, often results in the kind of testimony that gives a couri. some trouble in arriving at its conclusions. While the probating of a will is an ex parte proceeding, yet it is one of a judi- 59 Whittaker's Probate Code. if believed, to admit the will to 60 § 10519 G. C. probate, notwithstanding the other 60* § 1018. witness to the will fails to remem- The testimony of one attesting her or denie? compliance by testator witness that all the formalities by witli one or more of the essential testator and both attesting witnesses requirements to its due execution, have been performed, to the due In re Watts, 27 Dec. 87; 19 N. P. execution of the will, is suflicient, 225. § 1106 WILLS PROBATE 994 cial character, and the ordinary rules of evidence must control ilie Court in arriving at its conclusion. In this kind of a pro- ceeding, like others, the burden, rests on him who seeks to es- tablish the validity of the will, and it must be done by a fair preponderance of all the evidence.*"'* The Court need not be satisfied beyond a reasonable doubt, but it should appear from all the testimony that it is reasonably certain that the stat- utory requirements have been complied wdth. In this kind of a proceeding, like some others, one fact being proven, the law presumes another. Thus where a will had an attestation clause that ''it is signed, sealed and published in the pres- ence " of the witnesses, if it was shovni that the witnesses signed the instrument, the presumption would follow that it was signed in the presence of the testator.^^ And where a paper propounded as a will is shown to have been signed by the al- leged testator, and the requisite number of witnesses, in the absence of any satisfactory evidence to the contrary, the pre- sumption is that all the fonnalities have been, complied with.*^ And it has been held that mere forgetfulness of the accessible subscribing witness, as to certain necessary facts of execution, does not avoid the prima facie case made out by proof of the genuineness of the sig-natures of testator and the subscribing witnesses.®^ Where the subscribing witness testified that she signed as witness in the presence of the testator and at his request, but could not remember that she saw the signature of testator, it was held to make out a prima facie case for the validity of the will. So where the subscribing T\atnesses identify their sig- natures, but have no recollection of having attested the instru- eo* In Re Ludlow. 4 N. P. 9. , 6 561; Hobart vs. Hobart, 154 111. Dec. lOG. 610; Nickerson vs. Buck, 12 Cseh. 61 Carpenter vs. Denoon, 29 O. S. (Mass.) 332; in re Kellum, 52 N. 379. See §§ 1042-1046. Y. 517; in re Hunt, 110 N. Y. 278; 62 Page on Wills. § 371, p. 440. Luper vs. Werts, 19 Ore. 122; Sulli- es Page on Wills. 441, § 372, cit- van's Will, 114 Mich. 189; Abbot vs. ing 'ryler's Estate; 121 Cal. 405; Abbot, 41 Mich. 540; Gable vs. 53 Pac. 928; Gillis vs. Gillis, 96 Ga. Rauch, 50 S. Car. 95; 27 S. E. 555; 1; Canatsey vs. Canatsey, 130 111. Welch vs. Welch, 9 Rich. (S. Car.) 397; Slingloff vs. Bniner. 174 111. 133 ; Will of O'Hagan, 73 Wis. 78. 995 SUFFICIENT TROOF § 1106 tiieiit, or of the circumstances of execution, the presumption tliat it was proj>erly executed will uphold it in the absence of clear and satisfactory proof to the contrary,"* If the testimony of subscribing witnesses are not sufficient, the Court should hear other testimony, for the will should not fail by reason of forgetfulness or other acts of the witnesses. ** Where it is shown that the testator signed the will, it is pre- sumed that he signed it understandingly,*® and it is also pre- sumed that the will is made free from restraint and that the testator has the capacity to make a valid will ; where it is not shown that the testator labored under some disability,®^ the Court must determine the facts from the testimony of wit- eiHobart vs. Hobart, 154 111. 610. The following testimony was held to be insufficient to sustain an order admitting a will to probate. There were three subscribing witnesses to the will; one was dead at the time it was probated, the other two were examined before the probate judge. Neither of these upon examination had any recollection of signing their names as witnesses to the will, al- though they recognized their own signatures. Neither of them remem- bered to have seen the will, nor could they tell whether they signed it in the presence of the testator, or at his request, or in the presence of each other. They would not say whether that was the last will and testament of the deceased, or not; nor did they know that the signa- ture to the will was the genuine signatm-e of Baudendistle. They were of opinion that about the year 1842 he was of sound and disposing mind and memory, but did not know that he was so at the time the will purports to have been signed, nor could they tell whether he was un- der any restraint. Kuntz vs. Bau- dendistle, Dayton, Ohio, Dec. 225. 65 That, while the due execution of a will cannot be assumed in the face of positive evidence to the contrary, merely because it has been signed and attested in due form, yet mere failure of the attesting witnesses, or their denial of the facts, will not defeat it if it can be established by other evidence. Neither failure of memory, nor the corrupt or false swearing of attest- ing witnesses will be allowed to de- feat the ^vill, if its due execution can be shown by other testimony. 3 Redf. on Wills, chapt. 1, § 3, p. 9; Clark vs. Dunnavant, 10 Leigh, 13; 1 Redf. on Wills, chapt. 4, § 19, p. 22; Dean vs. Dean, 27 Vt. 746; El- liott vs. Elliot, 10 Allen, 357 ; Law- yer vs. Smith, 8 Mich, 411; Tilden vs. Tilden, 13 Gray, 110; Ella vs. Edwards, 16 Gray, 91; Dewey vs. Dewey, 1 Mete. 349; Chaffee vs. Bap, Miss. Con., 10 Paige 85; Adams vs. Field, 21 Vt. 256; Bow- man vs. Christman, 4 Wend. 277; 2 Phill. on Ev., 935, note; Kirk V8. Carr, 54 Penn. St. 285. Haynes vs. Haynes, 33 0. S. 598. 66 Page on Wills, §§ 380, 447. 67 Page on Wills, § 383, p. 45L § 1107 WILLS PROBATE 996 nesses and cannot refuse to admit a will'because of an absurd o:f ridiculous proposition in the will.''* Where a will was properly signed by two witnesses, neither of whom saw the testator subscribe his name to the paper, one, however, heard him expressly acknowledge the same, but the other did not, the juiy found, from the surrounding circum- stances, that the will was properly executed/" In another case one witness was dead, and the other witness could not testify that he saw the signature on the will, or that thler© was an acknowledgmient by the maker that it was his will at the time the witness was asked to attach his signature; and in this case, there being no other testimony, the will was refused admission to probate.^'' While the Probate' Judge should fee.1 satisfied that the for- malities of the statute have been complied with in the execution of the instrument, and that the paper ought to be admitted to probate, yet he should only have a reasonable assurance of that fact and should not by reason of possible doubts, refuse admission, for the statute has provided by way of contest a method by which this matter may be fully gone into, and the questions passed upon by a jury under instructions of a com- petent Court/^ § 1107. Entry ordering probate. When the Court is satisfied that the paper presented should be admitted to probate, an entry of that fact should be placed on record. It is a common practice to have this entry only state the requirements of sec. 10519, G. C.,^^* but it seems that it ought also to state, unless the previous entry has made a finding of that fact, that the testator was a resident of the county, or had an estate therein. The following will serve as a 68 7n re Oskamp's Will, 7 X. P. 7i» § 1105. 665; 5 Dec. 584. A proceeding where a will is pro- 69 See Raudebaugh vs. Shelley, 6 pounded for probate is not adver- 0. S. 307. " sarj', but entirely ex parte, and noth- 70 Keyle vs. Feuchter, 56 0. S. 424. ing more is required than that a This will, it seems, might have prima facie case is made that the been admitted upon the presump- testatrix was of full age, of sound tion following the attestation clause. mind and memory, and free from re- 71 7n re Ludlow, 4 N. P. 99; 6 straint; that the paper writing pro- Dec. 106. pounded was in writing, and that it 997 ORDER OF PROBATE § 1108 form of entry, and is made to be used where a codicil is at- tached to tiie will : FORM OF ORDER OF PROBATE. In the Matter of the Probate of the Last Will of , de- ceased, 190 .... Notice of the time of hearing of this application having been given (or waived) as heretofore ordered by the Court, and the same now coming on to be heard Thereupon said will was duly proved by the oaths of and , sub- scribing witnesses thereto ( and the oaths of and , subscribing witnesses to the codicil, a part thereof ) who duly sworn and examined in open Court, and testimony reduced to writing and filed therein and it appearing to the Court, from the testimony of said witnesses " that said will (and codicil) is duly attested and executed; and that the testator at the time of executing the same was of full age, of sound mind and mem- ory, and not unde- any restraint," and that said testator was a resident of and had an estate in this county. It is now ordered that said will (and codicil) be admitted to probate and filed and that the same, together with the testimony so taken as aforesaid, be recorded. Citation ordered and is- sued to , widow of said decedent, to elect as to said will 13 required by law. Probate Judge.^a § 1108. Effect of order. The statute expressly provides that : "Unless it has been duly admitted to probate or record, as provided in this chapter, no will shall be effectual to pass real or personal estate. ' ' [R. S. § 5942.] ''' It therefore follows that until a will is duly admitted to probate, where it is a domestic will, or to record where it is a foreign will, that no title is passed thereby, and that the title remains in the heirs at law of the testator.'^* The Probate Court being a court of record, its orders im- pute absolute verity, and such orders can not be attached in a is signed at the end thereof by her, iiig and filed by order of the court, and attested and subscribed in her and that thereupon the court or- presence by two or more competent dered tiie will to be filed and admit- witnesses who saw the testatrix sub- ted to record, is sufiicient evidence scribe or heard her acknowledge the that the will was provetl in accord- same. Estate of Nicholson. 2 N. P. ance with law, and ordered to be (N.S.) 189; 49 Bull. 379, recorded. Holman vs. Riddle, 8 O. 72 The order of a Court of Probate S. 384. which recites that the will was pre- '^ § 10541 G. C. sented to the court for probate, and "^^ Swazey vs. Blackman, 8 O. 5; the subscribing witnesses were sworn Woodbridge vs. Banning, 14 O. S. and examined in open court, and 328. their testimony was reduced to writ- § 1108 WILLS PROBATE 998 collateral proceeding. In reference to the effect of such order of probate, our Supreme Court has laid down the following propositions : '^ 1. That the Probate Court has exclusive jurisdiction to take the proof of wills, admit them to probate, and record them to- gether with the testimony. A record thus made, in pursuance of these provisions, is the only one authorized or required by law, and without such probating and recording, wills are wholly inoperative in Ohio for any purpose whatever. " 2. That from the time the will is probated and recorded, it is binding and conclusive in every respect-, except as evidence against interested persons, who may contest it within the time limited. " 3. If no sucJi contest is made by interested persons within the time limited, then it becomes also forever binding upon them, as it had been on all others in the world, from the date of the probate and record. " 4. If interested persons, as they may, do contest the will, the probate and record are not thereby annulled, or the force and validity of the will weakened during the pendency of the proceedings contesting it. It still remains in full force for all purposes, except as evidence on the trial of the issue between the contestants and contestees, where the validity of the will is directly called in question. Even here, and for this pui^oose, the record is still accompanied by a legal presumption in its favor, for on the trial it is prima facie evidence of the validity of the will, and this presumption attends it until the verdict of a jury against it has been retvimed, and a proper judicial de- cree setting it aside hasi been rendered." ^^ On the contest of a will in the of the testator'8 estate, but not of Court of Common Pleas the ques- the wife's separate property (as tion of whether the will was where she owned part of the land properly probated is not involved devised to her in the will). Hibbs and can not be gone into. By bring- vs. Ins. Co., 40 0. S. 543. ing such action the plaintiffs admit _ It has been held that tlie title of a the probate of the will, and will not devisee relates back from the probate on trial therefore, be permitted to of the will and takes effect as of question or deny the regularity of the time of the death of the testator, the order of the Probate Court, or and that if a devisee conveys the the authority or jurisdiction of the same in the interim between the court that made it. Stacy vs. Cun- death of the testator and probate of ningham, 69 0. S. 176. " the will, he takes the legal title 75 Lessees of Swazey's Heirs vs. upon the probate of the will as trus- Blackmann, 8 0. 19; Brown vs. Bur- tee for his grantee. IMiller vs. Poug- dick, 25 0. S. 260. lass, 11 C. C. (N.S.) 205; 30 O. The probate of a will and the wid- C. C. 666. ow's election are constructive notice If the finding of the Probate 999 RECORD OF TITLE BY WILL. § 1109 §1109. Record of title by will. "When admitted to pro- bate every will sliall be filed in the office of the probate judge and recorded, together with the testimony, by him or his clerk in a book to be kept for that purpose." [R. S. § 5930.]^'^ § 1109a. Certificate of probate judge when will devises real estate. "When a will is admitted to probate which devises real estate situated in the county where it is recorded, or when the certified copy of a will is filed in the probate court, as here- inafter provided in this chapter, which devises real estate in the county where it is recorded, upon recording such will, the court shall immediately transmit to the recorder of the county in which the will is recorded, a certificate containing the fact of such filing and probate, the name of the testator, the name of the devisees of the real estate, and a description of such real estate as the will contains, and separately state with each parcel the names of the devisees thereof, together with the volume and page of the record of the will." [R. S. § 5930.] '6* § 1109b. Record by county recorder. "Upon receipt of such certificate, the recorder shall record it in the books pro- vided for the recording of deeds and index such records in the name of the testator as grantor and the devisees as grantees, in the index provided for the record of deeds." [R. S. § 5930.] '^^f § 1109c. Fees. "For recording and indexing such certifi- cate, the recorder shall be paid the fees provided by law for the recording and indexing deeds, and the probate judge be allowed the fees the law provides for similar certificates, which fees of recorder and probate judge the judge shall tax in the costs of probating and recording such will, and collect as other costs." [R. S. §5930.]-'^$ §1110. Certified copy of will, etc., evidence. "A copy of such recorded will, with a copy of the order of probate annexed thereto, certified by the judge of probate under seal of his court, shall be as effectual in all cases as the original would be, if pro- duced and established by proof." [R. S. § 5931.]^^ § 1111. Recorded in each county where real estate is sit- uate. "If real estate devised by will is situated in any other county than that in which the will is proved, an authenticated copy of the will and order of probate shall be admitted to record in the office of the probate judge of each county in which such Court on jurisdictional matters is This is no part of the probate of questioned, it must he in a direct the will. Wolf vs. Menager, 14 Dec. proceodins. See §1112. 128; 48 B. 617. 76 § 10525 G. C. 76t § 10527 G. C. 76* § 10526 G. C. 76$ § 1052S G. C. 77 § 10529 G. C. § 1111 WILLS PROBATE 999a real estate is situated, upon the order of such judge, and shall have the same validity therein as if probate had been had in such county. " [ R. S." § 5932. ] ^« APPLICATION FOR TRANSFER AND RECORD OF REAL ESTATE DEVISED. Probate Court County, Ohio. In the Matter of the Estate of No Application for Transfer and Deceased. record of Real Estate Devised. Now comes and represents to the Court that by the terms of the last will and testament of , deceased, late of said county, which w- ill was duly admitted to probate on the .... day of , A. D. 19. ., and recorded in Vol P^ge , of the \Vill Records of said County, certain real estate was devised to That the following is a description of said real estate such as is con- tained in the will, to-wit:* (Here describe said real estate in the language of the will, and if not specific, such as would be necessary in making a deed, then after giving said description, say "The following is a specific description of said real estate," and describe it accordingly.) *If there are several parcels devised separately to different persons ■write the word "To" and give the name of the devisee of the first parcel before describing it. And then follow similarly with the next devisee and his parcel, and so on. * Your petitioner represents that all the provisions and conditions of said will have been fully complied with upon the part of said devisee. Wherefore, ... .he prays for an order to the County Auditor directing the transfer of said real estate upon the tax duplicate to name, and for a certificate to the County Recorder, as provided by law. *If not so. then cross out or alter accordingh', the part relating to order for transfer. The certificate to Recorder should issue even if the conditions of the will have not been complied with. The State of Ohio^ County, ss. being first duly sworn says that the facts stated in the foregoing application are true as ....he verily believes. Sworn to before me and subscribed in my presence this dav of , 19... ; Probate Judge. By , Deputy Clerk. 78 § 10530 G. C is a mistake the probate judge might Persons are bound by the will as be responsible. Wolfe vs. Menger, it appears on the record. If there 15 Dec. 128. i 999b FILING AND RECORDING. § 1111 CERTIFICATE FOR TRANSFER AND RECORD OF REAL ESTATE DEVISED. Probate Court County, Ohio. To the Auditor and Recorder of said County: I hereby certify that on the day of , A. D. 190. ., the last will and testament of , late of said county, was duly admitted to probate in this Court, and the same has been duly recorded in Vol , pfiRe of the Records of Wills in this office. That by the terms of said will certain real estate was devised to That the following is a description of said real estate such as is con- tained in the will, to-wit:* (Here describe said i-eal estate in the language of the will, and if not specific, such as would be necessary in making a deed, then after giving description, say "The following is a specific description of said real estate," and describe it accordingly.) *If there are several parcels devised separately to different persons write the word "To" and give the name of the devisee of the first parcel before describing it. And then follow similarly with the next devisee and his parcel, and so on. *And it appearing to the satisfaction of the Court that the terms of said will have been fully carried out on the part of the devisee hereinbefore named, it is ordered that such real estate be transferred upon the duplicates of the county to the name of the said devisee; and that this certificate then be presented to the said County Recorder for record. Witness my hand and the seal of said Court this day of , 190. , Probate Judge. By , Deputy Clerk. *If not so, then cross out or alter accordingly, the part relating to order for transfer. The certificate to Recorder should issue even if the conditions of the will have not been complied with. Probate Court, County, Ohio, A. D. 19. .. In the Matter of the Estate of Authority to Transfer and Record Real Estate Devised. Deceased. This day came and filed herein h. . . . application duly verified, for an order to the County Auditor directing the transfer upon the tax duplicate of County, of certain real estate devised by deceased, and for a certificate to the County Recorder. Upon consideration whereof, the Court finds that by the terms of the will of said decedent, said real estate was devised to And that the description of said real estate such as is contained in said will, and the specific description of said real estate, are as set out in said application. *And it appearing to the satisfaction of the Court that the terms of said will have been fully coiiijilied with on the part of said devisee herein- before named, it is ordered that said real estate be transferred upon the § 1111a WILLS PROBATE 9:)9c duplicate of the county to the name of , and that a certificate of this order, too-ether Avith tlie description contained in the application, issue to said Auditor and Recorder, as required by law. Judge. *If not so, then cross out or alter accordingly, the part relating to order for transfer. The certificate to Recorder should issue even if the conditions of the will have not been complied witli. § 1111a. Record of Title by descent. The county recorder shall not record any deed of absolute conveyance of land until it has been presented to the county auditor, and by him indorsed "transferred," or "transfer not necessary. ' ' Before any real estate, the title to which shall have passed under the laws of descent shall be transferred as above provided, from the name of the ancestor to the heir at law or next of kin of such ancestor, or to any grantee of such heir at law or next of kin ; Affidavit of lien. And before any deed or conveyance of real estate made by any such heir at law or next of kin shall be presented to or filed for record by the recorder of any county, such heir at law or next of kin, or his or their grantee, his agent or attorney shall present to such auditor the affidavit of such heir or heirs at law or next of kin, or of two persons resident of the state of Ohio, each of whom has personal knowledge of the facts, which affidavit shall set forth the date of such ancestor's death, and the place of residence at the time or his or her death ; the fact that he or she died intestate ; the names, ages, and ad- dresses, so far as the ages and addresses are known and can be ascertained of each of such ancestor's heirs at law and next of kin, who by his death inherited such real estate and the rela- tionship of each to such ancestor and the part or portion of such real estate inherited ])y each, which such transfers shall be made by the auditor in accordance with the statement contained in such affidavit. Indorsement of auditor. And such auditor shall indorse upon such deed or conveyance the fact that such transfer was made by affidavit. Such affidavit shall be filed with recorder of the county in which such real estate is situated at or before the time when such deed or conveyance shall be filed with such recorder for record and shall be by him recorded in the record of deeds, and such affidavit of descent shall be by him indexed in the general index of deeds, in his office, in the name of such ancestor as grantor and in the name of each of such heirs at law or next of kin as grantees in the same manner as if such names occurred in a deed of conveyance from such ancestor to said heirs at law and for such indexing and recording the recorder shall receive the same fees as are provided by law for the indexing and recording of deeds. 999d RECORD OP TITLE BY DESCENT § 1111a Prima facie evidence of title. The said record of the affi- davit above mentioned, shall, in the trial of any cause, so far as competent, be prima facie evidence only, of the truth of the statements made therein in accordance with the foregoing pro- visions of this act, but the truth of such statements may be rebutted or overcome by any competent evidence. Penalty for false statement. '< * * * Any person or persons who shall, wilfully and fraudulently make affidavit to any statement above mentioned, which shall be false, knowing the same to be false or who shall, for the purpose above mentioned, deliver to any county auditor for the purpose of obtaining any such transfer, or deliver to the county recorder, for the pur- pose of having the same recorded, any such affidavit containing any such false stateraents, knowing the same \o be a false state- ment, shall be guilty of a misdemeanor and on conviction thereof, be fined in any sum not exceeding five hundred dollars and be imprisoned in the county jail not to exceed six months, or both, and in addition, be liable in damages to any person who may be injured by the making, filing, recording or use as aforesaid of such affidavit." [R. S. § 1159; 108 v. 282.]"* AFFIDAVIT FOR TRANSFER AND RECORD OF REAL ESTATE INHERITED. i Deceased, State of Ohio, County, ss. Heirs at Law. and being first duly sworn, says — he — is ( are ) heir — at law of , deceased ; that on the day of , 19 .... , the said died intestate, residing at ; leaving the persons herein designated, all h — heirs at law and next of kin, with their age, address, relationship and portion inherited by them in the real estate hereinafter described: Name Agt' 1 Address Relationship Portion Inherited That on the day of , 19 .... , ... was duly appointed administrator of h. . estate by the Probate Court of County, and thereafter filed his final account in execu- tion of said trust. 'Iliat said , at the time of h. . decease, was seized of the following described real estate : 78a § 2768 G. C. § 1112 WILLS PROBATE 1000 Sworn to and subscribed before me and in my presence this day of , 19 * , The object and purpose of the above provisions of our statute is to create a system of registration of title to land vrithin each county which v^ill show the true condition of the title to lands therein, or at least establish that the apparent owner of record is to be considered the true owner; that upon record so made innocent dona fide purchasers may rely, and be justified in act- ing upon the information thus acquired. And the same con- struction should be given to the above provision of the General Code as is given to the act requiring the record of deeds. While the will might be sufficient to transfer title, although it was not recorded in the county, as to a party who had knowl- edge of all the facts, yet if the heir-at-law would sell the land to an innocent purchaser before the will was left for record, a good title would be conveyed.^® § 1112. Uncontested probate after one year binding-. ' ' If, within one year after probate had, no person interested appears and contests the validity of the will, the probate shall be forever binding, saving, however, to infants, and persons of unsound mind, or in captivitv, the like period after the respective dis- abilities are removed." [R. S. § 5933; 103 v. 173.] «° The above section is very much similar to sec. 12087 G. C. The statute of limitations in contest it is said differs from the ordinary statute in that it is jurisdictional in its nature, and cannot be waived by consent of the parties, since after the limit fixed by statute, the Court has no jurisdiction over the subject matter of the contest. And even where the ground of 79 Eggleston vs. Harrison, 61 0. the recording in such other counties S. 397 ; Coe vs. Erb, 59 0. S. 259. is not made a condition upon which See § 28. the estate of the devisee vests, nor Upon the probate of a domestic does the failure to record such copy will, the title of the devisee becomes and order of probate in any case vested immediately, and by relation, defeat the title of devisee. Carpen- as of the date of the death of the ter vs. Denoon, 29 O. S. 395. testator, whether the lands devised See §§ 1086a, 1113a. be situate in the county wherein the so § 10531 G. C. will is probated or in another county § 12087 G. C. has been amended of the State. It is true that pro- to require a contest to be commenced vision is made for recording a copy within one year instead of two years of the will and the order of probate after the will has been probated, in other counties where lands de- Vol. 102, p. 308. vised by the will are situate; but 1001 NOTICE OF CONTEST § 1112a contest is uiikiiown to the heir, or was not discovered by him until the limit for contest has elapsed, it was held that such heir could not contest the will under the statute, and that equity would grant him no relief.*^ The general principle of the statute of limitations, that dis- abilities cannot be tacked together to take the case out of the statute, applies in cases of contest.^^ But where a proceeding to contest a will is commenced within the limit of the statutory period, although only a part of the parties interested in the con- test are made parties thereto, the right of action is saved to all who are ultimately made parties, not"wdthstanding that some of them are not brought in the case until after the period of limitation has expired. ^^ The action to contest a will is an original proceeding orought in the Court of Common Pleas. But, as a matter of course, cannot be brought until after the will has been admitted to probate, for until such is the case there is no will to contest.®* Where a will was set aside at the instance of one who ia within the saving clause of the statute of limitations, it is wholly annulled, and the entire estate is to be distributed.®* § 1112a. Contests, etc. Only such persons as are interested in the will at the time it is probated can enter or maintain a suit to contest a will.^^^ A person who has gone into possession of land devised to him and leased the same knowing the contents of the will, can not bring or maintain the action.®^*' A legatee who has accepted a portion under the will can not bring an action to contest while he retains such portion.^^° But he may, if it is personal property, tender it back and bring the action.**'"^ 81 Page on Wills, 372, § 321. §§ 5858-5866 E. S. Kinkead's Plead- 52 Powell vs. Koehler, 52 O. S. ings, §§ 1207, 1208. 103. ssaDeBow vs. Fifth Church, 23 53 Bradford vs. Andrews, 20 O. S. Dec. 017. 208. 8r,b Lesley vs. Cockley, 32 0. C. C. SI Id. 22. 29!). 85 Meese vs. Keefc, 10 0. 362. 85c Zinn vs. Ferris, 27 Dec. 27. As to proceedings in contest, see § 1112b SET ASIDE BY AGREEMENT 1001a A will contest can not take the place of an action to quiet title ; a legatee is a necessary party. In the contest of a will there is no appeal from the Court of Common Pleas; the case can only go up farther by error.^^® The same as cases that are tried by jury as distinguished from those triable by a judge sitting as a Court of Equity. The issue of the capacity of plaintiff to bring the action be- cause not heir or next of kin may be fried as a preliminary issue.^^^ All persons interested in the- will at the time of trial must be made parties ; hence grandchildren born after the com- mencement of the action, but before trial, are not bound.®^^ But it is binding upon unborn remaindermen.^^^ The grantee of a devisee is a necessary party.^^* A subscribing witness may testify in behalf of the will on contest, even though he was testator's attorney.^^^ A three-fourths verdict of the jury is sufficient.^^^ § 1112b. Set aside by agreement. It is an elementary proposition that a person has a right to dispose of his property as he may see fit; the only condition is that he must exercise a free will when he is so doing, and be capaljle of exercising it. Yet it is a notorious fact that if the disposition the testator has made of his property does not suit his heirs at law, a friendly contest is begun, only slight testimony for plaintiff is introduced, and the jury brings in a verdict setting aside the will, and at once the heirs divide up the property to suit themselves — according to a pre-arrangement between them. One court has recently condemned this kind of action and held that the law of Ohio forbids the setting aside of a will by con- sent or the collusion of those who are interested as beneficiaries and contestants, and the continued prosecution of the suit will 85(1 Spangler vs. Beall, 19 O. C. C. S5h Stewart vs. O'Neal, 14 0. L. :(N.S.) 512. R. 533. 85e § 12086 G. C. 8" Sears vs. Stinebelfer, 89 0. S. 85f Arnold vs. Pease, 17 N. P. 228. 163. 85g Wallace vs. Ludwig, 18 0. C. ssj Baird vs. Detrick, 20 N. P. 207. C. (N.S.) 422; affirmed no op., 91 ssk Slemmons vs. Toland, 25 0. C. O. S. 397. C. (N.S.) 485. 1001b NOTICE OF CONTEST § 1113 not be permitted after the facts are brought to the attention of the court/^^ In another and later decision the court questions the correct- ness of the holding of the court in the above case, and holds that a plaintiff in a suit to contest a will does not lose his right to main- tain such action by reason of having entered into a contract with the beneficiaries under the will not to resist such contest.^'"'™ Yet in this case it is recognized that it is a matter of serious consider- ation whether court and jury may ratify an agreement of parties to set aside wills, by the formal rendition of a verdict and judg- ment, and there may be serious doubts concerning a practice which is becoming common, to have wills set aside by agreement and consent of all parties interested, and to have the rule of des- cent substituted for the law of the will, or other arrangements. It is difficult to know just how to reach the matter, but if the courts are going to permit the heirs at law to enter into agree- ments whereby they will share in the estate as they may see fit and that the will may be set aside, certainly grave question is cast upon the power of anyone to dispose of property by will.^^° §1113. Duty of judge on notice of contest. "When the probate court receives from the clerk of the court of common pleas a certificate that a petition has been filed in that court to contest the validity of a will admitted to record or recorded in the probate court, that court forthwith shall transmit to the common pleas court the will, testimony, and all papers relating thereto, with a copy of the order of probate, attaching them together and certifying them under the seal of the court. A copy of the final judgment on such contest shall be certified by the clerk of the common pleas to the probate court. Such clerk also must transmit to the probate court the will and other papers transmitted as aforesaid to the common pleas court ; and they shall be deposited and remain in the probate court." [R. S. §5936.]«« 851 Walker & Hollister, 20 K P. The Court of Common Pleas can 225 Dot appoint a receiver to take charge ssmRohr vs. Gatch, 21 N. P. 65. of real estate specifically devised 85n See Wagner vs. Ziegler, 44 O. during contest of will. Burgess vs. S 59; Gugoltz vs. Gehrlaw, 130 Pac. Sullivan, 2 N. P. (N.'S.) 327; 14 E,'. 8. I^cc. 712. In' this last case the contestant Any person interested may con- agreed to give a devisee one-fourth test a will. This would include the of the estate if she would not oppose creditor of an lieir who has obtained the setting aside of tlie will, etc., a lien by levy on the property which, and it was not permitted. in the absence of the will, would go 86 § 10534 G. C. § 1114 ERROR — REPROPOUNDING 1002 § 1114. Error, etc.^«^ Unless the cases in the Supreme Court are critically exam- ined, considerable confusion will arise upon the question as to whether proceedings in error may be prosecuted in matters re- lating to the probate of a will. In the case of Moiser vs. Harmon,*^ it was directly held that error will not lie to review the action of the Probate Court made in admitting a will to probate. Yet in another case, where it was sought to admit to probate a lost or spoliated will, proceedings in error were en- tertained to set aside the admission of the will to probate on the ground that sufficient notice had not been given.^* In a more recent case,*^ it was held that an application to the Probate Court to admit an alleged will to probate is a special proceeding within the meaning of that clause in sec. 6007, P. S., " that an order affecting a substantial right made in a special proceeding is a final order, and therefore may be va- cated, modified or refused in proceedings in error. This case, however, was decided where error was prosecuted from the Common Pleas to the Circuit Court, and the error alleged was a refusal of the Common Pleas to admit the will to probate. It therefore does not conflict with Moiser vs. Harmon,®" for that case was upon the question of reviewing an order of the Probate Court refusing to admit a will to probate. The reason of the decision in Missionary Society vs. Ely,^^ was that it was the only way in which the Circuit Court could review such an order; and the reason of the decision in Moiser vs. Harmon,®^ was that the statute made ample provision by proceedings to contest a will, and therefore no proceeding in error was con- templated by tlie legislature from the Probate Court. These cases have been recently reviewed, and it was held that an order of the Probate Court admitting a paper to probate as a last to the heir. The court, in the case, 89Missionary Soc. vs. Ely, 56 O. gives a prettv broad construction S. 405. as to -who niay be an interested 90 29 0. S. 220. partv. Bloom Vs. Piatt, 78 0. S. 9156 0. S. 411. 46. ' 92 29 0. S. 220. 86a Error may be prosecuted on The regularity of an order to pro- question of jurisdiction of the court bate a will can not be attacked in under § 10521 G. C, § 1086a. a trial to contest the will. Stacey 87 29 0. S. 220. vs. Cunningham, 48 Bull. 991; 69 88 Baugarth vs. Miller, 26 O. S. O. S. 176. 541. 1003 APPEAL § 1115 will and testament is not reviewable on petition in error, though an order refusing to admit puch paper to probate is review- able,®^ It would therefore follow, where the Court refused to admit a. will to probate, a party may either prosecute an appeal or repropound the will or have the same reviewed in proceedings in error. °* § 1115. Repropounding a will. It seemed formerly to be a doctrine laid down by our Courts that if the Probate Court refused to admit a -svill to probate, that any interested party might make an application again to probate the will.®^ At the time these earlier decisions were made, it was not required by statute that any person be given notice or made parties to the proceedings to probate the will. Afterwards it was required to make certain persons parties, and the law now seems to be that any person who is interested in a will, and has no notice of the proceedings to admit said will to probate until it is too late to perfect, an appeal, to the Court of Common Pleas, may repropound the will, even though the for- mer order of the refusal has not been vacated.®*' The person interested in a will means not only the heirs of the testator, but legatees under the will. If a will should be probated and afterwards it was discovered that an heir had not been made a party and a motion is made to repropound the will, which is done, the acts of the person appointed executor when the will is first probated are valid, and unless for good cause shown, no new appointment need be made. The executor appointed can proceed and administer the trust. § 1115a. Probating second will. "When a will has been probated can the court probate another will before the will first probated is set aside in an action to con- test the same, is a question not free from difficulty. I think it 93Hollrah vs. Lasance, 63 0. S. Will, G 0. 149; In re Hunter's Will, 58, 16 C. C. 187; 8 C. D. 788. 6 0, 490; Swazer vs. Blackman, 8 94 Stee §§ 1153, 1086a, as to ques- 0. 5. tion of jurisdiction to entertain ap- S'' Feuchtcr vs. Keyle, 48 0. S. plication. 357; Stacey's Will, 4 N. P. 143; 6 95 In the Matter of Chapman's Dec. 142. § 1115a WILLS — PROBATE 1004 will be conceded that under the laws of this State that the Pro- bate Court can not set aside an order it has made, and the only way that the will could directly be set aside is by an action to contest. But what is there to prevent the Probate Court from admitting the second will to probate, if it is shown to be entitled to probate, that is that the testator was of sound mind, etc., as provided in Sec. 1105. Sec. 10579 G. C. If two wills are probated, then as a matter of law the one last made would be the one to prevail, irrespective of the priority of probate. It is a matter upon which there is a diversity of opin- ion. Page on Wills, § 322, thinks that the second will can not be probated until the will first probated is set aside. He says, however, that recently it has been held to the contrarj^ It seems to the writer that the prevailing opinion of the authorities is that the Probate Court may admit to probate a will of a deceased person, notwithstanding the fact that it has previously admitted a will of such person to probate. In Bowen vs. Johnson, 5 R. I. 199, we find this language : "Our statute nowhere recognizes in express terms the power of our courts of probate to revoke a probate once granted by them; leaving that just and necessary power implied from their general power 'to take the probate of wills and grant administra- tion on the estates of deceased persons' * * * no one can suppose however that such power of revocation does not exist therein ; that if probate of a will be granted and the time of appeal be passed inasmuch as their jurisdiction is exclusive, etc. Now it seems to be quite congruous with the statute mode of conferring this power of revoking the old probate, to-wit,'as incidental to the power of taking probate of the later will when discovered, for the court to exercise this power of revocation as incidental to the new grant of probate, rather than to make it necessarily the subject of a preliminary and separate action."®^* 96a See also Waters vs. Stickney, than ordinary weight in this state. 12 Allen (Mass.), p. 1, where See also Vance vs. Upson. 64 Tex. Justice Gray discusses the matter 266; Besancon vs. Brownson, 39 quite lengthily and conies to the Mich. 388: Gaines vs. Hennen, 24 same conclusion. As our probate How. (U. S.) 553; 16 L. Ed. 770; law is largely taken from the Massa- 40 C^c. 1224, l^dS, 1235, chusetts law, this opinion is of more 1004a WILLS— PROBATE § 1116 §1116. Appeal from refusal to admit will to probate. "When the probate court decides not to admit a will to probate, a person thereby aggrieved may appeal from this decision to the next term of the common pleas court, by filing notice of an intention to do so within ten days after it is rendered." [R. S. §5934.]^' It is a well-settled principle that an appeal only lies for such cases as is provided for by statute; and it will be observed that the above section relating to appeals applies only to cased where the court refuses to admit the will to probate. It therefore follows that no appeal will lie where the will is ad- mitted to probate. The proceedings providing for contest fur- nish the only remedy to review the proceedings to probate the will where the Probate Court allows the will to be pro- bated. In order to have the right under the above section, the notice must be filed with the court within ten days from the time the order of probate is made. The statute does not seem to require that the person appealing the case shall give a bond, as is provided for generally in appeals from the Probate Court.^^ When such notice of appeal is given, the court should make an entry of that fact and order that a certified copy of the order of the Probate Court rejecting the will should be made out and given to the person who desires to appeal. It is the duty of the person appealing the case to file the same in the Court of Common Pleas, and while the above section does not say anything about a bond, the provisions of sees. 11207-8-9, G. C.,^^ may apply as to bond. § 1117. How appeal perfected and proceedings in common pleas. "The person appealing shall procure and file in the court of common pleas a certified copy of the order of the pro- bate court rejecting the will, together with the will, and there- upon the, appeal will be perfected. The court, on the hearing, shall take testimony touching the execution of such will and 97 § 10532 G. C. 98 §§ 11207-8-n, § 43, but no doubt 99 § 43. bond should be required. § 1117 WILLS — PROBATE 1004b have it reduced to writing. The final order of the common pleas court, together with the will and testimony so taken, shall be certified by the clerk to the probate court, and if by such order the will is admitted to probate, the will, order, and testimony shall be recorded in the probate court." [R. S. § 5935. ]"» 100 § 10533 G. C. The Complete Law and Practice IN THE Probate Courts of Ohio INCLUDING THE Administration and Settlement of Estates of Deceased Persons — Including the Inheritance Tax and Administration of Estates by Trust Companies — The Guardianship of Infants, Imbeciles and Drunkards — The Assignments for Benefit of Creditors — The Law Relating to the Execution, Construction and Probate of Wills — The Statutes of Descent and Distribution — Dower — Trustees — Appropriation of Property — Adoption of Child- ren — Juvenile Court Proceedings — Mothers' Pensions — Road and Ditch Appeals — Appeals in Condemnation of Road Material — Appeals in Allowance of Sheep Claims — Franchises — Proceed- ings in Aid of Execution Habeas Corpus — Contempt and other Miscellaneous Matters (other than Criminal) Within the Jurisdiction of the Probate Court. WITH COMPLETE AND PRACTICAL FORMS BY WILLIAM M. ROCKEL, (of the Springfield Bar, late Probate Judge of Clark County), fonner Judge of Circuit Court, Second Judicial District THIRD EDITION VOLUME IL CINCINNATI, THE W. H. ANDERSON CO., 1922 1902 COPTBTGHT BY THE W. H. ANDERSON CO. 1911 Copyright by THE W. H. ANDERSON CO. 1912 Copyright by THE VV. H. ANDERSON CO. 1922 Copyright by THE W. H. ANDERSON CO. 1005 FOREIGN WILLS §1118 CHAPTER LIX. FOREIGN WILLS. 1118 1119 § 1119a §1120 §1121 §1122 §1123 §1124 §1125 §1126 §1127 §1128 §1129 Introductory, definition, etc. Will executed in other States admitted to record here and its effect. Foreign wills. Record of foreign will. Method and effect of such admission. Application, etc. Form of entry. Appeal, error, etc. Probate, etc., of will made out of the United States. Proceedings to admit a will to record which has been probated without the State. Application or motion to admit copy of will, etc. Entry ordering notice, etc. Form of notice. Admission of such will to probate. § 1130 Admission and effect of ad- mission to record. §1131 Entry ordering admission of will made in foreign countries to probate. § 1131a Probate of foreign will of later date than one already admitted to probate in this State. § 1131b Effect of admitting later will to probate. § 1131c Contests. § 1132 Powers of executor or ad- ministrator under will made out of this State. § 1133 Rights of purchaser with- out knowledge of foreign will. No contest of foreign will. Effect, if set aside in foreign state. § 1133a Foreign will can not be con- tested here. § 1118. Introductory, definition, etc. A will may be designated as a foreign will under several different conditions. First, it may be foreign, merely because the testator's domicile was in another State or country; sec- ond, it may be foreign because it was probated in another State; third, it may be foreign because it was probated in a country outside of the United States. Generally used, how- ever, a foreign will is a will executed in another State or country by a testator there domiciled, and there, upon the death of such testator, admitted tO' probate, and subsequently offered for record in this State. A question might occur whether or not a will executed according to the laws of our State, but made by a person who lived and died in another [ State or country, could be offered for original probate in this I State, or must the will be first probated in the place of the tes- § 1138 FOREIGN WILLS J.<^06 tator's domicile ? ^ As a general rule, it is stated that the proper place to probate the will of a testator is in the Probate Court of tlie county where the testator was last domiciled, and this is the case irrespective of the place where the will was made or the country or State where the testator happened to die.^ And so it is said that the law of one's last domicile not only decides what constitutes one^s last will, but whether one died testate in point of fact, or intestate, and that all questions as to the forms and solemnities attending a due execution are therefor to be referred to the place of last domicile.^ Originally and ^\dthout any law to the contrary, no property e-ould pass by will in the jurisdiction of any State or country, unless the will was made and executed according to the laws of the countr)^ within which the property was situate. It there- fore follows that although our statute allows authenticated copies of wills to be admitted to probate, it does not take away the right to submit the original "wnll for probate in the country where there is an estate. However, if a will of a testator whose domicile is in another State, be admitted to probate, an authenticated copy of such i*eoord cannot be presented for record within the State of his domicile. In other words, where a tes- tator dies having an estate in another country, two methods may be pursued in reference to the probate of the will in the other country. The first is, the original will may be presented, and if it is made in conformity to the laws of the State where presented, be admitted to probate. However, if the will is to be effective in the country or State where the testator has his domi- cile, it must be admitted to original probate in the State of the domicile.* The second method is by presenting an authenticated copy of the will when admitted to probate in the place of domicile. In the matter of probating foreign wills, it should not be forgotten that the laws of the domicile of the testator, control 1 See § 1086 and § 74. 3 Schoul. Ex. 17. 2 Converse vs. Starr, 23 0. S. 491 ; * Woerner on Admin. 495 ; Page Carpenter vs. Denoon, 29 0. S. 379; on Wills, 423, § 355; McNeal vs. 19 Am. & Eng. Ency. of Law, 17a. Ross, 39 Bull. 353. 1001 IN OTHER STATE § 1119 as to the disposition of personal property, while the laws of the place where the property is situate, controls the disposition of real estate.^ For some purpose, perhaps to conform to the constitution of the United States, which requires one State to give full faith and credit to the judicial acts of another, our statute has made a distinction in reference to the admission of a will probated in another State of the union and those probated in some other country. The following section provides as to the ad- mission of a will probated in other States.^ § 1119. Will executed in other States admitted to record here and its effect. Foreign wills. "Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relative to property in this state, may be admitted to record in the probate court of a county where a part of such property is situated. Such authenticated copies, so recorded, shall have the same validity in law as wills duly made in this state are declared to have." [R. S. § 5937.]'^ § 1119a. Record of a foreign will. ' ' When such a will, or authenticated copy, is admitted to record, in the probate court of a county where a part of such property is situated, a copy thereof, with the copy of the order to record it annexed thereto, certified by the probate judge under the seal of his court, may be filed and recorded in the office of the probate judge of any other county where a part of such property is situated, and it •'■' In Brewster vs. Brewster, 14 0. to the distribution of that property S. 368, 382, a question arose as to thus transmitted, and where it is the distribution of property under not controlled by the will, that ques- a clause in a will made in Connec- tion must be settled according to the ticut, and it was said: "To a very laws of Ohio." considerable extent, the construction See §§ 1181, 1016 G. C. of the will must depend upon the 6 See § 1267, Trusts created by for- law of Connecticut. But when it is eign wills. considered that the devisees and le- A will made in another State, gatees are all in Ohio, that the trus- takes effect from the death of the tee in Ohio, that the property itself, testator and not from the date of so far as it can be done, is to be its registry. Hall vs. Ashby, 9 O. and actually has been transmitted 96. to Ohio; when a question arises as ^ § 10535 G. C. § 1120 FOREIGN WILLS 1008 shall be as effectual as the authenticated copy of such will would be if proved and admitted to record by the court." [R. S. §5937.]^* § 1120. Method and effect of such admission. By the provisions of the above section, the admission of a will probated in another State to record in this State becomes a very simple affair. It is purely ex parte, requiring no notice to be given to any parties interested, although the Court may in its discretion admit parties interested to appear, and it has been held that the Court admitting a will to record may hear testimony in opposition to such admission.® There has been some discussion as to what must be shown when an authenticated copy of a will proved in a sister State is to be admitted to record. The general opinion seems to be that the Court, must be satisfied that the will was executed and proved according to the laws of the State or territory of the United States in which it was originally offered for probate and at the domicile of the testator. If it was not so proved and executed, the Court should not admit it to probate and as to the fact whether or not it was so admitted to probate, testimony may be heard.^ And as to this question, the Probate Court is not bound by the facts represented from the authenticated record alone.^" Whether or not if a foreign will be admitted to probate in one county and there is an estate in another county, the admis- sion of the will in one county Avill carry the title to the lands in the other, presents some questions. The effect of such action probably is, so far as the devisee and the heirs at law are con- cerned, to convey the title ; but generally according to our registration acts, unless a copy be filed in the county in which the land is situate, it would not protect the devisee against an innocent purchaser from an heir-at-law.*^ -!* § in536 G. C. f Bfirr vs. Closterman, 2 C. C. 387; A deed made before a foreign will 1 ('. D. 546. is registered, conveys title in prefer- i'' See ^ilatter of Will of Barr, 15 ence to the will. Hall vs. Ashby, 9 Bull. 310. 0. 99. 11 S8 10576-7 G. C., § 1133. Rights 8 Barr vs. C'losterman, 2 C. C. 387 ; of purchaser. A foreign will must 1 C. D. 546. be admitted to record within four years from time of original probate. 1009 APPLICATION § 1121 § 1121. Application, etc. As a general rule I think it may be said that Probate Courts do not require a formal application to be made in admitting an authenticated copy of a will for record, yet as a protection to the Court, it seems that such an application would be advisable. It may be in the following form : {Title.) Now comes A. B. and represents to the Court that C. D. died an in- habitant of the county of , State of leaving a last will and testament, and thereafter said last will and testa- ment was duly admitted to probate in the said county of and State of , and that said C. D., deceased, left an estate in this county. Said A. B, represents that the following persons, living in the State of Ohio, are interested in said will. (Here state names of persons and how interested.) Wherefore he presents to the Probate Court of this county, a duly authen- ticated copy of said will and asks that the same be admitted to probate in this county and placed upon record. Sworn to before me and subscribed in my presence this day of ; 190... § 1122. Form of entry. The Court, having examined the papers presented and ascer- taining whether from the recitals therein contained that such will was duly executed and proved according to the laws of the State where it was originally ofPered for probate, should admit the will to record. The following may serve as an entry : (Title.) This day came A. B. and presented to this Court a duly authenticated copy of the will of C. D., which was originally admitted tc probate in the county of , and State of , and the Court finding that said will of said C. D. was duly executed and proved according to the laws of State of , and that said C. D. died leaving an estate in this county, it is ordered that the same be admitted to record in the Probate Court of this county.i2 § 1123. Appeal, error^ etc. It is generally held that an appeal will not lie to the common pleas from the judgment of the probate, refusing to admit an authenticated copy of a will to probate under sec. 10535 G. C. 12 In Barr vs. Closterman, 2 C. C. does not sustain the syllabus. Id., 389; 2 C. D. 222, the syllabus seems p. 401. to be that it is not necessary to i3 Barr vs. .Closterman, 2 C. C. show that there is an estate in the 387; 1 C. D. 546; 30 Bull. 264. county, but the opinion of the Court § 1124 FOREIGN WILLS 1010 (§ 1119).'' The remedy afforded to a person where the Court refuses to admit a will, is to repropound or reoffer the au- thenticated copy for record." If an order admitting the will to probate be made inadvertently or by reason of misrepresen- tation, the Court may set such order aside.^^ While the statute is not specific on the subject, yet in analogy to the remedy provided on the original probate of a will, where the authenticated copy is admitted to record, the repiedy of an aggrieved party is not by error nor appeal, but by contest. Al- though the subsequent section of the General Code/** says " there shall be no contest," that means there shall be no contest if the will has been proved and executed according to the laws of the other State, if not so proven and executed, there may be a contest/^ If the will itself is to be contested and not the order of probate, such a contest must be made where the original will was probated, it cannot be made in this State. § 1124. Probate, etc., of will made out of the United States. "A will executed, proved, and allowed in a country other than the United States and territories thereof, according to the laws of such foreign state or country, may be allowed and admitted to record in this state in the manner and for the purpose men- tioned in the following sections." [R. S. § 5938.]i« § 1125. Proceedings to admit will to record which has been probated without the State. "A copy of the will and pro- bate thereof, duly authenticated, must be produced by the executor, or by a person interested therein, to the probate judge of the county in which there is any estate upon which the will may operate, whereupon such judge shall continue the motion to admit it to probate for two months. Notice of the filing of such application must be given to all persons interested, in some 1* Barr vs. Clostemian, 3 C. C i^ See remarks of Court in 3 C. 441; 2 C. D. 251. C. 391; 2 C. D. 216; Jones vs. Rob- is Barr vs. Clostemian, 7 C. C. inson, 17 0. S. 171; Manuel vs. 371; 4 C. D. 641. Manuel, 13 O. S. 458; Bailey vs. 16 §§10576-7 G. C, §1133. See Bailey, 8 0. 239; Meese vs. Keefe, § 1086a and § 1131a. ' 10 0. S. 362. 18 § 10537 G. C. 1011 APPLICATION, ETC. § 1126 public newspaper printed or in general circulation in the county where the motion is made, at least three weeks consecutively. The first publication shall be at least forty days before the time set for the final hearing of the motion." [R. S. § 5939. V» § 1126. Application or motion to admit copy of will, etc. It will be observed that sec. 10538, G. C, diifers from see. 10535 G. C. (§1119), in that it requires that the proceedings shall be begun by motion, and that such action shall be continued for the term of two months after the filing of such application, and that notice of such application is to be given, etc. The application to admit a will for probate made outside of the United States should set forth the fact that the mil was duly authenticated and probated in some foreign Court, that the person making the application has an interest therein, and that the testator died with an estate in the county in which the appli- cation was made. Such application should also state the names of all persons residing in the State or elsewhere if known, so that they might be mentioned in the notice that is required to be given. Their postoflfice address should also be given. It may be in the following form : FORM OF APPLICATION. {Title.) A. B. respectfully represents that on the day of 190. . .the last will and testament of C. D. was duly probated in the Court of at in country. He further rep"resents that he is interested in said will, in this, to-wit, (here state how interested) and that the said C. D. died leaving an estate in this county of which will be operated upon by said will. lie further represents that the following persons are interested in the fact whether said will be probated or not, to-wit. (Here state names of persons, with postoffice addresses.) He herewith presents a copy of said last will and testament, and the probate thereof duly authenticated of the said C. D., and asks that the same may be admitted to record in this said county. Sworn to before me and subscribed in my presence this day of 190... § 1127. Entry ordering notice, etc. The will having been presented, the Court should then order notice to be given as required by statute, and must make a 19 § 10538 G. C. See § 1119. § 1128 FOKEIGN WILLS 1012 continuance of at least two months between the time the order to give notice is made and the order admitting to record is made. The entry may be in the following fonn: (Title.) This day came A. B. and filed herein his motion or application to admit to record the last will and testament of C. D. and presented with his said application, a copy of the said will and the probate thereof duly authenti- cated. Wherefore it is ordered that notice thereof be given to (here men- tion the names and postoffice address of the persons who appear to be inter- ested in said will ) , and that said notice shall be given in paper, the same being a public newspaper printed (or of general circula- tion) in this county, and that the same be published once a week therein for three successive weeks, and that the first publication be made forty days before the day of , which is the time set by this Court for the final hearing of said motion. § 1128. Form of notice. To ( Here give the names and residence of all person3 known to be interested in the probate of said will.) You will take notice that on the day of , A. B. produced to the Probate Court of county, Ohio, a copy of the last will and testament of C. D., late of City of country, deceased, and has applied to have said will probated and recorded in said county of Ohio. Said A. B. representing to said Court that he is interested in said will as (here state how) and there is some estate in said county upon which said will operates. The hearing of said application has been set by said Pro- bate Court of County, Ohio, for the day of at o'clock, 1901. § 1129. Admission of such will to probate. Upon the day set for final hearing which must not be less than two months from the day the application is filed, and there having been filed in the Court the proof of publication in conformity to the former order of the Court, which shows that it was made in a public newspaper printed or of general circulation in the county for at least three weeks successively and that the first was forty days before said date of final hear- ing, the Court should proceed to a hearing of the fact whether or not said will should be admitted to probate. The same fact comes, up here for adjudication as if the will was originally proved in another State, that is whether the will has been executed, proved and allowed according to the laws of the domicile of the testator. If it has been it should be admitted probate. The statute does not sav that it. must be. but it may 1013 ADMISSION TO RECORD § 1130 be allowed, and it seems to vest a discretion whether it should be admitted or not. The proceedings from the fact that notice is required to be given, differ somewhat from the proceedings to admit a will proven in another State, and seem to partake more of an adversary character. There are no adjudications in our State upon this question. It undoubtedly means from the fact that notice is required, and that the Court may admit a will to probate that the proceedings is somewhat different, just to what extent I am not able to say. However, before the Court admits such a will to probate, it should be satisfied that the will was properly admitted in the domicile of the testator, and tliat the same is not contrary to the laws of our State. It must alsO' be shown that the will is valid by the laws of the State where made. § 1130. Admission and effect of admission to record. "If, on such hearing, it appears to the court that the instrument ought to be allowed in this state, it shall order the copy to be filed and recorded. The will, and the probate and record thereof, then shall have the same force and effect as if the will orig- inally had been proved and allowed in that court, in the usual manner. Nothing herein contained shall give any operation or effect to the will of an alien, different from what it would have had if originally proved and allowed in this state." [R. S. § ,5040.1^0 § 1131. Entry ordering admission of will made in foreign coun- try to probate. (Title.) This day this matter came on to be heard upon the application of A. B. to have tlie will of C. D., late of City of country, admitted to probate in this Court, and having presented a copy of said will with the probate thereof and duly authenticated, and having given notice to all the interested persons as required by a former order of this Court and by the statutes in such cases made and provided, and it appearing to the Court that said C. D. left an estate in this county upon which said will operates, and it further appearing to the Court that said will was duly executed, proved and allowed in said city of of country, the same being the domicile of the said C. D. and it further appearing to the Court that said will ought to be allowed in this county, it is ordered that a copy thereof be filed and recorded in the records of wills in this Court. 20 § 10539 G. C. § 1131a FOREIGN WILLS 1014 § 1131a. Probate of foreign will of later date than one al- ready admitted to probate in this State. "When a will, or authenticated copy of one lias been admitted to probate or to record in this state, and a will of later date, or authenticated copy of one, executed and proved as required by the law of any other state or territory in the United States, which relates to property in this state, is presented to the same court for pro- bate or record, upon giving notice to the widow or husband, the next of kin to the testator, and his personal representative, with the will annexed, of such will earlier in date, and the benefi- ciaries therein, the mode and for the time such court directs, it shall have the same authority to admit the later will to probate or to record that it would possess if no earlier will or copy of one had been so admitted. In such ease, the proceedings shall be the same as if no other will of the party ever had been proved or recorded." [R. S. § 5929b.] ^^ § 1131b. Effect of admitting later will to probate. "Should the probate court, as a result of such hearing, admit the later will or authenticated copy to probate or to record, its order also shall operate as a revocation of the order admitting the instrument earliest in date to probate or record." [R. S. § 5929b.] -1* § 1131c. Contests. ' ' The provisions of law relating to the contest of wills originally admitted to probate or to record apply in all respects to later wills so admitted." [R. S. § 5929b.] -^f § 1132. Powers of executor or administrator under will made out of this State. "After allowing and admitting to record a will, pursuant to either of the next four preceding sec- tions, the court may grant letters testamentary thereon, or letters of administration with the will annexed, and must pro- ceed in the settlement of the estate found in this state. The executor taking out letters, or the administrator with the will annexed, shall have the same power to sell and convey the real or personal estate, by virtue of the wall or the law, as other executors or administrators with the will annexed." [R. S. §5941.] 22 21 § 10522 G. C. the same are admitted to record as 21* § 10523 G. C. provided by the provisions referred 2it 10524 G. C. to in this chapter. This would ap- 22 § 10540 G. C. ply more strictly to real estate thaji It is a matter so elementary that to personal property, as our statute perhaps it does not need mentioning recognizes the authority of execti- that no foreign will has any effect tors and administrators appointed upon the lands or estate of a de- in foreign States to sue and be sued ceased person in this State, unless in this State. See § 186 et seq. 1015 RIGHTS OF PURCHASER, ETC. § 1133 § 1133. Rights of purchaser without knowledge of foreign will. No contest of foreign will. Effect, if set aside in foreign State. "The title of a bona fide purchaser, without knowl- edge of a will, to land situated in this state derived from the heir or heirs of a person not a resident of the state at the time of his or her death, shall not be defeated by the production of the will of such decedent, unless it is offered for record in this state within four years from its final probate and establish- ment in the state or territory in which it was admitted to pro- bate. But the rights of infants, or persons of insane mind and memory, shall not be concluded by delay or failure to record such will in this state, until two years after their respective disabilities are removed." [R. S. § 5967.]-^ § 1133a. Foreign will can not be contested here. ' ' No pro- ceeding shall be had in this state to contest a will executed and proved according to the law of a state or territory of the United States, or of a foreign country, relative to property in this state; but if such will be set aside in the state, territory, or country in which it is executed and proved, it shall be of no validity in this state as to persons claiming under it, with notice of its being set aside, and as to all other persons, from the time an authenticated copy of the final order or decree setting it aside, is filed in the office of the probate judge, of the county in which the will is recorded." [R. S. § 5967.]-^* s!* § 10576 G. C. must be recorded in Ohio before 23* § 10577 G. C. title to land vests in devisee. A will made in a sister state Abraham vs. Tappan, 6 0. 172. §11^4: SPOLIATED WILLS 1016 CHAPTKRLX. SPOLIATED WILLS. §1134 §1135 §1136 §1137 §1138 § 1130 § 1140 §1141 §1142 §1143 §1144 § 1145 §1146 § 1147 §1148 § 1148a Definition, etc. Wills when lost or destroyed may be admitted to pro- bate. There must have been a will. Duly executed. Not revoked at death of testator. Lost, spoliated or destroyed. Lost, etc., subsequent to death of testator. After testator is incapable, etc. Application. Form of application. Notice of application. Ordering notice, etc. Examination of witnesses. Nature of proceedings. On what proofs will estab- lished. How lost or spoliated will may be probated. Notice. § 1149 Degree of proof. § 1150 Proof of contents. § 1151 Order establishing wills. § 1152 Effect of will so established. § 1153 Error and appeal, etc. § 11.54 When record of will de- stroyed, authenticated copy of the will and probate thereof may be admitted' to record. § 1155 An original will may again be admitted to probate. § 1156 Or an authenticated copy of the will alone may be ad- mitted to record. g 1156a Limitation as to contest;^. § 1157 Notice that copy has been admitted to record to bi^ published, coi.test of same, and effect if not set aside. § 1157a Appeal from order supply ing record of will to the common pleas. § 1134. Definition, etc. A spoliated will is a will that for some reason camiot be produced in the form that it was made by the testator. A will may become spoliated within the meaning of the statute in several different ways. That is, it may be lost or it may be destroyed. The proceedings authorizing such a will to be pro- bated are strictly statutory and before a Probate Court can es- tablish such a will the requirements of the statute must have been complied with. Considering the dangers that surround such a proceeding, the Court should proceed with great caution.* 1 Davis vs. Sigourney, 8 Mete. (Mass.) 487; Matter of Johnson, 40 Conn. 587. See In re Murray Estate, 63 Bull. 81 ; 20 N. P. 305. 1017 MUST HAVE BEEN A WILL § 1135 In many respects a spoliated and revoked will are similar, but they differ vitally in this, that a revoked will is a destruc- tion or annulling of the instrument by the testator. While a spoliated M'ill is one that in the mind of the testator exists as it did when it was finally executed. Our statute has some marked characteristics in reference to the probating of such wills, which must be closely observed in such proceedings.^ § 1135. Wills when lost or destroyed may be admitted to probate. "The probate court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated, or destroyed, subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, and it can not be produced in court in as full, ample, and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate." [R. S. §5944.]^ § 1136. Must have been a will. The first essential feature in the establishment of a spoliated will is proof that there was a will, and that it had a legal exist- ence at the time of the death of the testator. "The existence will not be presumed from the fact that it was seen shortly be- fore testator's death, nor is it proved by a declaration of the tes- tator, made seven months before his death, that he had made a will, for this does not suffice to rebut the presumption of de- struction wdth intent to revoke, which arises from the fact that no will could be found after diligent search, made soon after death. ' ' * The burden of proof is on the proponent to show either the existence of the will at testator's death or its subsequent 2 Page on Wills, § 347, p. 420. 4 Collyer vs. Collyer, 4 Dem. 53, 3 § 10543 G. C. aff. 110 N. Y. 481. See Matter of Chancery Courts never had juris- Marsh, 45 Ilun, 107. diction in Ohio. Morningstar vs- The Probate Court has exclusive Selby, 15 0. 345. jurisdiction. §1137 SPOLIATED WILLS 1018 destrnctiou.-'' Either fact may be proved by circumstantial evidence. Thus when it appears that the will, at the time of its execution, was placed by the testator in the hands of an- other person as custodian, who took charge of it, and locked it np in a trunk, and supposed it was there at the time of the tes- tator's death, but, upon search after his death, it could not be found, its legal existence, at the time of the testator's death, is sufficiently shown.*^ But a lost will, not traced out of testator's possession, is pre- sumed to have been revoked by him by destruction/ And when a ^dll once kno\\Ti to exist and to have been in the custody of the testator, cannot be found after his death, the legal presump- tion is that it was destroyed by the testator wtli the intention of revoking it. § 1137. Duly executed. Another essential of a spoliated will is that the ^vill which is sought to be probated as a spoliated will was at one time duly executed as the statute provides. These requisites must be proved as if the will were present. It cannot be done, it is true, by the same description of evidence in all respects, but some evi- dence sufficient to show a compliance with the statute, in all its provisions, must be given.* These facts are to be proved in the usual way, as other facts are required to be proved, to make them evidence in a Court of justice. The fact of testator's mental capacity must be shown ; if not, although the existence of the will is proved, probate will be refused.* While the statute requires rules to be observ^ed in the execu- tion and publication of wills, which it does not prescribe in re- gard to the execution and delivery of other written instruments, tJie proof of the several acts so prescribed is the same as the proof 5 Perry vs. Perry, 21 N. Y. Supp. .7 Idley vs. Bowen, 11 Wend. 227, 133; McXally vs. Brown, ,5 Eedf. aff. Edw. 148; Bulkley vs. Redmond, 372; In re Estate of Murray, 63 2 Bradf. 281; Holland vs. Ferris, Id. Bull. 81; 20 N. P. 305. 334; Eedf. Law and Prac. 207. G Schultz vs. Schultz, 35 K Y. 653. « Grant vs. Grant, 1 Sandf. Ch. iSee Cahill vs. Owens, 2 Gaz. 89. 235; 343; Voorhees vs. Yoorbees, 39 6a Bebrens vs. Behrens, 47 0. S. X. Y. 4G3. 323. 9 Matter of Paine, 6 Dem. 361. 1019 NOT KEVOKED AT DEATH, ETC. § 1138 required to establish any other fact. The law lays dowr^. no stubborn, inflexible rules in such cases, but accepts the best evi- dence that can be procured, adapted to> the nature of human af- fairs, human infinnities and casualties, which tends with rea- sonable certainty to establish the facts in controversy.^** § 1138. Not revoked at death of testator. It will be observed that one of the essential conditions of the establishment of a will as a spoliated will is that the original will waS' not revoked at the time of the testator's death. From this follows what has been heretofore stated that the will must exist as a will at the time of testator's death/^ if he has destroyed it, then, as a matter of course, it can never be estab- lished as his will.^^ § 1139. Lost, spoliated or destroyed. These are three terms which are used to describe the condi- tion that the original instrument must be in, in order that sec- ondary evidence may be given to establish the instrument itself or its contents. They are in a certain sense synonymous, but there might be a discrimination between them. A lost will would be one that can not be found, and no explanation can be given as to its whereabouts. A destroyed will would be one for which a reason could be given for its non-production, and for its non-existence, by describing how it was put out of existence. A spoliated will might be a will which has been partly lost or partly destroyed by some agency other than the testator 's.^-^ As to this fact of the will being lost, spoliated or destroyed, proof must be given of the exercise of reasonable diligence in the effort to procure the original. Generally it has been a sufficient excuse for the non-production of a document to trace it to the 10 Redf . Prob. Law and Prac. 207 ; Where a will has been lost or Page on Wills, § 438, p. 518. destroyed before the death of the 11 § 1136. testator the law presumes he revoked See Cahill vs. Owens, 2 Gaz. 89, it, and when he became insane after where it was shown tliat three days he made the will, the evidence to before the death of testator, that it overcome this presumption must be was in his chest, that the keys were certain, satisfactory and conclusive in possession of another, etc., it was that it was unrevoked and in exist- admitted. ence after he became incapable by 12 As to what will constitute revo- reason of insanity, to make a will, cation, § 1048 et seq. Cole vs. McClune,' 88 0. S. 7. The word "lost" means nonexist- No presumption arises that tes- ent, and must be given some of the tator destroyed a will by failure to signification of "spoliated" or "de- find it after" her death, if her hus- stroyed," although as a general rule band had the custody of it. In re it means when a tiling has been duly Thompson, 59 Bull. 344; 16 N. P. searched for and can not be found. 121. Gibson vs. Gibson, C. C. (N.S.) i2a Followed hr. re Murray's Est., 269; 25 0. C. 698; affirmed 72 O. S. 63 Bull. 33; 20 N. P. 305. 677. § 1140 SPOLIATED WILLS 1020 possession of one interested in retaining it, and who were he sub- poenaed to produce it, would refuse to do so, on the ground that it would tend to criminate him/^ In civil eases it has been repeatedly held that where the paper or docimient wanted in evidence has been traced to the posses- sion of a certain party, that party must be produced to prove its loss, and if beyond the jurisdiction of the Court, his testimony must be taken by deposition, or a reasonable excuse given for the failure. It must also appear that the party offering secondary evidence shows that he has exercised good faith and reasonable diligence in seeking for the primary evidence, and that he has explored with reasonable fidelity all sources of information the case would naturally suggest.^* But there is no universal rule as to the necessary foundation for the introduction of secondary evidence ; but the judge must be reasonably satisfied that the document is lost, destroyed, or beyond the jurisdiction of the Court. When no probable motive appears for withholding the document, less evidence is required than under suspicious eircumstanoes.^'* § 1140. Lost, etc., subsequent to death of testator.* Our statute has made an essential fact to be that the will must be in existence, not merely in contemplation of law, but actual, tangible existence at the time of the death of the testator. This question came before our Supreme Court shortly after the pass- age of the present wills act,'^ and there it was said: " If all tliis legislative machinery tvqs to establish a will lost after the death of the testator, why is it that all provision whatever is omitted for the establishment of proof and record of a will lost before the decea.=^ of the testator ? The answer is obvious. 13 Abbott's Tria\ Brief, § 452, cit- vs. Hurst, 3 Desaus, Eq. 273; 5 Am. ing United States vs. Reyburn, 31 Dec. 551. U. S. (6 T^et.) 353, 366; 8 L. Ed. is Jernigan vs. State, 81 Ala. 58; 424, 429; State vs. Kimbrough, 2 Haun vs. State, 13 Tex. App. 383; Dev. L. 431. 44 Am. Rep. 706; Rice Am. Pro. 14 Simpson vs. Dall, 70 U. S. (3 Law, 254. Wall.) 460, 475; IS L. Ed. 265. 267; ic In the Matter of Sinclair's Will, Deaver vs. Rice, 2 Ire. L. 280; Par- 5 0. S. 2^1. kins vs. Cobbet, 1 Car. & P. 282 ; *Cited, Gibson vs. Gibson, 14 Dee. Dickinson vs. Breeden, 25 111. 186; 331; affirmed 25 0. C. C. 698; 72 T^irner vs. Yates, 67 U. S. (16 0. S. 677. How.) 14; 14 L. Ed. 824; Bunch 1021 AFTER TESTATOR INCAPABLE § 1141 The General Assembly deemed it either impolitic, as opening the door to imposition and )erjury, or unnecessary, to permit wills lost or destroyed befc e the decease of the testator to he established. This Court can not, by construction, enlarge the terms of a statute so studiously limited and circumscribed," ^^ Other States make an exception to where wills were destroyed without the knowledge or consent of tlie testator during his life- time. But for reasons which the Legislature alone determined sufficient, such a will can not hei probated in this State, even though the testator died in the full belief of the fact that the will he had made was still in existence.^-* § 1141. After testator is incapable, etc. The only instance in which a will may be probated as a spol- iated will which was lost or destroyed during the lifetime of the testator is when it is shown that the will was lost or destroyed at a time when the testator was incapable of making a will by reason of insanity. This is a provision which was not in the original wills act when the same was before the Supreme Court for construction in the 5 O. S, 290. It was subsequently added to the statute as it now appears, but the limitation is specific in its application, and two things must be necessary in order to be within its provision. First, the testator must have become incapable of making a wall, and such incapacity must have been the result of insanity. If these facts are not shown, in no case can a will be admitted to probate as a spoliated will, unless it be first shown that the will was in existence after the death of the testator. § 1142. Application. It is a singular fact that the statute does not in some manner provide for a written application to be made. It is certain that such a method of procedure is contemplated, and it has beern said by a distinguished author that " the statute and the peculiarities 1^ Id. tions of testator as to liis having de- See Bejirens vs. Behrens, 47 O. S. stroyed same, see Gurley vs. Armen- 323. trout, G C. C. (N.S.) 156; 27 C. C. 18* As to admissibility of declara- 199 (1905). §1142 SPOLIATED WILLS 1022 of the case make a petition in an action to estaiblish a lost will far more necessary than in an ordinary probate proceeding, where the will can be offered and'lan oral motion to admit to probate can be made. Accordingly, it is usually required that a lost will be admitted to probate only on petition, and this petition must allege all necessary facts to entitle the will to be admitted to probate as a lost will. Thus, where it is required that the will, in order to be admitted to probate, shall be in €xistence after the death of testator, the petition must allege that fact, and, unless the statute requires it, an answer need not be verified." '* Neither does the statute say who may offer such a will for pro- bate, but it may be presumed that the same rule should be fol- lowed as in the probating of an ordinary will.^^ Our Courts have held that the devisees and legatees under a will are proper persons to present the same for the purpose of having it established.'" It is generally said that any interested person may have a will admitted to probate. ^^ The petition ought therefore to show, first, that the testator is dead ; second, that he was a resident of the county in which the will is offered for probate; third, that he died leaving a last will and testament, and tliat said will was properly ex- ecuted, unrevoked and in existence at the time of the testator's death ; fourth, that the will was lost or destroyed after the death of the testator ; fifth, it should set out in full the contents of the lost or destroyed will ; sixth, it should give the names of the widow and next of kin, as well as the persons who have an in- terest to resist the probate of said will, and their place of resi- dence ; seventh, the petitioner should show in what manner he is interested. 18 Page on Wills, 422, § 352. 19 § 1085. 20 Taylor vs. Bennett, 1 C. C. 95 ; 1 C. D. 57. 31 It is said that a person interest- ed is a person pecuniarily interested, materially interested in the subject- matter of the probate of the will, or in the having the will probated; that it is not a question of dispo- sition; it is not a question of emo- tion; it is not a question of wish or desire, but that it is merely a ques- tion of whether the person is in- terested in the establishment of the will and is to be affected bv it in 1023 APPLICATION § 1143 § 1143. Form of application. In the Matter of the Probate of \ Probate Court, iu T 4. TT-ii f T 1. T Clark County, Ohio, the Last \\ill of John Jones, Application for Probate of Spoil- deceased. J ated Wills. The undersigned respectfully represents that on the 2nd day of January, 1895, John Jones, then an inhabitant of said Clark County (or leaving an estate in said county) died. That on or about the 10th day of October, 1894, said John Jones made, subscribed, acknowledged and published his last will and testament, which said will was duly signed and attested at the request of said John Jones, as witnessed by Sam Smith and Jack Brown. That said will was in existence and unrevoked at the death of said John Jones. But that subsequent to his death the same has become lost and can- not be found although strict search has been made for the same (or if the facts are known to be otherwise, allege how the will became destroyed or lost). That your petitioners cannot give a copy of said will, but the substance of the same was as follows : That said testator bequeathed to Anna Jones a fee simple of lot 2,500 in the City of Springfield. That he Dequeathed and gave Susan Smith $1,000 in cash. That he appointed your petitioner the executor of said will (or state in what manner the person making the application is interested in having the will probated ) . Your petitioner further represents that said John Jones died leaving Mary Jones, his widow, and the following named persons his next of kin: (Here state names and age of minors if any, and postoffice address of all, just as if it was an application to probate an ordinary will.) Your petitioner further represents that the following named persons may be interested to resist the probate of said will: (Here give names of parties who have in any way interest in said will.) Wherefore your petitioner prays that said will may be established and admitted to probate. Sworn to before me and subscribed in my presence this day of 190... § 1144. Notice of application. ' ' "When application is made to the probate court to admit to probate a will duly executed, and lost, .spoliated, or destroyed, the party seeking to prove it must give a written notice to all persons whose interest it may be to resist the probate, and who reside in the county wiiere the testator resided at the time of his death, or to their agent or attorney, five days before the day on which such proof is to be made, or give notice, by publication in a newspaper printed his interest; and that if he is, then In Matter of Jones. 2 N. P. 209; he has a right to appear, either os- 2 Dec. 404. tensibly as a proponent of the will, 22 Not every variance between a or has a right to appear and intro- spoliated will as made, and the will duce or call witnesses in that pro- as admitted to probate, will avoid ceeding to probate the will. The ap- the latter. Banning vs. Banning, 12 plication ought to state the domicile O. S. 437. of deceased. § 1145 SPOLIATED WILLS. 1024 in the county, thirty days before the day set for hearing such proof. [R. S. §5945.] 23 § 1145. Ordering notice, etc. The provision as to the giving of notice provided for in the above section is peculiar to the proceedings to establish a spol- iated will, in that it requires that written notice be given to all persons whose interest it may be to resist the probate. It does not say that notice must also be given to the widow and next of kin as provided in the section relating to the probate of an ordi- nary will, yet I apprehend that the section relating to probate of an ordinaiy will applies to this kind of a proceeding, and that it would be an illegal proceeding where such notice was not given."* There is certainly no reason why the next of kin should not be notified in the proceedings to probate a spoliated will, as well as where an ordinary will is probated, even though they had no interest to resist the probate. If there is no person residing in the county who is interested to resist the will, then notice must be given by publication.^^ The statute seems to contemplate that notice must be given before the application to admit tO' probate is filed. But the more logical way is to have the petition first filed, then the Court may set the same down for hearing and order the notice to be given as provided by the statute. The entry for such notice may be as follows: 23 § 10544 G. C. one or the other of the modes re- 24 §§ 10506-7 G. C, § 1067. quired, of the day set for hearing 25 Whatsoever may have been the the proof has been given and we are reasons that induced the General As- are of the opinion that the section sembly to apply a diflferent mode of reasonably construes that where proceeding in applications to admit there is no person residing in the lost, spoliated or destroyed wills to county in which the application is probate, from that applied to wills made, who is interested in resisting actually produced in Court and ver- the probate of the will, to whom bal wills, it is quite clear that under written notice of the day set for § 5945 R. S., § 1144, it would be er- hearing the proof can be given, no- ror in the Probate Court, upon ap- tice must • be given by publication, plication to find and establish the Baugarth vs. Miller, 26 0. S. 541; contents of a spoliated will, or admit Miller vs. Baugarth, I Bull. 126. the same to probate, until notice, in 1025 EXAMINATION OF WITNESSES § 1146 ENTRY. (Title.) This day came A. B. and filed herein his petition for the probate and establishment of a spoliated will of John Jones, deceased, and the same is set for liearing on the day of ; and it is ordered that written notice be given to the widow and all the next of kin resident of the State of Ohio, and to all other persons who are interested in resisting the probate of said will who reside in this county, and if there be any others interested in resisting the probate of said will who are non-residents of tliis county, it is ordered as to them notice be given by publication as required by statute. That the written notice be given at least five days before the day of hearing and that the printed notices be given 30 days before the day set for hearing, by inserting once a week for four weeks in a newspaper of general circulation in this county.26 § 1146. Examination of witnesses. ' ' In such cases, the court shall cause the witnesses to such will and such other wit- nesses as any person interested in having it admitted to pro- bate desire, to come before the court. They shall be examined by the probate judge, and their testimony reduced to writing and filed by him in his court. When necessary so to do, because witnesses reside out of its jurisdiction, or who, though within such jurisdiction are infirm or unable to attend, the court may order their testimony to be taken and reduced to wanting by some competent person, which testimony shall be filed in such court." [R. S. §5946.]-^ § 1147. Nature of proceedings. There has been considerable discussion as to the nature of a proceeding to establish a spoliated will, whether it was an ad- versary one or ex parte; and if adversary, it has been claimed that witnesses might be introduced to resist the probate of a will. It seems, how^eyer, from a careful reading of the above section, that it was not the intention of the legislature to change the character of the proceedings from that where an ordinary will was admitted to probate. From the fact that the document itself is not in being and before the court, the legislature has deemed it wise that a greater degree of notice be given than where the will itself is in Court. But the language of the above section is "that the Court shall cause witnesses to such will," etc., "and such other witnesses as any person interested. 2« The form of notice provided for a notice required for a spoliated will. in the application of an ordinary See § 1093. will can easily be changed to answer 27 § 10545 G. C. g 1148 SPOLIATED WILLS 1026 in having such will admitted to probate may desire," etc., and it has therefore been very properly held that no testimony may be heard in opposition to the probate of such will.'^ The proper rule in such cases seems to be that a person inter- ested in tlie probate of a will may submit any testimony he de- sires, and that such witnesses may be cross-examined by any person who desires tO' resist the probate of the will — this being necessary in order to enable the Court to know what weight should be given to such testimony. It might not be error to allow other testimony, but it is certainly not within the meaning of the statute. Like in tlie probate of an original will, the testi- mony must be reduced to writing, and infirm or nonresident witnesses, must be examined by commissioners. § 1148. On what proofs, will established. How lost or spoliated wills may be probated. "if upon such proof, the court is satisfied that such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming in- capable as aforesaid, such court sliall find and establish the contents of such will as near as can be ascertained, and cause them and the testimony taken in the case to be recorded in such court." [R. S. §5947.]-^ § 1148a. Notice. If a will has been lost, spoliated, de- stroyed, mislaid, or stolen, after it Avas admitted to probate but before it had been recorded, upon notice being given, as herein- before provided, to persons whose interest it may be to resist the probate and record of such will, the court may hear testi- mony, and if satisfied that the contents of the will have been substantially proved, record it as thus proven, which record shall have all the force and effect of a record of the original will." [R. S. §5947.]-«* 28 In the matter of the estate of bating a spoliated will. !Matter of William Jones, the able Probate Jones, 2 N. P. 191, 224; 2 Dee. 409. Judge of Cuyahoga County, has dis- 29 § 10546 G. C. cussed in an exhaustive manner, 29* 10547 G. C. various question that arise in pro- 1027 DEGREE OP PROOF § 1149 § 1149. Degree of proof .'^^ If the court upon such proof shall be satisfied, etc., then the will shall be admitted to probate. Just what degree of evidence it should require to satisfy the court is difficult to determine. In the probate of an ordinary will the question is, "if it appear to the court, etc.," it shall be admitted to prob'ate. Evidently the legislature intended, by the use of the word satisfy, to re- quire a greater degree of proof than in the probate of an ordi- nary will. Satisfy means to convince, and satisfactory evidence of a matter has been sometimes called sufficient evidence, and is intended to be that amount of proof which ordinarily satisfies an unprejudiced mind, beyond a reasonable doubt.-^° Upon this subject a recent author on wills says: "It is clearly settled that the burden of proof in probate of lost wills is upon the parties offering such lost will for probate. To what degree this burden of proof extends is not so well settled. The courts exact a greater amount of evidence than a prepon- derance. In some cases it is said that the evidence must be "clear"; in others it is said that the evidence must be "full and satisfactory"; in still other cases it is put in the superlative degree, and it is said that the proof must be "very clear"; or the "clearest, most conclusive and satisfactory." In other cases it is said that the proof must be "beyond all reasonable doubt." This degree has been held too high in Alabama. In other cases it is said that it should be "free from all doubts." But while exacting a high degree of proof, the courts hold that upon the facts of the destruction, circumstantial evidence alone may be sufficient to justify a finding for the will.^^ In a case before referred to, the court comes to the conclu- sion that in order to be judicially satisfied, the mind, after fairly considering all the evidence, must rest quiescent and sat- isfied with its conclusion as being the best supported by the over- balancing weight of evidence.^- 29a Cited Cole vs. McCIune, 88 0. are not so strong, clear and positive S- 7. ^ and unbiased evidence of its con- To establish a lost or destroyed tents as will admit such will to will the evidence of its execution probate as a spoliated will. In re and its contents must be clear, Thompson, 59 Bull. M4; 16 N. P. strong and positive, free from bias 121. and convincing bevond a reasonable so 21 Am. & Eng. Eney of Law, doubt. Cole vs. McClune, 88 0. S. 7. 71.5. Declarations by testatrix and her 3i Page on Wills, 516, § 434. huisband as to the existence and cus- Cibson vs. Gibson. 25 0. C. C. tody of her will devising certain 6fl8: affirmed 72 O. S. 677. real estate in her name to the pur- 32 The court must be "satisfied" chase of which each had contributed, of the existence of everv one of these that such real estate was to be material conditions in the premises, divided equally upon the death of Evidently this expression means sat- the wife, one half to her nephews isfied as a judge, or "iudiciallv sat- and one half to his nephews, but iafiod." It' does not mean that the not stating whether the estate went evidence shall remove all doubts. In to the husband m fee or for life §1150 SPOLIATED WILLS 1028 It has been held that where it was endeavored to establish a lost deed that the unsupported parol evidence of one person is not sufficient, and that the evidence sufficient to establish an al- leged deed must be clear and convincing — it must produce in the mind of the Court a conviction that a valid deed once ex- isted, and that " conviction " means a state of mind free from doubt. ^^ There is no reason why a less strict rule should be applied to a will than to a deed. § 1150. Proof of contents. In logical order, after the existence and execution of the lost will have been proven, then it would be proper to establish what its contents were. As to this matter the statute provides that the " Court shall find and establish the contents of such -will as near as the same can be ascertained." The evidence by which, the same can be established would be such, as is generally ap- plicable to establish the cont-ents of any lost instrument, follow- ing the general rule that the best evidence that can be had is always required. Thus, if a copy of a will was in existence and it could- be shown that it was an exact copy, the Court would require a production of such copy before other testimony to be introduced as showing the contents of a will.^* A person who had read over the original will would be a very civil causes to be judicially satis- fied of the existence of a fact, or the truth of a proposition, is the result of the weighing and balancing of evi- dence. Ihe effect of a fair prepon- derance of the evidence must be to cause the mind and the judgment to rest content with a certain conclu- sion, while there may still linger remnants of doubts unremoved : yet the mind, after fairly considering all tlie evidence must rest quiescent and satisfied with its conclusion, as being the best supported by the over- balancing weight of the evidence. To be in this frame of mind and condition of judgment, is to be judi- cially satisfied, or judicially con- vinced, which is the same thing. But to produce such judicial satisfaction of the existence of a fact or the truth of a proposition of law, the quality and quantity of the evidence necessarily depends upon the nature of the facts or proposition to be es- tablished or maintained. In Matter of Jones, 2 X. P. 210; 2 Dec. 409. 33 Smith vs. Neff, 5 N. P. 495; 5 Dec. 449. 34 In re Estate of Lasance, 5 N. P. 20; 7 Dec. 246. If lost before death of testator it cannot be probated. Gibson vs Gib- son, 25 O. C. C. 698; affirmed 72 O S. 677. 1029 ORDER ESTABLISHING § 1151 proper witness, and he might use a certified copy to refresh his memory, but it has been held that a person to whom the de- ceased read over his will could not testify as to its contents, unless the declarations of testator were competent.^" As a general rule it may be said that the declarations of a testator are admissible to establish the contents of a lost will Vi'holly or in part, but such declarations alone are not sufficient.^* Under the wording of a previous statute, it was held that the contents of a spoliated will need only be substantially proven,^^ and such is the probable intention of the present law, although the wording is slightly changed. It has also been held that the lost or destroyed will may be admitted in part, and that the executor named in the will may be appointed an execu- tor to the will.^^ § 1151. Order establishing will. The Court being satisfied, as provided in sec. 10546-7, G. C.,^* that the will was in existence, etc., and was lost and destroyed, and having ascertained the contents as near as the same could be, should make its finding and enter it upon record. The fol- lowing may serve as an. entry : (Title.) This day this cause came on to be heard upon the application of A. B. to admit to probate and establish a spoliated will of C. D., deceased; and the same was submitted to the Court upon the papers in the case, and the testimony of witnesses. Wliereupon the Court finds that said C. D. was an inhabitant of this county at the time of his death (or had an estate therein ) , and that all the persons who were entitled by law to notice of this proceedings have been duly notified as provided by law, and the former orders of this Court; and the Court having caused E. F. and G. H., witnesses to said will, and other witnesses, to-wit: I. J. and K. L., to appear in open Court and testify touching the execution and contents of said will, and their testimony thereof having been reduced to writing and filed; and the Court being satisfied from the testimony so taken that the said C. D. did on the day of duly execute his last will and testament, in the mode provided by the law in force at the time of its execution, and that the said C. D. was of sound mind and memory, and not under any restraint when the same was executed by him, and that the said will was signed and witnessed as provided by law, and that the same was unrevoked at the death of the said C. D. and that it became lost, spoliated or destroyed subsequent to the death of such testator, and the Court finds and does hereby establish the contents of such will, as near as the same can be ascertained, as follows: (Here set out the will 35 Page on Wills, 519, § 440. 37 Banning vs. Banning, 12 O. S. 36 Page on Wills says that this 437. matter has been discussed, but not ss Cahill vs. Owens, 2 Gaz. 89. decided bv the Courts. 521, § 441. so § 1148. § 1152 SPOLIATED WILLS 1030 in full.) And the Court further orders that said wil and testament be recorded as in the case of other wills admitted to probate. § 1152. Effect of will so established. "The contents of such a last will and testament found, established, and admitted to probate as aforesaid, shall be as effectual to pass real and per- sonal estate, and for all other purposes, as if the original will had been admitted to probate and record according to the pro- visions of this title. Such wills shall be governed by the laws in force relating to other wills, not only with respect to their contest, but in all other matters." [R. S. § 5948.]*'^ § 1153. Error and appeal, etc. It is settled by a recent decision of our Supreme Court that neither error nor appeal will lie from an order of the Probate Court admitting a spoliated will to probate, and that the only way of revoking such order is by contest, as provided by sec. 10560 of the General Code.^^ The same case seems to hold, quoting the language of the above section, that the same rule is to apply to appeal and error as applies to the probate of an original A^dll, and therefore it would follow that an aggrieved party might appeal from an order of the Probate Court refusing to admit a spoliated will to probate, or the will might be repropounded. It is very ques- tionable whether there could be proceedings in error to an order refusing to admit a spoliated will to probate. " § 1154. When record of will destroyed, authenticated copy of the will and probate thereof may be admitted to record. "Wlien the record of a will is destroyed, a copy of it and the probate thereof may be recorded by the probate court of the proper county, whenever it is made to appear to its satisfac- tion that such record has been destroyed, and, by a certificate under the hand and seal of the probate .judge, or clerk of the common pleas court of the proper county, that such copy is a true copy of the original will and of "its probate." [R. S. §5949.]« 40 § 10548 G. C. order of the Probate Court over- 4iHollrah vs. Lasance, 63 O. S. ruling an application to establish 58; Banning vs. Banning, 12 O. S. a lost will. Eoth vs. Siefert, 77 0. 437. S. 417. 42 S. C, 16 C. C. 187; 8 C. D. 788; But there is no right if error to 5 X. P. 20; 7 Dec. 246. See § 1114, Circuit Court from Common Pleas, ^'"'■or. where the Common Pleas establishes 43 § 10549 G. C. the will. Id. The Supreme Court has now held See Brewing vs. Hardware Co., that there is a.n appeal from the 17 C. C. (N.S.) 475. 1031 ERROR AND APPEAL | 1155 § 1155. An original will may again be admitted to probate. *'When the record of a will has been destroyed, the original will may again be admitted to probate and record." [R. S. § 5950.]** § 1156. Or an authenticated copy of the will alone may be admitted to record. "The probate court of a county where the record of a will has l)een destroyed, may admit to record a copy of such will whenever it appears that the copy for record bears the certificate of a probate judge, or clerk of the common pleas court, setting forth that it is a true copy of the will, the record of which has been destroyed." [R. S. § 5951.]*® § 1156a. Limitations as to contests, "Nothing in the next three preceding sections shall affect the proceedings or extend the time for contesting the validity of any will, or for asserting rights thereunder. The record provided for in such preceding sections must show that the original record was destroyed, and the time, as near as may be, when the will was originally ad- mitted to probate and record." [R. S. § 5951.]"* § 1157. Notice that copy has been admitted to record to be published, contest of same, and effect if not set aside. ' ' Every probate judge who admits to record a will or copy of one under either of the next four preceding sections, immediately there- after shall give notice for three consecutive weeks, in two weekly newspapers of his county, if so many be published therein, or if not, in one newspaper published and of general circulation in the county, stating the name of the person the record of whose will has been destroyed, and the day when such record was supplied. All persons interested in the record, at any time within five years from the making of it, may come into the probate court of the proper county,, and contest the question whethei* the record thus supplied is the same as the record destroyed." [R. S. §5952.]*« § 1157a. Appeal from order supplying record of will to the common pleas. "When, by order of a probate court, the lost record of a will has been supplied, and such action is contested by a person interested, from all final orders or decrees in such contest, either party may appeal to the court of common pleas, in the manner as appeals are now or hereafter may be provided for from the probate court; and if any ])erson interested in such record shall, at the time such record is supplied, be under 44 § 10550 G. C. 4.-.* § 10,552 G. C. 4r. § 10551 G. C. 46 § 1055.3 G. C. § 1157a SPOLIATED WILLS 1032 any legal disability, such person may contest the record ^nthin two years from the removal of the disability, and the new record supplied, according to either of the next five preceding sections, shall, unless set aside in proceedings provided for in this section, have the same force, effect, and validity, as the original record." [R. S. §5952.]*«* «* § 10554 G. C. 1033 NUNCUPATIVE WILLS §1158 CHAPTER LXl. NUNCUPATIVE WILLS. 1158 Definition. 1159 Nuncupative will, how made and proved. 1160 Last sickness. 1161 Personal estate. 1162 Reduced to writing. 1163 Subscribed by competent wit- § 1164 Called upon person present. § 1105 Testamentary words. § 1166 Must be admitted to probate within six months. § 1167 Matter pertaining to probate. § 1168 Proof required, etc. § 1169 Form of will. § 1158. Definition. A nuncupative will is defined to be " an oral will declared by testator in extremis before witness, and afterwards reduced to writing." ^ It should not be forgotten here that nuncupative, like written wills, must in every respect conform to the stat- utory provisions of our law; and this laAV is strictly construed, for the power to make a disposition of one's property by an oral or verbal will is one which gives great temptation for fraud. Formerly, when but a comparatively few of the people could write, there was a mucli greater reason than now for allowing this kind of a will. By reason of soldiers and sailors often meeting death at a place where it was impossible, or at least very 1 Bouv. Law Die. Nuncupative Avills or testaments (which have a place in the Roman civil law) are so called from nuncu- pare, to name, declare or make a solemn declaration because the testa- tor declares his will in extremis be- fore a sufTicient number of witnesses whose oral proof must afterwards establish it. These verbal wills offer great temptation to fravid and per- , juiy, besides occasioning much hon- est error, and the need of them les- sens as the art of penmanship be- comes more universal and vrriting materials abound. The Statute of Frauds, 29 Car. 11, chapt 3, laid them under various restrictions; and the tenor of legislation, English and American, at the present day is to invalidate them altogether, except as to soldiers in actual military ser- vice and mariners at sea. Schoul. on Wills, § 6. § 1159 NUNCUPATIVE WILLS. 1034 inconvenient, to reduce their desires in reference to the disposi- tion of their property to writing, they were made a favorite class who retained the right to make a verbal disposition of their property after it had been taken aAvay from the people generally. Our statute makes no provision for any favorite class — every one alike must come within its strict provisions. - §1159. Nuncupative will, how made and proved. "A verbal will, made in the last sickness, shall be valid in respect to personal estate, if reduced to writing, and subscribed by two competent disinterested witnesses, within ten days after the speaking of the testamentary words, if it also be proved by such witnesses, that the testator was of sound mind and mem- ory, not under restraint, and that he called upon some pei-son present, at the time the testamentary words were spoken, to bear testimony to such disposition as his will." [R. S. § 5991.]^ § 1160. Last sickness. One of the most important provisions of our statute in ref- erence to the power to make a verbal will is that it must be made during the last sickness of the deceased. It is a matter of no little difficulty to determine just when a person comes within this provision. I believe the term is not defined in any of the reported decisions of our State. A text writer says : "In the majority of States it is held that the term 'last illness' means an illness so violent that testator had not the time, opportunity and means at hand, after making his oral wdll, to make a written will in legal form."* And in other States, he says, it is held that a will made during the last illness, as already defined, is a 2 See Page on Wills, 354, §322. Eq. 625; Dockum vs. Robison, 26 See § 1044, Effect of person being N. II. 372; Prince vs. Ilazelton, 20 legatee. Johns. (N. Y.) 502 (the leading 3 § lOGOl G. C. American case upon this point); 4 Page on Wills, §234, p. 260, Jones vs. Norton, 10 Tex. 120; citing the following: Johnston vs. Pvcese vs. Hawthorne, 10 Gratt. Glasscock, 2 Ala. 218; Scaife vs. (Va.) 548. Emmons, 84 Ga. 619; Ellington vs. A nuncupative will can not re- Dillard, 42 Ga. 361; Bellamy vs. voke a written will. McCune vs. Peeler. 96 Ga. 467; CXeill vs. House, 8 0. 144. Smith, 33 Md. 569; Donald vs. The fact that a nuncupative will Unger, 75 Miss. 294; Lucas vs. attempts to dispose of real prop- Gofi", 33 Miss. 629; Parkison vs. erty will not affect it as to personal Parkison, 12 Smed. & M. (INIiss.) property therein disposed of. Par- 672; Carroll vs. Bonham, 42 N. J. sons vs. Wass, 16 C. C. (N.S.) 404. 1035 LAST SICKNESS PERSONAL ESTATE § 1161 valid nimciipative will, even though testator had opportunity, after making such will before his death, to make a written will." It will be observed that our statute uses the words " last sick- ness " instead of " last illness." These words, however, are synonymous. The probability is that, following the rule of a strict construction that our Courts will hold, with the majority, that if a testator has the time and opportunity and means at hand, after lie haa made an oral will, to have reduced it to writing, that it cannot be admitted as a valid nuncupative will.* It is probable that no definite rule can be given on this sub- ject, but each case will be governed largely by the circumstances surrounding it.^ It is said that it is not apparently necessary to the validity of the will that the testator believe that he was about to die.* But this does not dispense with the idea that the deceased must have an intention to make a mil when the words are uttered. This matter will come up for discussion further along.** § 1161. Personal estate. The statute distinctly provides that such a will " shall be valid in respect to personal estate," and it therefore follows that no nuncupative will could be made that would affect the testa- tor's real estate. Under tlie act of 1824, it was held that a nuncupative will was valid to pass real estate.^" It has been held, however, that where a person who is the owliel* of both real estate and personal property, makes a nun- cupative will, that the Court will change the ordinary rule tliat personal property shall first be: applied in payment of the debts 5 Bradford vs. Glower, 60 111. App. ^ Sadler vs. Sadler, 60 Miss. 251. 55; Harrington vs. Stees, 82 111. 50, » Page on Wills, § 234, p. 261. qualifying Morgan vs. Stevens, 78 9 See § 652, Last sickness. 111. 287; Wiley's Estate, 187 Pa. St. lo See case of Gillis vs. Weller, 82 ; Nolan vs. Gardner, 7 Heisk. 10 0. 462. (Tenn.) 215; Gwin vs. Wright, 8 In a previous case, however, it had Hump. (Tenn.) 639. been held that realtj' would not pass 6 Schou. Wills, § 371; 2 Blackst. by a nuncupative will. Williams vs. Comm. 501. Pope, Wright, 406. § 1162 NUNCUPATIVE WILL 1036 of a testator and require that the proceeds of tlie real estate be first applied to the payment of the debts of the testator. ^^ § 1162. Reduced to writing. In order for a will to be a valid one the words of the testator must be reduced to writing, and this must be done within ten days after they were spoken. Omission to comply with this provision renders the will a nullity.^^ Whether this condition, as well ar, the others required by the statute, have been complied with, are questions of fact which can be submitted to a jury in an action to contest or establish the validity of a will.^^ In view of the necessities of the case, it is held that the exact words used by the testator need not be reduced to writing. It is sufficient if their substance can thus be reduced. § 1163. Subscribed by competent witnesses. The testamentaiy words must not only be reduced to writing, but they must be subscribed by two competent disinterested wit- nesses. It will be obserA'ed that the language used in reference to witnesses of nuncupative will is different from that used in reference to a vrritten will — in this, that they must not only be competent, but they must be disinterested witnesses. These witnesses, in addition to being competent and disinterested, must have heard the testator utter the testamentary words; and in addition, they should be able to testify that the testator was of full age and of sound mind and memory, and not imder any legal restraint. A beneficiary under the will is not a com- petent disinterested witness.^* Our Court has also held that the witnesses must be competent and disinterested at the time of their attestation, and that their disqualification as witnesses by reason of interest under the will cannot be removed by a renunciation of such interest at the time the will is admitted to probate, or at the trial of an issue to contest the validity of the will; and further that sec. 11 Skinner Vi?. Blackburn, 4 C. C. They are not disinterested if at 325; 2 C. D. 574. the time thev believe thev are bene- 12 Page on Wills, §§320, 26fi. fieiaries. Wass vs. Trust Co., 15 isBolles vs. Harris, 34 0. S. 38. Dec. 577. iiVrooman vs. Powers, 47 O. S. 191. 1037 CALLED UPON PERSON PRESENT § 1164 10515, G. C. (§ 1044), to the effect of a witness being a devisee or legatee under the will, is not applicable to verbal wills. ^' The statute does not seem to require any request on the part of the testator that the witnesses should act as witnesses to his will. However, he must call upon some one to bear testimony to his disposition, and this would generally include the wit- nesses.^'^ § 1164. Called upon person present. A further requisite of the validity of a nuncupative will is that the testator at the time that the words are spoken called upon some pereon present to bear testimony to his said disposi- tion. This formal calling upon witnesses to bear witness to this fact is known as rogatio testium, and is a necessai-y element of a nuncupative will. Without this the will is invalid, and no matter how clear the testamentary intent. No set phrase is necessary, says a recent text writer,^' for a valid rogatio testium. While it is desirable that the testator should in clear and un- mistakable language formally ask the witness to bear witness that his words are his last wall, this request may be made informally. If a person gives a mere direction as to how his property should be disposed of, without any request either formally or informal- ly, to any person present to bear witness that it is a testamentary disposition, the instrument would fail for want of this fact." The following was held to be a sufficient request of Avitness : A party present said to the deceased, " If you tell us as wit- nesses what disjwsition you want to make of your property, we 15 Vrooman vs. Powers, 47 0. S. In this case the testator was run 191. over by a train. A physician was See Wass vs. Trust Co., 15 Dec. called, who, after examining the 677 (1905), where this matter is wounds, said to the deceased, "your discussed by the Court and it is time is short, if j-ou have any word held that the fact whether the be- to leave, you liad better say it now." quest is valid or not, will not change The deceased then uttered these tlie rule. words : "T was to be married next § 10575 G. C, § 1044, provides that Thursday, tell my folks to give where a witness is a devisee he may ^lartha Jane Wade, my intended, renounce such devise and then he $1,000 of my money." Nothing more would take the share allowed to him was said either by Seevcr or those by law as if no will had been made. around him. About 15 minutes af- i«Sec Page on Wills, §§ 238, 2GG. terwards he died. It was held here 17 Page on Wills, §§ 237, 2G4. tliat there was no proper rogatio tcs- 18 Seever vs. Seever, 2 C. C. 298; Hum. 1 C. D. 490. §1165 NUNCUPATIVE WILL 1038 will testify to that fact in the Probate Court, and it will do aa if it were a written will." The testator then spoke of his in- tended wife, and said: "It has been my intention all along that she should have everything I have, real and personal, and that is my will now." Another person then said : " This is your last will and testament made in our presence as wit- nesses ? " Testator said, '^ Yes," and then, after a pause added, '' I want my life insurance policy to go direct to her without going through a course of administration." ^® It has been held that a look is not sufficient, and that there must be some words spoken to indicate a calling upon those present."** § 1165. Testamentary words. The same rule applies in a nuncupative will as in a written will. The testator must have spoken the words with the inten- tion of making a testamentary disposition. If they are not such words tliat indicate a testamentary disposition, the will would fail. It must also appear that the words were spoken with tlie intention of making a nuncupative will. Thus in the case before cited ^^ it was held that the words there spoken were not such words as would support a testamentary bequest. Like- wise it has been held that the mere fact of the testator figuring up how much he desired each child to receive, and entering it into an account book, could not be a valid nuncupative will."" A recent text writer gives the following as an instance in which it was held that there was no intention manifested to make a nuncupative will: A physician was called, who as- sured the testator that there would be no danger of death for twenty-four hours. The testator's brother asked him if he wished to malce any disposition of his property. The testator said, "All right; you can take a statement of how I want it fixed." And the brother took down the instructions, and said : " I will make a memorandum, and fix it up in shape. If you think it is proper you can sign it and make a kind of will of it." 19 Page on Wills, §§ 237, 264; 21 § 1164. Harrington vs. Stees, 82 111. 50. Seever vs. Seever.. 2 C. C. 298; 1 20Woerner on Admin. 82. See § C. D. 496. 1165, Testamentary words. 22 Williams vs. Pope, Wright 406. 1039 MUST BE ADMITTED TO PROBATE § 1166 The testator assented. The next morning the brother received a telephone message that A. was sinking fast. He at onoe wrote out the will and hurried to the hospital, arriving there after A. 's death. This was held not to be a sufficient declara- tion to support a nuncupative will.-' § 1166. Must be admitted to probate within six months. No nuncupative will shall be admitted to record unless it be offered for probate within six months after the death of the testator." [R. S. §5992.]=^* § 1167. Matter pertaining to probate. The law applicable to the probate of a written will is in all respects applicable to the probate of a nuncupative will. An application should be made for probate and all the next of kin resident in the State of Ohio, and the widow or widower of the deceased, must be notified."^ It is the same kind of a proceed- ing in Probate Court — that is, ex parte, and the will may be contested in the Common Pleas Court just the same as a written will could be. In addition to the facts required by sec. 10691, G. C. (§ 1159), the testimony of witnesses must show that the testator was of sound mind and memory, and not under any restraint. The will must be probated in the county in which the testator had his domicile. The forms and directions given for probating a written will can be used for probating a nuncupa- tive will. The same law would apply as to appeals and error and the repropounding of the will.-*^ § 1168. Proof required, etc. From the nature of a nuncupative will in that it affords great temptation to the establishment of a will other than that desired by the testator, courts have been inclined to require strict proof of all the essentials requisite to the establishment of such a will. Some courts have held that the evidence must be of the clearest and most convincing character.-^ Our own courts have said that the statute in reference to nuncupative wills must be strictly complied with, and that it must appear that all the requirements 23 Page on Wills, §§ 236, 262. the law. Until it is shown that •■^i § 10602 G. C. they expected a benefit from the 25 § 5917 R. S., § 1067. will it is error to direct a verdict 2G § 1159. annulling the will. That a nun- 27 Page on Wills, §§447, 524. cupative will attempts to dispose That a nuncupative will attempts of real as well as personal prop- to devise real estate to the wit- erty does not make it invalid as ncsses thereto does not disqualify to the personal property. Parsons them, for they are presumed to know vs. Wass, 16 0. C, C. (N.S.) 404. § 1169 NUNCUPATIVE WILLS 1040 of the law have been fully followed, that such wills are not favorites of the law, and tliat the factum of such a will should be strictly proved to conform to the legal requirements for such a will ; testamentary capacity and the animus testandi at the time of the alleged nuncupation, must be shown by the clearest and most indisputable testimony,^^ In consequence of the disfavor with which this class of wills is looked upon by the Courts, says Woerner,^" it is necessary to observe the utmost strictness in -fulfilling the statutory require- ments with reference to them, and tO' prove the testamentary capacity and animus testandi by the clearest evidence ; and deviation therefrom will, according to the unvarying current of authorities, prove fatal. § 1169. Form of will. LAST WILL AND TESTAMENT OF A. B., DECEASED. On the 6th day of October, A. D. 1890, A. B., being in his last sickness at his residence ( here state place ) , in the presence of the subscribers, did declare his last will concerning the disposition of his property, as follows: (Here insert the testamentary words as near as they can be remembered as they were utteretl by the testator.) That at the time the above testa- mentary words were spoken, the said A. B. called upon the undersigned, who were then present to bear testimony of his disposition thereby made of his property; and that at the time the said A. B. made the above state- ments to be and for his will, he was of sound mind and memory and not under any restraint. Reduced to writing this day of and subscribed by us as witnesses thereto. The following may be used as a fonn for taking the testimony of the witnesses to a nuncupative will : State of Ohio, County, ss. Before me , Judge ( or deputy clerk ) of the Probate Court of county, personally appeared I. J. and K. L., who being duly sworn, say that they were present on the sixth day of October, 1888, at the residence of A. B., number street in Cincinnati, Hamilton county, Ohio, and did hear A. B. utter what is speci- fied in the foregoing writing; that he was at that time of sound mind and memory, and not under any restraint, and that he, at the time the testa- mentary words were spoken called upon them to bear testimony to said disposition, as his will, and that said A. B. was then in his last sickness to the best of their knowledge and belief. Sworn and subscribed ,before me this 16th day of October, A. D. 1888. Judge (or Deputy Clerk) Probate Court County. Ohio. 28 Seever vs. Seever, 2 C. C. 302 ; 1 Woerner on Admin. 489. C. D. 496. 1041 JOINT WILLS § 1170 CHAPTER LXII. JOINT AND MUTUAL WILLS. §1170 Definition and classification. §1173 Revocability of joint and mu- § 1171 Ohio decisions. tual wills. § 1172 When admissible to probate. § 1170. Definition and classification. There seems to have been a great deal of confusion among Courts in reference to the law to be applied to joint, mutual or reciprocal wills, and while the atmosphere is yet full of judicial fog, it seems to be clearing, and it may not be long until definite rules may be laid down as to this class of wills. If the common intention is expressed in one instrument, which is signed and executed by both the testators, this will may be classed as a joint ivill. If the testators have executed two separate instru- ments to manifest their common intention, this may be called a mutual ii'ill. If this common intention is that the property of the one dying first shall go to the survivor, it may be termed a mutual or reciprocal u'ill. "This classification," says Page, "is not adequate," and as to the substance of these wills, he gives the following classification : 1. "The will by which the one dying first leaves his property to the survivor or survivors, whether this is done by one will executed by all the testators or by separate wills executed sepa- rately. Some of the Courts have termed this a double will, and other Courts, while applying the same legal principles, re- fuse to recognize such will as even a mutual will, but prefer to style it the separate will of each. Wlien such arr intention manifests itself in separate wills they are sometimes spoken of as concurrent or reciprocal wills. 2. "The will by which the testators, in separate clauses, dis- pose of their several interests in tlie execution of a common intention. Where a husband and wife make Mutual wills concurrently made in the same testamentary disposition compliance with a contract between of their property so their respective two parties who are competent and estates may take the same course and free to act, which wills are sup- be distributed in the same way after ported by both mutually, and a suf- death, the validity of a trust under ficient consideration are valid; and one will not be defeated by reason an oral agreement to execute such of a faulty execution of the will of will is proved bv same kind of evi- the other. Coghlan vs. Coghlan, 2G dence as other contracts, etc. Such O. C. C. 18. Jin ao-reement, when executed by the A joint will is not created when the making of such will is irrevocable wills are separate, executed at dif- after the death of one. Minor vs. ferent times although they may Minor, 2 N. P. (N.S.) 439; 15 Dec. make the same disposition of the 204. property. Id. § 1171 JOINT WILLS 1042 3. " The will by which the testators jointly devise their joint interests to third persons, or by which they treat their sepa- rate property as a common fund out of which they provide for third persons. A will of this kind is often termed a joint will/ 4. " The will which is a composite of the foregoing types ; that is, which provides in part for third persons and in part provides for the survivor. 5. " The will which differs from the third class only in that it specifically directs that it shall not take effect till the death of the survivor of the testators." ^ § 1171. Ohio decisions. This method of disposing of property is not a very common one. In Ohio but two cases have reached the Supreme Court, and these are not in accord ; and three cases are reported in inferior reports. The first case in the Supreme Court is that of 'Walker vs. Walker.^ In this case it is held, "A joint will is unknown to tlie testamentary law of this State, and is incon- sistent with the policy of its legislation ; and where a husband and wife^ each being the separate owner of property, join in the execution of an instrument in the form of a will, and treating the separate property of each as a joint fund, bequeathed lega- cies and devised lands to divers persons, the same can not be ad- mitted to probate as the joint will of both parties, nor as the separate will of either. Although some of the provisions con- tained in the body of such a will may be, in form and effect, several ; yet, inasmuch as the provisions of such a will partake of the nature of a compact, in which such provision is influ- enced by all the rest, all the provisions of the will must stand or fall together." There is quite an extended opinion in this case, and the Court seems to arrive at its conclusion, giving as one reason the fact that the statute in relation to wills does not apply to a plural number. This reason is exploded in the later case of Betts vs. Harper,* and the Court further relies very much on the case of 1 Betts vs. Harper, 39 0. S. 639. 3 14 0. S. 157. 2 Page on Wills, § 66, p. 70. * 39 O. S. 639. 1043 OHIO DECISIONS § 1171 Clayton vs. Liverman, decided by the Supreme Court of North Carolina in 1837.^ This JSTorth Carolina case has been repu- diated by a recent case in the same State.** In the case of Betts vs. Harper, in speaking of the case of Walker vs. Walker, the Court says : " Assuming as we should — more than, twenty years having elapsed since the case was de- cided — that the instrument received the proper consideration, we are not disposed to question the decision." Then the Court goes on and does question the decision, and seems to avoid directly overruling it, for the reason that the case before it is not exactly like the case of Walker vs. Walker. It seems to m© that the authorities at this time are not in accord with the decision in Walker vs. Walker. . In the case of Kunnen vs. 7Airline,^ the Superior Court of Cincinnati attempted to follow Walker vs. Walker, but held that although the will was joint in form, yet from the fact that one person owned all the property, and the other person, who was the wife, owned none, that such a will was not the joint will of both, but merely the valid will of the husband and could be probated. In another case,^ where wills were mutually made by husband and wife, who each owned property, at the same time they en- tered into a contract in writing provided that the provisions of each will should be unalterable and irrevocable. The husband, however, after the death of the wife, changed his will. The Court did not question his right to do so, neither was the right to make a mutual will questioned, nor the power of the Court to admit to probate the will of the person who first died. The decision turned upon the question as to the power of changing the contract and the effect of the will. The case of Albeny et al. vs. Session " was a case in which the direction of the Court was sought upon the provisions of what it termed twin wills. In this case the right of each person to make such a mil is not questioned, but the question before the 6 2 Dev. & Bat. L. Rep. 558. 8 Trustees, etc., vs. Wise, 17 C. 0. c In re Davis, 120 N. C. 9 ; 38 L. 659 ; 6 C. D. 703. R. A. 289. » 2 N. P. 237 ; 3 Dec. 330. 7 2 C. S. C. R. 440. § 1172 JOINT WILLS 1044 Court was as to the enforcement of what is termed a testamen- tary contract, and in defining what constitutes a testamentary contract. The Court says: 1. " The mind of both parties must meet in regard to the same thing. 2. " They must be competent and free to act. 3. " There must be a consideration. The execution of each of the mutual wills must be the consideration for the execution of the other. 4. " There must be a mutuality. The mutuality must run through the whole of both wills, and through every part of each will. A reciprocity must pervade both wills. ' The property of both is put into a common fund, and every devise is the joint devise of both,' so says judicial precept.^" 5. " The two must be concurrently executed. They could not be twins unless they were executed at the same time, or within a reasonably short time of each other. 6. " Eacli testator, at tlie time the wills were executed, or be- fore that time, must have knovrn what were the provisions of both wills. 7. " Both testators must have intended that the wills should not be revoked without the consent of both of tbem." 8. The existence and terms of the contract must be estab- lished by tJie most clear and satisfactory evidence. The same kind of evidence by which other contracts are proved may he used.^^ § 1172. When admissible to probate. The same author from which we have before quoted, says: ''There is no dispute as to the admissibility to probate of wills of the first and second types, by which (a) the survivor is to take the property of tlie one dying first, or (h) by which sepa- rate interests are disposed of in separate clauses. Such wills are to be admitted to probate, if in other respects regular, upon the death of the first testator, as his will. loDefonr vs. Peraro, 1 Dicken's tator. The court in this case Chancery Kep. 419. refrains from overruling the case 112N. P. 240; 3 Dec. 330. of Walker vs. Walker, 14 0. S. In the recent case of Ballard vs. 639, because it thinks that should Ballard, 37 O. C. C. 562 ; 26 0. C. be done by the Supreme Court, but C. (¥.S.) 490; 5 0. App. 469, the the Walker case is not followed, be- court holds that tenants in common cause the court is able to distinguish of real estate may by single will a difference between the case under dispose of real estate and person- consideration and the Walker case, alty without designating the pro- One thing is clear, the power to portion of legacy paid by each tes- make a joint will is upheld. 1045 REVOCABILITY § 1173 " As to wills of the third type — those by which the testators jointly devise their joint interests to third persons, or treat their separate property as a common fund out of which they provide for third persons — there has been more diversity of opinion. The great weight of authority is that tlie will of this type is to be probated on the death oi each testator as the separate will of decedent/^ and that, as said before, if this can not be done, the instrument should be refused probate as a will altogether. This last rule seems to rest upon sound policy. The funeral expenses and debts of the decedent should be paid as soon as is prac- ticable, and the estate settled. To delay such payment until the death of some one other than testator — an event which may not occur for years — would make the prompt and orderly set- tlement of decedent's estate impossible. " It must, however, be admitted that there are some early cases which recognize the validity of the joint will, in which it is intimated that such will could not be probated until the death of both testators." ^^ § 1173. Revocability of joint and mutual wills. We have seen m a previous aiscussion upon the subject of wills that one of the distinguishing features between a will and a contract was the fact of its revocability,^* and it would neces- sarily seem to follow that the rule should be applied to joint and mutual wills. Confusion arises in this matter from the fact that the contract is enforced, even though the will has been re- voked. In this sense it may be stated to have been held that the will can be revoked. But the rights remain fixed, not by virtue of the will, but by virtue of the contract.^^ 12 In re Davis Will. 120 N. Car. 9; L. R. A. 239, the reporter says, " A Beits vs. Harper, 39 O, S. 639. review of the authorities shows it to 13 Page on Wills, §§ G8, 74. to be well established now that a 14 § 1014. single instrument may include the isAlberry vs. Session, 2 N. P. wills of several persons if its pro- 237; 3 Dec. 330; Reformed Church visions are such as to coastitute or vs. Wise, 17 C. C. 659; 6 C, D. 703; include a separate will for each of Cawley's Estate, 162 Pa. St. 520. them. As to instruments which at- Tn an extended note where the tempt to make a joint disposition case of in re Davis is reported in 38 of property there is more diffieulty. § 1173 JOINT WILLS 1046 As to certain kinds of wills, a recent author recognizes the unsettled condition when he says of the law : " The difficulties presented by the joint will of the type that treats the property of both testators as a common fund are great, and the adjudi- cated cases give but little indication as to their solution. We may ignore the point made, that the statute of Avills refers en- tirely to a will executed by one only ; for, as has been well said, the statute of conveyances refers entirely to conveyances by one only, but no doubt has ever been entertained of the validity of a joint deed. The difficulties are deeper than this. One of the greatest of them is the method of settling the estate of the first decedent. Inasmuch as the will disposes of the property of both testators, the legacies and devises can not be paid en- tirely out of the estate of the decedent ; but what proportion of them to pay, what distinction, if any, between specific and pe- cuniary legacies, and what effect the possible ultimate insol- vency of the estate of the surviving testator should have, are questions which will sooner or later be presented for judicial consideration whenever such type of will is treated as valid." " But a majority of the cases seems Tlie statute of limitations does not to agree in holding that a will can- begin to run until the death of the not be made by two or more persons survivor. The agreement is irre- unless it can be regarded as the scp- vocable after the death of either arate will of each of them so that party. The will may be revoked, it may be probated separately for but the compact or agreement will each without regard to the fact that be enforced. It is not annulled be- another maker is still living. cause the will of the survivor can- i<5 Page on Wills^ § 69, p. 77. not be found after his death, where A recent nisi prius case has held the execution of such wills, their that mutual wills are valid. One contents and a sufficient considera- is a good consideration for the other. tion therefor is conclusively shown An oral agreement to that effect is by oral evidence. ]Minor vs. Minor, not within the statute of frauds. 2 K P. (N.S.) 439: 15 Dec. 264. 1047 CODICILS §1174 CHAPTER LXIIL CODICILS. § 1174 Definition. § 1175 Execution. Revocation, etc. 1176 Construction of will and cod- icil. § 1177 Republication of will by a codicil. § 1178 Probate of codicil. § 1179 Form of codicil. § 1174. Definition. " The term '' codicil " in the sense in which it 19 now uni- Tersally used in the English and American law, may be defined to be some addition to or qualification of one's last will and testament. It may add to or subtract from, alter, explain, con- finn, revive, or republish any will with which it can be incorpo- rated. There may be many codicils, but there can be but one will.^ One of our Courts has said that " the word codicil has a -definite legal signification. Its signification is ' a supplement to a will.' The province of a codicil is not to revoke a will, but to change, add to, or subtract from a v.-ill." " Our statute says, in the title relating to wills, the term " will " shall be construed to include codicils.^ The codicil is prima facie dependent upon the will. The destniction or muti- lation of the will is an implied revocation of the codicil.* 13 Am. & Eng. Ency. ofLaw 291. Codicils owe their origin to the following circumstances: Lucius Lentulus, dying in Africa, left codi- cils, confirmed by anticipation in a •will of former date, and in these codicils, requested the Emperor Augustus, by way of fidei commis- sum or trust, to do something therein expressed. The emperor carried this will into effect, and the daughter of Lentulus paid legacies which she would not otherwise have been legally bound to pay. Other persona made similar fidei commissa, and then the emperor, by the advice of learned men. sanctioned the making of codicils, and thus they became clothed with legal author it v. Inst. 225; Bouv. L. Diet. tit. Codicil. sGifTen vs. Brooks, 3 C. C. 118; 2 C. D. 64. 3 §§10215-10502 G. C, §1033. •i§ 1052. Woerner on Admin. 86, 87. Where a suit to contest a will was brought to which there were three codicils and in the petition only the first and second codicils were referred to, it was held that on trial the issue is made up by the court, and the will with all the codicils will he submitted to the jury — Clark, Common Pleas § 1175 CODICILS 1048 § 1175. Execution. Revocation, etc. A codicil, in order to be effective, must be executed with, the same formality, and the testator must exercise the same powers and capacities as is requisite in the execution of a valid will. Likewise a codicil can be revoked only in the same method that a will is revoked. Of course, if the will is revoked, the codicil being a supplement to the will, the revocation of the will would work a revocation of the codicil. In order to enable what pur- ports to be a codicil to be effective when the will is destroyed, the codicil must be of such a character as to constitute a new or independent will. It is common practice to attach the codicil to the original will, but this is not essential. The same effect can be accomplished by reference as by attachment or writing upon the same sheet of paper. If it is not annexed to the will, the codicil, where no expressed date is mentioned, refers to the will latest in date.^ § 1176. Construction of will and codicil. It is a well settled rule of construction that a will and codicil are to be taken and construed together as parts of one and the same instrument, and the intent of the testator gathered from the whole ; and that a codicil will not be held to revoke the dif position of the will further than is clearly expressed or neces' sarily to be inferred from it." If the will gives an estate, in order to revoke the samie by codicil, the terms used must be equally clear and a later codicil will not revoke an earlier codicil, unless such result is absolutely necessary to give effect to the later codicil. " Where a second instrument is a will as distinguished from a codicil," says Page,^ " the Courts do not make so great an effort to reconcile it with the former will as they do in the case of a codicil. . The reason for this distinction lies in the fact that a codicil is ordinarily in- tended merely to effect some alteration in the will, leaving tlie rest of it in force; while a later will may quite as well be in- 5 See § 1052. Revocation of codicil. 7 Page on Will?. §§ 269. 300. « Collier vs. Collier, 3 0. S. 369. 1049 PKOBATE OF § 117''' tended to dispose of testator's property in disregard of the for- mer will." ^ § 1177. Republication of will by a codicil. From the fact that a codicil is a part of the will to which it is attached or made part by reference, the execution of the codicil 'per se operates as a republication of the will, and the two are to be regarded as but one instrument, speaking from the date of the codicil,^ And therefore it may operate to establish a will which would be void for want of oorapliano with the law regulating its execution and attestation, because the codicil, speaking and operating from the time of its execution, brings the will to it and makes it a will from the date of the codicil.^*' § 1178. Probate of codicil. Ordinarily a codicil is so connected with the will to which it refers that it cannot be probated apart from such will. If it can be probated apart from the will, it would lose its character of a codicil, and would become an independent will. In reference to the fonnalities surrounding the probating of a codicil, the same law applies as to the probating of a will, and for all such 8 W.. on February 17th, 1886, second of my said will as would in- made his will, by the second item of elude said Emma, and I hereby give which he gave all the property to his and devise to my daughter, Margaret daughter, Margaret, and all his Jackson, and all my other grand- grandchildren, share and share children, not including said Emma, alike; and also, by it provided that all my estate of every kind, share " if at the time of my death, my and alike." daughter Margaret or any of my " With the change above made, I grandchildren shall have deceased, hereby approve and confirm all will ;hen my estate shall go to the sur- and codicil as my last will." Decid- '/ivors, their heirs and assigns, share ed that the second codicil abrogated ind share alike." January 3rd, the provision of survivorship con- 1890, W. made st second codicil to his tained in the second item of the will, will, in which he recites that, since Jackson vs. Shinnick. 3 N. P. 211; the making of his will, he had given 6 Dec. 37. See § 1184 et seq., Con- his grand-daughter, Emma Camp- struction of wills, bell, certain real estate which he con- » 3 Am. & Eng. Ency. of Law, 301 ; sidered fully equal to her full pro- Page on Wills, §§ 307, 347. portion of his estate and then says: lo Woerner on Admin. 87. " I hereby revoke so much of item § 1179 CODICILS 1050 purposes a codicil is a will.* It may oe contested in the same manner as a will, and the same right exists for error and appeal and a repropounding. While a codicil can not be probated without the will, yet the will may be probated even though the codicil can not be found.^^ § 1179. Form of codicil. I, A. B., make this codicil to my last will and testament which was dated Sept. 1, 1894. I cancel and revoke the legacy of one thousand dollars given to G. H. I give to my son, C. D., executor of my will, in addition to the portion given him under my will, one thousand dollars. In all other respects I confirm my will. Witness my hand this first day of October, in the year one thousand eight hundred and ninety-four. A. B. Signed, published and declared by the above named A. B. as and for a codicil to his last will and testament in presence of us who in his presence (and in the presence of each other) and at his request have hereto sub- scribed our names as witnesses. L. B. G. F. This form of attestation is more full than the law requires. Under our statute the witnesses need not sign in each others presence. See infra}^ II Page on Wills, §§ 314, 359. 12 Whittaker's Code Forms, 181. 1051 CONSTRUCTION OF WILLS §1180 CHAPTER LXIV. CONSTRUCTION OF WILLS. § IISO Definition, etc. § 1200 § llSl General rules of construction. § 1201 § 1182 Rules as to intention. § 1202 § 1183 Rules as to repugnancy. § 1203 § 1184 Rules for supplying words. § 1185 When extrinsic evidence ad- § 1204 missible. § 1205 § 1 186 Parol evidence. § 1206 § 1187 Declarations of the testator. § 1188 Devise for life, remainder to heir in fee. § 1207 § 1189 Rule in Shelley's case. § 1190 Vesting of estates. §1191 Property acquired subsequent §1208 to making of will passes. § 1192 When whole estate of devisor § 1209 in land to pass by the devise. § 1193 Life estate with power of § 1210 disposal. § 1194 Devise or bequest not to lapse by the death of devisee or legatee. § 1211 § 1195 Lapsed bequest. § 1 196 " Heirs," how construed. § 1197 "Issue" construed. § 1212 § 1198 "Children" construed. §1213 § 1199 "Next of kin" construed. " Relation " construed. " Descendants " construed. Disinheriting heirs. Provisions against contest^ ing. Restraints of alienation. Restraint of marriage. When real estate undevised shall be applied to pay debts instead of personalty. Contribution when devised or bequeathed property taken to pay debts. Except when will otherwise provides. But whole estate liable for debts. Portion of child born after execution of will or supposed tj be dead, or of witness sub- ject to contribution. If any liable to contribute are insolvent, etc., how other a to make up deficiency. How contribution enforced. Order to sell land to pay debts. Not affected, etc.i § 1180. Definition, etc. Construction in the law of wills is the ascertaining and deter- mining of testator's intention as expressed in his will, and its application to existing facts and circumstances with which such guity exists in such provisions; the mere fact that we cannot understand why testator so provided, or such provision is contrary to what we might exi>ect, does not justify put- ting a construction on said will dif- ferent from its plain words. Rob- bins vs. Smith, 5 C. C. (N.S.) 545; 27 0. C. C. 91 ; afiirmed 72 O. S. 1. A Court of Equity will not reform a will. Younce vs. Flory, 77 0. S. 71. Where the provisions of a will are clear and unambiguous there is noth- ing for tlic court to construe. Rein- 1 See § 1031 as to perpetuities. § 907 et seq., Descent and distri- bution. § 804, Devise to sell. § 674 et scq., As to payment of legacies. Where the parties agree on a construction in good faith it will bo upheld, although it is not the construction that the court would have placed on the will. Poland vs. St. Joseph, 9 C. C. (N.S.) 5.35; 29 O. C. C. 649. A will is to be interpreted by its express provisions when no ambi- § 1180 CONSTRUCTION OF WILLS 1052 intention deals. ^ Rules of construction are used to aid in ascertaining the intention, but are not adhered to against an ob- vious intent ; hence one case may not be the standard for an- other, as no two wills are apt to be exactly alike.^ And where a will is open to two constructions, one of which gives effect to the whole instrument, while the other destroys a part, the former construction must be adopted.* And the rule is well settled that all parts of a will are to be construed in relation to each other, so as, if possible to form one consistent whole, and thus uphold and give effect to all the provisions of tlie will.** And if two clauses of the will are irreconcilable, the last controls the first.^ Words in a will are to be construed in their common and or- dinary sense, and nO' word can be rejected and another substi- tuted in its place without the clearest certainty that such was the intention of the testator.*' In treating of this matter in a work of this kind a difficulty is experienced in what to omit as w^ell as that which should be inserted. The subject of construction is a very extensive one, and can only be properly treated in a treatise on the subject of wills. It is thought, however, that some service may be ren- dered by the insertion at least of rules laid do^\m by recognized authors. The following several sections are largely taken from a valuable w^ork on the probate law of our sister State,^ which, in turn, says that they are taken from the treatises of Redfield, Jarman, Williams and Wigrams.® hard vs. Reinhard, 3 X. P. (N.S.) Townsend, 25 0. S. 477; Linton vs. 280; 15 Dec. 741. Laycock, 33 O. S. 128. When executors are to sell real 3 Brasher vs. Marsh, 15 0. S. 103; estate after the death of the wife Williams vs. Veach, 17 0. 171. of the testator, and divide the pro- * Pruden vs. Pruden, 14 O. S. 251. ceeds among certain children, a quit 4* Worman vs. Teagarden, 2 0. S. claim deed made by one of the chil- 380; Parker v.s. Parker, 13 0. S. dren during tlie life of the wife, 95; Baxter vs. Bowyer, 19 0. S.490. conveys no estate. Knisely vs. ^ Coonrod vs. Coonrod, 6 0. 114; Young, 33 0. C. C. 439. Young vs. Mclntire, 3 O. 498; 2 Page on Wills, §§457, 533. Parker vs. Parker, 13 0. S. 95. The sole object in view in giving Sch. on Wills, 474. a construction to a will is the ascer- ^ gee Page on Wills, §§ 462, 539. tainment of the intention of the tes- 7 Henry Pro. Law. (Ind.) 677. tator and give the will sucli con- 8 See §§ 10213 G. C, 10502, G. C, struction as will carry this inten- § 1033, for statutory construction, tion into effect. See §§ 1181, 1182. Parties interested may file a peti- Decker vs. Decker, 3 0. 157; King tion and have a judicial construc- vs. Beck, 15 O. 559; Brasher vs. tion, §§10857-8 G. C, §33. Marsh, 15 0. S. 103; Townsend vs. 1053 GENERAL RULES §1181 § 1181. General rules of construction. The following general rules are given : " 1. A will of real estate, wherever made, and in whatever lan- guage written, is construed according to the law of the place or country in which the property is situate, but a will of personalty is governed by the law of the domicile. 2. Technical words are not necessary „to give effect to any species of disposition in a will.^° 3. The construction of a will is the same at law as in equity, the jurisdiction of each being governed by the nature of the sub- ject, though consequences may differ. 4. A will speaks for some purposes, from the period of its ex- ecution, and for others, from the death of the testator, but never operates until tlie latter period.^^ 5. The heir is not to be disinherited without an express de- vise, or necessary implication, such implication importing not natural necessity, but so strong a probability that an intention to the contrary can not be supposed.^" 6. Merely negative words are not sujfficient to exclude the title of the heir or next of kin. There must be an actual gift to some other definite object,^^ 7. All parts of a will are to be construed in relation to each » Jarman's 24 Rules ; Jennings vs, Jennings, 21 0. S. 56; McCune vs House, 8 0. 144; Brewster vs. Ben edict, 14 0. S. 368; Hartshorne vs Ross, 2 Disney, 444 ; Craighead vs Pike, 4 Ree. 199; Seh. on Wills, 491 See § 1016, § 1118 G. C, Law gov Woerner on Admin. §419; Cinton vs. Boyd, 19 O. S. 30; Farrar vs. Fallestine, 4 C. C. 235; 2 C. D. 519; ]\IcCall vs. Jones, 4 W. L. M. 627. 12 See § 1202. Crane vs. Doty, 1 0. S. 279; Smith vs. Jones, 4 0. 115; Bane vs. erning. Wick, 19 0. 328. 10 The rule for construing the Ian- The statute of descents operates guage of the will is less rigid than upon all intestate property, and the it is in regard to any other instru- course which it indicates can be ment. It is not, necessarily, to be changed only by a testamentary dis- viewed technicallj', and with strict position. Mathews vs. Krisher, 59 grammatical accuracy, but sensibly 0. S. 562; Page on Wills, §§467, and liberally, in order to give effect 548. to intention. 15 0. S. 103; Brasher 1 3 Woerner on Admin. §418. vs. Marsh ; Sch. on Wills 470. Words of survivorship in a will 11 Smith vs. Block, 29 0. S. 488; refer to the time of the testator's Ilosmer vs. Sturges, 31 0. S. 657; death. Renner vs. Williams, 71 0. Baker vs. McGrew, 41 0. S. 113; S. 340. § 1181 CONSTRUCTION OF WILLS 1054 other, and so as, if possible, to form one consistent whole ; but where several parts are absolutely irreconcilable, the latter must prevail.^* 8. Extrinsic evidence is not admissible to alter, detract from, or add to the terms of a will.^^ 9. Nor is it admissible to vary the meaning of words, and therefore to attach a strained and extraordinary sense to a par- ticular word, in an instrument executed by the testator, in which the same word occurs in that sense. ^® 10. But the Court will look at the circumstances under which the devisor made his will, as the state of his property, his family, and the like.^" 11. In general, implication is admissible only in the absence of, and not to control, an express disposition.^^ 12. An express and positive devise can not be controlled by the reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will.^® 13. The inconvenience or absurdity of a devise is no ground for vaiwing the construction, where the terms of it are unam- biguous, nor is the fact that the testator did not foresee all the consequences of his disposition a reason for vaiwing it. But where the intention is obscured by conflicting expressions, it is to be sought rather in a rational and consistent, than an irra- tional and insistent purpose. 14. The rules of construction can not be strained to bring a devise within the rules of law, but it seems that where the will 1* Parker vs. Parker, 13 O. S. It must appear, however, that the 105; Decker vs. Decker, 3 0. 157; testator knew the circumstances. Williams vs. Veach. 17 0. 171; Jones vs. Lloyd. 33 0. S. 572. 'Starlin<^ vs. Price, IG 0. S. 20; is Parker vs. Parker, 13 0. S. 105. Edwards vs. Ranier, 17 0. S. 597; 1 9 Parker vs. Parker, 13 0. S. 105, Townsend vs. Townsend, 25 O. S. 109. 477 ; Carter vs. Reddish, 32 0. S. 1 ; See Reinhard vs. Reinhard, 15 Sell, on Wills, 473. Dec. 741. 15 Collins vs. Hope, 20 0. 492; A will must be construed as an Townsend vs. Townsend, 25 0. S. entirety, and the intention of the All; Wornian vs. Teagarden, 2 0. S. testator ascertained and carried into 380; Charch vs. Charch, 57 0. S. efl'ect. Huber vs. Carew. 7 C. C. 561 (^^-S.) 609; 2 X. P. (X.S.) 81; 14 16 Thompson vs. Thompson, 4 O. Dec. 656; affirmed 26 O. C. C. 389. S. 333; Edwards vs. Ranier, 17 O. Evidence tending to show circum- S. 597. stances of the testator, his char- 17 Sch. on Wills 469; .Jones vs. acter, objects of his bounty, his ties Lloyd, 33 O. S. 572; Parker vs. of affection and his instructions to Parker, 13 0. S. 105; Charch vs. the scrivener who drew the will, Charch 57 S*". 561 : Townsend vs. rightfullv reiected. Foster V3. Townsend, 25 0. S. 490. Clifford, '87 0. S. 306. 1055 GENERAL RULES § 1181 admits of two constructions, that is to be preferred which will render it valid."'' 15. Favor or disfavor to the object ought not to influence the construction. 16. Words in general are to be taken in their ordinaiy and grammatical sense, unless a clear intention to use tliem in an- other sense can be collected, and that other can be ascertained ; and they are in all cases to receive a construction which will give to every expression some effect, rather than one that wdll render any of the expressions inoperative ; and of two modes of construc- tion that is to be preferred which will prevent a total or even partial intestacy'."^ 17. Where a testator uses technical w^ords, he is presumed to employ them in their legal sense, unless the context clearly indi- cates the contrarj^ More recent decisions have so relaxed this rule that technical language is now given a more reasonable construction, and will receive either a technical or popular construction, according to circumstances."' 18. Words occurring more than once in a will shall be pre- sumed to be used always in the same sense, unless a contrary in- tention appear from the context, or unless the words be applied to a different subject.'^ 19. Words and limitations may be transposed, supplied or rejected where warranted by tlie immediate context, or the gen- eral scheme of the will, but not merely on a conjectural hypothe- sis of the testator's intention, however reasonable, in opposition 20 Pruden vs. Piuden, 14 0. S. 288 ; Tliorapson vs. Thompson, 4 O. 251. S. 33. 21 Carter vs. Reddish, 32 O. IS. 1 ; Strict technical meaning may be Bowen vs. Bowen, 34 O. S. 164; given to such words as " heirs " un- Zanesville vs. Zanesville, 20 O. 483; less it appears that they were used Collier vs. Collier, 3 0. S. 369; in the will as meaning something Page on Wills, §§471, 536; Colston else. Weston vs. Weston, 38 0. S. vs. Bishop, 1 C. C. 486; Sch. on 473 ; Jamicson vs. Knights Templar, Wills 472. 12 Bull. 272; Y. M. L. Ass'n vs. Pol- 22To\vnsend vs. Townsend, 25 0. lard, 3 C. C. 577; 2 C. D. 333. S. 477; Richey vs. Johnson. 30 O. S. 23 Sch. on Wills 471. § 1182 CONSTRUCTION OF WILLS 1056 to the plain and obvious sense of the language of the instru- ment."* 20. Words which it is obvious are niiswritten may be cor- rected."''* 21. The construction is not to be varied by events subsequent to the execution, but the Court, in determining the meaning of particular expressions, will look to possible circumstances in which they might have been called upon to affix a signification to them. 22. Several independent devises, not grammatically con- nected or united by the expression of a common purpose, must be construed separately and without relation, to each other. There must be an apparent design to connect them. 23. Where a testator's intention can not operate to its full ex- tent, it shall take effect as far as possible. 24. A testator is rather to be presumed to calculate on the disposition of his will taking effect than the contrary, and ac- cordingly a provision for the death of devisee will not be con- sidered as intended to provide exclusively for lapse, if it admits of any other construction. "° § 1182. Rules as to intention. It may be remarked that the rules for construction of wills are less rigid than those in regard to other instruments, the prin- ciple being to ascertain the most obvious intent of the testator. The intention of the testator is the object of all construction, but this general proposition is subject to the following qualifica- tions : ^* 1. The intention must be expressed in the words of the will.-^ 24Woerner on Admin. SSO; Page Woodruff vs. Woodruff, 23 C. C. on Wills, §§ 462, 539. 40S. ■ 24* Merrick vs. Merrick, 37 0. S. Swerer vs. University, 27 0. C. C. 126. 144. 25 Henry Pro. Law 678. 27 Collins vs. Hope. 20 O. 492; See Redf. Rur. Prac. 234; Alexan- Tnwnsend vs. Townsend, 25 0. S. der vs. Mendenhall, 32 Bull. IISI; 477: Shaw vs. Hoard. IS O. S. 227. Gilpin vs. Williams, 17 0. S. 396; ^Miere there are doubtful clauses 25 0. S. 283; Pendleton vs. Bowler, in a will the court determining the 27 Bull. 313. meaning the testator intended they 26 All rules of construction must should have will not be controlled bend to and conform to the rule that by general rules or judicial deci- nothing shall stand in the way of sions in cases apparently similar the expressed intention of the testa- but will interpret them reasonably tor unless it be contrary to law. in particular cases. Moon va. Stewart. 87 0. S. 349. 1057 RULES OF INTENTION 1182 2. The general intent, if clear, will control particular terras,^® 3. Words are to have that force which authority gives them, unless the contrary is clear. ^'^ 4. Clearly expresses] intention controls doubtful construc- tion'" 5. Punctuation is laot authoritative in fixing constiniction.'^ 6. The will shoulc) be upheld and made reasonable as far as practicable. 7. Courts will fiive some meaning to a will, unless absolutely impossible. The rule i.- unwersal in American Courts that the plain and unambigyjua words of the will must prevail, and are not to be controlled ot qualified by any conjectural or doubtful construc- It is, tiierefore, a cardinal prin- ciple in expounding wills, announced by so many authorities that it would be tedious, and is unnecessary to attempt to mention them, that the intention of the testator must be found in his expressed words. The grammatical and ordinary popular sense of the words should be ad- hered to, unless it would lead to some absurdity, or repugnance, or inconsistency with the rest of the instrument. Woerner on Admin. 870; Worman vs. Teagerden, 2 O. S. 380. But that which is plainly implied in the language of a statute is as much a part of it as that which is expressed. Doyle vs. Doyle, 50 O. S. 330; Gates vs. Pond, 12 C. C. 59; 5 C. D. 297. 28 Prudcn vs. Pruden, 14 O. S. 259; Davis vs. Davis, 62 O. S. 411; Page on Wills, §§ 4G3, 541. 29 Moore vs. Moore 12 B. Mon. 651, 656. " The testator's understanding of the meaning of the words used in the will, will be adopted without re- sorting to lexicographers, to deter- mine what the same may mean in the abstract." Tleinders vs. Koppel- man, 94 Mo. 338, 343; Garth vs. Garth, 139 IMo. 45G; Woerner on Admin. F'O. so To this endj the will as a whole must be considered. In construing a will, the great ob- ject is to ascertain the intention of the testator, and this is to be gath- ered from the phraseology of the will itself and in order to arrive at this intention, it is necessary to look at the whole instrument. It will not do to seize upon an isolated passage and ^ive it a controlling effect. Williams vs. Veach, 17 0. 171; Townsend vs. Townsend, 25 0. S. 477; Carter vs. Reddish, 32 O, .S. 1; Charch vs. Charch, 57 0. S. 5G1. 31 Jackson vs. Shinnick, 3 N. P. 211; 6 Dec. 37. If, in so considering the language of the testator, an intelligible inten- tion may be elicited therefrom, neither technical informality, nor grammatical or orthographical er- rors, nor confusion in the arrange- ment of words arising from unskil- fulness, ccin be permitted to defeat it. Woerner on Admin. 870. Words deliberately used are pre- sumed to have been placed there for a specific purpose, and cannot be ar- bitrarily ignored ; and they must be given the meaning to effect the in- tention of the testator, if such inten- tion can be ascertained and no rule of law is violated. McDaniel vs. Hayes, 6 N. P. (N.S.) 435; 15 Dec. 661; affirmed 74 0. S. 515. ^ 1183 . CONSTRUCTION OF WILLS 1058 tions growing out of the situation, incumbrances ot condition of the testator, his property or family. Extraneous facts may aid but can not control the construction of words. Children and their issue should not be disinherited on any doubtful construction. All the papers constituting the testamentary act are to be con- sidered ; and the technical meaning of words are to be followed only where it reaches the intent.^^ § 1183. Rules as to repugnancy. The following rules in reference to repugnancy in wills are fully established :^^ 1. Directing a legacy to be made a charge on land is not repugnant to a subsequent direction for the sale of the same land ; but a devise in fee with a provision never to sell is repug- nant. 2. No portion of a will is to be rejected for repugnancy ex- cept from necessity ; but every portion will be upheld, if possi- ble ; and to effect this, the order of the bequests will be reversed. 3. General words are controlled by those more specific, and words are not to be rejected for repugnancy except from neces- sity. But if there are repugnant words contravening tiie gen- eral sense or intent of the will, such words must be rejected. 32 When a devise was made of 208 he has attempted to make, it should acres " and also" 83 acres, the same be held void for uncertainty, and the words of limitation applied to both property left to descend and be dis- tracts. Noble vs. Ayers, 61 O. S. tributed according to law. Cope vs. 491. Cope, 45 O. S. 464. Henry Pro. Law 682. 33 Repugnancy must arise on the See Page on Wills, §§ 475, 563. face of the will to justify rejection Where the provisions of a will in of a word or clause, and can not be each and all of its items are. when created by extraneous proof. But considered as an entirety, so obscure the repugnancy need not be with that, with the aid of all the light some other distinct word or clause that can be shed on it by the extra- but may be a conflict with the gen- neous circumstances, no definite idea eral tenor or scope of the will and can be formed of the intention of the its implications. Davis vs. Boggs. testator in any of the dispositions 20 O. S. 550. 1059 RULES FOB SUPPLYING WORDS § 1184 4. In case of irreconcilable repugnancy, the latest portion of the will must stand.^* § 1184. Rules for supplying words. The following general rules are applicable for supplying words : 1. Words omitted may be supplied by intendment; but this is not done where there is ground for doubt in regard to the words. ^^ 2. Words omitted may be supplied by reference to the cor- relative part of the will. 3. The name of a devisee may be supplied by clear intend- ment. Even the name and the devise itseK may be so supplied. 4. The terms of one devise can not be drawn into the con- struction of another wholly distinct. The correspondence must amount to identity. The Court will not cut down a devise in a codicil by a resort to the will.^® 5. When the sections of a will are numerically arranged, each section is distinct. 6. In our Courts almost any latitude of construction is al- lowed to meet the clear intent of the will. " Die without is- 34 If an instrument is open to two 36 See § 1177. constructions, one consistent with Where a will gives the wife the and the other repugnant to law, or personalty absolutely, and the real- one which will effectuate the whole ty during life and widowhood, and instruntent and the other will de- a codicil gives her all realty and stroy part, the former is always personalty " to be disposed of by her adopted. Pruden vs. Pruden, 14 0. as seems best," the intent is to give S. 251; Page on Wills, §§ 503, 589; her a fee in both and her mortgage Schoui. on Wills 478. of the realty is valid. MacClement 35 Boggs vs. Taylor, 26 0. S. 604. vs. MacClement, 1 Dayton Term Where property is devised by two Reps. 101. descriptions, either of which is suf- A testator having left to his wife ficient in form, but it is shown that several items for life, left to her a one of them is erroneous and the farm without words of limitation, other correct, the former should be but in another clause required that rejected, and the property will pass after her death all the remainder of by the latter description, according his estate be equally divided, etc. to the maxim, Falsa demonstratio Held, she took a life estate only in non nocet. Merrick vs. Merrick, 37 the farm. Hull vs. Hull, 9 Cir. D. 0. S. 126. 19; 16 C. C. 688. §1185 CONSTRUCTION OF WILLS 1060 sue " has been construed to mean '' without issue living," and what seems a life estate in terais may be construed a remainder in fee.^' § 1185. When extrinsic evidence admissible. The rules heretofore given show that the intention of the testator is the object to be striven for. But this intention must be shown in some way by the will itself, and not by facts out- side.^^ Extrinsic evidence is not admitted in any case with a view of reforming or adding anything to the will, but for the purpose of arriving at the real intent of the testator, by identi- fying the person or thing generally described, and to remove the ambiguity resulting from the erroneous particular descrip- tion.'^ No evidence is necessary where there is no ambiguity, as then the will must speak entirely for itself.*" The following propositions on the subject of the admissibility of extrinsic evidence to aid in the construction of wills are taken from Wigram's work on " Extrinsic Evidence," and ar* of great value and importance: 37 Words of a will may be trans- posed when such transposition will render the will clear without chang- ing its natural import ; and the Court may reach the obvious intent of the testator by transposition. Words of local description applying to one devise may be referred to an- other, and vice versa; but no liberty of transposition or supplying of words is allowed, unless in further- ance of the most unquestionable pur- pose of the testator. 3S§1186, Parol evidence. § 1187, Declaration of testator. S9 Page on Wills, §§816. 972. Extrinsic and parol evidence seem to be almost synonymous words when used in reference to the con- struction of a will. The one liter- ally meaning any evidence outside of the will itself, and the other mean- ing evidence not in writino;. «jPage on Wills, §§818, 074. A distinction is drawn between a patent and latent ambiguity. A patent ambiguity is defined as one which is apparent upon the face of the instrument, as where in wills the same tract is disnosed of in dif- ferent clauses to different individ- uals. A latent ambiguity is defined as one which is not discoverable un- til extrinsic evidence is introduced to identify the beneficiaries or the property disposed of by will. The general rule being that extrinsic evi- dence is only admissible to explain a latent ambiguity. This doctrine is criticised in Page on Wills as not being founded upon sound principle, and thr.t extrinsic or parol evidence is admissible to explain a patent ambiguity. The intention of the testator can- not be shown ^ by parol when he is silent on the subject. Reinhard vs. Reinhard. 3 N. P. (N.S.) 280; 15 Dee. 741. The rule of extrinsic evidence is admissible in aid of the construction of a will permits of introduction of evidence, as to blood relationship existing between devisees, and also of a previous will after which the one in hand was copied. Taylor vs. Taylor, 19 Dec. 829. Testimony of the scrivener who 1061 EXTKINSIC EVIDENCE § 1185 1. A testator is always presumed to use the words in which, he expresses himself according to their strict and primary ac- ceptation, unless from the context of the will it appears that he has used them in a different sense, in which case the sense in which he thus appears to use them will be the sense in which they are to be construed. 2. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense and in, no other, although they may be capable of some popular or secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered. 3. Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, but his words so interpreted are insensible with reference to extrinsic circumstances, a Court of law may look into the ex- trinsic circumstances of the case to see whether the meaning of the words be sensible in any popular or secondary sense of which, with reference to these circumstances, they are capable. 4. Where the characters in which the will is written are diffi- cult to be deciphered, or the language of the will is not under- stood by the Court, the evidence o.f persons skilled in decipher- ing writing, or who understand the language in which the will is written, is admissible to declare what the characters are, to inform the Court of the proper meaning of the words. 5. For the purpose of determining the object of a testator's bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a Court may inquire into every material fact relating to the person who claims to be interested Tinder the will, and to the property claimed as the subject of disposition, and to the circumstances of the testator and of the family and affairs, for the purpose of enabling the Court to iden- drew the will as to instructions Zaskman vs. Dick, 34 O. C. C. 4.50; given liim by testator incompetent. 1 O. App. 36. I 1186 CONSTRUCTION OF WILLS 1062 tify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. 6. Where the words of the will, aided by evidence of the ma- terial facts of the case, are insufficient to determine the testa- tor's meaning, no evidence will be admissible to prove what the testator intended, and the ^vill will be void for uncertainty. 7. Notwithstanding the above rule of law which makes a will void for uncertainty. Courts of law in certain special cases ad- mit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insuffi- cient for the purpose.*^ § 1186. Parol evidence. Parol evidence is not admissible to alter, detract from or add to the terms of a will, nor to correct supposed mistakes therein. It is admissible, in order to place the Court in the position of the testator, but not to render any extrinsic fact part of the will. Such evidence can not supply any defect, or accident, oi omission, but it may be sho^vri that part of the instrument is not the testator's will.*^ The following are instances in which parol evidence is not admissible in construing wills :*' 1. Filling up a total blank in a will. 2. Inserting a devise omitted by mistake. 3. Proving what was intended by an unintelligible word. 4. Proving that a thing in substance different from that de- scribed in the will was intended. 5. Changing the person described. 41 Henry Pro. Law 687. vs. Taylor, 26 O. S. 604: Black vs. 42 Painter vs. Painter, 18 0. 247; Hill, 32 O. S. 313. Thompson vs. Thompson, 4 O. S. Parol evidence may be received 333 ; Worman vs. Teagarden, 2 0. S. for the purpose of counteracting 380. fraud in the devisee, and in some 43 Taken from Henry Probate Law peculiar cases to attach a trust to and Prac. the estate devised. But in such Where words in a will are fairly cases the court will act with the and legitimatelv applicable to one extreniest caution. Collins vs. Hope, thing as its name, and are equally 20 O. 402^, Vance vs. Park, 15 C. C. applicable to another thing as 713: 7 X. P. 138. words of description, parol evidence The evidence must be clear and is admissible to show in which of convincing. Boughman vs. Bough- the two senses the testator was in man, 69 O. S. — . the habit of using the words. Boggs 1063 ' PAROL EVIDENCE § 1186 6. Reconciling conflicting clauses in a will. 7. Proving to which of two antecedents a given relative wae intended to refer. 8. Explaining or altering the estate. 9. Proving which of several testamentary guardians was in- tended to have the actual care of tlie children. 10. Proving what was to be done with the interest of a legacy until the time of payment. 11. Proving that by a bequest of the residue a particular sum was intended. 12. Constniing a will with reference to the instructions given for preparing it. 13. Proving that an executor was to be a trustee of the resi- due for the next of kin. 14. Proving that an executor was intended to take beneficially where, on the face of the will, it was conclusively apparent that he was intended to be a trustee. 15. Controlling a technical rule of verbal construction. 16. Explaining the sense in which the word " relations " waS intended to be used. 17. What a testator intended to give by the word " plate." 18. What a testator intended to devise by the words " lands out of settlement." 19. Proving that a portion was intended to be a satisfaction of a bequest of the residue. 20. That a legacy in a codicil was intended to be a substitu- tion for a legacy in the will. 21. Proving that a devise to a wife was intended to be in bar of dower. 22. Supplying a use or trust. 23. Ascertaining whether the real estate was charged with the payment of debts in aid only, or in exoneration of the personal estate. 24. That the intention in appointing a debtor to be executor was a release of the debt. 25. Pebutting a presumption which arises from the con- struction of words simply qua words. 26. Raising a presumption. § 1187 CONSTRUCTION OF WILLS 1064 27. Increasing a legacj. 28. Increasing that which is defective. 29. Adding a legacy to a will. 30. Proving what interest a legatee was intended to take in a legacy. 31. Ascertaining an intention which, on the face of the will was indeterminate. 32. Proving that words of limitation were intended to be construed as words of purchase. 33. Proving that executors, who had acted in part and then renounced, Avere intended by the testator to act only to that extent to which they acted. 34. Proving that the testator meant to use general words in this or that particular sense. Parol evidence is always admissible to show fraud, deception, or undue influence in obtaining a will, and cases allow a very extensive range of testimony in support of, and in reply to, evi- dence tending to show fraud, undue influence and wealmess of mind as the moving and proximate causes of a will.** ^ 1187. Declarations of the testator. A testator's declarations are not admissible to effect the con- struction of a will. They are admissible on question of fraud and undue influence.**'' They are admissible to show the state of a testator's mind.*^ Where a testator devised all of his "home farm" to his 44 Henry Pro. Law 690. regarcled as part of the transaction, Our courts hold that they are not should be received upon the princi- admissible, Chaney vs. Coulter, 29 pie of evidence, as part of the res O. C. A. ISS, quoting: The law is gestae. On the other hand, mere that declarations of the testatrix naked declarations of the testator, made before or after the making of made so remote from the time of the will if near such time are ad- execution as not to form part of the missible to prove state of mind of res (jestaem, to the effect that at- the testatrix, but are not admis- tempts at fraud or undue influence sible to prove the fact of undue in- had been made, or had compelled fluence. If the declarations tend him to make a will contrary to his to prove both the fact of undue real purpose and intent, seem wholly influence and the state of mind of inadmissible upon recognized prin- the testatrix, then the. court must ciples of evidence. See 46 Bull. 161. ■admit the testimony and instruct As to presumption of having de- the jurv that it can consider the stroved will, see Gurley vs. Armen- declarations only so far as they trout, 6 C. C. (N.S.) 156; 27 C. C. tend to prove the state of mind of 199 (1905). testatrix. Boepple vs. Mellert, 24 Plaintiff in a will contest is a O. C. C. (IST.S. ) 410. competent witness to testify as to 45 Eedf. on Wills 553, after a acts of the testator and the manner careful consideration of the numer- in which these acts were performed, ous authorities, states that the dec- although he is a devisee and son of larations of a testator near the decedent. Wilson vs. Wilson, 19 time of making a will, so as to be Dec. 18S. 1065 DECLARATIONS OP TESTATOR § 1187 widow in an action by a residuary devisee to recover land wliieli the defendant claimed under the devise, as part of the home farm, declarations of tlie testator that he had received a large part of his means from the iancestor of the plaintiff, and that, in consequence of such aid, he intended to will the premises in question to them, cannot he given in evidence as showing the extent or boundaries of the farm.*® In another Ohio case it is said " Ti-ue, the tnistee alleges in his answer that he knows from conversations held with the deceased that he contemplated a remote period as the time of listribution, but we are not to regard any such averment. We ire to find the intention of the testator in the will itself, and are tot at liberty to allow its terras to be varied or contradicted by ^»nversation or parol statements made either before or after erty, real and per- children get all the property. Mc- sonal, to use, sell and dispose of as Cartney vs. Mason, 18 Dec. G29. she might see fit, "for her own com- Where the will gave to the wife fort and convenience," with power all testator's projierty "I'or the term to convey tlie reil estate in fee sim- of her natural life, and with full pie if her necessities or comfort re- power to hold and dispose of part (juire it. A suLsoruent clause di- or all of same for her u.-e and benefit rected that the residue of his "prop- as she may see (It. Upon the death erly or moneys, if any should be left of my said wife, if there should be after her death and full payment of any residue of said estate it is my her funeral expenses, be equally di- will that the same be divided vided between" his children, of equally between my four children," whom, there we"c tvo only, the fruit the widow is a qti/isi trustee, and of a former r ar^i^ge. It wns held if she wastes or dissipates the funds that any of the property undisposed will he compelled to give bond. Hob- of and mt consumed by the wife stm vs. Lower, 30 O.^C. C. 22.5; fol- went, at her death, to the children, lowing Johnson vs. Johnson, 51 0-. S. save enough to eischar '1^ ^- ^- ?-?4. ^^e Miller vs. ]Miller, 29 O. C. C. 95McKelvey vs. McKelvey, 43 0. 457. See Cultice vs. Mills, 97 0. S. "• "'•^- 112. 1079 ISSUE CONSTRUED § 1197 A testator may use the word " heir " witliout its usual legal sense if the plain legal intention shows that it was not so era- ployed/"^ § 1197. "Issue" construed. The primaiy meaning of the word issue is that of legitimate lineal descendants indefinitely.^"^ The rule therefore is, that the word "issue " in its general sense, in the absence of any indication of intention to the contrary, includes in its mean- ing descendants generally. But this general sense may be modified by surrounding circumstances. It is conceded that " issue " is an ambiguous term.^°^ The term issue may be used as either a word of purchase or of limitation, but it is generally used by the testator as synonymous with " child " or " chil- dren." ^*'* It includes descendants as generally understood.^"' 101 Kreisted vs. Smith, 8 N. P. 378. Where the heirs apparent of a testator consisted of several children and their grandchildren by a de- ceased daughter and he gave to each by name a specific amount, and by a residuary clause directed that cer- tain other property should " be di- vided equally share and share alike bet^i^een all my aforesaid heirs," it was held that each grandchild took equally with the children. Huston vs. Crook, 38 O. S. 328. 102 The general meaning appli- cable to the word " issue " is that it includes grandchildren — that it is as broad as " heirs of the body," in- cluding lineal descendants indefinite- ly. 2 Jarman on Wills 636; Hol- land vs. Adams, 3 Gray, 193; Hall vs. Hall, 140 Mass. 267-269; 2 Williams' Exrs. 1198 and note; 2 Wigram on Wills 307. Adjudged Words and Phrases 324 ; 1 1 Ency. 869 an notes. Moon vs. Hepford, 2 N. P. 365. 103 Judge Earl, in expressing the opinion of the Court, says : " The word ' issue ' is an ambiguous term. It may mean descendants general- ly, or merely children, and whether in a will it should be held to mean the one or the other depends on the intention of the testator, as de- rived from the context or the en- tire will, or such extrinsic circum- stances as can be considered. In the latter ease there is a strong tendency, unless restrained by the context, to hold that it has the meaning of children." See also Kent's Com. 278, note. Rice Pro. Law 195. 1013 Kent's Com. 278; Palmer vs. Horn, 84 N. Y. 516, 519; Taft vs. Taft, 3 Dem. 86 ; Ralpli vs. Carrick, L. R. 11 Ch. Div. 873; Palmer vs. Dunham, 125 K Y. 68; Murray vs. Bronson, 1 Dem. 217. 105 In Leigh vs. Norbury, 13 Ves. 340, the Court said: "It is clear- ly settled that the word ' issue,' un- confined by any indication of con- trary intention, includes all descend- ants. Intention is required for the §1198 CONSTRUCTION OF WILLS 1080 Generally it may be said that prima facie it means the same as heirs of the body, lineal descendants indefinitely/"* In our State illegitimate children are excluded even though the devise is to their mother from whom they could inlierit under our statute."^ Likewise an adopted illegitimate child is not issue of the adopting parent. The rule might be different if the per- son was designated as heir under sec. 8598, G. C. (§1903). ''Offspring" is said to be synonymous with issue. It includes lineal descendants, however remote in dcgree.^°^ Distribution to the issue is made per capita unless otherwise directed by the testator."^ § 1198. " Children " construed. The primary meaning of child is the immediate legitimate offspring of a person indicated as parent,^^** and a bequest to a child includes children when there is more than one. A child en ventre sa mere is considered in. law as a child in esse, and is included in a devise to the " children " of its parents gen- erally."^ purpose of limiting the sense of that word, and restraining it to chil- dren." 106 The word " issue " in a will, prima facie, means the same as lieirs of the body, lineal descendants indefinitely, and is to be construed as a word of limitation; but the priw.a facie construction gives way if there is anything on the face of the will to show that the word was intended to have a less extended meaning, and to be applied to chil- dren only, or, as in this ease, to lineal descendants of a particular class in being at a specified time. Slater vs. Dangerfield, 15 M. & W. 263. 10- Gibson vs. McNelly, 11 0. S. J31. 108 Page on Wills, §526, p. 613. 109 See § 925. See § 928, Advancements. Woerner on Admin. G03. Where a will points to a period of distribution of the estate the words " die without issue " are to be re- stricted to death without issue prior to the period of distribution. Pen- dleton vs. Bowler, 27 Bull. 313. 110 Page on Wills, § 522, p. 608. 111 Starling vs. Price, 16 O. S. 29. In Jarm. on Wills, 690, it is said: " The legal construction of the word " children " accords with its proper signification ; namely, as designating the immediate oiTspring; for, in all the eases in which it has been ex- tended to a wider range of objects, it was used synonymously with a word of larger import, as " issue." It has sometimes been asserted, how- ever, that a gift to children extends to grandchildren, where there is no child." And in 2 Redf. on Wills {2d ed.) 15, it is said: "The word * children,' as well as all other sim- 1081 CHILDREN AND NEXT OF KIN §1199 I The term does not ordinarily include stepchildren, nor does it include illegitimate children."^ Neither does it include grandchildren unless it appears from tlie will that the testator so intended."^ But these restricted meanings of the term " child " or " children " may be extended to include grand- children or illegitimate children, or even adopted children pro- vided the context of the will clearly indicates that such was the intention of the testator. ^^* §1199. "Next of Kin" construed.* The words "next of kin" in a will mean the nearest blood relations, and not all those who would take under the Statute of Distribution. Thus "next of kin" means a brother in pref- erence to nephews, sons of a deceased brother, and nieces, in preference to grandnieces.^^^ The words "next of kin" do not legally include a widow ; it means relatives in blood. ^^^ The ilar descriptive terms of classes or relations, it will be borne in mind, must always be understood in wills in its primary and simple significa- tion, where that can be done; in short, where there are any persons in existence at the date of the will, or before the devise or legacy takes effect, answering the meaning of the term. And where the term 'chil- dren' has received a larger and more extended construction, as synonymous with issue, it has gener- ally been based upon something in the will, unless it resulted as al- ready intimated, from the fact that there were no children in existence." Rice. Pro. Law 192. 112 Page on \\ iils, § 522, p. 608. 113 Cliildren, it is said, do not in- clude grandchildren, unless from the context of the will it appears that the testator so intended, or unless such meaning is necessary to carry out his manifest intent. 2 Jarman on Wills, 5th ed., 147 ; Low vs. Har- mon}', 72 N. Y. 408; Castner's Ap- peal, 88 Penn. St. 478; Feit vs. Va- natta, 21 N. J. Eq. 84; Stokes vs. Stokes, 12 Bull. 135. 114 Page on Wills, §§ 523, 524, 525. Woerner on Admin. 896, 897. 113 See § 913, § 121, Next of kin. Page on Wills, § 521, p. 607. *The words "next cf kin" will not be taken in their technical sense in construing a will, where it clearly appears from the context that a dif- ferent meaning was intended. (Did not include second husband.) Mc- Cormick vs. Dunker, 3 C. C. (N.S.) 303; 24 0. C. C. 553; affirmed 70 0. S. 490. 110 Bouv. Die. on Xext of kin; Redf. on Wills, 77, §13; 2 Kent's Comm. 136. In Nichols vs. Savage (cited in 1 Yes. 53), it was held that a gift to next of kin or relations did not in- clude a husband or a wife. In Davies vs. Eailey, 1 Yes. Sr. 84, the testator gave the residuaiy personal estate to his wife for life, and the capital at her death to "such of his relations" as would be entitled to it by the statute of distributions; and it was held by Lord Ilardwicke that tlie executor of the wife M'as not en- titled to any share of the principal residue. It is equally well established that the words "next of kin," in their § 1200 CONSTRUCTION OP WILLS 1082 natural meaning of "next of kin" points to such, at tlie death of the person whose next of kin is spoken of, unless the context demonstrated that the person to take is to be ascertained at a future period/" §1200. "Relation" construed. The popular meaning of the words "relatives or relation" is that of all persons within any degree whatever of consan- guinity or affinity."^ Its primary signification means such per- son as would take under the statute of descent and distribution if testator died intestate and generally the term would include legitimate persons. "Nearest relations" will exclude nephews and nieces when there are surviving brothers and sisters, and applies properly only to those who are of kin by blood ; hence, relations by marriage are not included in a bequest to "rela- tions" generally.^ ^^ Sometimes it would not include the wife.^^" §1201. "Descendants" construea. The term "descendants" comprises every individual proceed- ing from the stock of family referred to, and does not, without strict and primary sense, do not in- K. 780; Slosson vs. Lynch, 43 Barb, elude the widow, and it has accord- 147; Garrick vs. Camden, 14 Ves. ingly been held that where a residue 372-7. of personal property is directed to The phrase "nearest of kin" when be divided among the testator's employed in a last will and testa- "next of kin" or among his "next ment in the absence of language in of kin according to the statute," or the will manifesting a different in- among his "next of kin, as if he had tention, is to be so construed as to died intestate," or where a trust was embrace within its meaning such as created for the benefit of those, who, would inherit under the statutes of at the decease of a party, should be descent and distribution, and in the entitled to his personal estate, as his order and proportion therein pro- next of kin, according to the statutes vided. Godfrey et al. vs. Epple for the distribution of personal es- et al., 100 Ohio State 447. tate of persons dying intestate, the H^Woerner on Admin. 905. widow takes no part. Garrick vs. us Page on Wills, § 529, p. 616. Lord Camden, 14 Ves. 372; Choi- 119 Woerner on Admin. 904. mondeley vs. Lord Ashburton, 6 120 See note to previous section. Beav. 86; Kamlin vs. Osgood, 5 N. But it is held that where A's will Y. Surr. (1 Redf. 409) 409-417; gave property to B for life, remain- Slosson vs. Lynch, 43 Barb. 147; der to B's children if she leaves any, Murdock vs. Ward, 67 N. Y. 387 and otherwise to B's brothers and sisters cases cited. or their families and at the time Adjudged cases in courts of high the will took effect B had three repute have held that the words brothers and sisters, one brother had next of kin" would include the died leaving no children but a widow if the general scope of the widow, that the icidoio was not in- will indicated the intention of the eluded in the term family. Lemon testator to include her. Withy vs. vs. McElroy. 101 S. E. Rep. ('S. C.) Mangles, 4 Beav. 358; 10 CI. & F. 852. r v / 215; Elmsley vs. Young, 2 Myl. & 1083 DISINHERITING IIEIKS § 1202 very clear indications of the testator's intent by the context, in- clude collateral heirs, or heirs generally, or next of kin, but only the issue of tlie body of the person named. A devise or legacy to descendants, not otherwise qualified, is distributable between them per capila; but the ascertained intention of the testator will govern in this respect also.^"^ But there is a plain and broad distinction between the terms children and descendants. The one indicates only lineal de- scendants, while the other includes both lineal and collateral relations, all in short that would then take the estate under the statute of descent. All persons may not be in fact, but they are in law the descendants of the person from whom they receive the estate. Upon the same principle, it has repeatedly been held in our State, that the term " ancestor," as used in the statute of descents and distribution, means him from whom the estate was inherited.^" § 1202. Disinheriting heirs. It is a maxim of the law that no one can be heir to tlie liv- ing.^"^ And it is equally axiomatic that a person has a right to dispose of his property in such manner as he may think fit.^^* 121 Woerner on Admin. 903. at all while he is living if we are A descendant is " one who de- to be technical about the word heir scends as offspring, however remote- as used. An heir at common law is ly; correlative to ancestor or as- one who, after his ancestor's death, oendant." The term includes the has a right to inherit all the intes- most remote lineal offspring, and is tate estate ; by descent, he inherits, practically synonymous with " is- But while living, a man strictly has sue " in its legal meaning. Hence it no heir. So that the word heir, as excludes collateral relations; nor here used, is not used in its strict- does it include relatives in the as- est sense, but in common parlance cending line. it is used to denote children. Ober Page on Wills, § 527, p. 013. vs. Hickox. 19 C. C. 45; 10 C. D. i22Turley vs. Turley, 11 O. S. 128. 181. 1--* In I.amb vs. Lamb, 105 Ind. As to the meaning of the terms 456, tlic Court approves the follow- family, brothers, sisters, nephews, ing instruction: "A person com- nieces, cousins, representatives, serv- petent to make a will may disin- ants, legatees and survivors, see herit all of his children, and bestow Page on Wills, §§ 527, 530, 531, 532, all his property upon strangers, or 633, 534, 535, 536. he may give his property to one or i«3 Strictly no man has any heir more of his children and disinherit §1202 CONSTRUCTION OP WILLS 1084 Whatever interest an heir has in the estate of his ancestor de- pends purely on statutory provisions. There is an idea prevail- ing among- those who are not versed in the law that unless the testator makes some mention or provision in his will for each one of his children, that the child not so mentioned or provided for will be entitled to the share given to him by the statute of descent and distribution, or that the will is entirely invalid. This idea comes from the civil law and not from the common law.^-'' If the testator makes no mention of one of his children in his will and by such will disposes of all of his property, such child is as completely disinherited as if the testator had spe- cifically so provided. But if the child is not mentioned in the will, then as to property undisposed of by the will, the child will be entitled to the provision given by the statute of descent and distribution; and our Supreme Court has held that a testa- tor can not by any words of exclusion used in his will, disinherit one of his lawful heirs in respect to property not disposed of by his will, and that such words can not be used to control the course of descent so as to carry the property to his other heirs.^-^ It is a rule of law that the heir is not to be disinherited without an expressed devise or necessary implication.^^^ the others, or he may bequeath more of his property to some than to others of his children, and the mo- tive for so doing can not be ques- tioned, and the hardship of the case can have no other weight further than a circumstance, tending, with other testimony, to show the in- sanity of the testator." 125 Under the civil law a will whereby the testator without just cause excluded from his estate those who were near to him in blood, as where a parent disinlierited a child, or a child excluded a parent, was known as an inofficious will, and might be set aside by a form of contest known as querela ino-fficiosi testamenti. Page on Wills, § 385, p. 454. In Fisher vs. Fisher, 60 Bull. 41, the will was as follows: "I, John Fisher, make my will and testament, and in case of death or accident I bequeath to Louisa Fisher my house and lot as long as she stays unmarried, and her share in the chattels and money that I may leave. To Fred Fisher I give $5.00, because he is unworthy of anything." In addition to these two children there were grandchildren, children of a deceased son and five other children. The house was sold by testator during his lifetime. There was $4,671.06 personalty to distribute. Louisa was given $1,094.15; Fred $515.27; the rest of the children (6) were given $510.27. The clause in the will did not disinherit Fred, in fact, gave him $5.00 more than he would have re- ceived, had he not been mentioned. 126 Crane vs. Doty, 1 O. S. 270. The provision in this case was "to his grandson, Albert Jewel, fifty acres of land and no more of my estate." A man can not provide for the division which shall be made of his property after his death by execu- tory contracts with his children in- stead of last will and testament. Needles vs. Xeedles, 7 0. S. 432. 127 See §1181. Gibson vs. Neeley, 11 O.. S. 152; Gano vs. Fisk, 43 O. S. 462; Math- ews vs. Krischer, 59 O. S. 562. "The heir is not to be disin- herited without an express devise or necessary implication; such impli- cation importing, not natural neces- sity, but so strong a probability, 1085 PROVISION AGAINST CONTEST § 1203 Neither can a testator prevent his heirs from inheriting by a doubtful v/ord of exclusion. Thus where the deceased had devised land to his wife and '' her heirs forever except the heirs of my deceased son William Robson, and the heirs of my de- ceased daughter Alma," it was held that the heirs of testator's deceased son and daughter were entitled to the share of their parents in the land per stirpes. And if a will is capable of two constructions, one of which will exclude the issue of a deceased child and the other permit such issue to participate in a remainder, the latter will be adopted/^^ But if the intention of the testator is plain from the context of the will that a certain heir is to be excluded, the Court will follow such intention/^^ Of course a testator cannot by will deprive his wife of her dower interest in his real estate, nor can he prevent his children and wife from having a year's allowance set apart, in his estate/^" § 1203. Provision against contesting. Sometimes testators in order to prevent a contest of their will, make a provision in such will that if any devisee shall con- test the same, that he shall forfeit his right in the testator's es- tate, both under the will and statute of descent and distribution. Such a provision has been expressly upheld by our Supreme Court."' The exact language in this case being " now if any of my heirs is dissatisfied and goes to law to break this will, then my will is and I direct that they shall have no part of my estate and I debar them from any part of my estate whatever." While this decision settles the law at least in Ohio, some authors are inclined to doubt the wisdom of its strict enforce- that an intention to the contrary 129 Ober vs. Hickox, 19 C. C. 42; can not be supposed. Merely nega- 10 C. D. 128. tive words are not sufiicient to ex- i^o Page on Wills, § 467, p. 547. elude the title of the heir or next 131 Bradford vs. Bradford, 19 O. of kin. There must be an actual S. 546. gift to some other definite object." See In re Kirckhold's Estate, 149 3 .Jarm. 704; Wade vs. Loach, 42 N. Y. Supp. 87; 80 Cen. L. J. 15, Bull. 255. with note as to what may be con- ies Wade vs. Loach, 42 Bull. 254. sidered a contest. g l-20-i: CONSTRUCTION OF WILLS 1086 ment. " To exclude all contest," says Schouler/^^ " of the probate on reasonable gi'ound that the testator was insane or undnlj influenced when he made it, is to intrench fraud and coercion more securely ; and public policy should not concede that a legatee, no matter what ground of litigation existed, must forfeit his legacy if the will is finally admitted." And concludes that all clauses or provisions of this character should at least be construed as strictly as possible, being penal in their operation. But a recent case has held that where an action was brought to ascertain the true constniction of the will on proper points, without thwarting the designs of the testa- tor, that such action would not cause the forfeiture under a will which provided that if any devisee should sue or disturb the provisions made by the will he should forfeit his right un- der the wilV^^ A condition against presenting a claim against the estate has likewise been upheld. ^^* However, a beneficiary under such a condition, who procures and obtains another heir to institute proceedings to contest a will, forfeits his interest therein.^^^ § 1204. Restraints of alienation. It is a unifonu rule that where an estate is devised in fee simple that no condition can be made which will limit the dis- position of such estate. Such a limitation would be in direct opposition to the idea of an estate in fee simple. There has been some controversy among various courts as to whether a partial limitation might be made. But in our State even such partial limitations have been denied.^^® 132 Schoul. on Wills 605. ity to sell when that age was 133 Smithsonian Inst. vs. Meech, reached. Pendleton vs. Bowler, 27 169 U. S. 398; Black vs. Herring, Bull. 313. 79 Md. 146. Anderson vs. Gary, 36 0. S. 506; 134 Page on Wills, § 680, p. 803. Myers vs. Moore, 12 Bull. 90; 135 Page on Wills, § '683, pp. 807, Hicks vs. Stone, 11 Bull. 67. 808. But the case before us, is the de- i3« A restriction upon the author- vise of an absolute fee, with a ity of the youngest child until he clause restraining the alienation shall arrive at the age of forty and incumbering of the estate for a years necessarily implies an author- limited period, intended, no doubt, 1087 KESTRAINTS OF ALIENATION § 1204: Our Courts have likewise held that where a fee is devised of an estate for ninety-nine years that a condition that the same should not be taken for execution for the pajTuent of dev- isee's debts ^vas invalid/^^ And so where a testator bequeathed all the net income of his estate to a trustee in trust for the education and support of a certain person for life, without other limitation, it was held that the bequest so made is an absolute one, and is subject to the claim of creditors/^^ But it seems that where a provision is made in a will that a devisee shall have a mere life estate in the property, which life estate shall terminate upon his attempt to alienate, charge or incumber the property, such a provision is valid. But even this is strictly construed, and permitting the same to be sold on execution is not a forfeiture under the will/^" Where a will provided that tJae devisee should have all the rents and have full and complete control and possession of the property it was held that such rents were liable to be applied on an execution againot such devisee/*'* A provision in a will, however, by a testator, that no part of his estate given to any of his children, should by any process of law be seized or appropriated by a creditor before payment to such child, but should only be paid to such cbild personally. for the protection of the devisees, tempt either to review or reconcile who alone are interested in the es- the cases, being content to rest the tate devised. In holding that such decision upon what we conceive to restraint is repugnant to the nature be sound principle and sound pol- of the estate devised, and is void icy. The owner of property cannot as against public policy, which in transfer it absolutely to another, this State in the interest of trade and at the same time keep it him- and commerce, gives to every abso- self. Anderson vs. Gary, 36 O. S. lute owner of property who is sui 517. juris, the power to control and dis- i37 Hobbs vs. Smith, 15 O. S. 419. pose of such property, and subject iss Thornton vs. Stanley, 55 O. the same to the payment of his S. 199. debts, we are fully aware of the i^o Paris vs. Winterburn, 6 C. C. fact that many authorities may and 635 ; 3 C. D. 622. have been cited to the contrary. ko Merchants' Bank vs. Rieck, 4 Others, hoAvever, support the view N. P. 219; 6 Dec. 331. we have taken^ but I shall not at- § 120o CONSTRUCTION OF WILLS 1088 is valid ; a creditor of any of such children could not, by any process, obtain the application of money so devised in the hands of tlie administrator/*^ A provision in a will that there should be no partition of the estate until ten years after testator's death has been held to be valid/*^ In the absence of restraining statutes, says Page,^*^ the great weight of American authority is, that if testator expresses his intention in apt and suitable language, it is possible to create such an estate in equity as to exclude the creditors of the beneficiary from reaching such estate and sub- jecting it to their claims. It seems, however, that it could only be done in Ohio by a will in which there was a gift over to some other person if the condition was broken."* § 1205. Restraint of marriage. It is well established that a condition in a will, restraining the devisee from marriage, is a condition contrary to public policy and void.^*^ A condition against a remarriage, how- ever, is held to be valid."*' And this rule as to remarriage is not confined to tlie surviving spouse of the testator."^ Ee- straints against marrying persons belonging to specified classes have been upheld, and so have resti*aints against marrying a specified individual,"^ 1*1 Skillmait vs. Symmes, 14 C. C. In this case the testator by his 547; 7 C. D. 39. will gave to his wife all his prop- The same kind of a provision in erty during her life, provided she a deed has been upheld. Frazier so long remained his widow; and vs. Wilkinson, 18 C. C. 303; 10 C. directed, that in case she married ^- 106. again, or at her death, the property 1*2 7,1 re Reynolds, 7 N. P. 626; should be equally divided among 5 Dee. 570. his children. Tlie widow elected to See Page on Wills, §§ 634, 684, take the provision made for her in pp. 738, 808. the will, and afterwards married 143 Page on Wills, § 68.5, p. 814. again. The Court in disposing of 1*4 Stanley vs. Thornton, 7 C. C. the case, said, " and as she took un- 455; 4 C. D. 677; Thornton vs. der the will, she lost all of it by Stanley^ 55 0. S. i99;,Schoul. on her subsequent marriage." ^"''IS' 601. 147 Herd vs. Catron, 97 Tenn. 662. 1*5 Page on Wills, § 681, p. 803; i*8 Greene vs. Kirkwood, 1 Jr. K. Schoul. on Wills, 603. (1895) Ch. 130 (a condition against i*6Luigart vs. Ripley, 19 0. S. devisee marrying a man "below *^* her social station"); Hodgson vs. 1089 RESTRAINT OP MARRIAGE § 1206 A condition in a will by which an inducement is offered to a married person to obtain a divorce, or to live separate and apart from the other spouse, is contrary to public policv, and void."» § 1206. When real estate undevised shall be applied to pay- debts instead of personalty. "When part of the real estate of a testator descends to his heirs because of its not being dis- posed of by his will, and his personal estate is insufficient to pay his debts, the undevised real estate first shall be charge- able with the debts, in exoneration, as far as it will go, of the real estate that is devised, unless it appears from the will that a different arrangement of assets, for the payment of his debts, was made by the testator ; in which case they shall be applied for that purpose in conformity with its provisions." [R. S. §5972.]!^'' § 1207. Contribution, when devised or bequeathed property taken to pay debts. "When any estate, real or personal, de- vised, is taken from the devisee for the payment of the testator's debts, the other devisees and legatees must contribute their respective proportions of the loss to the person from whom it was taken, so as to make the loss fall equally on all the devisees and legatees, according to the value of the property received by each of them excepting as provided in the next following section. [R. S. §5973.]i5i § 1208. Except when will otherwise provides. "If, in such case, by making a specific devise or bequest, the testator has virtually exempted a devisee or legatee from his liability to contribute, with the others, for the payment of the debts, or if, by other provision in the will, he has prescribed or required Halford, 11 Ch. Div. 959; Finlay vs. Whether bequest is a personal King, 3 Pet. (U.S.) 346; Graydon charge depends on the construction; vs. Graydon, 23 N. .J. Eq. 220. it cannot be inferred unless the will 149 See Woerner on Admin. OfiO. secures the devisee the advantage 150 § 10,582 G. C. vvliieli is the consideration of such Ramsdall vs. Craighill, 9 0. 197; charge. Where, after a devise of Muskingum vs. Carpenter's, 7 0. land there is direction to pay debts, (1 pt.) 21; Stiver vs. Stiver, 8 0. a pajnnent of debts is a charge upon 217, 248; Piatt vs. St. Clair, 6 O. the devisee. Becker vs. Decker, 3 227; Bustard vs. Dabney, 4 0. 68. 0. 157; Qyde vs. Simpson, 4 O. S. S€e §7/57, Distribution of real 445; Nellons vs. Truax, 6 0. S. 97; and personal estate; §674 et seq., Moore vs. Beckwitli, 14 0. S. 129; Payment of legacies. Huey vs. Thomas, 23 0. S. 645. ini § 10583 G. C. js 1209 CONSTRUCTION OJP WILLS 1090 an appropriation of his estate, for the payment of his debts, different from that prescribed in the next preceding section, the estate must be appropriated and applied in conformity therewitli." [R. S. §5974.]^^^ § 1209. But whole estate liable for debts. ' * Nothing con- tained in the next two preceding sections shall affect the lia- bility of the whole estate of the testator, for the payment of his debts. The provisions of such sections shall apply only to the marshaling of the assets as between those who hold or claim under the will." [K. S. § 5975.] ^^^ § 1210. Portion of child born after execution of will, or supposed to be dead, or of witness subject to contribution. "When a part of the estate of the testator descends to a child born after the execution of the will, or to a child absent and reported to be dead, or to a witness to a will who is a devisee or legatee, such estate and the advancement made to such child or witness for all the purposes mentioned in the next three pre- ceding sections, shall be considered as if it had been devised to such child or witness ; and he shall be bound to contribute with the devisees and legatees, as before provided, and be entitled to claim contribution from them accordingly." [R. S. §5976.]"* § 1211. If any liable to contribute are insolvent, etc., how others to make up deficiency. "When any of the persons liable to contribute toward the discharge of such debt, accord- ing to the provisions of the next four preceding sections, is insolvent, or unable to pay his just proportion thereof, the others severally shall be liable to each other, for the loss occa- sioned by such insolvency, each one in proportion to the value of the property received by him, from the estate of the de- 152 § 10584 G. C. subject to ancestor's debts. Stiver Express words are not necessary vs. Stiver. 8 0. 217. to charge pecuniary legacies upon Ramsdall vs. Craighill, 9 0. 197. the real estate; an intention to do Purchaser takes land charged with so may be derived by implication. ancestor's debts. Piatt vs. St. Clair, Clyde vs. Simpson, 4 0. S. 445. G 0. 227. When the trust or charge is de- Creditors must first exhaust their fined and limited, the purchaser remedy against the personal repre- must see to the application of the sentatives before they can have re- purchase money; otherwise when it course to lands in the hands of pur- is general and unlimited. Id. chasers from the heirs. Stiver vs. ^_ Allen vs. Tressenrider, 72 O. S. Stiver, 8 0. 217. "153 § 10585 G. C. ^^* § ^^^^^ ^- C- S*'e §§ 10563-4 Heirs and devisees hold the land ^- ^•> § ^^^^- 1091 CONTRIBUTION OF HEIRS § 1212 ceased. If any one of the persons so liable dies without paying his proportion of such debt, his executors and administrators shall be liable therefor, in like manner as if it had been his proper debt to the extent to which he would have been liable if living." [R. S. §5977.]!^^ §1212. How contribution enforced. "All cases arising under this chapter, in which devisees or legatees are required to contribute to make up the share of a child born after the execu- tion of the will, or of a child absent and reported to be dead, or of a witness to the will, or in which contribution is to be made among devisees, legatees, and heirs, or any of them, may be heard and determined in a single action." [R. S. §5978.]^^" § 1213. Order to sell land to pay debts. ''When a sale of lands aliened or unaliened, by a devisee or heir is ordered for the payment of the debts of the estate, nothing in the foregoing sections shall prevent the court from making such order and decree for the sale of any portion of the aliened or unaliened land, as may be equitable between the several parties, and also to make such order of contribution, and further order and decree as mil settle and adjust the various rights and liabilities of the parties, which arise by reason of the alienation, the order of sale, or otherwise." [R. S. § 5979.] ^^ 155 § 10587 G. C. 157 § 10589 G. C. 158 § 10588 G. C. §1214 ELECTION UNDER WILL 1092 CHAPTER LXV. ELECTION OF WIDOW OR WIDOWER UNDER A WILL. § 1214 Introductory. § 1215 Citation to widow _ or widower to make election. § 1215a Construction. § 1215b Election — time extended. § 1215c Dower and gift. § 1216 When citation should issue. § 1217 To whom issued. § 1218 Form of citation and re- turn to widow to make election. § 1219 Time within which election may be made. § 1220 When entitled to both dower and the provisions made in the will. § 1221 Election or non-election. EfTect. § 1221a Election noted. § 1221b Elects to take under will. § 1222 Election made in person. § 1223 Judge to explain wills, etc. § 1224 Election to be made by rec- ord. § 1225 Election. Entry, etc. § 1226 Election made by acts of parties. : 1227 Eflfect of election to take. 1228 Effect of election not to take. I 1229 How election set aside. I 1230 Rights of devisee. How af- fected. 1231 If person unable to appear or non-resident of county, how election taken. 1232 Application for commission, etc. 1233 Commission to take such election. 1234 Form of entry, etc. 1235 How election made for in- sane or imbecile widow, etc. 1235a Entry, etc. 1236 Application, etc. 1237 Form of commission as to insane or imbecile widow's election. 1238 Duty of Commissioner. 1239 Duty of the Court.i § 1214. Introductory. An election means the exercise of a choice, and the provi- sions of the statnte in relation to an election to accept or reject the provisions of the will of a deceased consort, recognizes the fact that under onr laws, the surviving consort has some rights in the property of the deceased consort, which it was not within the power of the deceased consort to take away from the sur^'iving one. These rights which cannot be taken away 1 See § 943 et seq., o-n Dower. See §319 et seq., on Widow and chil- dren's allowance. § 907 et seq., De- scent and distribution. § 674 et seq., Payment of legacies. § 1180 et seq.. Construction of Wills. There is no provision of law for a widow to take vmder the law. In re Bullock, 3 X. P. (X.S.) 390; 15 Dec. 785; affirmed 75 0. S. 574. 1093 CITATION OF WIDOW § 1215 from the surviving consort are, first a right of dower ; second the right to a distributive portion of the personal property; and third, the right of a widow's or children's year's mainte- nance. The rights of widows and widowers are the same ex- cept possibly to a year's maintenance. It has been held that the release of dower by election to take under the will is in- tended to be the release of the dower interest to the heirs at law of those entitled to inherit and not as a means of convey- ance to strangers.^ While the statutory provisions aim to fully advise the parties as to what should be done, yet the want of some particular provisions have presented perplexing questions.^ Only the Court admitting the will to original probate has power to take the election of the surviving consort. The act does not apply to foreign wills.* § 1215. Citation of widow or widower to make election. "If provision be made for a widow or mdower in the will of the deceased consort, after the probate of such will, the probate court forthwith shall issue a citation to such widow or widower to appear and elect whether to take such provision or to be endowed of the lands of the deceased consort and take the dis- tributive share of the personal estate." [R. S. § 5963.]^ § 1215a. Construction. ' ' Such election must he made within one year from the date of the service of such citation; except that such widow or widower, at any time before the period of such election has expired may file a petition in the common nleas 2 Hessenmueller vs. Mulrooney, 4 Court held, did not release the N. P. 50; G Dec. 123. premise.^ before sold from her dower In this case the widow was ex- right. Bowen vs. Bowen, 34 0. S. ecutrix, and as such filed a petition 164. to sell the real estate of her de- 3 The reader is referred for dis- ceased husband. In such proceed- cussion of this subject generally, to ings she filed no waiver of her dow- Woerner on Admin. 269 ; Page on er right, neither had she made an Wills, § 710, p. 848; 2 Redf. on election to take under the will. Wills, 3d ed. 352; Jarm. on Wills, After the proceedings were had and 443. the premi-ses sold at the solicitation * Jennings vs. Jenning, 21 0. S. of the purchaser, she appeared in 56, 77. Probate Court and elected to take See § 939, Amount of personal under the will. This election at property to which widow is enti- the solicitation of the purchaser, the tied. § 947, How dower barred. e § 10566 G. C. S r2l5b ELECTION UNDER WILL 1094 court for the proper county, making all persons interested in the will defendants thereto, asking a construction of its provi- sions in her or his favor, and for the advice of the court, or the proper appellate court on appeal thereon." [R. S. § 5963.]^* § 1215b. Election time extended. "When proceedings for advice, or to contest the validity of a Avill, are begun within such year, if the will is not set aside, the election may be made within three months after they finally are disposed of." [R. S. §5963.]-^t § 1215c. Dower and gift. "No wido-w or widower shall be entitled both to dower and the provisions of the will in her or his favor, unless it plainly shows that such provision was intended to be in addition to dower and a distributive share of the estate. ' ' FR. S. §5963.]''^$ § 1216. When citation should issue. The language of the statute is, that if any provision be made for a widow, etc., the Probate Court shall forthwith after the probate of such will issue a citation. If there is no provision whatever in the will of the deceased consort made in favor of the surviving consort, then as a matter of course there is nothing done for which a choice can be exercised and no citation for election is necessary. If there be any provisions whatever, then it is necessary to issue the citation required by statute ; for until the citation is issued and served, no rights can be ac- quired adversely to the right of the living consort to make an election. It is the practice sometimes not to issue this citation at once as the statute requires, but, relying upon a promise of some one to wait for some time for the widow or widower to voluntarily appear and make his or her election. This is a practice not to be commended. The Court should in all instances require the surviving consort to appear at once and make her election or issue a citation as the statute requires. The object and purpose of the statute requiring this citation to be issued at once, is, that the estate may be expeditiously settled.^ 5* § 10.567 G. C. ^ Prty to his wife, and the will is •■'i § 10.568 G. C duly and promptly presented for ^t § 10569 G. C. probate, and the widow dies, her CA divorced wife need not be heirs, and not those of testator, ac- cited. Charlton vs. Miller, 27 O. S. quire the property. Hawkins vs. 298. Barrow, 8 C. D. 251 : 15 O. C. C. Where a husband devises his prop- 142. 1095 CITATION ISSUED § 1217 § 1217. To whom issued. This citation may be issued to the sheriff or any other person who is willing to make service of the same upon the widow or widower. The usual practice is to require the executor to make service of the citation. This citation should be imme- diately served upon the widow or widower, and a memorandum made upon the back of the original writ mentioning the time at which the service was made. For the right to exercise the power of election, is one year from the date of the service* The original writ of citation should be returned to the Probate Court and by the Court filed with the proceedings in the case; and the safe way would be when the election is not immediately made to make a docket or journal entry of the fact of issue and return of such citation. The docket or journal entry should show the date at which senace was made. § 1218. Form of citation and return to widow. To make election. The State of Ohio, County, ss. In Piobate Court. To , widow ... of , deceased. You are hereby notified that the last will and testament of , deceased, was on the day of A. D. 190. ., duly admitted to probate by the Probate Court of said county. You are hereby cited to appear in person before said Probate Court within one year from the date of the service of this citation, and make your election, whether you will take the provision made for you in said will, or be endowed of the lands of your deceased consort, and take your distributive share of h. . . .personal estate, pursuant to the statute in such cases provided. In testimony wherof, I have hereunto set my hand and af.'.xed the seal of said Probate Court, at , Ohio, this day of 190... , Probate Judge. The State of Ohio County, ss. I, do make solemn oath and say, that on the day of 190. ., I served the within citation upon the within named by delivering to h . . . .personally a true copy thereof. Sworn to before me and subscribed in my presence this day of 190... I hereby acknowledge service of the within citation, this day of , 190.... Bowon vs. Bowen, 34 0. S. 164. § 1219 ELECTION UNDER WILL 1096 § 1219. Time within which election may be made. An election must be made within one year from the date of the service of the citation, not one year from the date that the will is probated, or any action taken therein. The only in- stance in which a \vidow or widower can Lave this right pro- longed more than one year from the date of the service of ci- tation, is when such person has filed a petition in the Court of Coimnon Pleas asking for a construction of the provisions of the will. In such cases the right of election is prolonged to a period of three months after such proceedings shall have been finally disposed of. There can be no implied waiver of the issue and service of citation so as to bind the widow or widow- er; nothing short of an expressed waiver will be sufficient. Thus where a widow came into open Court and upon being asked declined to make an election at that time, it was held tkat she thereby did not waive the issue and service of a cita- tion.'' § 1220. When entitled to both dower and the provisions made in the will. Under the laws of Ohio, as set forth in sees. 10566, 10567, 10568, 10569, G. C.,** the widow or widower is not entitled to both dower and the provisions of the will in her or his favor, unless it plainly appears by the will to have been the intention that the widow or widower should have such provision in addi- tion to the dower and distributive share. This provision is contrary to the common law doctrine. At the common law where it was not apparent from the will it was held that the devise would be presumed to be in addition to the dower, and now the presumption is, that the provision made in the will is made in lieu of the wife's or husband's dower rights; and if 7 Bowen vs. Bowen, 34 0. S. 181; an election after the time limit ha3 Ward vs. Ward, 5 W. , L. J. 503 ; expired. Ward vs. Ward, 5 W. L. Page on Wills, § 729, p. 868 ; Cam- J. 503. eron vs. Cameron, Goebel, 157. s § 1215. A Court of Chancery may allow 1097 EFFECT OF § 1221 the surviving consort makes no election, such consort will only be entitled to tlie share i)rovided by law; and in such cases may be held to have declined to take under the will. There may be cases where, even if the testator expressly so states in his -vdll, that it will be held that the widow is not entitled to both dower and the provisions of the will. Thus where a testator by clear and express language, in a former clause of his will divided all his property both real and per- sonal between his wife and children, giving to the widow and her heirs forever, one-third of his real estate^ and more than one-third cf his personal estate, even though in a subsequent clause it was provided that the bequest and devise to his -wife were not intended to be in lieu of dower, yet, having disposed of all of his estate and having made provision for his wife, it was held, that the widow would not be entitled to dower, and it was further held that she was not entitled to a distributive share of the estate.®* §1221. Election or non-election, eflfect. ''The election of the widow or widower to take under the will shall be made in person, in the probate court of the proper county, except as hereinafter provided. On the application by a wddow or widower to take under the will, the court shall explain its provisions, the rights under it, and bv law in the event of a refusal to take under the will." [K S. § 5964.] ^ § 1221a. Election to be noted. "The election of the widow or widower to take under the mil shall be entered upon the minutes of the 'court. If the widow or ^^adower fails to make such election, she or he shall retain the dower, and such share of the personal estate of the deceasd consort as she or he re- spectively would be entitled to by law in case the deceased con- sort had died intestate, leaving children." [R. S. §5964]^* § 1221b. Elects to take under will. ' ' If the widow or widower elects to take under the will, she or he shall be thereby 'barred of dower and suich share of personalty, and shall take under the will alone, unless as provided in section ten thousand five hundred and sixty-nine. But an election to take under the will does not bar the right to remain in the mansion of the deceased consort, or the widow to receive one year's allowance «• Parker vs. Parker, 13 0. S. 9.5; 9 § 10570 G. C. See § 8502 G. C, Wilson vs. Hall, 6 C. C. 570, 576; §938, as to Distribution of personal 3 C. D. 589; Hall vs. Wilson, 53 O. property. See § 8600-7 G. C, § 944, S. 679. as to Dower. See § 327, Widow's allowance. 9* § 10571 G. C. § 1222 ELECTION UNDER WILL 1098 for the support of herself and children, as provided by law, unless the will expressly otherwise directs." [R. S. §5964' 103 V. 58.]^! § 1222. Election made in person. The right of election is by statute made purely a personal right and can only be exercised by the party entitled thereto in i)erson, Qxcept as especially provided by statute.^" If tke surviving consort dies without having made an elec- tion, her heirs or those claiming under her cannot make an election ;^^ neither can her administrator ; neither can a cred- itor of the husband or wife elect for them as by levying exe- cution and selling the property/^ Some difficulty is encoimtered in a case where the widow is properly ser\^ed with citation but dies before the expiration of the year, in determining whether the widow or her heirs should be entitled merely to the provisions of law or to those made for her in the will. In such cases some of the courts have come to the conclusion that as persons usually select that which is most to their benefit, that it will be presumed that the widow or widower would have elected to accept the more val- uable right, and that if the provisions of the will w^ere of more value than the provisions of the law, it will be presumed that the person would have selected the most valuable. ^^ Where the will was not probated until after the death of the widow, thus having given to her no opportunity to make her election, it was held that where the provisions of the will were more valuable than that provided by law, that she or her estate was entitled to the provisions of the will.^* 9t § 10572 G. C. it on the record. But the executor Where it does not plainly appear is not the proper person to bring by the will to have been the inten- the action. Zollinger vs. Thomas, tion that the widow should have 24 Dec. 119. both the allowance made for her lo See §§10573, 10574 G. C, and dower, and she elects to take §§ 1231, 1235. under the will, she will be barred uMiilikin vs. Welliver, 37 O. S. of her dower. Luigart vs. Ripley, 460; Woerner on Admin. 270. 19 0. S. 24. 12 Cunningham vs. Simpson, 1 Where the widow appeared in Bull. 173; Fletcher vs. Huntington, court and did actually elect to take S N, P. 333. under the will and the judge failed is Page on Wills, § 719, p. S60. to make it a matter of record, it See Millikin vs. Welliver, 37 0. S. 13 held that an action in mandamus 460, contra. will lie to compel the judge to enter 14 Hawkins vs. Barrow, 15 C. C. 141; 8 C. D. 251. 1099 JUDGE TO EXPLAIN §1223 § 1223. Judge to explain wills, etc. Upon application by the widow or widower to take under the will, it shall be the duty of the Court to explain the provi- sions of the will and their rights under it, and by law in tlie event of a refusal to take under the will/^* This is the statu- tory provision and it would seem to place a most important and responsible duty upon tlie judge of the Court. The only time that our Supreme Court had this question under consid- eration, it was held that the judge is not bound nor is he au- thorized to direct her with regard to the validity of the will or her riffhts as heir in the case the will should be set aside or its devises declared to be void; and that where the judge ad- vised the widow that if she should refuse to take the provisions made for her in the will, she would be entitled to her dower right in all the real estate of which her husband died seized, and to one-half of the first four hundred dollars of his per- sonal estate, and one-third of the residue; but if she elected to take under the will she would be entitled to the provision made The question most discussed in after probate and citation she is this case is, whether, where a hus- prevented by some reason from dO' band, as in this case, gives the whole of his estate, after the pay- ment of his debts, absolutely to his widow, and she dies, shortly there- after, before the probate of the will, and without negligence on her part (for the will had been promptly of- fered for probate, and continued for hearing), or even after the probate of the will and being cited, fails to elect within the year given to her, she loses all the benefit of the pro- vision made for her thereby, and is remitted to her statutory rights as his widow. The question is certain- ly one of great importance, and it must be conceded, that on the lan- guage of the statute, it is a doubt- ful one. If a husband or wife, rel- ict of a deceased consort, under whose will he or she would be enti- tled to the whole of the estate, and which provision is of far more value than would i>e the right imder the statute, is to lose the benefit of the testamentary provision made for her thereby, without any fault or neg- ligence on his or her part, sim- ply because the will not being pro- bated before her death, she can not elect to take such provision ; or ing so, great injustice may be done to her. It would seem, therefore, that the courts should not so hold unless it is manifest that such is the clear law. Id. 145. This decision is hardly in accord with the syllabus of ilillikin vs'. Welliver, 37 0. S. 460. 14* A deputy to the judge can not take this election. Mellinger vs. Mellinger, 26 C. C. 683. A widow who has not elected to take under the will is entitled to dower in all the land of which her husband died seized, and a distribu- tive share in the proceeds of the land which the testator has directed to be sold. In re Bullock, 15 Dec. 783; affirmed 75 0. S. 574. She is, however, not entitled to dower in the land, and a distribu- tive share in proceeds of sale of same land. Geiger vs. Bitzer, 80 O. S. 65; overruling Hutchins vs. Davis, 68 0. S. 160. If the judge does not explain it the widow is not bound. Ward vs. Sack, 27 Dec. 239; 14 N. P. 401. See Allen vs. Trcssenrieder, 72 O. S. 77, Widow may bring action to construe. § 1224 ELECTION UNDER WILL 1100 for her therein, and would be deprived of her dower in the real estate, and of her said distributive share of the personal estate, it was held to be a sufficient explanation.^^ While in tlie abstract this may have been a sufficient ex- planation, yet it certainly would not answer in all cases. The object and purpose of the statute is, that the Court should not only inform the widow as to the portion she would receive if she refused to take under the will. But she should likewise be informed of what she is to receive under the will. For without full knowledge of the provisions of the will, as well as of her rights at law. she will not be in a position to make an intelligent choice. In this view of the case it places upon the judge one of the most important duties pertaining to his of- fice,^^ and where the judge has doubt as to the effect of the provisions made for the surviving consort in the will, he should advise the person making the election to consult a competent lawyer ; and if the surviving consort is then unable to determine what the provisions of the will are, he or she should file a suit in the Court of Common Pleas for a construction of the will." § 1224. Election to be made— Record. A widow or widower may make an election in two ways. One, by following the strict language of the statute, which re- quires that when the election to take is made, it shall be en- tered upon the minutes of the Court. The other, by actions. If the widow does not desire to take under the will, she need not make any election at all. But very often for the purpose of assisting in a complete and earlier administration of tlie estate, the widow or widower makes an election before the year has expired, not to take under the will. This will have the same effect as if no election at all was made and will definitely determine that the surviving consort wishes to retain the rights 15 Carder vs. Comm'rs of Fayette MelHnger, 5 C. C. (KS.) 435; 26 County, 16 0. S. 353. , O. C. C. 683; affirmed 73 O. S. 221. 10 Davis vs. Davis, 11 0. S. 386. A widow consulting the judge as IT §§ 10S57-S G. C, § 133. to her right and again apjiearing Error may be prosecuted from a in court announcing her intention construction given to a will on a to take under the will, and the widow's petition, etc. Davis vs. Probate Judge announced that he Coffman, 55 0. S. 556. so understood her, this is ^n elcc- A deputy clerk in the Probate tion and a judicial determination of Judge's office has no power or right the fact though no written entry to explain the will; the jud^ge must was filed or made. State vs. Sloane, do this personally. Mellinger vs. 24 Dec. 119. 1101 ENTRY OF § 1225 allowed by law ; and it has been held that the entry of an elec- tion by the widow to take under the will of her husband need not show aflfirmatively that the judge had explained to her the provisions of the will and in the absence of averment or proof to the contrary, such explanation will be presumed.^^ It seems that the only duty that the judge is obliged to per- form in order to make a perfect record is to enter upon the minutes of his court, the fact that the surviving consort has elected to take or not to take under the will and that when the entry is once made in conformity with the statute, his author- ity with regard to it is ended.^^ The general practice is to require the widow or widower to make the election in writing, although such is not required by the statutes, but it prevents dispute and is a safe practice. § 1225. Election. Entry, etc. Wliile as before stated the statute does not require that the election of the widow or widower be taken in writing, yet it is a commendable practice to require it to be done in that man- ner ; and then let the election become a matter of record. The following will serve as a form for such writing and election as well as a proper entry to be made in such cases. WIDOW. . . .'S ELECTION. In the Probate Court of County, Ohio. Election under the Last Will and Testament of , Deceased. I, the undersigned, widow. . . .of , late of township county, Ohio, deceased, having had ex- plained to me by the Probate Court of said county, the provisions of said will, my rights under it, and by law in the event of my refu.sal to take under the will, do hereby elect to take imder the will; my election so made to be entered of record. Whereupon, the Court ordered the said election of said to be entered upon its minutes, in the words and figures following, to- wit: , 190.... In the Matter of the Will of , „, . , , }• Election. , deceased. This day personallj' came into open Court , widow. . . of said , deceased, and applied to make h . . . . election whether to take or not to take under the will of said , 18 Davis vs. Davis, 11 O. S. 386. The Probate Court would have 19 Davis vs. Davis, 11 O. S. 392. no jurisdiction on application where Declarations, acts and conduct a widow did not elect to hear the recognizing the will and accepting case upon the question as to whether benefits do not necessarily amount by her acts she would be held to to an election nor estop her from have elected, etc., luiless possibly in attacking an election made without an action to sell real estate, etc. knowledge of her proportionate Such a matter is for a court of share of the estate. Ward vs. Sack, equity. 19 N. P. 401; 27 Dec. 239. ^ 12l'G ELECTION UNDER WILL 1102 deceased. Whereupon the Court explained to h . . . . the provisions of said will and h. . . .rights under it, and also h. . . .rights under the law in the event of h.... refusal to take under the will; and he declared h....self satistied with the provisions of said will, and elected to take under it, and asked that h . . . .election so to take might be entered upon the journal of the Court, which is accordingly done. § 1226. Election made by acts of parties. Generally little difficulty is experienced in determining whether an election has been made or not when the election has been made in the Court as contemplated by the statute. But matters of no little difficulty arise in determining when the acts of the widow or widower in relation thereto are such that an election will be presumed. In order that acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with full knowledge of all the circumstances and of her rights, and it must appear that she intended, by her acts, to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquies- cence, mthout a deliberate and intelligent choice, will not be an election. ""^ It is believed no case can be found where the facts are held sufficient to amount to an election to waive the ^vidow's rights under the law, unless they are of such a marked character and of such long duration as will clearly and distinctly evince a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower. Thus, where real estate was devised to a widow for life, remainder in fee to her sons, and she in fact took under the will and occupied the premises for more than sixteen years, she was estopped to deny her elec- tion.*^ soMillikin vs. Welliver, 37 0. S. 21 Thompson vs. Hoop, 6 O. S. 466, citing, 1 Lead Eq. Cas., title 4S0. "Election"; Anderson's Appeal, 36 In the absence of a formal elec- Penn. St. 476, 496; Bradford vs.. tion acts and conduct to amount to Kent, 43 Penn. St. 474; English vs. such election must be so unequivo- English, 2 Green Ch. ,'504; Driscoll cal as clearly and distinctly show vs. Koger, 2 Desaus, 295; Wake vs. a purpose to take under the will Wake, 1 Vesey Jr. 335; Reynard and operate as an equitable estop- ys. Spence, 4 Beav. 103; Tooke vs. pel. Industrial School vs. Bates, Hardeman, 7 Ga. 20; Dixon vs. Mc- 15 0. C. C. (X.S.) 433; 2 O. App. Cue, 14 Gratt, 540. 59. 14 n. P. 81; affirmed 90 O. S. 288. 1108 BY ACTIONS § 1227 Where an estate is devised to a widow for life with the re- mainder in fee to testator's heirs, and the widow, without fol- lowing tlie form prescribed by statute for making her election to take under the will, set up no claim for dower, but, with the knowledge and acquiescence of the heirs, in fact took under the will, and had the use and occupancy of the premises for more than eleven years after the probate of the will, it was held that the parties were estopped to deny the election of the widow to take under the will."" And Avhere the widow did not make her election, but set up no claim for dower, and actually in fact took under the will and had possession of the lands for sixteen years, it was held that she was barred of her dower, and estopped to deny her election to take under the will."^ The mere fact of qualifying as an executor could not be held to be an election under our statute. I have no doubt that the acceptance of money by the widow or widower, given to them under the will, would act as an election to take under the will. But it has been held if the widow accepts from the executor his promissory note for the payment of the legacy, and such note was not paid, that she would not be barred from claiming under the law.^* § 1227. Effect of election to take. The election of a widow to take under the will does not estop her from contesting the will, denying the validity of its devises, or setting up her claims as heir. She can do all or either of these without having her election set aside. Her right to elect is the creature of statutory law, and we must look to the statute creating it, alone, for the estoppel it is to work. If there is no valid will, there is no valid election, and of course no estoppel or bar.^^ However, if a widow or widower elects to take under 22 Stockton vs. Wooley, 20 0. S. 25 Carder vs. Coram'rs Fayette 184. County, 16 0. S. 367. 23 Thompson vs. Hoop, 6 0. S. A widow's election is evinced 486; Nimmons vs. Westfall, 33 O. with necessary clearness where she S. 213; Spreen vs. Sandman, 2 C. €. and her husband executed their wills 441; 1 C. D. 577; Pape on Wills, to carrv out a deliberately planned §§720, 723, pp. 860, 862. mutual' arrangement for the agreed 24 Page on Wills, §§724, 864; disposition of their estates. Ewalt Alexander vs. Mendenhall, 32 Bull. vs. Ames, 27 0. C. A. 465. 175. ^ 1-227 ET-ECTION UNDER WILL 1101 the will, he or she bars himself or herself from all rights of dower arid distributive share of the personal property ; and this extends to all real estate of which the deceased consort may have Ixx-n seized as an estate of inheritance at any time during coverture."® But the widow or widower, by reason of his or her election, is not barred of dower in lands which are not dis- posed of by the will in the absence of a provision that the por- tion given to the widow or widower is in lieu of his or her dower right in such undevised lands. ^^ It is also held that the release of dower by election only re- leases the dower interest to the heirs at law or those entitled to inherit, and can not be used as means of conveyance to strangers, ^^ The Courts have also upheld cases where a testator confers a benefit out of his own estate upon another, whose estate he also attempts to dispose of by sucli will, and the acceptance of the benefit by the devisee is a ratification of the attempted dis- position of his o^vn estate.^® An election to take under the will bars the right to dower and the right to a distributive share of the personal property, unless the will expressly otherwise provides. But such election shall not bar the right to remain in the mansion house or the widow to receive one year's allowance unless tlie will expressly other- \vise direct.'^" 2G Corry vs. Lamb, 4.5 0. S. 203. vestment of such sum is greatly de- 27 /n re McDonald, 2 N. P, 232; preciated, she is not entitled after 4 Dec. 396. the estate is distributed to require Til is case is, for reasons therein other legatees to contribute to make stated, in direct opposition to the her loss good. Such income is not holding of the Circuit Court in an annuity, which is a fixed period- Pwihart vs. Swihart, 7 C. C. 338; 4 ical sum. ' Krigbaum vs. Irvine, 10 C. D. 624. Dec, 226. Text approved. Bonds vs. Mc- Pee ITutchings vs. Davis, 68 0. S. Gill, 22 Dec. 400. See Dymond vs. 160 (1903). Dymond, 22 Dec. .563, and Foster vs. It always seemed to the author Clifford, S7 0. S. 204, as to portions that this decision was Avrong to which the widow is entitled. {since the above was written the 2s TTcssenmueller vs. ]Mulrooney, 4 Supreme Court has overruled it. X. P. .50; 6 Dec. 123. ' Geiger vs. Betzer, SO 0. S. 160), 29 White vs. Brocaw, 14 O. S. 330; and, of course, must be strictlv lira- Tde vs. Clark, 5 C. C. 239; 3 C. D. ited to the facts of that particular 120. case. And it has been held that if See § 1102. the widow declines to take, she can 3f> Where the widow elects to take not share in the real estates other under the will by which in lieu of than have her dower therein. In re dower and of antenuptial contract Bullock, .50 Bull. 100. This decision she is to receive the income of a is certainly right, certain sum, and afterwards the in- Where a testator makes a pro- 1105 EFFECT NOT TO TAKE § 1228 If a widower (or widow) elects to take under a will which disposes of his property, he will be bound, and the will will be effective and control the title to such property.^^ Taking under a will does not affect the right to claim home- stead, where a petition is filed to sell to pay debts.^^ § 1228. Effect of election not to take. If the widow or widower shall fail to make such election, the widow or widower shall retain the dower, and such share of the personal estate of the deceased consort as the widow or widower would be entitled to by law in case the deceased consort had died intestate leaving children,^^ And the portion of his wife's estate, to which a surviving husband is entitled under the law, should in such case be allowed to him, insofar as the same is insufficient therefor and applicable thereto, out of the provision made for him in said will, and the balance, if any, applied to the compensation of disappointed legatees and devisees, if there are any.^* The widow refusing or neglecting to take under her hus- band's will is entitled to the same portion of his personal estate as if he had died intestate.^^ If a widow refuses to take under the Avill her rights are in no way affected by it. Hence where the will provides for a con- version of realty into personalty, and the widow refuses to take under the will, she takes her dower in realty as realty, and not as personalty.^® § 1229. How election set aside. There seems to be no provision of the statute which authorizes an appeal or proceeding in error from the action of the Court vision that the bequests in favor Where the widow elects not to of his wife are in lieu of dower, take under the will she is entitled etc., and she accepts the same, she to only so much of the personal is then a legatee or devisee under property as would have passed to his will. And that if there was a her had her husband died intestate. contrilMition required from the lega- Harbeson vs. Mellinger, 35 0. C. C. tecs she would have to bear her por- 195; IS 0. C. C. (N.S.) 524; 2 0. tion. Allen vs. Tressenrieder, 72 O. App. 75. S. 77. ^•' Hartshorne vs. Ross. 2 Diz. 444. siHibbs vs. Ins. Co., 40 0. S. so Page on Wills, §737, p. 876. 543; Huston vs. Cone, 24 O. S. 11. If a widow elects not to take, she 32Wanzer vs. Smitt, 2 W. L. M. can take nothing in virtue of be- 426. quests made to her in the will, in 33 § 10572 G. C, § 1221. lieu of dower. Jones vs. Lloyd, 33 34 Wilson vs. Hall, 6 C. C. 570 3 0. S. 572. C. D. 589; Hall vs. Wilson, 53 O. S. 479. § 1230 ELECTION UNDEE WILL 1106 in the matter of a widow or widower's election to take under the will of his or her deceased consort. The fact is that the act t)f tlie Court seems to be more in tlie nature of a ministerial act than a judicial decision. When the judge has explained to the widow or widower tlie provisions of the will, etc., as required by the statute, nothing remains to be done but to make an entry of such fact on his journal. Should the judge refuse to perform such an act I have no doubt he could be compelled to do so by a proceeding in maudamus.^^ And whatever may be the decision elsewhere, our Supreme Court has decided that the Probate Judge has no right to set aside such an entry once made, even though he is satisfied that it was made through a mistake or fraud,^^ If the election was procured by fraud or imposition, or en- tered under such a mistake as would justify its rescission, resort may be had to the chancery powers of the Court of Common Pleas, which are ample to meet the exigency, by inquiring into the fraud, imposition or mistake, and if true, directing a can- cellation of tlie entry of election ; and this may be done even after the expiration of one year from the probate of the will, if other and new interests have not intervened.^® This holding of our Supreme Court gives an additional rea- son for the judge to exercise great care in his instruction and advice to widowers or widows in reference to electing under the will of their deceased consort, for if once made and entered, his power ceases ; and tlien if a mistake or error was made, pro- ceedings must be had in another court.'"' § 1230. Rights of devisee. How affected. Where a widow elects to be endowed of the lands of her hus- band, the devisees who are prejudiced by such election, are A w^T ^\f '^^^™^^ Carter's Estate, election by her be cancelled and set ■* • ^^^' aside, where the Probate Judge did 38 Davis vs. Davis, 11 0. S. 386. not at the time of said election ex- T M 49R ^™^*'^^^- Smith, 2 W. plain to her the provisions of the L. M. 426. ^yiU find her rights both thereunder 40 Davis VS. Coffman, 55 0. S. 536. and by law in the event of her elec- o^^fiol u^^^ ^*' ^^e^li"ger, 26 tion or refusal to elect. The re- UL 683, where a Court of Equity ported case does not disclose in what set the order aside and gave as one manner the question was raised. 1 • ^/?^""^ that the will was See Ward vs. Sack. 27 Dec. 239; 14 explained by the deputy, etc., instead N. P. 401. If the judge takes the of the judge. 73 0. S. 226. election, he mav be bv mandamus I he widow IS not estopped from compelled to enter the "same on the denying her election to take under records. State vs. Sloane, 24' Dec. the will, or asking that an alleged 119 1107 BIGHTS OF DEVISEE, ETC. § 1230 equitably entitled to compensation out of the rejected provision made for her in the will.*^ If such disappointed beneficiaries can not be compensated out of the property devised, which has been rejected by the widow or widower, such beneficiary is then entitled to be compensated out of the residuary estate. If there is no property out of which to compensate the disap- pointed beneficiaries, they are entitled to take the property de- vised, subject to dower rights thus asserted.*^ On the other hand, the election of the widow to take under the law can not increase the estate given to others by the will. Thus where a devise of one-half was given to the widow for life, the residue to be equally divided between the heirs and a speci- fied church, it was held that upon the widow's election to take under the law, the church could, in no case get more than one- fourth of the estate given by the will,** If the renounced share is insufficient to compensate the dis- appointed beneficiary, the other devisees or legatees, at least such as are in the same class with him so far as priority of pay- ment is concerned, must contribute pro rata to make up the de- ficiency.** And in order that other devisees and legatees may be affected as little as possible, the Court will order that the dower be assigned out of the portion which was rejected. *i Jennings vs. Jennings, 21 O. S. testacy; and that the principle of 56. compensation is applied in the case A widow has a perfect right to of an election against the will by a insist that dower, which the policy widow, equally with that of a sim- of the law awards to her, shall not ilar election by any other devisee. be taken from her by the will of a Timberlake vs. Parish^ 5 Dana, 345; deceased husband. But she has no McCallister vs. Brand, 11 B. Mon- equitable right, as widow, to insist roe, 370; Kainnaird vs. Williams, that the benefit intended by the tes- 8 Leigh, 300-409; Dixon vs. McCue, tator, as a compensation for her 14 Grattan, 540; Id. 81. dower, shall be treated, upon her *- Page on Wills, § 737, p. 875. rejection of it, as a lapsed legacj' *3 Lilly vs. INIenke, 12G Mo. 190; or devise, and go to the heir as in- Maskell vs. Preston, 2 W. L. G. 65. testate property. And her rights, ** Woerner on Admin. 273. as widow, are not affected by the In the case of Hutchings vs. Da- facts that she may be, as in this vis, 68 0. S. 160, the doctrine of case, herself the heir. The author- conversion was carried to a great ities cited by counsel for defendants extent. The case was afterwards clearly show that the rule in cases overruled. Geiger vs. Betzer, 80 0. of testamentary election, is compen- S. 65. sation or forfeiture, and not in- § 1231 ELECTION UNDER WILL 1108 And if the remainder is not specifically disposed of, it will be applied to the compensation of disappointed legatees or devi- sees, and if not required for that purpose it will descend as intestate property/" § 1231. If person unable to appear or non-resident of county, how election taken. "If the widow or widower of the testator be unable to appear in court by reason of ill health, or is not a resident of the county in which such election is re- quired to be made, en an application in behalf of such person, the probate court shall issue a commission, with a copy of the will annexed, directed to any suitable person, to take the election of such widow or widower, to accept the provisions of such will in lieu of the provisions made by law. In such commission the court shall direct such person to explain the rights of such widow or widower under the will, and by law." [R. S. §5965.]" § 1232. Application for commission, etc. The Court might issue a commission to take the testimony of a widow or widower, who is a non-resident or in ill health, without any formal application for that purpose. Yet it is not pre- sumed to be within the knowledge of the Court whether a person entitled to an election is a non-resident or in ill health ; and therefore it would be proper to bring the matter to the attention of the Court by a formal application stating the facts. This application may be in the following form : Probate Court County, Ohio. In the Matter of 1 No The Will of [ Election cf Widow , d'^ceased. J Application for Commission. To the Probate Court of said County: The undersigned respectfully represents that , late of said county, deceased, died testate on or about the day of A. D. 190. ., leaving h. . . .widow for ■whom provision was made in the will of said deceased consort. That said will was duly admitted to probate and record by said Court on the day of 100. .. That said widow .... is " unable to appear ia Court by reason of ill *--5 Wilson vs. Hill, 6 C. C. 570; 3 46 § 10573 G. C. D. C. 589. AiT. 34 Bull. 298. 1109 COMMISSION TO TAKE § 1233 health," " not a resident of this county " and that. . .he resides in county, The undersigned therefore makes application in behalf of said widow. . . ; that said Probate Court issue a commission, with a copy of said will annexed, directed to some suitable person, to take the election of said widow. . . ., to accept the provisions of said will in lieu of the provisions made by law. Dated this day of , 190 .. . Respectfully, The State of Ohio, county, ss. , being duly sworn says that the statements in the foregoing application are true as. . .he verily believes. Sworn to before me and signed in my presence this day of , 190... Probate Judge. By , Deputy Clerk. JOURNAL ENTRY. ORDER FOR COMMISSION TO TAKE ELECTION OF WIDOW .... Probate Court, County, Ohio. In the Matter of ) 190 . . the Will of C Election of Widow.... deceased. ) Order for Commission. This day appeared in open Court and made applica- tion for a commission to issue to some suitable person to take ihe election of , widow .... of , deceased, to ac- cept the provisions of the will of said decedent in lieu of the provisions made by law. And it appearing to the Court that said widow.... is "unable to appear in Court by reason of ill health," " not a resident of this county," and resides in county, It is therefore ordered that; such commission issue, with a copy of said will annexed, to , to be returned with all convenient speed, and this cause is continued. , Probate Judge. § 1233. Commission to take such election. The usual practice is to issue the commission to a justice of the peace or notary public, or some one of that character. But this is not necessary. All that the statute requires is that the judge should direct the commission to any suitable person. A practice to be commended is that it be sent to a person of both ability and standing in the community, and one who has the confidence of the widow or widower. The form of such commission may be as follows: COMMISSION TO TAKE ELECTION OF WIDOW Probate Court, County, Ohio. In the Matter of ) No the Will of [ Election of Widow .... , deceased. ) Commission. To , Greeting : Know ye, that having confidence in your prudence and fidelity, you have been appointed by the Probate Court of said county, and by these present?) you are commissioned with full power and authority to take the election § 1234 ELECTION UNDER WILL 1110 of , widow .... of , deceased, under the last will and testament of h . . . . late consort. A copy of said will is hereto attached, marked " A." You are, therefore, directed to proceed forthwith to the place of residence of said and then and there read to the will here- to annexed, and explain to h .... h ... . rights under it, and by law in the event of a refusal to take under the will. After which you will take h. . . . election as to whether or not.. he will accept the provisions of such will in lieu of the provisions made by law. You will thereupon reduce your report of such election to writing, and return the same (together with this commission and the copy of the will hereto annexed) closed up, under seal, into our Probate Court, with all con- venient speed. In witness whereof, I have hereunto set my hand and affixed the seal of said Probate Court at , Ohio, this day of , 190.... , Probate Judge. COMMISSIONER'S REPORT. Probate Court, County, Ohio. In the Matter of ) No the Will of i deceased. ) Election of Widow.... I, , duly appointed and commissioned by the judge of the Probate Court of said county to take the election of under the will of late consort, , deceased ( which commission and copy of the will are hereto annexed) , do hereby certify that, in pursuance of said commission, I did, on the day of A. D. 190. ., go to the residence of , widow. . .of , deceased, and then and there read to h . . . . the will hereto annexed and explained to h . . . . the provisions of the same, h . . . . rights under it, and by law in the event of a refusal to take under the will. Whereupon .. he made h .... election .,..to accept the provisions of such will in lieu of the provisions made by law. In testimony whereof I have hereunto set my hand this day of A. D. 190... Commissioner. Probate Court, County, Ohio. In the Matter of ) j^q the Will of ( , deceased. ) Election of Widow. ... , commissioner appointed by the Probate Court of said county to take my election as widow. . . .under the last will and testa- ment of , deceased, having first explained to me my rights under the will, and by law, I hereby elect to take the provision made for me in said will in lieu of being endowed of the lands of my deceased consort and taking the distributive share of h . . . . personal estate. Dated this day of A. D. 190 .. . § 1234. Form of entry, etc. When such commissioner has made his report, the same should be made a matter of record, and the Court should make a journal entry, which may be in the following form : (Title.) This day there was filed in this Court a report of A. B., who has been heretofore appointed as a commissioner to take the election of C. D. under 1111 IMBECILE, ETC. § 1235 the will of G. H. And it appearing to the Court that said commissioner has properly discharged his duty under the law and that all the proceedings therein are regular, and that having explained to the said C. D. her rights under the provisions of the will of the said E. F. and her rights under the law, and she having declared herself as satisfied with the provisions of said will, and elected to take under it, and asked that her election so to take might be entered upon the. journal of this Court, which is now and here accordingly done. § 1235. How election made for insane or imbecile widow, etc. "When, because of unsound mind, the widow or widower of a testator is unable to make an election, as soon as the facts come to the knowledge of the probate court, at any time within one year after the testator's death, it shall appoint some suit- able person to ascertain the value of the provision made for such widow or widower in lieu of the provisions made by law, and the value of the ria-hts by law in the estate of the deceased consort." [E. S. § 5966.]^^ § 1235a. Entry. "If, on the return of the report of the person appointed to make such investigation, the court is satis- fied that the provision made by the testator for the widow or widower, in the will, is more valuable and better than the pro- vision by law, it shall record upon its minute book an entry that such insane or imbecile widow or widower, by virtue of the proceeding herein provided, elects to take under the will which election, when so entered, shall have the same force and effect as an election made by one not under such disability." [R. S. §5966.]*^* § 1236. Application, etc. As was said in a previous section, the Court will not be pre- sumed to know that a widow is insane or unable for that reason to make an election, therefore it is a practice desired, and in fact should be required, that some person who has knowledge of the facts appear in Court and make a formal application that some suitable person be appointed to make an election for such imbecile or insane widow or widower. When such application is filed, the Court should enter a finding and order some suit- able person to ascertain the value of the provision made by the testator for such widow or widower in lieu of the provisions made by law, etc. The form of application used where a com- missioner is appointed to take the testimony of a widow in ill 47 § 10574 G. C. 90 0. S. 297. Can only elect to 47* I 10575 G. C. take when will is better provi- Sce Industrial School vs. Bates, sion than the law gives. § 1237 ELECTION UNDER WILL 1112 healtJi, and the entry ordering the same can easily be changed to suit tlie ])rovisions of the above section. § 1237. Form of commission as to insane or imbecile widow's election. In the Probate Court of County, Ohio. , Deceased. To It having come to the knowledge of the Probate Court of said county, that by reason of insanity — imbecility of mind — widow of late of said county, de- ceased, is unable to make her election as to the provision made for her by the will of her said husband, heretofore admitted to probate and filed in said Court. This is therefore to authorize and direct you " to ascertain the value of the provision made by the testator for her in his will, in lieu of the provisions made by law, and the value of her rights by law in the estate of her husband." You will make due return of this order, with your findings endorsed thereon, to this Court without delay. Given under mv hand and the seal of said Court this day of A. £). 190... , Probate Judge. RKfURN OF FINDINGS. Pursuant to the command of the foregoing order I have made diligent investigation and find — 1st, as to the value of the provision made by the testator for , his widow, in lieu of the provisions made by law. That 2d, as to the value of her rights by law in the estate of her husband, That § 1238. Duty of commissioner. Similar to the section providing for a commissioner to take the election of a widow in ill health, sec. 10574 G. C. (§ 1235), "« requires that the person appointed to ascertain the value, etc., where the widow is insane, the appointment should be of a suitable person. The law contemplates and requires of this person that he shall find out the value of the provisions made in the will for the widow, and then he should make a calcula- tion of what the dower interest of the widow or widower in the real estate of the testator is worth, as v.-ell as the probable distributire share of the personal property. These matters can very often be ascertained from the will and the inventory and sale bills of the executor. Annuity tables may be used for ascertaining the probable value of the dower interest." "« § 1235. 49 See chapter next index. 1113 DUTY OF COURT § 1239 The person appointed to ascertain such values should consult the Court, and if the Court deemed it advisable, appraisers might be appointed, but such would rarely be required. § 1239. Duty of the Court. The commissioner having ascertained the value of the provi- sions made by the testator for such widow or widower, and also having ascertained the value of the rights of such widow or widower by law in the estate of the deceased consort, then the duty devolves upon the Court to make an election for such in- sane or imbecile widow or widower; and if the Court is satis- fied that the provisions made by the testator for the widow or widower in tlie will are more valuable and better than tlie pro- vision by law, then he should make an entry that such insane or imbecile widow or widower, by virtue of such proceeding, elects to take under the will of such deceased consort ; and then such election shall have the same force and effect as if made by a person of sound mind and in open Court. While the stat- ute does not so provide, yet it would be proper if the Court found that the provisions of tlie law were more valuable and better for the widow than those of the will, to make finding of that fact and likewise make an election not to_ take under the will. The entry might be in the following form: (Title.) This day came A. B., a suitable person, who was heretofore appointed by this Court to ascertain the value of the provisions made in the will of G. H. for his widow, who is now imbecile or insane, and the value of the lights of such insane or imbecile widow in the estate of her deceased consort, and filed his report herein; and the Court finding from said report and being satisfied from said report that the provision made by said testator for his widow in his will is more valuable, and better than the provision by law, it is now ordered that the said C. D., widow of the said G. H., elect to take under the will of the said G. H., her deceased consort. And it is ordered that the said election be entered upon the journal in this Court and be made a part of the proceedings of this case. See Industrial School vs. Bates, 00 0. S. 297. § 1240 GIFTS CAUSA MOKTIS 1114 CHAPTER LXYI. GIFTS CAUSA MORTIS. 8 1240 Definition, etc. § 1245 Delivery of subject of gift. § 1241 What kind of property may § 1246 Gift should be absolute. be given. § 1247 Revocation of gift. § 1242 Requisites of gift. § 1248 Evidence of gift. § 1243 In view of death. § 1249 Rights of creditors and fam- § 1244 Death of donor. ily. § 1240. Definition, etc. Following the right to dispose of one's property in whatever- manner he may choose is the disposition of his property by way of gift. So long as suificient property is retained to pay all his legal obligations/ and the donor acts free from undue influence and with sufficient capacity to understand the nature of his acts, a gift may be as an effectual a mode of transferring prop- erty as any other. The one distinguishing characteristic of gifts in order to make them effectual is that the subject of the gift must have been delivered. The subject of gifts is usually treated under two divisions, i. e., inter vivos and causa mortis. There may be occasions when, an executor or administrator will be required to ascertain whether a gift is legal notwithstanding the class to which it may belong. But his attention will more frequently be called to that class of gifts coming under the des- ignation of gifts causa mortis. Such a gift has been defined as " a gift of personal proi^erty made by a person in peril of death and in expectation of an early demise, consimimated by a man- ual delivery of the subject of the gift or of the means of ol> taining possession of the same by the donor, or by another per- son in his presence and by his direction, to the donee, or to a third person for the donee, and acceptance on the part of the - n^^^-9n^'^' ^^°°^^' ^ '^- P- 220; fore delivering them, and with the ^ v\n^' • orders in her possession, the gift was Where one intending to make a incomplete, and the administrator gift of money purchased United was entitled to tlie monev. Mc- Mates money orders in the name of Kelvey vs. McKelvev, 33 O CO tlio prospective donee, but died be- 117 1115 WHAT MAY BE GIVEN § 1241 donee, followed by the death, of the donor before the donee, and defeasible by reclamation, the contingency of survivorship, or delivery from the peril." ^ It will be observed that such a gift in some respects resem- bles a testamentary disposition, the only essential difference between such a gift and a nuncupative will is that of delivery of the property disposed of, and it differs chiefly from a gift inter vivos in that it is to a certain extent incomplete, and al- ways revocable should tlie donor survive his present illness. The law having provided a method of disposing of property to take effect after one's death by way of testamentary disposi- tion, gifts causa mortis are not favored.' § 1241. What kind of property may be given. It is laid down as a general proposition of law that only per- sonal property capable of delivery is subject of a gift causa mortis^ and that it may embrace all the testator's estate, how- ever large the amount and value.* The reason for confining such gifts to personal property is that real estate is incapable of manual delivery.^ There also seems to be some doubt upon the proposition whether or not a person may give all of his property.* It is well settled, however, that a delivery of the donor's own promis- sory note, without any other contract, by which he undertakes to pay money either during his lifetime or out of his estate after his decease, will not constitute a valid gift causa mortis.'' Of course, if the note was founded on a consideration, a differ- ent rule might apply.* Checks or drafts may be g-iven, but if 2 Woerner on Admin. 117. Y.) 165, it was held, that real es- 3 Gano vs. Fisk, 4.3 O. S. 402. tate might pass by such a gift. See Ambler vs. Admr. Boon, 3 0. 6 8 Am. & Eng. Ency. of Law, App. 87; 19 O. C. C. (N.S.) 281; subject, Gifts. 24 O. C. C. 512, where a note was The only limit in Ohio would be given and not to be collected except that sufficient remains to pay debts. on demand of payee, and put in a "^ Starr vs. Starr, 9 0. S. 75. bond box and the key delivered, etc. 8 Ilamor vs. Moore, 8 0. S. 239. It was held it was neither a gift The gift of a maker's own note inter inroa nor causa mortis and it is the delivery of a promise only was an asset of the estate. and not of the thing promised, and 4 Redf. Sur. Prac. 471, citing the gift therefore fails. Kent's Meach vs. Meach, 24 Vt. 591; White Comm. 438. vs. Wagner, 32 Barb. 250. The defendants' intestate executed vs. Wager, 32 Barb. 250. the following paper: In Curtis vs. Barrus, 38 Ilun (N. § 1242 GIFTS CAUSA MORTIS 1116 thev are unpaid at the death of the donor, the gift fails.® Cer- tificates of deposit payable to the bearer/" or when made pay- able to order and indorsed by the payee,^^ and notes secured by mortgage on real estate, may pass by gifts causa mortis.^^ § 1242. Reguisites of gift. It "will be well to remember that in order to constitute a valid gift causa mortis it must appear, first, that the gift was made in view of the donor's death from his present illness, or from external and apprehended peril; second, the donor must die of that ailment or peril; third, there must be a delivery of the subject of the gift; fourth, the gift must be absolute.^^ These essentials will be treated in their order. § 1243. In view of death. It is not necessary, in order to constitute a valid gift causa mortis, that the person must be in extremis, or that he should die from the very disease in apprehending of which the gift was made; it is only necessary that he shall not recover from the disease that he then apprehended would cause death.^* It "For value received, I promise Prior vs. Reynolds, 8 W. L. J. 325. to pay to Mrs. Hamor, wife of John lo Brooks vs. Broole revoked by acts of the party himself or by a changed condition. If the party gives it tO' another, this would be a revocation,^® although it has been held that a gift causa mortis can not be revoked by a last will and testa- ment because the will speaks as of the moment of the testator's death, while the gift had previously vested in the donee. But the gift of a legacy to one who has received a gift causa mortis may raise the presumption that the former is a substitution for the latter, and sometimes the donee may be^ compelled to choose between them.*^ If the done© dies before the donor, this will be a revocation ; and if a check is given and the donor dies before the check has been accepted or paid, this will be a revocation.'* Likewise such a gift may be revoked by a demand of the donor, although 23 8 Am. & Eng. Ency. of Lnw, See § 624 et seq., Payment of subject, Cifts. Woerner on Admin. legacies. 123. 28 Simmons vs. Savings Soc, 31 21 Flanders vs. Blandv, 45 O. S. 0. S. 4i57. 108. ' See Delfs vs. Yeager, 16 C. C. 25Eedf. Sur. Prac. 475, citing (X.S.) 436, Delivery of savings bank Young vs. Young, 80 X. Y. 422. book; Anderson vs. Allen, 19 C. (". 20 Parker vs. Marston, 27 Me. 196. (N.S.) 51, Delivery of horse. 27 Woerner on Admin. 126. § 1248 GIFTS CAUSA MORTIS 1120 the donee refused to surrender the article. "** So it has been held tliat a subsequent birth of a child which operates to revoke a will, would have the same effect on a gift causa mortis.^^ § 1248. Evidence of gift. Gifts causa mortis, like gifts inter vivos, are watched with caution, and to support them, clear and convincing evidence is required. ^^ In another case it is said the proof of a gift must be clear and positive.^^ Thus where the evidence shows that a father advanced money to his daughter to build her a home, with tlie intent that the interest should be paid to him during his life, and that the principal should be paivl the daughter at his death, it was not sufficient to establish either an advance- ment or a gift inter vivos or causa mortis.^^ Oral statements or declarations of an alleged donor are not competent as against innocent third persons, to prove a gift of real estate.^* It is not necessary that the donee be required to prove af- firmatively and with minuteness the circumstances under which the alleged gift was made, nor is he required to effectually show that the donor was of sound mind when he made the gift. He makes a prima facie case when he shows that the gift has been made according to the requirements of law."^ § 1249. Rights of creditors and family. It is so well settled as to need nothing more than mentioning that a person can not give away his property and defeat claims of his creditors. There has been some question in our State 29 Merchant vs. Mercliant, 2 in favor of his mother and paid in- Bradf. 4C2. terest thereon, there is a presump- 30 Bloomer vs. Bloomer, 2 Bradf. tion raised that the money evidenced ^^"* bv the note was a loan and not a See § 1062. Revocation of will by gift. Admissions bv the mother birth of child. that it was a gift are admissible. 31 Flanders vs. Blandy, 45 0. S. Hicks vs. Hicks, 9 C. C. (N.S.) dl3; 113. 2f) 0. C. C. 628; affirmed 76 O. S. 32 Meyer vs. Shaney, 2 W. L. J. 575. l^^- A stipulation in a mortgage to iT^ i n j7^' 1^**^^^^^^^^' 1^ ^- C. pay a certain amount, after death *'tt 11 ^' },^^- of another person, is valid. Prindle 34 Hall vs. Geyer, 14 C. C. 229; 7 vs. Wood, 3 C. C. (KS.) 641; 24 O. C. D. 4.36. C. C. 74 35B(.df. Sur. Prac. 477. 'See Laws vs. INToslev. where evi- Where the son executed a note dence held insufficient, "37 C. C. 209. 1121 RIGHTS OF CREDITORS AND FAMILY § 1249 whether a person might by gift causa mortis deprive his family of such portions of his estate as they would be entitled to under the law of distribution, etc. It has recently been held by the Supreme Court that a man can not convey or give away his real estate and defraud his wife of her marital rights.^^ But gifts causa mortis, as a rule, do not apply to real estate, and as there are no legal impediments to a person's right to dispose of his personal property in such a manner as he sees fit regardless of the interest of his wife, it has been held that a wife may make a gift causa mortis of all her personal property to the exclusion of her husband,^^ and also that a husband may by gift inter vivos deprive his widow of any share that she may have in his property.^® If the husband could make a valid gift inter vivos, there seems to be no reason why he could not make the same kind of a gift causa mortis.^^ 36 Ward vs. Ward, 63 0. S. 125. 39 See Discussion, Woerner on Ad- 37 South vs. Fair, 41 Bull. 343. min. 128. 38Brodt vs. Rannells, 7 N. P. 79; . „„^ ^ „„ 9 Dec. r.Or § ^•^^' "°*^ ^^- § 1250 TESTAMENTARY TRUSTEES 1122 CHAPTER LXYII. TESTAMENTARY TRUSTEES. S 1250 S 1251 § 1252 § 1253 §1254 $1255 §1256 §1257 §1258 §1259 § 1260 § 1261 §1262 Definition, etc, § 1263 Distinction between executor § 1264 and testamentary trustee. Who may be a trustee. § 1265 Jurisdiction of Probate Court, etc. § 1266 Application, etc. Form of application for ap- pointment of trustee. § 1267 Trustees appointed by will to give bond, unless, etc. § 1268 Comments. Removed on failure to give § 1269 bond. Form of trustee's bond. Appointment of trustee. § 1270 Entry for appointment of § 12V 1 trustee. Form of letters of trustee- ship. § 1272 Inventory of estate. Separate bond from each trustee, or joint bond. Surviving trustee may exe- cute trust. When Probate Judge may appoint person' to execute a trust. Trusts created by foreign will. Id. Trustee named in for- eign will to give bond. How trustee appointed by foreign Court may execute a trust. Comments. Probate Court may appoint a trustee under a foreign will. Comments, § 1250. Definition, etc. A trust is defined to be an equitable obligation, either ex- press or implied, resting upon a person by reason of a con- fidence reposed in him, to apply or deal with property for the benefit of some other person, or for the benefit of himself and another or others, according to such confidence.^ Generally speaking, a trust is an equitable right, title or interest in prop- erty, real or personal, distinct from the legal ownership thereof.^ 1 27 Am. & Eng. Encv. of Law 3. 2 2 Story's Eq. Jur., §964. Sub- stantially the same definition is given by Mr. Spence and Mr. Snell. See 2 Spence Eq. .Jur.- 875; Snell's Princ. of Eq. (Lawson's Am. Ed.) 59. See § 1361, Guardians. The rules goverrnng testamentary trustees ^nd trustees are the same as those governing guardians and administrators of estates. Boals vs. Clingan. 6 X. P. (N.S.) 609; 16 Dec. 207. See § 13S7 for form investment of funds, etc. See Eidelitv & Deposit Co. vs. Wolfe, 100 0.' S. 332, as to general powers of Probate Court, etc. 1123 DISTINCTION BETWEEN EXECUTOR § 1251 The person in whom the confidence is reposed, and whose duty it is to manage the trust, is called a trustee. When the trust is created by a last will and testament, it is called a testa- mentary trust, and the person, whether designated by the will or appointed by the Court, whose duty it is to execute the trust, is called a testamentary ti-ustec. Such trustee receiving his tmst by virtue of the last will and testament, must execute such trust in accordance with the creating power, unless the same is contrary to some positive law. Where the last will and testa- ment does not provide in detail the manner in which the trust should be executed, then the law applicable to trusts generally applies.^ In its enlarged sense, e»\ecutors, administrators, guardians, assignees, etc., are trustees, but it will be the province of this and succeeding chapters to deal with trustees occupying other relations. The principle that every trustee must act honestly and for the best interest of his trust, is alike applicable to all persons who hold a trust position/ § 1251. Distinction between executor and testamentary trustee. Where' the will creates a trust and directs, that some person other than the executor shall execute the tnist, little difficulty is 3 As used in the New York code, examination of the trust instrument a " testamentary trustee," includes to ascertain its particular provi- every person except an executor and sions and what his duties and liabil- administrator with the will an- ities will be. He should also ex- nexed, or a guardian, who is desig- amine the property to see that his nated by a will, or by any competent personal interests will not conflict authority, to execute a trust ere- with his duties as trustee. The du- ated by a will. It also includes ties of a trustee to his beneficiary such an executor or administrator, require not only the highest good where he is acting in the execution faith in their execution, but also of a trust created by the will, which the absence of conflicting personal is separable from his functions as interests, and often the sacrifice of executor or administrator (Co. Civ. personal convenience and chance of Proc, § 2514, subd. 6). profit. An individual may be will- ♦ Trusteeship is not mere contract ing to trust the whole or some part to manage property for another, but of the management of his personal it is a relationship, involving many afi'airs to others; but a trustee must duties and liabilities. It is not al- manage the trust affairs himself, ways desirable to be a trustee, and Loring Trustees' Handbook, 1. Al- before undertaking any trust the len vs. Insurance Co.. 19 Bull. 198. individual should make a careful See § 13G1, Guardians. L § 1251 TESTAMENTARY TRUSTEES 1124 experienced in separating the duty of each. But where the same person is mentioned as both executor and trustee under a will, it is a matter of extreme difficulty vei-y often to determine when a certain act, is done as executor or as trustee. Generally speaking, it is the duty of an executor to pay the debts of the decedent and distribute the estate. It is not the province of an executor to hold and manage the estate. This ordinarily would be the duty of a trustee. Where such duties are placed by will upon one person, he may accept the one and decline the other, but if he accept the execution of the trust by qualifying as ex- ecutor, he will be deemed to accept the trust, and he might be held to account in each capacity. In such cases it is not re- quired that he take an additional oath of office, nor is it neces- sary that letters testamentary directed to him should designate his function as trustee from that as executor. Wherever the trust is separate and distinct, for instance, if the will provided that the executor should collect the assets and distribute all the funds except a certain portion, which he was to hold for one person for a number of years, and then pay the remainder over to the heirs of such person, in such a case the executor should unquestionably settle his accounts as executor and make appli- cation and give a new bond and be appointed as a trustee.** This would save all trouble asi to liabilities of sureties in refer- ence to the fund for which they might be held responsible. In some States the sureties on an executor's bond will not be held liable for his acts as trustee.^ But the rule is otherwise in other States.^* The Courts in Ohio would probably follow the decision of the Massachusetts Courts, as much of our probate law is taken from the laws of tliat State.® Where the same person is ap- pointed trustee and executor under a will, he holds the property as executor until he has settled his account in the Probate Court <• P. C. & St. L. Ry. vs. Schmidt, 5* White vs. Ditson, 140 Mass. 8 C. C. 355; 4 C. D. 5'35. 351; Groton vs. Ruggles. 17 Me. See Wilson vs. Wilson, 17 0. S. 137; Hall vs. Gushing, 9 Pick. 395; 150, as to transferring of funds, Perkins vs. Moore, 16 Ala. 9. (vhere one person held two positions. e But see P. C. & St. L. Ry. vs. B Drake vs. Price, 5 N. Y. 430. Schmidt, 4 G. D. 535 ; 8 C. G. 360. 1125 DISTINCTION BETWEEN EXECUTOR §1251 as executor, crediting himself with the funds he holds as trus- tee, or done some other notorious act of transfer.'' Where a general power of appointment is exercised by will, the executors of the will, not the tmstees, will carry out the trust, and where the power is special, the same rule should pre- vail, unless the appointment is directly to the objects of the bounty, and was not meant to pass through the executor's hands.^ Our Circuit Court has held, where under a will there is doubt, whether the executor is to act as such or as a trustee, the rule is that the duty or trust devolves upon the executor or upon the trustee as executor by virtue of his office as ex- ecutor.® ^Gandolfo vs. Walker, 15 0. S. 273; hi re Higgins Est., 15 Mont. 474; 28 L. R. A. 116; Crocker vs. Dillon, 133 Mass. 91, 98. When a trust fund is to be cre- ated by an executor out of the as- sets of an estate, something more must be done by the executor, in order to impress the trust on par- ticular property, than to hold the property with the intention that it shall constitute the trust fund. There must be some act of appro- priation which transfers it to the trust fun 1 and gives the beneficia- ries right to have it held for them. Sheffield vs. Parker, 158 Mass. 330. 8 Sargent vs. Sargent, 168 Mass. 420. 9 In re Crawford, 21 C. C. 554. The general rule that where there is a devise or bequest to an executor in trust, the executor receives the property or fund at once and the same never becomes assets, must be subject to the qualifications, that if needed assets, the title of the ex- ecutor is superior to that of trustee, 80 that the former may take, use and account for the same as assets; and also that if the property is not reduced to the form or condition in which it is to be distributed as trust property, the duty of thus transforming it may devolve upon and be exercised by the executor as such, and that this will be the case unless the will distinctly pro- vides that this duty shall devolve upon the trustee as such. In such cases the same person being both executor and trustee, he will not take in the latter capacity, until he has fully discharged his duties in the former capacity, and not until the fund or property has been dis- tinctly set apart as trust property. The title to money and personal property devised by will does not devolve upon the legatees until the probate of the will and administra- tion of the estate. Under a will devising certain sums of money to executors in trust for certain pur- poses, and devising to such execu- tors all real and personal property, in trust for the execution of the will with full power to sell or mort- gage and convey any property, with- out being required to obtain orders of Court therefor, the executors will take as executors, and their rela- tions to the estate as trustees can- not arise until the estate has been ^ 1252 TESTAMENTARY TRUSTEES 1126 As a general rule, tiic powers of an executor are co-extensive with all tlie trusts devolved upon him by the will, and all acts done by him in executing such trusts will be regarded as done in his capacity as executor, unless it plainly appears, from the whole Avill, that the testator intended to create a special trust to be managed by the person named as executor in the capacity of special trustee.^*^ Where a testator directed in his will that the executors should carry on his brewery business for seven years, " for the benefit of the estate," and at the end of that time should deliver the brewery and its " proceeds " to residuary legatees named in the will, the executors carried on tlie business accordingly, using and employing the funds of the estate for that purpose. It was held that the moneys and profits arising from the business were assets in the hands of the executors, for the administration of which their sureties are liable/^ § 1252. Who may be a trustee. In absence of any statutory provision, any person that has the capacity to hold the title to the property and the right to ex- ercise the power may be a trustee. A corporation having such capacity and rights among its charter powers is such a person, and may be a trustee.^' The sovereign may be trustee, but the beneficiary can not en- force the trust except by petition/^ until the property is con- veyed to some one amenable to the jurisdiction of the Court." The trust estate may vest in a lunatic or infant, but they will be removable.^" An infant may be compelled to convey by statute,^® and so reduced to money and nothing re- for foreign trustees. Bank vs. B. & mains but to distribute or invest 0. R. R. 53 Bull. 181. the funds as provided by the will. i3 Briggs vs. Light Boat. 11 Al- ^^- len, 157. 10 Mathews vs. Meek, 23 0. :\'. 272. i* Winona Co. vs. St. Paul Co., 11 Gandolfo vs. Walker, 15 0. S. 26 Minn. 179. 15 Irvine vs. Irvine, 9 Wall. 617; 12 Atty. Gen. vs. Landerfield, 9 Swartwout vs. Burr, 1 Barb. 495. Mod. 286; Dublin Case, 38 N. H. lo Brightly 's Dig. Pa. (1894), p. '^^^- 2033, § 46; Gen. Laws R. L (1896) A foreign trust company may act ch. 208, § 16; Gen. Stat. N. J. ns95), p. 3683, §§ 2, 3. 251. 1127 WHO MAY BE § 1252 long as infants or lunatics hold the property the trust will be administered by the Court through them or their guardians.^^ Having no discretion, they can not act in trust affairs any more than they can in their own affairs,^^ and if one of three trus- tees is an infant or lunatic, action by the other two is barred.^® At common law a wife could not be a tiTistee for her hus- band, but she may be now in most jurisdictions under the stat- utory rules. ^° A trustee should be " capable " — that is to say, a person hav- ing tlie legal and actual capacity to hold the title to the trust property and exercise the powers. Thus the trustee should be a person of full age and sound discretion. He should be " fit," that is to say, a person in whose hands the property will be safe,^^ and who will be impartial in the administration of his trust. Thus a bankrupt is not a " fit " person, as being un- successful in his own affairs, he is not likely to be successful in those of otliers, and a. diimkard or person of dishonest or of bad character is unfit, since the property would not be s-afe in his hands. So too a beneficiary is an unfit person, whether he be a life tenant or remainderman, since he will naturally be partial to his o^vn interests," aaid for similar reasons a near relation is objectionable, although in this country they are more often appointed than strangers. The fact of near relationship makes the trustee less able to witlistand the importunities of their beneficiaries,^^ and moreover such a connection, especially where a parent or older relation is trusrtee for a child, is too often made an excus© for lax maniagement, and thfe knowledge that a breach of trust is likely fo be condoned not infrequently leads to disregard of strictly legal management, which is the only safeguard of trust estates. Deviation from the rules of strict accountability only too often leads to speculation and the loss of the property.-* i' Eoc parte Sergison, 4 Ves. Jr. ^^ Ex parte Conybearc's Sottle- 147 raent, 1 Weekly Rep. 458. 18 Person vs. Warren, 14 Barb. 23 Wilding vs. Bolder, 21 Beav. 4S8 222; Parker vs. Moore, 23 X. .1. Kq. 19 King vs. Bellord, 1 Hem. & M. 228, 240. 343 24 Loring on Trustees, 13. 20 Sehluter vs. Bowery Sav. Bank, See § 1332, Who should be ap- 117 N. Y. 125. pointed guardian; §§74-83, Who 21 /n re Backer's Trusts, 1 Ch. D. should be appointed executor; 43 §§ 115-123, Who should be ai)i)ointed § 1253 TESTAMENTARY TRUSTEES 1128 § 1253. Jurisdiction of Probate Court, etc. The enforcement and management of trusts from the pe- culiar nature and character of the interests involved, fall within the ordinary powers of a Court of chancery jurisdiction; and where not otherwise provided, it still will come within the power of the equity side of our Court of Common Pleas. The Prohate Court being a Court of limited jurisdiction, it only has power over a trust when such power is given by some 'positive provision of our statute law ; and an examination of the General Code will show that no exclusive jurisdiction is given to the Probate Court in its control over trusts and trus- tees like there is over guardians or administrators and execu- tors.'"^ Sees. 10591, G. C, to 10600, G. C.,^^* confer power upon the Probate Court where the trustee is appointed in a will or where the trust is created by a will, and sec. llOli, G. C.,"*' relates to non-resident minors, idiots, lunatics or imbeciles. It seems therefore that unless a trust comes within one of these statutory provisions that the Probate Court has no authority in the mat- ter, unless possibly there might be some matter pending in the Probate Court in which it would be necessary to appoint a trus- tee to care for such fund as is provided in sec. 11031, G. C.^'^* If another Court appoint a trustee, such trustee will remain under the jurisdiction of the Court that makes the appointment. It would hardly be within the power of the Chancery Court to appoint a trustee and direct such trustee to account in the Pro- administrator; § 1548, Who should has jurisdiction to appoint a trus- be a| ])ointed agsigiiee. tee. Where no trustee has been ap- 25 § 10492 G. C, § 27. pointed by the Probate Court, where Where a will rests a discretion in the will is probated, then the Pro- a trustee, such trustee becomes bate Court of any county in which under the original jurisdiction of the will has been recorded, and in tlie Probate Court, and the Court which the beneficiary resides, may of Common pleas is without juris- make such ajipo'ntment. Boals vs. diction in an original action to Clingan, 6 N. P. (N.S.) 609; IG determine whether or not tlie wel- Dec. 267 ; and such court could fare of the ward requires the sale order a sale of real estate, of the property, etc. Stasel vs. An annuity may be assigned, and Rieter, 24 Dec. 288. where an estate "has all its legal 25* § 1256. ' debts paid, and parties holding an 26 § 1274. annuity agreeing thereto, the estate 2«*§1286. may be finally 'settled. Trust Co. Section 10591 et seq., are not vs.'Kirby, 17 Dec. 196; 4 0. L. R. mandatory in their provisions, but 304. simply directory as to what court 1129 JURISDICTION, ETC. § 1254 bate Court for the funds in his hands. A testamentary trustee, unless the will is a foreign will, is under the control and within the jurisdiction of the Court of the county in which the will is admitted to record.^^ If it be a foreign will, such trustee must give bond and therefor be accountable to the Probate Court of the county in which any lands are situate that are effected by the trust,^^* and trustees of non-resident minors, etc., are only appointed by the Probate Court of a county in which there is situated some real estate, goods, chattels, rights, credits, moneys or ef- fects belonging to such non-resident minors, etc.^^ The Probate Court has no power, however, to construe a trust. If a trustee is in doubt about any of the provisions of the instrument creating the trust, he may file a petition in the Court of Common Pleas and get a construction of such in- strument.^^ It would seem from the provisions of sec. 11029, G. C.,^" which requires a trustee who has received his appointment by virtue of a deed, to account in the Probate Court, that the Pro- bate Court would have jurisdiction of a trust of that kind, except when the deed or will creating the trust, designates some other tribunal as a proper one in which to make a settlement, or where some other tribunal has in some method acquired jurisdiction.^^ § 1254. Application, etc. There is no statutory requirement that an application should be filed for the appointment of a trustee as there is in the State of Massachusetts. There it is required that the appointment shall be made by petition, and it is said that the petition should state in general terms the nature of the trust, the manner in which it was created and the willingness of the petitioner to ac- cept the trust and give the bond required. If the appointment is necessary in consequence of a vacancy in the office of trustee, the petition should set forth the fact, and state in what way the vacancy was occasioned, whether by 27 § 10591 G. C, § 1256. 29 §§ 10857-8 G. C., § 33. 27* § 10598 G. C., § 1268. 3o § I2fl3. 28 § 11014 G. C., § 1274. Schouler 3i See § 11301 G. C, § 1295, Power on Exrs. 472. over execution of trust. § 1255 TESTAMENTARY TRUSTEES 1130 tlio omission of the testator to make an appointment, or by the resignation or death of a former trustee, or otherwise. Any person interested in a trust estate may petition for the appointment of a trustee. A citation to parties interested will be ordered before an appointment is made, unless their written assent is given to the prayer of the petition.^' The above taken from a leading work on the probate law of Massachusetts, is very applicable to what should be done in the way of making a formal application for letters for a testamen- tary ti-ustee. In our State the Court might make an appoint- ment without such a formal application, but in order that tlie proceedings may show on their face their exact nature and character, and the Court may be informed of the nature and character of the estate, a written application should in all in- stances be required. § 1255. Form of application for appointment of trustee. Of and for , beneficiary under will of , deceasea. In the Probate Court of County, Ohio. The undersigned , a resident of the county of and State of Ohio, and whose postoffice address is county, Ohio, hereby makes application to be appointed trustee of and for , a beneficiary under the last will and testament of , late of county, Ohio, deceased. Said , being sworn says. That the property and estate of said beneficiary that will come into h. . . .hands as such trustee, or of which.. he will have the care and management, according to the terms and requirements of said trust, will be, as nearly as can now be stated, as follows: Real estate, subject to sale by said trustee, estimated value, $ Probable annual rents of real estate $ Personal estate, $ Probable annual income from moneys invested or to be in- vested, $ The State of Ohio, County, ss. , being first duly say . . the fore- going statement is true as. .he verily believes. Sworn to and subscribed before me this day of 190. . Probate Judge. § 1256. Trustees appointed by will to give bond, unless, etc, "Every trustee appointed in a will, before entering upon his 32 Smith Pro. Law 136. 1131 ' MUST GIVE BOND § 1257 duty as such, must execute a bond with freehold sureties, pay- able to the state, in the probate court of the county in which such will is admitted to probate, to the satisfaction of the court, conditioned for the faithful discharge of his duties as- trustee; except that, when by the terms of a will, the testator expresses a wish that his trustee m^ay execute the trust without giving bond, the court admitting the will to probate, may grant permission to the trustee to execute the trust with or without bond. When granted without bond, at any subsequent period, upon the application of a party interested, the court may re- quire bond to be given; and, upon tlie application of an inter- ested party, if deemed necessary, require a new or additional bond at any time before the completion of the trust." [R. S. §5981.]^^ § 1257. Comments. By the provisions of the above section it is made mandatory upon every trustee appointed in a will, before entering upon his duty, to execute a bond with freehold sureties to the satisfac- tion of the Court, unless the Avill expressly otherwise provides, and even then it is left in the discretion of the Court whether to obey the requests of the will or not. If the Court is advised by a petition or otherwise that a certain person has been selected by the testator for a trustee, the Court should cite such person to appear and accept the trust or decline, in the same manner persons entitled to the administration of an estate are cited, and if the person neglects tO' appear and refuses to give a bond, the Court should declare the trusteeship vacant and proceed to appoint some suitable person. It is no doubt the intention of these statutory provisions that no person should be qualified as a trustee or entitled to act as such, until he has complied with the requirements of giving a proper bond. The statute spe- cifically provides that if he fails to give a bond he shall be re- moved. This statute is as follows:^* 33 § 10591 G. C. Boals vs. Clingman, 6 N. P. (N.S.) The sureties on the bond must be C09; 16 Dec. 207. inhabitants of the State. § lOGll Where a party is both c>:ecutor O. C. and trustee, separate bonds should 34 § 101, as to new or additional be given. P. C. & St. L. R. R. vs. oonds. §243 et seq. Srlimidt, 4 C. D. 535; 8 0. C. C. This section is merely directory 355. as to wliat court should appoint. § 1258 TESTAMENTARY TRUSTEES 1132 § 1258. Removed on failure to give bond. ' ' If such trustee fails to frive bond within the time ordered by the court, he shall be reiiKnod from his trust, or be considered to have declined it ; and another person may be appointed in his stead, upon giving the required bond." [R. S. § 5983.]=^^ § 1259. Form of trustee's bond. Know all Men by these Presents: That we, as principal and and as sureties, are held and firmly bound unto the State of Ohio, in the just and full sum of dollars, for the payment of which sum well and truly to be made we jointly and severally bind ourselves, our heirs, executors and administrators, and each of them firmly by these presents. Signed by us this day of A. D. 190. ., at , Ohio. The condition of this obligation is such, that whereas, on the day of , 190. ., the Probate Court of the county of in the said State of Ohio, appointed the said as trustee for and of certain estate of The object and purpose of said appointment and trust being: That by the last will and testament of , late of said county of , deceased-, which said last will and testament has been duly admitted to probate and record in said Court, it was among other things provided Now if the said as such trustee of said shall well and truly do, perform and discharge with fidelity, all and singular the duties which he as such trustee ought to do. perform and dis- charge, and act in all things as required by law, and faithfully account for all money and funds that may come into his hands as such trustee, then this obligation shall be void, otherwise the same shall be and remain in full force and virtue. This bond approved in open Court, this day of 190. . Probate Judge. The State of Ohio, County, ss. I, , trustee of , do solemnly swear that I will faithfully and honestly discharge the duties devolving upon me as such trustee, as I will answer to God. Sworn to before me and signed in my presence, this day of 190... , Probate Judge. § 1260. Appointment of trustee. While the testator may designate a person as trustee, it is undoubtedly the purpose of our statute that no one shall be qualified to act in that capacity until he has given the required bond.^« A testator may select any one that he chooses and may ap- point a person actually unable or unfit as his appointee, and 35 § 10593 G. C. '' P- ^- & St. L. Ry Co. vs. Schmidt, 8 C. C. 355; 4 C. D. 535. 1133 API^OINTMENT OF § 1261 such, person will be entitled to act, and could only be removed for cause,^^ Before the passage of the statute requiring bonds to be given by testamentary trustees, it was probably the law that no issue of letters testamentary was necessary, and such seems yet to be the law in the State of New York,^^ and there does not appear to be any express statutory provision authorizing or directing the Probate Court to issue letters testamentary. But as no person is entitled to act as trustee unless he has given bond, it follows as a very proper, if not necessary, practice that letters for testamentary trustees should be issued as evidence of the fact that a proper bond has been given. If the will author- izes some person to designate who the trustee should be, the person so designated will be entitled to make the appointment in the same manner as if he was designated in the will. Where the Court is called upon to appoint a trustee, it will only ap^ point a. person who is actually and legally capable and fit, and it will have due regard to the wishes of the maker of the trust if they can be discovered.^® Generally, Courts will not appoint a non-resident as trustee, but statutes providing that no non-resident should be appointed have been held unconstitutional.**' If the beneficiaries all agree on a person, the Court will nearly always appoint him, even though he be a beneficiary or otherwise unfit.*^ § 1261. Entry for appointment of trustee. This day this matter came on to be heard upon an application by a petition filed herein by A. B. for the appointment of a trustee (here state how the trust was created and should usually be designated, by giving items of the will of the deceased). And it appearing to the Court that (here recite facts; that is, that the will was duly probated and such facta as will show that it is proper that a trustee should be appointed). And it appearing to the Court that a trustee is necessary and that C. D. is a suitable person to be appointed, and he having filed in this ofiice a state- ment, duly verified by his affidavit of the whole estate, and the probable 37Wetmore vs. Truslow, 51 N. Y. ^o Ghirk vs. La Fayette, 52 Fed. 338. Rep. 857. See §§ 79-81, Legally competent. ■*! Young vs. Young, 4 Cranch C. 38 Redf. Sur. Prac. 272. C. 499. 39 Perry on Trust, § ;3G; Story, § 110, Residence of administra- Eq. 11th ed., vol. 2, § 1289; Under- tor; § 1.3.32, Who should be appoint- hill on Trust, 408. ed guardians. § 1262 TESTAMENTARY TRUSTEES 1134 value thereof, and also the probable rents of the real estate. It is ordered that said C. D. be appointed such trustee upon giving bonds with sureties, as required by law. in the sum of dollars. (The general practice is that the bond is filed at the same time. If this be done, the entry may continue as follows:) And thereupon came the said A. B. and accepted the appointment as trustee of and filed herein his bond in the sum of dollars, conditioned according to law, with and , freeholders, as sureties thereon, which bond is approved by the Court. It is therefore ordered that letters of trusteeship issue to said A. B. and that this proceeding be recorded, and that said trustee pay the costs herein taxed at dollars. § 1262. Form of letters of trusteeship. Of and for , beneficiary under will of , deceased. The State of Ohio, County, ss. Be it known. That heretofore, to-wit, on the day of ..... .A. D. 190. . ., was by the Probate Court oi -. county, Ohio, appointed trustee of and for , beneficiary under tKe last will and testament of , late of county, Ohio, deceased, to whom is hereby granted all and singular, the powers necessary, and by law required to enable, .h. .. .the said to faithfully execute said trust and perform all and singular the duties of such trustee, according to the statute in such case made and provided. In testimony whereof, I have hereunto set my hand, and aflixed the seal of the said Probate Court at in said county, this day of 190.. Probate Judge.. And ex-officio Clerk of the Probate Court. § 1263. Inventory of estate. The statutes nowhere require that a testamentary trustee should file an inventoiy. It is the practice of some Courts to require inventories to be filed in the same maimer as guardians are required by statute. This is to be commended and should be followed in all cases except where the exact amount of funds coming in the hands of the trustee is shown in an account of an executor or a preceding trustee. It is exceedingly impor- tant to beneficiaries, as well as to the trustee himself, that it be definitely known what the exact amount of the funds or prop- erty was which came into his hands. If no inventory is filed, the property with which the trustee is charged may depend upon a number of extraneous circumstances, and result in mis- understanding and faulty accounts in the future.*^ *2 § 1,367, Guardian's inventory. 1135 BONDS, ETC. § 1264 § 1264. Separate bond from each trustee or joint bond. ''When two or more persons are appointed trustees by a will, the probate court may take a separate bond from each, with sureties, or a joint bond from all, with sureties." [R. S. §5984.]^=^ §1265. Surviving trustee may execute trust. "When two or more trustees are appointed l)y will, to execute a trust, and one or more of them dies, declines, resigns, or are removed, the survivors or remaining trustees or trustee may execute the trust, unless the terms of the will express a contrary intention." [R. S. §5985.]^* § 1266. When Probate Judge may appoint person to ex- ecute a trust. "If a testamentary trustee dies, declines to accept, resigns, becomes incapacitated, or is removed, and such will has not provided for the contingency of the death, in- capacity or refusal of such trustee or trustees to accept or execute the trust, or such will names no trustees, the court having probate of the will may appoint some suitable person or persons to execute the trust,, according to the will, who must give bond with security as provided herein." [R. S. § 5986.]*^ § 1267. Trusts created by foreign will. ' ' Trusts created by a will made out of this state, and relating to lands situated herein, after the will is duly admitted to record in this state, may be executed as hereinafter provided." [R. S. §5987.]*" 43 § 10504 G. C. This section is The above section would author- very much similar to § 10611 G. C. i^c the Court to appoint a trustee, (§86), where separate bond may be although there was one trustee liv- taken from executors. ing- provided the will did not show See §§86 and 201 et scq., for law that the power given to the first as to separate bond, etc. trustee was a personal trust and 4* § 10595 G. C. confidence that could not be exer- 45 § 10506 G. C. cised by others. Sowers vs. Cyren- This section carries into eflfect the ius, 39 0. S. 29. principle of law, that a trust will See §§ 11035-6-7 C. C, § 1300. never be allowed to fail for reason ^o § 10597 G. C. of the want of a trustee, and it es- As to how foreign will may be pecially confers jurisdicticn upon admitted, § 1118 et seq. the Probate Court to designate and One trustee died and another re- appoint a proper trustee in the moved to place unknown, the Pro- emergencies provided by the above bate Court had power to fill vacan- section. Taylor vs. Galloway, 1 0. cies, although there was a surviving 232; Hunt vs. Freeman, 1 O. 400; trustee. SoM-ers vs. Cyrenius, 39 O. Steele vs. Worthington. 2 O. 182; S. 29. Dabney vs. Manning, 3 0. 3f!l. § 1268 TESTAMENTAEY TRUSTEES 1136 § 1268. Id. Trustee named in foreign will to give bond. "If a trustee is named in such foreign will, he may execute the trust, upon giving bond to the state in such sum and with such sureties ;is the probate court, of the county in which such lands or a part thereof are situated, approves, conditioned to dis- charge with fidelity the trust reposed in him ; except that, if the testator in the will naming the trustee orders or requests that bond be not given by him, bond shall not be required, unless from a change in the situation or circumstances of the trustee, or for other sufficient cause, the court of probate thinks proper to require it." [R. S. § 5988.]*^ § 1269. How trustee appointed by foreign court may ex- ecute a trust. "If a trustee has been appointed by a foreign court according to the laws of the foreign jurisdiction, he may execute the trust upon giving bond as provided in the next preceding section, and satisfying the probate court of the county in which such lands, or a part of them, are situated, by an au- thenticated record of his appointment, that he has been duly appointed trustee to execute the trust." [R. S. § 5989.]*^ § 1270. Comments. The above section places it within the power of a person who has been appointed by a foreign Court to execute the trust in reference to lands situate in our State. Wliere such foreign trustee wishes to act here, he should apply to the Probate Court of the county in which the lands are situate or some part of them; and he should file an application setting forth the fact of his appointment in some foreign Court, giving the name of the Court and, should describe the character and nature of the trust, and with his application he should file an authenti- cated record of his appointment. Having made the proper application, it would seem that the Probate Court must allow 47 § 10598 G. C. application was made to have a When a trustee is to be appointed trustee appointed; and the statute under a foreign will, an applica- gives a discretion in the requirement tion should be filed setting forth of a bond being filed where the testa- the facts that such will has been tor dispenses with such bond, filed and admitted to probate, or *» § 10599 G. C. record in the countv in which the 1137 COURT MAY APPOINT § 1271 him to execute the trust. But before such foreign trustee can enter upon the discharge of his duties, he must file a bond in the same manner as a home trustee would be required. And having filed the bond it would follow that the Court should issue to him letters evidencing his appointment as trustee. § 1271. Probate Court may appoint a trustee under a for- eign will. "When necessary, the probate court of the county where the property affected by the trust is situated, on appli- cation by petition of the party or parties interested, may ap- point a trustee to carry into effect a trust created by a foreign will; which trustee, before entering upon his trust, must give bond, with such security, and in such amount, as the court directs." [R. S. § 590O.>« § 1272. Comments. It would seem that before a trustee could be appointed under the above section, it would be necessary that the foreign will should have been admitted to record. This being done, it would likewise be necessary that there is some property within the county in which the application was made. Then if it is necessary to carry out the trust, some party in interest must file an application. This application may be very much similar to the one asking the appointment of a home trustee,*it should set out the fact of the existence of the foreign will, and the fact that such will has been admitted to record and such other facts as will show the necessity of tlie appointment of the trustee. This being shown and bond being given in an amount which the Court shall think proper, letters of trusteeship should issue. In all cases it is advisable that the trustee appointed, be a resident of the county in which the estate is located, for then jurisdiction over such trustee can easily be exercised. There may be cases, however, especially under a foreign will, in which it would be much better for the trust if some person were appointed who is familiar with matters surrounding the testa- tor's domicile. 49 § 10600 G. C. * § 1255. ^ 1273 TRUSTEES FOR NON-EESIDENT 1138 CHAPTER LXVIIL TEUSTEES FOR NON-RESIDENT. § 1273 Introductory. § 1280 When and to whom trustee § 1274 How trustees are appointed shall pay over money, for non-residents. § 1281 Conmients. § 1275 When appointment to be § 1282 How foreign guardian, etc., made. may collect money. § 1276 Jurisdiction. § 1283 Petition, etc. § 1277 Bond and duties. § 1284 Entry and notice. § 1278 Trustee may lease or sell § 1285 Hearing, etc. real estate as guardian of § 1286 Trustee may loan money in minor. certain ease. § 1279 How long trustee to hold of- fice. § 1273. Introductory. In addition to the appointment of trustees provided for by a will or deed,^ the statute further provides that trustees may be appointed to take care of the estate of a non-resident. Sees. 11022 to 11024 of the General Code provide for the ap- pointment of tiTistees of non-residents by courts of record, when it is shown that there is a fund in a proceeding pending therein which belongs to such non-resident person. These sec- tions further provide that tlie trustee shall hold such funds for five years, then the prosecuting attorney shall collect the same and turn it into the county treasury. A trustee of such a non-resident could not very often be appointed by the Probate Court, for the statute makes special provision for direct pay- ment into the county treasury by an administrator or executor when an amount in his hands remains unclaimed." The only case in . which a Probate Court could appoint a trustee of a non-resident adult not an imbecile, would be in a 1 § 11035-7 n. C. heard of for such length of time as 2 See § 10843 G. C. to cause the heirs at law to believe Section 11028 G. C. provides that he is dead, such person to act until the probate court may appoint a an administrator or executor of his trustee to collect and preserve prop- heirs is appointed, erty of a person who has not been 1139 HOW APPOINTED § 1274 proceeding to sell real estate. The subsequent provisions of this chapter relate to the appointment of a trustee for non- resident minors, idiots, imbeciles and lunatics, and the laws generally applicable to resident minors and lunatics, etc., may be applied in carrying into execution these statutory provi- sions.^ § 1274. How trustees are appointed for non-residents. "When a minor, idiot, lunatic or imbecile, residing out of this state, has real estate, goods, chattels, rights, credits, moneys, or effects in this state, the probate court of the county where such property or a part of it is situated, if it considers this neces- sary, may appoint a trustee of such minor, idiot, lunatic, or imbecile, to manage, collect, lease, and take care of his prop- erty." [R. S. §6320.]* § 1275. When appointment to be made. The first necessary condition for an appointment to be made for a non-resident minor, etc., is the fact that there is property within the county where the Probate Court is located in which it is sought to have an appointment made. Before the Court should make an appointment, an application should be filed ; if the person be a minor, reciting the same facts as is required in the appointment of a resident minor. If the person be a luna- tic or imbecile, the same proceeding should be had as if the imbecile or lunatic was a resident of the county. Perhaps if there were no next of kin within the county upon whom service could be made, the Court might proceed to make the appoint- ment without having the hearing, provided for in the case of resident lunatics, etc. But the safe and better course to pur- sue would be to proceed in the same manner as if the lunatic was a resident, and have a proceeding first to find the fact of lunacy and tlien proceed with the appointment. The forms and entries used in cases of appointment of resident minors, etc., may be used imder this section.^ 3 See § 1218, Ancillary guardian. s § 1319 et seq. See § 1322, Eesi- See §5 1319 to 1500 as to gclns., dent of county, for minors, etc. Equity will not let a trust fail for See § 147.5 as to foreign gdns. want of technical words in its crea- Sce §§ 1351, 1480. tion, or for want of a trustee. Rob- *§ 11014 G. C. bins vs. Smith, 27 0. C. C. 91; 12 Lon. D. 164. § 1276 TRUSTEES FOR NON-RESIDENT 1140 §1276. Jurisdiction. "The appointment of a trustee, first made, shall extend to all the property, and effects of the minor, idiot, lunatic, or imbecile in this state, and exclude the jurisdic- tion of the probate court of any other county." [R. S. § 6321.]^ §1277. Bond and duties, "The trustee shall give bond, payable to the state, with such sureties, and in such sum, not less than double the value of all the property that will prob- ably come into his hands, as the court approves, and take upon himself the care and management of tlie property of such minor, idiot, lunatic, or imbecile, situated in this state, the collection of debts and other demands due such mJnor, idiot, lunatic, or imbecile, from persons residing or being in this state. He shall settle AA^ith the court, and be liable to suit or removal for neg- lect or misconduct in the perfomiance of his duties, as provided by law in respect to guardians of minors, and for the settlement of the accounts of trustees. Such surety or sureties may be discharged in the manner provided by law for the release of sureties of guardians." [R. S. §6322.]^ § 1278. Trustee may lease or sell real estate the same as guardian of minor. "Tlie trustee may lease or sell the real estate of such minor, idiot, lunatic, or imbecile, under the rules and limitations provided by law for the sale of real estate by guardians of minors in this state." [R. S. § 6323.] » §1279. How long trustee to hold office. "Unless removed by the court, the trustee shall hold his appointment until such minor arrives at the age of majority, whether or not such minor be under twelve 'or over fourteen years of age at the time of appointment, or until the disability of such idiot, lunatic or imbecile is removed, or the minor, idiot, imbecile, or lunatic dies." [R. S. § 6324.]^ 6 § 11015 G. C. C, § 1300, in the next chapter, pro- This section seems to be a matter vides for the removal of such trus- of surplusage for a general pro%i- tee. sion of the R. S. makes a like provi- « § iioi7 G. C. See §§ 10961, sion. § 10498 G. C, § 27. 11017 G. C., § 1432, Power to lease; 7§ IIOIG G. C. §§ 10994-5-6 G. C.,' § 1522, Sale by The bond and letters used in the guardian; § 10946 G. C., § 1410, for previous chapter can easily be ap- lease and sale of real estate. plied to suit an appointment under 9 § 11018 G. C. the above section. §§ 11035-G-7 G. 1141 MONEY PAID TO WHOM § 1280 § 1280. When and to whom trustee shall pay over money. "All moneys due to such minor, idiot, lunatic, or imbecile, in the hands of such trustee, during the minority of such minor, or the disability of such idiot, lunatic or imbecile, shall be paid over to his foreign guardian, so far as necessary or proper for his support and maintenance, or in case of his decease, to his administrator or other legal representative ; if the court which appointed such trustee has satisfactory proof, as hereinafter provided, of the authority of such guardian, administrator, or other legal representative, to receive the moneys or estates of such minor, idiot, lunatic or imbecile, and that the security given by such guardian, administrator, or other legal representa- tive, is sufficient to protect his interest or estate, and deems it best for him, or his estate." [R. S. § 6325.] ^^ § 1281. Comments. The provisions of this section when read with the previous one would seem to indicate a purpose on the part of the Legis- lature not to permit a trusteei when once appointed to pay over the entire fund to a foreign trustee^, but only so much thereof as might be necessary for the maintenance and support of the non-resident minor, etc., and even in such eases, the Court which appointed the trustee must have satisfactory proof that such foreign guardian, etc., or where the non-resident minor, etc., has died, his administrator, is entitled to receive the money and the Court must be further satisfied that the foreign guardian or administrator has given sufficient bond in such jurisdiction to protect the interest of such minor. Before such local trustee pays over any money to a foreign representative, an application therefor should be made as provided in the next section. Notwithstanding the provisions of or until the disability of such idiot, the subsequent sections, it is evi- etc., is removed, dently the intention of the legisla- lo § 11019 G. C. ture that having once appointed a See kindred section, §§ 11940, trustee, that such trustee should 11944 G. C, § 1480, § 1476. hold until the minor becomes of age § 1282 TRUSTEES FOR NON-RESIDENT 1142 § 1282. How foreign guardian, etc., may collect money. "When a foreign guardian, administrator, or other legal rep- resentative of such minor, idiot, lunatic, or imbecile, applies to have nil or any of the moneys or property in the hands of such trustee paid or delivered to him, he must file his petition, or motion, to that effect, in the court by which such trustee was appointed, giving such trustee thirty days' notice of the time of hearing thereon, and also produce an exemplification from under the seal of the office, if there be a seal, of the proper court of the state of his residence, containing all the entries on record in relation to his appointment and qualification, au- thenticated as required by the act of Congress in such cases. Upon the hearing thereof, the court shall make such order, as, under the circumstances it deems for the best interests of such minor, idiot, lunatic, or imbecile, or his estate." [R. S. §6326.]^^ § 1^83. Petition, etc. It is necessaiy that the foreign guardian or administrator file his petition and this must be done in the Court in which the local trustee was appointed. This petition may be in the f olloAving form : (Title.) Now comes A. B. and represents to the Court that on the day of he was duly appointed by a Court having proper juris- diction of the same, situate at in the State of , as guardian of E. F., an alleged imbecile, and that he is still acting in that capacity. He further represents to the Court that on the day of , one G. H. was appointed by this Probate Court as a trustee under the provisions of the General Code for property belonging to the said E. F., situate in this county. He further represents to the Court that it is necessary for the support and maintenance of the said E. F., that the property now in the hands of the said G. H. be paid over to him. He further represents to the Court that he has attached hereto and marked "exhibit A," an exemplification under the seal of the office of the Court, wherein he received his appoint- ment, containing all the entries on record in relation to his appointment, which shows that he has given bond in the sum of dollars, which facts are authenticated, as required by the Act of Congress in such cases. He further _ represents that the laws of the State of , in which he received his appointment, have made a similar provision to the laws of Ohio, aa to the payment of funds to a foreign guardian or trustee. 11 § 11020 G. C. 1143 NOTICE, ETC. § 1284 Wherefore he asks that notice of the filing of this petition be given to G. H., at least thirty days before the time of hearing the same, and upon the hearing of this application, it may be ordered that the said G. H. shall deliver to the undersigned the funds in his possession belonging to the said E. F., an alleged imbecile. Sworn to before me and subscribed in my presence this day of , 190.. § 1284. Entry and notice. Upon the above application being filed in the Probate Court, the Court should make an entiy setting the matter dowm for hearing and ordering that at least thirty days' notice thereof be given to tlie local trustee. The entry may be in the fol- lowing form: {Title.) This day came A. B. and filed herein his petition that G. H., trustee of E. F., an alleged imbecile and a non-resident of this State, be required to transfer to the said A. B. as guardian of said E. F., appointed within the jurisdiction of the domicile of E. F., the funds now in the possession of the said G. H. Whereupon it is ordered that the said cause be set down for hearing on the day of , 190. ., at least thirty days' notice of the filing of the said petition, and the time of hearing thereof be given to said G. H. The following may be used as form of notice' to the trus- tee (guardian), etc.: (Title.) To G. H., Trustee (guardian) of E. F.: You are hereby notified that on the day of , A. B., guardian of said E. F.,. appointed within the jurisdiction of the domicile of said E. F., has made application to this Court to have the funds now in your hands turned over to him as such guardian. Said cause has been set for hearing on the day of , at which time you are ordered to be present and answer concerning said application and whether the interest of your said ward will justify the removal of the funds now in your possession. § 1285. Hearing, etc. The Court being satisfied that the local tnistee has due and proper notice, a careful investigation should be made of the allegation of the petition in reference to the fact whether it would be for the best interest of the non-resident imbecile to § 1286 TRUSTEES FOR NON-RESIDENT 1144 have the fund transferred beyond the jurisdiction of this Court. The Court should be exceedingly careful to ascertain that the proceedings show that the foreign guardian has given ample bond, and the Court should further investigate whether such foreigni representative is a proper and suitable person to have charge of the fund. If the Court is not satisfied that the best interests of the non-resident imbecile, minor, etc., will be better subserved by the transferring of the fund than its remaining, the application should be refused.^^ FORIVI OF JOURNAL ENTRY. {Title.) This day this matter came on to be heard upon the application of A. B., a guardian of E. F., residing within the jurisdiction of the residence of the said E. F., for an order of this court, requiring G. H., the trustee (or guardian) of said E. F. appointed by this Court; and was submitted to this Court upon the pleadings and testimony. Whereupon the Court finds, after due consideration, that G. H. has had due and legal notice of the pendency of this proceedings and the prayer thereof as required by law and the former orders of this Court. That the allegations of the petition are true and that the said A. B. has filed in this Court an exemplification from under the seal of the office of the Probate Court of the State of his residence, containing all the entries recorded in relation to his appointment. The Court further finds that the bond given in the Court which made the appointment of said A. B. is ample to cover the fund to be received in this proceeding, and that the laws of the State in which said A. B. received his appointment contain similar provisions to the law of this State referring to the transfer of such fund; and the Court being further satisfied that under all the circumstances it will be for the best interest of said ward and of his estate, it is hereby ordered that G. H., within days file his account in this Coiirt and that upon the final hearing of said account he transfer the fund in his hands to the said A. B. § 1286. Trustee may loan money in certain case. ' ' "When money of such minor, idiot, lunatic, or imbecile is in the hands of such trustee, and not likely to be needed for the support and education of such minor, idiot, lunatic, or imbecile, such trustee shall loan it in the manner guardians by the laws of this state are required to loan the moneys of their wards." [R. S. §6327.]" 12 §§10941-2 G. C, §1477. i3§11021G. C. A foreign guardian ineligible to See § 10933 G. C, as to the man- appointment in Ohio will not be per- ner guardians should loan money, mittfd to collect money due a ward § 1367, § 574, and § 11214 G. C. as to in this State. ' how trustee should loan money. 114:5 TRUSTEE DUTIES §1287 CHAPTER LXIX. TRUSTEE. DUTIES. ACCOUNTING, ETC. § 1287 Duties of trustee. § 1297 Appeal from determination § 1288 Principal and income. of Probate Court. § 1289 Dividends § ^^^^ Force and effect of determin- § 1290 Gain and loss. g 1299 Allowance of compensation. § 1291 Alteration and repairs. § 1300 Wlien Court may accept res- 6 1292 Expenses. Taxes. Insur- ignation of trustee or re- ance * ™°^'^ '''™- „ ,^ „ 1, , , , . § 1300a When trustee under a will § 1293 Trustees must render bien- jj^.^y jjg removed. nial account. § 1300b Trustee to be removed when § 1294 Citations and notices. guardian appointed. § 1295 Probate Coun. to determine § J^Ol Removal of trustee, etc. . § 1302 Causes for removal. as to execution of trust. § 13Q3 distribution of fund. § 1296 Comments. § 1304 Termination of trust. § 1287. Duties of trustee. As executors, administrators, and guardians are trustees in the general sense of the tenu, various duties and liabilities of testamentarv trustees and trustees for non-residents are discussed in this work when treating of administrators, execu- tors, and guardians. A testamentary trustee must be controlled largely by the instrument creating the trust, and in this re- spect is very much similar to an executor,^ except that it is the duty of an executor, strictly speaking, not to hold and manage the estate, but to convert it into money and make dis- tribution, where an executor or a trustee is to hold and manage the estate, the general rules and liabilities applicable to guard- ians would be applicable to them, and such matters will be discussed when treating of the subject of guardians.^ 1 See § 516, as to discussion of executor and administrator. § 1378, care and management of assets by as to guardian. 2 See § 1378. § 1287 TRUSTEE DUTIES ACCOUNTING 1146 It might not be amiss here to state a few general principles applicable to trustees in the performance of their duties. The trustee is liable for his errors in judgment (unless expressly exempted) in the performance of his duties, but not in the exercise of his discretionary powers.^ He is held to perform his duties with reasonable discretion, that is to say, with the same intelligence that a reasonable man would use in the transaction of his own affairs; the fact that he is incompetent is no excuse. He must be at the pains to learn his duties.* For instance, it being the duty of the trustee to invest the trust funds, if he invests too large a proportion in certain securities or if he uses poor judgment in investing, he will be liable for the loss, irrespective of his honesty. But he is not supposed to be infallible, and where he has acted with that amount of discretion which sax ordinarily prudent man uses in his own affairs,^ and honestly, he will be protected ; and even where he has acted in good faith only the Court will treat him leniently, and give him the benefit of the doubt,^ especially if he is acting under advice of counsel,^ since this fact shows that he used due diligence, though it is not in itself an excuse.^ And some other matters are equally well settled, that he can not do. He cannot deal "with the estate for his own profit, or for any purpose unconnected with the trust. All his skill and labor must be directed to the advancements of the interests of his beneficiaries.** He may take no benefit directly or in- directly from the estate or his office, except the regular compen- sation allowed b}^ law, and if he take a present or be paid a 3 Miller va Proctor, 20 0. S. 442. > Perrine vs. Vreeland, 33 N. J. 4 Hun vs. Gary, 82 N. Y. 65. In Eq. 102. Pierce vs. Prescott, 128 Mass. 140, a s Gilbert vs. Sutliff, 3 0. S. 129; guardian was held liable for not Stott vs. Milne, 25 Ch. D. 710; Boul- knowing the law of distribution. ton vs. Beard, 3 De G., M. & G. 608 ; C. J. Graj' cites many other cases in in re Westerfield, 32 App. Div. (N. the opinion. Y.) 324. Loring Trustee's Hand- s/n re Cousin's Estate, 111 Cal. book, 126. *^1- 9 Arnold vs. Brown, 24 Pick, 89, Wells vs. Brancher, 79 0. S. 289. m. 8 Crabb vs. Young, 92 N. Y. 56. 1147 PRINCIPAL AND INCOME §1288 bonus or commission of any kind in a trust transaction by a stranger, he must account to the trust for it.^" He cannot set off his own debts in equity against one who sues him as trustee. He cannot use the real estate or chattels, or pledge any of the property, as security for his debts. Nor can he purchase them directly or indirectly at public or private sale,^^ except by arrangement with all the beneficiaries, or under leave of Court,^^ or at a judicial sale which he does not control in any manner.^^ It is immaterial tliat the price paid is a fair one. The transaction is a breach of trust, and may be set aside by the beneficiary,^^* but no stranger to the estate can question the transaction.^* § 1288. Principal and income. The duties of an ordinary trustee are different from either an administrator or guardian in this, that the trustee holds the property, the income of which usually is to go to one person, and the principal to another ; it therefore becomes very impor- tant for the trustee not to intrench upon either fund for the benefit of the other. If he wrongfully pays principal to the life tenant, and the life tenant would l)ecome insolvent, the trustee would be sure to suffer a loss, for he must account to the remaindermen for the entire principal notwithstanding he 10 " This principle has been pushed to a vigorous extent in our own Courts." Chief Justice Lane, in Dunlap vs. Mitchell, 10 O. 117, 120 Welsh vs. Perkins, 8 0. 52; Arm strong vs. Nuston, 8 O. 552, 554 Glass vs. Greathouse, 20 0. 503 Sheldon vs. Newton, 3 0. S. 494 Barrington vs. Alexander, 6 O. S 189; Kiddle vs. Koll, 24 O. S. 572 Piatt vs. Longworth, 27 0. S. 159 Rammelsberg vs. Mitchell, 29 0. S 22; Beard vs. Westerman, 32 0. S 29 See also Perry on Trusts, §§ 602v, 602w, 194-210, 787; 3 Redf. on Wills, 534; 2 Kent's Com. 433, n (c) ; Tyler on Inf. and Cov. § 175. 11 Hoyt vs. Latham, 143 U. S. 553; Morse vs. Hill, 136 Mass. 60; Amer. & Eng. Ency. Law, vol 27, p. 197. See § 492, Purchase by adminis- trator. 12 Morse vs. Hill, 136 Mass. 60, 67. 13 Allen vs. Gillette. 127 U. S. 589. 13* Denholm vs. McKay, 148 Mass. 434 ; Davoue vs. Fanning, 2 Johns Ch. (N. Y.) 252; Quirk vs. Liebert, 12 App. D. C. 394. 1* Harrington vs. Brown, 5 Pick. 519. See § 515, Administrator's care of estate; 3 1361, Guardian's rela- tion to his trust; § 1603, Diligence required of assignee. § 1.288 TRUSTEE DUTIES ACCOUNTING, ETC. 1148 may have innocently paid some of it to the wrong person. In general, at the time the estate comes into the trustee's hands, it is all principal in whatever condition it may happen to be, and all the yearly increase thereafter is income. This would ahv:iys be true where the property comes into the trustee's hands without delay and invested in proper securities, but if there is a deferred receipt of the principal, the rule might be different. Thus where for any reason the property does not come into the hands of the trustee for some time after the beginning of the trust, and in the meanwhile the life tenant has no benefit from it, the fund when realized must be so appor- tioned that the life tenant will get the usual rate of interest from the beginning of the trust, and the remainder will be the principal fund.^^ Thi* may be the case where the amount of a legacy or other fund is not immediately received or not received in full,^" or where the property being an unsuitable investment is sold for conversion at an interval after the trust went into effect. The rule is the same whether the property is to be converted because it is unproductive or because the earnings are greatly in excess of interest, as in the case of a business or partner- ship, or on a wasting investment such as a land stock where the dividends will ultimately exhaust the security. In either case the rule is the same, namely, that sum is to be found which at the current rate of interest for the period from the begin- ning of the trust to the time of conversion will yield the amount realized. The sum so ascertained is the principal, and the interest is the income payable to the immediate beneficiary.^^ 15 Kinmonth vs. Brighani, 5 Allen tate was $30,000, and the whole 270; Hagan vs. Piatt, 48 N. J. Eq. amount recovered after one year and 206; Westcott vs. Nickerson, 120 two months was $26,000. The ten- Mass. 410. See § 943, Dower. ant for life got $1,742.50, which is If Cox vs. Cox, L. R., 8 Eq. 343. the interest at six per cent, on $24,- 17 Ix)ring's Trustee's Handbook, 257.50, the new capital for one year 105. and two months. Parsons vs. Wins- For instance, in a case where a low, 16 Mass. 361; Maclaren vs. trustee who had wasted the estate Stainton, L. R., 11 Eq. 382; Meldon was removed and only part of the vs. Devlin, 31 App. Div. 146 (N. estate was recovered by his succes- Y.) ; Greene vs. Greene, 19 R. I. 619, sor, the amount of the original es- 1149 DIVIDENDS § 1289 Where the amount recovered is damages for an injury it ^ need not be apportioned, as the fund invested will yield an income.'^* § 1289. Dividends. The fluctuating character and the various methods pursued in declaring dividends makes it often a difficult, question to determine whether they belong to the principal or are income. All ordinary dividends declared during the life tenancy as a general rule may be considered as income and not as principal, and this is irrespective of the time when the funds were earned out of which the dividends are declared.^® No part of the company's property belongs to a stockholder until it is separated and declared as a dividend ; hence a divi- dend is an independent debt payable to the stockholders of a certain day, and remains principal until separated from the other funds and declared payable to the stockholders,^" and therefore is never apportionable, and is always payable, no matter when paid, to the person entitled to the same at the time ^^ specified in the vote. As to extra dividends, the law is not uniform in all jurisdictions as to whom they belong.^^ The early English rule was that the extra dividends or additions to the usual annual dividend, whether paid in cash or in capital stock went to the principal.^' But it seems to be now generally held that cash dividends, extra dividends, or bonuses declared from the earnings of corporations are income and not principal.^* But the enhanced 18 Heard vs. Eldredee,, 109 Mass. Co., 14 Gray 274; Kite's Devises -_„ ^ vs. Kite's Exrs., 93 Ky. 257. See ^^^- ^ ^ ,, Lang vs. Lang Ex., 57 N. J. Eq. 18* See Fritter vs. Withoff, 47 Bull. 325^ where dividends are appor- 787, where annuity was held to bear tioned like interest. ^^g logg 22Underhill on Trust, 226; Perry „ „ T-i f T on Trust, § 545'. 19 5 Am. & Eng. Ency. of Law, ^3 ^ ^^ ^ ^^^ ^^^^ ^^ Law, 736. 736. 24 See authorities cited in 5 Am. 20 Granger vs. Bassett, 98 Mass. & Eng. Ency. of Law, 737. The 462- Bates vs. McKinley, 31 Beav. article thereon being a contribution by the author. 280. See Barbour vs. Gallagher, 23 O. 21 Clive vs. Olive, Kay, 600. Con- q c. (N.S.) 490; 2 O. App. 205. tra, Johnson vs. Bridgewater Mfg. Distribution of accumulations. I §'1290 TRUSTEE DUTIES ACCOUNTING 1150 pric^- for which stock sells by reason of dividends earned but not declared belong to the principal." § 1290. Gain and loss. It is likewise important for a trustee to know where there are gains and losses whether the same should be paid by the life tenant or the remainderman. The general rule is that, any gain other than the usual yearly income, and any loss other than the usual yearly charges, fall to the principal of the ixmdr" Gain or loss in continuing a business temporarily until it is converted is to be apportioned,^' but where the business is conducted under direction of the trust instrument, ordinarily all tlie income will go to the life beneficiary. When a trust estate consists of country real estate, timber cut for thinning will be income, other timber, principal, and it has been held that gravel sold will be income, but probably not to such an extent as to be waste. If the property in trust consists of chattels, which are intended to be used and not converted into cash and invested, the life tenant may wear them out in ordi- nary use, and need not replace them."® If the property consists of farming stock, it should be converted, unless intended to be used by the life tenant. The life tenant cannot sell it and replace it by other kinds of ?tock, but he may use it up, and need not replace it, when it dies. The natural increase of the stock will belong to the life tenant.^® Where, however, the stock is left with a farm, and there is an intention expressed or implied that the farm shall be kept up, so much of the increase as is necessary to keep up the herd will belong to the principal, and only the excess to income.^" 25 See § 374, Annuities and divi- 29 Saunders a-s. Haughton, 8 Ired. dends; § 1378, Management of estate Eq. 217; Lewis vs. Davis, 3 Mo. 133; by guardian. Major vs. Herndon. 78 Ky. 123; 26 Loring Trustee's Handbook, 106. Hunt vs. Watkins, 1 Humph. See 47 Bull. 787. (Tenn.) 498. 27 Underbill on Trust, 250. 3o Calhoun vs. Furgeson, 3 Rich. 28Wootten vs. Burch, 2 Md. Cb. Eq. 160; Robertson vs. Collier, 1 190; Woods vs. Sullivan, 1 Swan's Hill Eq. 370 (S. C). But see Plow- ^^^- ers vs. Franklin. 5 Watts (Pa.) 265. 1151 ALTERATIONS AND KEPAIRS § 1291 § 1291. Alterations and repairs. Alterations and additions to real estate whereby usefulness or rental value is increased are chargeable to principal,^^ but the repairs or expenditures which are necessary to maintain the property in proper condition are chargeable to income.^'^ It is often a difficult question of fact tO' decide whether a specified expenditure is an addition tO' the property or a current repair ; but the rule may be stated that, where repairs improve the property to tlie extent of their cost, they are' chargeable to principal, and are a judicious investment of the trust funds.^^ For instance, the addition of an elevator to a building which previously had none will be charged to principal, while putting in a new elevator in the place of an old one will be a repair chargeable to income, but generally such an addition could only be made by permission of Court^^* So also an expendi- ture may be in the nature of both an addition and a repair, and is then chargeable to principal only to the extent to which it benefits the property ; and in some States ^^ there are statutes allowing an apportionment in such cases. And in any case of doubt, it is well to get the instructions of the Court before undertaking an expensive job, which, if charged wholly to the income, might be very burdensome.^'' All expenditures on newly acquired property which are nec- essary to put it in condition to let or to hold, whether they are in the nature of repairs oj* additions are chargeable to prin- cipal.. For instance, fencing in land or repairing a house to obtain a tenant. These expenses, although chargeable to in- come at other times, on the acquisition of a new estate will be considered as so much additional purchase money, and charge- able to principal.^^ All ordinaiy current expenses are charged to income. Shaw, C. J., says income means net income after Life tenant was to keep up farm; 33 Sophier vs. Eldredge, 103 Mass. increase held to go to remainder- 345. man. 3< Little vs. Little, 161 Mass. 188. 31 Sophier vs. Eldredge, 103 Mass. 35 Penn. 345 ; Caldecott vs. Brown, 2 Hare 36 Caldecott vs. Brown, 2 Hare 144. 144. 82 Underbill on Trust, 250. 37 Parsons vs. Winslow, 16 Mass. § 1292 TRUSTEE DUTIES ACCOUNTING 1152 deducting taxes, repairs, and ordinary current expenses,^® and in some jurisdictions the premiums paid for securities.^" § 1292. Expenses. Taxes. Insurance. As a general rule all expenses for managing the trust prop- erty are charged to income. Extra charges which are beneficial to the principal fund should be charged to the principal or it may be apportioned equitably.*" Legal expenses of settling the interpretation of the trust in- strument are to be borne by the principal. But the reappoint- ment of trustee should be charged 1x) the income. All annual taxes are charged to the income.*^ An exception to this rule is made in some cases where the property is vacant land.*' In case of special assessments, our statute provides that they may be apportioned between the life tenant and remain- derman.*^ Carefully drawn trust instruments usually provide that property should be insured and chargeable to income. Where no expressed provision is made in the instrument the gen- eral practice is to charge them to the income.** In case of a partial loss, the funds recovered would be used in repairing.*^ In case of a total loss, the fund should be invested,*^ and could be used in rebuilding if such an invest- 361; N. Eng. Trust Co. vs. Eaton, tliere is singularly little authority 140 Mass. 532. on this question, probably because in 38 Watts vs. Howard, 7 Met. 478. early times in England insurance 39 Loring Trustee's Handbook, 114, was not considered a necessarj' pre- 115. caution of an ordinary cautious man, 40 Gordon vs. West, 8 N. H. 444. and because failure to insure by a But see Spangler's Estate, 21 Pa. St. life tenant is not permissive waste. 335, where such charges were held Loring Trustee's Handbook, 116. to be the ordinary charges of pro- It would certainly seem to be the tecting the property, and so charged law now that such insurance should to income. Underbill on Trusts, p. be charged to the income as it is re- 246, n. garded as within the scope of action 41 See §§ 511, 517, as to taxes and of a reasonably prudent man. insurance. 45 Brough vs. Higgins, 2 Gratt. 42 Heard vs. Eldredge, 109 Mass. 408. 258; Howland vs. Green, 108 Mass. 46 Lerow vs. Wilmarth, 9 Allen, 283. 382. 43 § 3895 G. C. Where the owner of real estate 44 Loring in his valuable little died testate on the day on which handbook on Trustees, says that the taxes became a lien for the 1153 EXPENSES, ETC. §1293 ment is authorized, and will retain its character as real estate, although it may be otherwise where the insurance existed at the time of the will, as in such case the policy was a personal asset at the outset.*^ If the life tenant insures the property, the remainderman has no claim on the fund recovered, the contract of insurance bein^ merely to indemnify the individual for his loss. The fund recovered does not represent or stand in the place of the building destroyed.*^ But where a trustee insures the build- ing, he will insure all his interest which is subject to the claim of both life tenant and remaindennan, and in such case the fund recovered would stand in the place of the property destroyed as the property of the remainderman of which the life tenant has the use.*® §1293. Trustees must render biennial account. *'A trustee of a non-resident idiot, imbecile, or lunatic so appointed, and a trustee created by last will or deed, at least once in each two years, must render an account of the execution of his trust, to the probate court of the county in which he was appointed, or in which such last will or deed is recorded, in the manner provided by law for the settlement of the accounts of executors and administrators. This section shall not apply in any case in which the "wall or deed creating such trust desig- nates a tribunal for the settlement of the trust, or in which any other tribunal has acquired jurisdiction." [R. S. § 6328.]^° ensuing year, but they were not yet ^9 Graham vs. Roberts^ 8 Ired. Eq. ascertained, a trustee under the will 90; Haxall's Exrs. vs. Shippen, 10 having become the owner must pay Leigh, 536 ; In re Housman, 4 Dem. such taxes, and not the executor. 404; Loring Trustee's Handbook, In re Est. of O'Brien, 2 N. P. (N.S.) IIG, 117. See Fleming vs. Jordan, 421; 14 Dec. 319. 28 Bull. 332, §950. 47HaxaIl's Exrs. vs. Shippen, 10 so § ii029 G. C. Leigh, 536. In that case the life The account required to be ren- tenant gave bond to invest money dered by a trustee, will be very and pay over on death of life ten- much similar to that required of a ant, hence had no right to convert. guardian, and will be discussed un- 48 Harrison vs. Pepper, 166 Mass. der that head. § 1378. 288. As for the discussion of adminis- This -would be true where only trator's accounting, see § 702 ct scq. the life tenant's interest is insured. The account must contain a full § 1294 trustee's accounting 1154 J5 1294. Citation and notices. "The probate court shall issue and have served in the manner provided by law, in the case of settlements by executors and administrators, the neces- sary citations and notices by publication or otherwise, requiring all persons interested, to attend such settlement and make ob- jections thereto, if any they have." [R. S. § 6329.]^^ § 1295. Probate Court to determine as to execution of trust. "Such court may hear and determine all matters relative to the manner in which the trustee has executed his trust, and as to the correctness of his accounts, and also require any trustee so created within such county, on the determination of his trust, or removal, resignation, or on his death, his executor or ad- ministrator, to render a final account of the manner in which he executed his trust; and such court may hear and determine all matters relating thereto, in the manner that the accounts of executors and administrators are required by law to be set- tled." [R. S. §6330.]=^- § 1296. Comments. It is obviously the intention of the above section to confer upon the Probate Court like jurisdiction to examine and pass upon the accounts of a trustee as it has to pass upon the ac- counts of executors, administrators and guardians. It is not the purpose of the above section to give the Probate Court jurisdiction to construe a trust, other than to pass upon the account, and perhaps in that manner, construe the trust in giving a judgment whether or not the trustee has properly dis- charged his duties. If it is desirable to construe the trust, such an action must be had in the Court of Common Pleas.^^ As the section particularly gives the same jurisdiction as the Court has in passing upon the accounts of executors and ad- itemized statement of all funds, the 52 § 11031 G. C. nature of their investment, security 53 c;ee §§ 108.57-8 G. C § 33. and rate of interest, §§ 10820-1 G. Hollister vs. Howe, 6 Dec. 157: 4 C, § 703; § 10933 G. C, §1367. K P. 168; Win? vs. Hibbert. 8 Dec. '.See 19 Cyc. 864. 6.5: 7 X. P. 124: ^MacClement vs. 51 § 11030 G. C. MacClement. 1 Davton 31. See See § 702, as to the law applicable Pike vs. White, 22 C. C. (X.S.) 61 to executors and administrators. as to supervising power of Probate The court has no jurisdiction unless Court, notice be given. Ballard vs. ]\Iack, 3 L. R. 249; 17 C. D. 839. 1155 APPEAL, ETC. 1297 ministrators, reference will be made to accounts of adminis- trators.'^* Section 11031, G. C, has been held to apply to guard- ians.^^ §1297. Appeal from determination of Probate Court. "The determination of the probate court on such settlement, whether final or intermediate, may be appealed from in the manner provided for an appeal from such court on the settlement of the accounts of executors and administrators, and like pro- ceedings shall be had on such appeal, and the result of such proceedings certified back to such court." [R. S. § 6331.]^^ § 1298. Force and effect of determination. ' ' The deter- mination of the probate court en such settlement, shall have the same force and effect as a like determination respecting the account of an administrator or executor. When an account is settled in the absence of a person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to it witliin eight months thereafter. Upon any settlement of an account by a trustee, all his former ac- counts may be so far opened as to dbrrect a mistake or error therein, except that a matter of dispute between two parties, which had been previously determined by the court, shall not be again brought in question by either of the same parties without leave of the court." [R. S. § 6332.]" §1299. Allowance of compensation. "The probate court may make such allowance as compensation to trustees for their services and expenses in executing their trusts, as it deems just and equitable, not exceeding that allowed to guardians for like services; and the judge of such court shall have the same fees as in the settlements of administrators and executors." [R. S. 8 6333.P« 54 § 702 ct seq. See § 10957 G. C, § 1499, as to how executor and guardians are required to settle a trust. See § 10822 G. C, § 707, as when executors have died. 55 Melting vs. Strickland, 18 C. C. 140; 8 C. D. 841, for service on non- resident. See § 10850 G. C, § 770. 56 § 11032 G. C. See § 11206 G. C, §747. 57 § 11033 G. C. This section is almost a verbatim copy of §§ 10S34-5-6 G. C, and ref- erence will be made to the discussion of that section, § 743. 58 § 11034 G. C, §654. § 1300 TRUSTEE — RESIGNATION 1156 § 1300. When Court may accept resignation of trustee or remove him. "The probate court may accept the resignation of any trustee accounting therein, or who has been appointed by it, and shall remove such trustee, he having ten days' notice thereof, for habitual drunkenness, neglect of his duties, incom- petency, fraudulent conduct, or because the interest of the trust requires it, cr upon the written application of more than one-half of the heirs, or next of kin, or legatees having an interest in the estate controlled by such trustee. The trustee himself is not to be considered an heir, next of kin, or legatee under such proceedings." [R. S. § 6334.]^® § 1300a. When trustee under a will may be removed. *'No trustee appointed under a will, shall be removed on the written application of more than one-half the heirs, next of kin, or legatees, as provided in the next preceding section, unless for good cause." [R. S. § 6334.]^^* § 1300b. Trustee to be removed when guardian appointed. "When a minor for whom the trustee was appointed, has, since the appointment, become a resident of the state, and a resident guardian has been appointed for him or her, such court shall remove such trustee and require an immediate settlement of his account. Upon the resignation, removal or death of such trustee accounting under this and the next two preceding sec- tions, the probate court shall cause such estate to be settled up and administered upon according to law." [R. S. § 6334.]^^t § 1301. Removal of trustee, etc. The above section confers jurisdiction upon the Probate Court over every trustee accounting in such Court. It gives to such Probate Court the power of accepting the resignation of any such trustee and removing any trustee whenever the Court is of the opinion that the interests of the estate demand such removal. In the absence of special statute, giving the power to appoint, it would likewise have the power to appoint a successor.®*^ See §§ 10837-8 G. C, as to the dis- 59t § 11037 G. C. cussion of compensation of adminis- See § 1558, Removal of assignee. . . c fi inn-Q n n ci^nn 60 But Special power is given to trators. See § lOOoS G. C, § 1490, ^„ vacancies occurring in a testa- as to compensation allowed guard- mentary trusteeship. § 10596 G. C., ians. § 1266. ^ 59 § 11035 G. c. 'See Siowers vs. Cysenius, 39 O. S. 58» § 11036 G. 0. 29. 1157 REMOVAL § 1301 The above section seems to make two kinds of proceedings for the removal of trustees. First the Court may remove the trustee on its own, motion, or it may remove the trustee on a written application of more than one-half of the heirs or next of kin exclusive of the trustee himself. If the trustee is act- ing for a non-resident minor, and such minor becomes a resi- dent of this State, then the trustee must settle at once and account to the resident guardian. If the Court removes the trustee on its own motion for either of the reasons mentioned in the above section, the decision of such Court is final and cannot be reviewed on appeal or error.®^ If the Court acts by virtue of a written application of more than one-half of the heirs where the trustee is appointed under a will, then it seems the Court does not have absolute dis- cretion, but must only remove for good cause, and it is probable that the proceedings might be reviewed on error.''^ The forms and entries provided in the chapter on removal of executors and administrators could easily be adopted for proceedings un- der the above. ''^ The question has sometimes been made whether the Court has any power to compel the trustee to account after an order has been made to remove such trustee. It seems, in order to properly protect the trust, that the Court ought to have such power and such is the holding of the Courts.®* Where one of the trustees named in the will died, and another removed to a place unknown, the Court has power to fill such vacancy, although there was a surviving trustee capable of executing 61 Stafford vs. Am. xvlissionary pointed in Illinois, to account and Assn., 22 C. C. 399. liad power to issue a citation and Tliis is now changed by statute, have it served by publication. §12241 G. C, §52; §11206 G. C, In Gilbert vs. Gilbert, 13 C. C. §39, 29; 7 C. D. 58, it was held that no 62 Stafford vs. Am. Missionary accounting could be required, be- Assn., 22 C. C. 399. cause of great lapse of time. 63 § 208 et seq. Schwab vs. Rappold, 12 Bull. 197, 64 In Netting vs. Strickland, 18 holds that jurisdiction is maintained C. C. 130; 9 C. D. 841, where a and notice may be given in such guardian removed from the State, manner as the Probate Court may which ipso facto removed him, it direct under § 11205 G. C. See was held, that tlie Court could com- James vs. West, 47 Bull. 750. pel the guardian's administrator ap- § 1302 TRUSTEE REMOVAL 1158 tho trust. "'^ A resignation may be made even if the trustee is in default.'^" ^ 1302. Causes for removal. The statute specifically provides that trustees may be re- moved for habitual drunls:eniLess,*'^ neglect of duties/* incom- petency/'* fraudulent conduct/" or because the interest of the trust requires it. This law is very broad and under its provision it has been held that a trustee will be removed who denies the trust or is unfriendly to it/^ who unreasonably .or cor- ruptly disagrees with his co-trustee, or who, having a discre- tionary power over payments to his beneficiaries, has an un- reasonable prejudice or dislike to him which is likely to defeat the purposes of the settlement,^^ or favors on© beneficiary to the prejudice of the others,^^ or whose relations with his co-trustee or the beneficiaries are such as to interfere with the proper management of the estate.'* The Court will remove sometimes, though not necessarily, a trustee who becomes a banknipt,^^ or goes to reside permanently without its jurisdiction;'^® but it will not remove a trustee simply because he is poor,'^^ or to satisfy the caprice of a beneficiary/* or because he is prejudiced against or dislikes a beneficiary where he has no discretionary power over the pay- ments to him.^^ ISTor will a trustee be removed for the non- 65 Sowers a's. Cyrenius, 39 0. S. 75 Paddock vs. Palmer, 6 How. Pr. 29. 215. 66 Withers vs. Ewing, 40 O. S. 400. '6 This is by statute made a cause ®^ § 221. of removal of an administrator, ««§ 222. §10629 G. C, §213. 69 § 224. Gulp's Est., 5 Pa. C. C. R. 582; 70 § 225. Brightly's Dig. Pa., p. 2037, § 70; 71 Irvine vs. Dunham, 111 U. S. Hughes vs. Chicago, etc., R. R. Co., 327; Quackenboss vs. Southwick, 41 47 N. Y. Sup. Ct. 531. N. Y. 117. 77 Jones vs. McPhillips, 77 Ala. 72McPherson vs. Cox, 96 U. S. 314. 404; Wilson vs. Wilson, 145 Mass. 78 McPherson vs. Cox, 96 U. S. 490. 404. 73 Scott vs. Rand, 118 Mass. 215. 79 Fran tz vs. Frantz, 4 St. P. 278; 74 7n re Nathans' Estate, 191 Pa. 6 Dec. 555; Nickels vs. Phillips, 18 St. 404. Fla. 732; Forster vs. Davies, 4 DeG., F. & J. 133. 1159 DISTRIBUTION OF FUND § 1303 exercise of, or the manner in which he exercised, a discretion- ary power, provided he is honest and reasonable in the use or non-use of his discretion. Nor will a trustee be removed for a technical breach of trust, or one made unintentionally or through mistake.^" § 1303. Distribution of fund. It is a well settled principle of law that the trustee must distribute the fund properly at his peril, and if he distributes the wrong amount or pays it to tlie wrong person, he must bear the loss. The fact that he has been diligent or has taken advice, will not protect him, and his only protection is to obtain a decree of distribution from a proper Court.®^ As the sections of the General Code providing for the ac- counting of trustees provide that the court shall have the same power as in the case of executors or administrators, it is probably the law that the court could make no specific order of distribu- tion, but should provide that the fund should be distributed according to law. The trustee might then refuse to pay over the fund for thirty days and then the person claiming .such fund could bring his action as provided in sec. 10448 of the General Code.^^ The fact that he pays on a forged order, or an invalid assignment,^^ or on a power of attorney which he supposes to be good, but which has in fact been revoked, will not protect him. He must not pay a minor's share to himself or his parent or guardian without an order of Court. The fact, that the trustee files his account in Court, which account shows that a payment has been made to a wrong person, the passing upon such account by the Probate Court will not relieve the trustee.^* The trustee might likewise after his account has been passed upon, bring an action in the Court of Common Pleas, making 80 Perry on Trusts, §§ 27.5 to 287, «2 § 751. and Underbill on Trust, 393 n., for «•'* Palmer vs. Whitney, 166 Mass. other instances. Loring Trustee's 306. Handbook, 20, 21; § 13o0. 84 Banning vs. Gotshall, 62 O. S, 81 Banning vs. Gotshall, 62 O. S. 210; Swearingen vs. Morris, 14 0. S. 211. 424. § 1304 TRUSTEE DUTIES ACCOUNTING 1160 all tlie parties having an interest in the fund parties defendant, and require the Court to determine to whom the fund should be paid." § 1304. Termination of trust. The trust may he teraiinated in several ways. It may be terminated by virtue of the expiration of a time limited, as provided in the tnist instrument or it may be terminated by virtue of an agreement of all the parties in interest.^® And where a state of things have arisen which the testator had not anticipated, and there is no object in continuing the trust, our Supreme Court has held that the beneficiary could maintain a bill in equity to terminate such tiTist.^^ Where a will requires the executors to hold the property in trust for all the children, including themselves, and to divide it whenever a majority should consent, and after all debts have been paid, the children by contract, though without deeds, set off to one of the trustees his share in severalty, and the residue to the other children jointly, each agreeing to execute any nec- essary papers, this contract must be deemed as distributing the property and terminating the trust.** 85 An. attorney acting as a trustee Gloyd vs. Roff, 2 C. C. 253; 1 C. D. will not be excused when be erro- 472. neously settles up an estate in ignor- But a trust created by will, the ance of well settled rules of law. provisions of which are not repug- Nyce vs. Hornitz, 20 Bull. 27G. nant to law or contrary to public 86 Soteldo vs. Clement, 29 Bull. policy, will not be decreed termi- 384. nated where the objects of the trust 87 Taylor vs. Huber, 13 0. S. 288. have not been accomplished, and Where a testator, by his will, di- their accomplishment has not been rected his executors to invest a spe- made impossible. Robbin vs. Smith, cific fund, the interest to be paid 72 O. S. 1. annually to the widow during her And parties in interest cannot by life and widowhood, at the death of agreement terminate a trust, unless the widow the principal thereof to the trust has been fully accom- be paid to her two sons; and the plished. Jones vs. Creamer, 32 O. C. sons on both arriving at the age C. 1910— Fayette Co. of maturity, executed under their See Lohrer vs. Citizens, 14 Dec. hands and seals to the widow, an 289, as to when a Court of Equity assignment of all their interest and will terminate a trust. right in such fund. It was held ss Culver vs. Culver, 58 0. S. 172. that the trust should be terminated 1161 TERMINATION OF TRUST §1304 Of course if the beneficiary becomes the owner of the entire interest, the trust would be terminated.^^ A question might arise whether the Probate Court would have jurisdiction to ter- minate a trust. I apprehend that no action could be brought in the Probate Court to have a trust declared terminated. But if a trustee should file an account of his trust and make a dis- tribution of the fund which account would be approved by all the parties in interest, providing such parties in interest were of full age and not under any disability, that the approval of such account by the Probate Court would terminate the trust, and all parties in interest having approved such action of the trustee they would be estopped and not permitted to question the same, but such action could only be done where all parties consent. I doubt whether the Probate Court could compel the trustee to terminate the trust and pay over to the beneficiaries, the amount to which they might be entitled, although petitioned so to do by all the beneficiaries. Where the trustee refuses, it would seem that an action to terminate the trust must be filed in the Court, of Common Pleas.^" 89 Taylor vs. Huber, 13 0. S. 288. 90 A trustee under a will has no right to terminate the trust, with the consent of the cestui que trunt, if the rights of third parties under the will are impaired. Kreisted vs. Smith, 8 N. P. 378; nor, it might be added, if it is not in accord with the wishes of the testator ex- pressed in the will creating the trust, but it will not be continued merely for the benefit of the trustee. Lohrer vs. Citizens Trust Co., 14 Dec. 289. This case discusses the matter fully. See Robbins vs. Smith, 5 C. C. (N.S.) 545; 27 0. C. C. 91. §1305 GUAKDIANS KINDS 1162 CHAPTER LXX. GUARDIANS, KINDS, ETC. § 1305 Definition. § 1311 Guardian of the person and § 1306 Natural guardians. the estate. § 1307 Testamentary guardian. § 1312 Guardian of the person. § 1308 How testamentary guardian § 1313 Duties of guardian of the per- to be designated. son, etc. § 1309 Testamentary guardian to § 1314 Bond of guardian of person. have preference. His duties, § 1315 Guardian of the estate. powers and liabilities. § 1316 Duties of guardian of estate § 1310 When testamentary guardian only. shall give bond. § 1317. Other kinds of guardians. § 1318 Ancillary guardians. § 1305. Definition. The textbooks say tliat tKe law relating to the rights and duties of guardian and ward are very much similar to those of parent and child. ^ The term guardian is defined by a learned author as follows: " Guardian, in the popular sense, one who guards, preserves, or secures, is the generic term applied, in legal usage, to a person whose right and duty it is to protect the rights, whether of the person or property, of some othex per- son, his ward, who, as in the case of minors, is conclusively presumed, or as in the case of idiots, lunatics, spendthrifts, etc., is adjudged to be, incompetent to manage his affairs. In re- s'pect to minors, the guardian of the person stands in loco far- entis, thus giving rise to the designatioii, sometimes applied to them, of ' temporary' parents.' " " While there were nmnerous kinds of guardians spoken of and recognized by. the common law, yet with lis the term is generally used as applicable only to that kind of guardianship that is provided for by statute. The kinds of guardians for 1 1 Bl. Comm. 459; 2 Rents 220. 2 Woerner on Guardians, 39. 1163 NATURAL GUARDLiNS § 1306 which provision is made in our statute are three. First, guard- ians of minors; second, guardians of lunatics, idiots and im- beciles; third, guardians of habitual drunkards.^'' These again are divided into guardians of the person and the estate. These various kinds of guardians are provided for by separate pro- visions of the General Code and will be considered in their order.^ § 1306. Natural guardians. The natural gi;ardian of a child* is the father if he be alive and the mother if the father is dead. In the case of illegiti- mate children, tlie mother is the natural guardian.* While at common law it was the duty of the natural guardian to take charge' of the child's property and account for profits,^ yet such is not recognized to be the law of this State. The only manner in which our law recognizes natural guardianship of father or mother is that nO' person can be appointed a guardian of the person of a child unless the Court first finds that the father or mother is an unsuitable person to have the control and custody of the person of such child. In no case is tho father or mother entitled to the custody of the 'pro-perty of his or her child,® unless he or she is appointed by the Probate Court as guardian of the estate of such child, and then he or she must give a bond in tlie same manner as any other person would be required to do if he were appointed guardian,^ Usu- ally if there is no estate, the natural guardian, the father or mother, ^vill not be interfered with. 3 See § 1534. er marriage, after the death of her 3a The statute now adds in- husband. Bounell vs. Berryhill, 2 competency, etc. t„.i cio 4 buch children, though, at com- i tii n mon law were regarded as having no ^ ^ "^- *^o™d^- 4o1. natural guardian. Schouler Dom. ^ The personal earnings of a Rei; § 278. Tlie father of a bastard minor is not the property of such is entitled to the custody of sucli Elinor child, as against all but its mother, ^ , ^ ,,„ t , ,^o and for such reason is tlie proper ^ Brooke vs. Logan, 112 Ind. 183; person to be appointed statutory Perry vs. Carmichael, 95 111. 519; guardian for such child. Pote's Kendall vs. Miller, 9 Cal. 592; Fon- App 106 Pa St. 574 But a step- ^j^ ^^ yan Horn, 15 Wend. 631 ; mother is not the natural guardian .,, .,, „ ., ,^ . of her husband's children by a form- ^^'^^on vs. Alston, 34 Ala. 15. A parent as the natural guardian of § 1307 GUARDIANS — KINDS. 1164 § 1307. Testamentary guardian. Following somewhat in the line of the right of guardianship by nature is the statutory provision, that in certain instances a testator may provide who shall be guardian of his children. The section of the General Code providing therefor is as follows : "A sur\dving parent by last will in writing, may appoint a guardian or guardians, for any of his or her children, whether born at the time of making the will, or afterward, to continue during the minority of the child, or for a less time." [103 v. 905.] « This section as now amended limits the right to designate a guardian by will to surviving parents. It still leaves open the question whether or not a parent could not, although not a surviving parent, designate a person as guardian to hold certain property, devised to a child in the will. It is the opinion of the author that this section only limits the right to appoint a guardian of the person of the child, not of his estate received under the will. It places husband and wife in regard to their children on the same plane ; under the former statute, a father had the right to designate a guardian, even though the mother be living, and the mother had no such right unless the father be dead or gone to parts unknown. This amended section recognizes the absolute right of a sur- viving parent to the care and custody cf his child, unless by his own conduct he has forfeited the right. The right to appoint a testamentary guardian resides only in the child cannot bond such child by such child. Genet vs. Tallmadge, 1 any contract made for him, in the Johns. Ch. 3; Miles vs. Eoyden, 3 absence of statutory authority, Jones Pick. 213. Nor can such natural vs. Jones, 46 Iowa 466. A natural guardian make any compromise in guardian has no authority to lease behalf of the child, ivhich will be an infant's lands. Magruder vs. binding upon the child. Houston, Peter, 4 Gill & J. 323; Eoss vs. Cobb, etc., R. R. Co. vs. Bradley, 45 Tex. 9 Yerg. 463. Xor to receive the 171. rents and profits from such land. « § 10930 G. C. Jackson vs. Combs, 7 Cowen 36. Nor But an executor cannot be guard- can he receive legacies belonging to ian of the estate, etc., § 1331. 1165 TESTAMENTARY § 1308 the parent of the child.^ A grandfather has no right to ap- point for his grandchild/" A father cannot appoint for his illegitimate child/^ but he may for an adopted child/^ If the testator appoint his widow so long as she remains unmar- ried, an appointment by the Court is necessary on her re- marriage." If a mother has been divorced from her husband and awarded the custody of her child, she may, during the life-time of the father, appoint by will a guardian for her child. '^ This is denied in our State.^"* * § 1308. How testamentary guardian to be designated. It is not necessary that a testamentary guardian should be expressly so designated in the will." Thus, if a testa- tor direct his son to maintain his infant brother in the same manner as a father or guardian and the infant to render him due subjection as a child by labor and obedience, he is thereby designated as a testamentary guardian.^*' And if a testator direct his wife to have the care and custody of his chil- dren until they become of age or until she remarries, it will be a sufficient designation.^^ The designation is a personal 9 Brigham vs. Wheeler, 8 Met. guardian by any other court. In re 127; Camp vs. Pittman, 90 N. C. Crist, 89 0. S. 33. 615. If a father appoints a guardian 10 Fullerton vs. Jackson, 5 Johns by will for his children, other than Ch. 276; Ex parte Bell, 2 Tenn. Ch. the mother, she, if a competent per- 327; Hoyt vs. Hilton, 2 Edw. Ch. son, is entitled to the custody of 202. such cliildren, against the testa- 11 Slecman vs, Wilson, L. R., 13 mentarv guardian. Lord vs. Haugh, Eq. 3G. 37 Cal.*657. For while a father has 12 In re Upton, 16 La. Ann. 175. authority to appoint a guardian by 13 Corrigan vs. Kiernan, 1 Bradf. will, he can not by contract with (N. Y. ) 208; Holmes vs. Field, 12 some third person bargain away the 111. 424. mother's right in the child. Moore 14 Wilkinson vs. Deming, 80 111. vs. Christian, 56 Miss. 408. 342. Contra, McKinnev vs. Noble, ^i* In re Coons. 20 C. C. 479, 37 Tex. 731. In re Coons, 20 C. C. 15 Miller vs. Harris, 14 Sim.'540; 479. "Mcndes vs. Mendes, 1 Ves. Sr. 80; When husband and wife are di- Johnston vs. Beattie, 10 CI. & Fin. vorced and the Court of Common 42; Marton vs. Tally, 72 Ala. 23. Pleas in granting the divorce also i^Balch vs. Smith', 12 N. H. 437. awards tlie children to either parent 17 Corrigan vs. Kiernan, 1 Bradf. or some other person, such children (N. Y. ) 208; Macknet vs. Macknet, beeonie the wards of the court and 9 C. E. Or. 449. the jurisdiction of the courl is a A direction in a will that the ex- continuing one and can not be ccutor shall hold the estate in trust affected by the appointment of a until the youngest child shall be- come of age, and that he pay out I § mod GUARDIANS KINDS 1166 trust and cannot be assigned." Probably the same rule should be applied as to what would constitute a designation in a will of a person as testamentary guardian, as is applied to consti- tute an executor.^" § 1309. Testamentary guardian to have preference. His duties, powers and liabilities. "When a guardian has been appointed by will, by the father or mother of a child, he shall be entitled to preference in appointment over all others, without reference to his place of residence, or the choice of such minor. Tlis appointment, duties, powers, and liabilities in all other re- spects shall be governed by the law regulating guardians not appointed by will, except as otherwise specially provided." [R. S. § 6267.]-° By the above provision a testamentary guardian is entitled to preference over all others without reference to his place of residence or the choice of such minor. But otherwise he is under the same law as if not designated by any last will and testament. While the above section seems to warrant the ap- pointment of a guardian designated by a parent in his Avill over both' the person and estate of the minor, yet other sections seem to limit the rights of such guardian to the guardianship of an estate, where there is a competent surviving parent; "^ for it is provided that the guardian of the person and estate shall not have the custody of the person and the control of the educa- tion of such minor if there be a father or mother who is a suitable person."" of the estate annually a sum suffi- custody of the child to one of the cicnt to clothe, educate and sup- parents does not clothe the parent port the minor children until they with authority to appoint a testa- become of age, makes him a trustee mentary guardian for the child, as of the estate, and, in effect, a testa- between sucli testamentarj^ guardian mentary guardian of the minors, and the surviving parent tiie court and the court has no rightful power will consider the best interests of to require the executor to pay over the child in choosing a guardian, any money to the statutory guar- In re Geibig, 57 Bull. 77 j 11 N. P. dian of such minors for their sup- 509. port and education. Caps vs. Hick- In such cases the court granting man, 97 111. 429. the decree has continuing iurisdic- 18 In re Goods of Parnell, L. R., tion. In re Crist, 89 O. 8. 33. 2 P. D. 379 ; Eyre vs. Countess of 21 Stee note § 1307. Shaftbury, 2 P. Wms. ,121; Matter 22 § 10928 G. C, § 13G6. of Peynolds, 11 Hun. 41; Balch vs. One who has a right to appoint- iSmith, 12 X. II. 437. ment and waives the same bv con- 19 See nm, 81. senting to the appointment of an- 20 § 10931 G. C. otlier will not thereafter be heard But even a testamentai-y guardian to have himself appointed. Woerner will not be appointed without notice on Gdns. 99. to the surviving parent. 7n re A testamentary guardian is with- Geibig, 57 Bull. 77; 11 N. P. 529. out authority until appointed by A decree of divorce giving the tlie court. 3 O. App. 444. 1167 PERSON AND ESTATE § 1310 While this section would seem to direct the appointment of a person who might be a non-resident of the State, yet from the fact that the statute provides that a removal from the State shall terminate the guardianship, it would necessarily follow that a non-resident ought not to be appointed.'^ Whether or not when a person designated, is evidently unsuitable the Court must make the appointment, is not clear. In reference to executors it is held that the executor is entitled to the appoint- ment, but the Court may proceed to remove him for cause. ^* A testamentary guardian will serve until his ward becomes of age, unless removed by the Court. The ward can not ask his removal when he arrives at the age of fourteen.^' § 1310. When testamentary guardian shall give bond, etc. ''Each such testamentary guardian must give bond, in the man- ner and with the conditions required of a guardian appointed by the probate court; except that, when in the will appointing the guardian, the testator orders or requests such bond not to be given, it shall not be required, unless, from a change in the situation or circumstances of the guardian, or for other suffi- cient cause, the probate court thinks proper to require it." [E. S. §6268.1-« § 1311. Guardian of the person and the estate. Our law clearly recognizes that there may be separate per- sons who are guardians for the same person, one being guardian of the person of the ward and the other of the ward's estate, and that where no order is made providing for the separation of guardianship, it will be presumed that the person appointed is guardian of both the person and the estate of the ward. The statute providing therefor is as follows : "A guardian may be appointed to take charge only of the estate of a minor. At the time of, or after the appointment of such guardian to a minor having neither father nor mother, or whose father and mother are unsuitable persons to have the 23 § 1093G G. C, § 1358. The discretion about requiring a 24 See §81. bond is very much similar to that 25 Woerner on Guardians, 94. in reference to executors. See § 85. 28 § 10932 G. C. § 1256, Testamentary trustees. § 1312 GUARDIANS KINDS 1168 custody and tuition of such minor, or whose interests for any- other cause, in the opinion of the court, will be promoted thereby, it inny also appoint a guardian to have the custody and provide for the maintenance and education of such minor. If the powers of the person appointed guardian be not limited by the order of appointment, he shall be guardian both of the person and estate of the ward. In every instance the court shall appoint a guardian both of the person and estate of the ward, unless in its opinion the interests of the minor will be promoted by the appointment of separate guardians." [R. S. §6255.]^^ § 1312. Guardian of the person. If the Court is of the opinion that the interests of the ward will be best subserved by appointing a person to act only for the tuition, maintenance and control of the ward, a guardian for the person may be appointed. "Where the father or mother be living, no such guardian can be appointed unless they be noti- fied and the Court find that they are not suitable persons to have the custody and tuition of such minor. -^ The powers and duties generally of a guardian of the person of the M'ard will be discussed in this volume when treating of the subject of guardians, generally, adopting the rule that the same person is usually the guardian of both person and estate. The statute specifically provides that certain duties shall devolve upon the guardian of the person which are as follows : § 1313. Duties of guardian of the person, etc. ' ' When a guardian is appointed to have the custody, maintenance, and education of a minor, his duties are: "1. To protect and control the person of his ward; "2. To provide a suitable maintenance for his ward, when necessary, which must be paid out of the estate of such ward, in the hands of the guardian thereof, upon the order of the guard- ian of the person of such ward; 27 8 10016 G. C. must show that the father consents 28 Bopscher vs. Boescher, 7 N. P. thereto or is an unsuitable person. 418; 5 Dec. 184. ^ Cited Hare vs. Sears, 4 N. P. (N.S.) Before a stranger can be appointed 566; 17 Dec. 590. guardian for a child, the record 1169 PERSON AND ESTATE. § 1314 "3. When such ward has no father, or mother, or having a father or mother, such parent is unable or fails to maintain or educate the ward, the guardian so appointed shall provide for him such maintenance and education as the amount of his estate justifies, which shall be paid out of his estate in the hands of the guardian thereof, upon the order of the guardian of the person of such ward; "4. To obey all the orders and judgments of the court touch- ing the guardianship." [R. S. § 6271.] -» § 1314. Bond of guardian of person. A guardian of the person of a minor must give bond in the same manner as if he were guardian of the estate. The amount of the bond must be double the probable expenses of maintaining and educating such minor during one year. Likewise the guardian must take an oath that he will faithfully discharge his duties. The statute providing therefor is as follows : "Before a person is appointed guardian to have the custody, maintenance, and tuition of a minor, without the right to take charge of the minor's estate, he must give bond in double the probable expenses of maintaining and educating the minor dur- ing one year. In all other respects the bond shall be the same as if he had charge of the estate of his ward. He also must take the oath prescribed in the next preceding section." [R. S. §6260.] 3° § 1315. Guardian of the estate. If the ward has property and the Court is of the opinion that the person who is entitled to the control and custody of the ward is a suitable person to keep such control and custody, but not a suitable person to manage the estate of the ward, then a guardian for the estate only should be appointed; and where the entry of appointment provides that a person is ap- pointed guardian of both the estate and person of the ward, yet if the ward have a father or mother who is a suitable person to have the custody of such ward and the control of its educa- 29 § 10935 G. C. 30 § 10923 G. €. §1310 GUARDIANS KINDS 1170 tion, then the guardian is practically a guardian of the estate only. Thie statute providing for the duties of such guardian is as follows: ^ 1316. Duties of guardian of estate only. "When a guard- ian is appointed to take charge only of the estate of a minor, his duties shall be the same as those specified in the next preceding section, except that he shall not be required to per- form the sixth duty therein mentioned when a guardian of the minor's person has been appointed." [R. S. § 6270.]^^ § 1317. Other kinds of guardians. In addition to the kinds of guardians specifically referred to in the previous sections of this chapter, there is recognized by the statutes of our State what is known as a guardian ad litem: This kind of a guardian is also known as a special guardian, being appointed by tlie Court to look after the interests of a minor when his property is involved in litigation. ^^ And a person occupying a similar position who brings a suit for a minor is known as prochein ami, or the minor's next friend. The power to appoint a next friend like the power to appoint a guardian ad litem,, is inherent in every Court when the interests of minors require it.*^ At common law there were otlier guardians known as chan- cei*y guardians and ecclesiastical guardians, but these are mere- ly the memory of a past method of judicial procedure. Our statute makes specific provision for the appointment of guar- dians of idiots, imbeciles and lunatics and also for habitual drunkards "* and incompetents and improvidents. See Heckman vs. Adams, 50 0. S. and a prochein ami usually devolves 305; In re Baier, 8 N. P. 107; 11 upon the Court of Common Pleas, Dec. 47. in the litigation of general matters 30* Previous section is § 10933 G. and not in the Probate Court. A C, which gives various duties. See guardian ad litem may be appointed § 1367. by the Probate Court, notably in 31 § 10934 G. C. proceedings brought for the sale of The same rule is adopted as to real estate. See §§ 838, 1384, for bond in the case of a guardian for discussion of the duties of a guar- the estate only as is required of a dian ad litem. guardian for both the person and 34 See § 1501 et scq., for idiots, estate of a ward. incompetents, etc. ; § 1534 et seq., 32 Wocrner on Guardians, 63. for habitual drunkards, improvi- 33 Woerner on Guardians, 64. dents. An apnointmont of a next friend 1171 ANCILT.AKY § 1318 Some States also have made provision for the appointment of guardians of spendthrifts, but no such power is given by any provision of our statutory law. With us if a person is not an idiot, an imbecile, lunatic or habitual drunkard, unable to man- age his own affairs, he may spend his money in as needless a way as he can design, and there is no power of the Court to prevent him. Statute now seems to provide for improvi- dence, see § 1535, and incompetents, § 1501. § 1318. Ancillary guardians. Our statutes do not recognize what might be termed an an- cillary guardian, but provide that where it might be proper to appoint, an ancillary guardian, a trustee for a non-resident be appointed.^^ Our statutes also provide that foreign guardians may, by complying with the statutory provisions, be recognized in our Courts, and in that manner acquire jurisdiction over the property of a non-resident ward.^® The general principles relating to ancillary guardians might be applied to a trustee of a non-resident. That is, a guardian of the domicile of an infant might be advantageously ap- pointed as an ancillary guardian.^^ A domiciliary guardian must account for all property received from an ancillary guard- ian.^« A receipt given to a guardian appointed in one State by a guardian subsequently appointed in another State for specific personal property of the ward, transferred by the former to the latter, does not discharge the fonner from responsibility to ac- count for previous loss by his mismanagement of the ward's property.^" The fact that the letters granted in this State are prior in point of time to letters granted in the domiciliary State does no^ prevent the letters here being regarded as an- cillary.''' Unless provision is made by statute, a guardian appointed in one State, has no authority in another State, and it would be *5 § 11014 G. C, §1274. 38 Secchi's Estate, Myrick, Prob. 36 § 1475 et seq., on foreigTi guar- (Cal.) 225. dians. 39 Lainar vs. Micou. 112 U. S. 452. 37 Hoyt vs. Spra^e, 103 U. S. *<> Metealf vs. Lowther, 56 Ala. 613. 312. §1318 GUARDIANS — KINDS 1172 necessary to have a guardian appointed in such State if there was any property of the ward in such State. But an appoint- ment is void, if the infant is neither domiciled nor resident in the State in which it is made and has no property there.*^ ^ho has not the interest and welfare of such minor at heart. No person ought to be ap- pointed who is of such a character that if he were appointed a good cause for his removal would exist. That is, he ought not to be an habitual drunkard ; he ought not to be a man who would neglect his duties, or be incompetent, or a non-resident, or guilty of any fraudulent conduct.*^ He ought not to be a person whom the Court would refuse to appoint if such or similar rea- sons exist which would warrant the Court in not appointing an administrator or trustee of an estate.^" In addition to these matters, the guardian ought to be a per- son who has the confidence of the child and who can place him- self in loco parentis. Therefore, other things being equal, the child's own wishes should be consulted, even though it has not arrived at the age of choice, and so ought the wishes of friends and relatives. In any case, the Court will be very derelict of its duties if it appoints a person of irresponsible character to have either the control of the estate or person of the ward. *7 Scobpy vs. Gano, 35 0. S. 550. *s See § 10936 G. C., § 1358. <8See §1307, Testamentary Gdn. so As to who are proper persons See Wilson vs. Wilson, 17 0. S. to be appointed administrator, see 151, as to settlement where a person § 115, and Trustees, see § 1252. occupied the position of administra- tor and guardian. 1189 MUST GIVE BOND § 1333 The very best person that can be secured to accept the trust should always be obtained.'^^ § 1333. Must give bond. At common law, the natural guardian had a right to receive property without giving a bond, but by the law of our State no guardian can be appointed or perform an}^ legal act as a guard- ian without having given a bond. With us the giving of a bond is a condition precedent to his right to act, and although letters of guardianship were issued, he would still have no more power or authority than before, which was none at all.^^ An excep- tion is made in the case of a testamentary guardian where the matter is left in the discretion of the Court,^^ and the rightful tendency of the Courts is to require a guardian in every case to give a bond. This bond must be secured by freehold sureties resident of the State, one of whom shall b© a resident of the county.^* The general statute provides that sureties must reside in this State and worth in the aggregate double the sum to be se- cured beyond the amount of their debts.^^ The language of sec. 10920, G. C, gives ground for the practice that two sure- ties should be required on each bond, but it is held that one is sufficient.^'' Even a guardian of the person only must give a bond.^'' The amount of the penalty of the bond in the ease of a guardian for the estate shall be double the amount of the personal estate belonging to said minor, and also the gross amount of rents that will be received by the guardian from the 51 "The Court upon which it de- See Red. Sur. Prac, 481. volves to determine the guardian- ^2 Ranncy, Judge, in Carpenter vs. ship will pronounce upon that qucs- Sloane, 20 0. 327. tion in accordance with what ap- 53 § 85. pears to be for the best interests of s* §§ 10920-1-2 G. C, § 1323. the minor, talking into view not r.r, § 10219 G. C, §11248 G. C, merely his temporary welfare, but § 241. the state of his affections, attach- ''S Arrowsmith vs. Glcason, 129 U. ments, his training, education and S. 86; Slagle vs. Enterkin, 44 0. S. morals." Bradford, Sur., in Foster 637. vs. Mott, 3 Bradf. Sur., 409. " § 10923 G. C, § 1314. i^ 1334 GUARDIAN APPOINTMENT 1190 real estate during the ward's minority/^ And in the case of a guardian of the person, it shall be double the probable expense in maintaining and educating such minor during one year.^® An exceedingly responsible duty rests upon the Probate Judge in the acceptance of sureties on guardian's bond. ISTot only for the reason that it is difficult sometimes to ascertain the true financial standing of persons, but also from the fact that a guardianship usually runs a period of years. For these reasons the acceptance of trust companies for sureties is meet- ing with considerable favor.®" What was said about bonds generally, in previous chapters, may be applicable here.®^ As a rule of precaution, it would l>e w^ell to have the sureties qualify as to their financial standing and sign in open Court®^ § 1334. Form of guardian's bond. Know all Men hy these Presents: That we, , are held and firmly bound unto the State of Ohio, in the sura of dollars, for the payment of which we hereby jointly and severally bind ourselves, our heirs, executors and administrators. Signed by us, and " dated at , Ohio, this day of A. D. 190... The condition of the above obligation is such, that whereas, the above bound has been appointed by the Probate Court of county, Ohio, guardian of the person and estate of , minor child. . . .of , deceased, late of , which appointment the said has accepted. Now, if the said shall faithfully discharge all h. . . . duties as such guardian, as is required by law, then this obligation to be void, otherwise to remain in full force. Executed in presence of This bond approved in open Court, this day of A. D. 190. .. , Probate Judge. The State of Ohio, county, ss. I, , guardian of , minor . . , do ijoeinnn- ^' z^'' o ioT. lie sufficient to secure all amounts 60 §710-150 et seq. See chapter '^''"^^' ™^'^' ^°™^ i^*° *'^^ guardians 1.3a on administration by trust possession during such guardianship, companies. ' ' Potter vs. State. 23 Ind. 550, 607; Will' ^^^^l^ff^^*^.^''^^ • ^ West vs. xorsythe, 34 Ind. 418; 62Tlie amount of the bond is de- .„ „, , "'. ' , „^o ,, ,^ termincd by that statement required ^^^^^ ^^- ^^^^' 61 Ind. 268; Matter of the guardian; but if a statement of Hedges, 1 Edw. Ch. (N. Y.) 57. is not filed, then the amount should 1191 MORTGAGE SECURITY § 1335 solemnly swear and affirm that I will faithfully and honestly discharge the duties devolviug upon me as such guardian, as I will answer to God. Sworn to before me, and signed in my presence, this day of A. D. 190... , Probate Judge. PROPERTY STATEMENT OF SURETIES. The State of Ohio, county, ss. , one of the sureties on the bond of as guardian of , being duly sworn, says that he is a resident of county, Ohio ; that he is worth beyond the amount of all his debts at least double the penalty of the within bond and that he has real estate liable to execution in the State of Ohio amounting in actual value at least to the sum of dollars, beyond the amount of all his debts, legal exemptions and liabilities as surety or otherwise. Sworn to and subscribed before me this day of . A. D. 190... The State of Ohio, County, ss. , one of the sureties on the bond of as guardian of , being duly sworn says that he is a resident of county, Ohio; that he is worth beyond the amount of all his debts at least double the penalty of the within bond and that he has real estate liable to execution in the State of Ohio amounting in actual value, at least to the sum of dollars, beyond the amount of all his debts, legal exemptions and liabilities as surety or otherwise. Sworn to and subscribed before me this day of. A. D. 190... § 1335. Mortgage in lieu of freehold sureties. The statute further provides that instead of giving freehold surety on the bond, the giiardian may execute a mortgage upon good and unincumbered real estate. First satisfying the Pro- bate Court by furnishing an abstract of title to the property, and also showing by affidavits that the property is of sufficient value exclusive of all improvements thereon to secure the bond. The inconvenience of this proceeding detracts from its popu- larity, and yet it is one of the best kind of surety that can be taken. After the mortgage is properly executed, it must be recorded in the county in which the real estate is situate, and thereafter filed with .the papers in the Probate Court.*'^ The following is given as a proper form for a mortgage in such cases : «3 § 10920 G. C, § 132.3. § 1336 GUARDIAN APPOINTMENT 1192 Know all Men by these Presents: That whereas, A. B., of county, Ohio, having applied for appointment as guardian of the person and estate (or, estate only, if so) of C. D. (and if more than one minor is named in the bond, here name them all), child (or children) of E. F., deceased. Now therefore the said A. B., in lieu of freehold surety and in pursuance of the statute in such case made and provided, and in consideration of the trust to be imposed upon said A. B., by reason of said appointment, does hereby grant, bargain, sell and convey to the said (here name the said minor or minors) his (or, her, or their) heirs and assigns forever, the following described real estate, situate in the (city, or village, or township, as may be) of , in the county of , and State of Ohio, to-wit: (Here de- scribe the property by metes and bounds, or in other suitable way.) And all the estate, title and interest of the said A. B., either in law or in equity of, in and to the said premises; together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; to have and to hold the same to the only proper use of the said (here name the said minor or minors) his (or her, or their) heirs and assigns forever. And the said A. B. for himself and for his heirs, execu- tors and administrators, does hereby covenant with the said (herS again name said minor or minors) his (or her, or their) heirs and assigns, that he is the true and lawful owner of the said premises, and has full power to convey the same; and that the title, so conveyed, is clear, free, and un- incumbered ; and further, that he will warrant and defend the same against all claim or claims of all persons whomsoever. Provided, nevertheless, that if the said A. B. shall faithfully discharge all of his (or her) duties as said guardian, then these pres«its shall be void. In witness whereof, the said A. B. (and if he has a wife, here add, and W. B., his wife, the latter of whom hereby releases her right and expectancy of dower in the said premises) has hereunto set his hand and seal (or, have hereunto set their hands and seals) this day of , in the year of our Lord, one thousand nine hundred and Signed, sealed and acknowledged in the presence of us. A. B. (seal) W. B. (if so) (seal) 64 § 1336. Oath. The statute is equally explicit that in all cases a guardian shall, before entering upon the discharge of his duties, take an oath that he will faithfully and honestly discharge the duties devolved upon him as such guardian,®^ and this same oath must be administered whether the person be guardian of the person or estate of the ward."^ The form of such oath will be found upon the form of bond previously given. It is usually the practice for the Probate Judge to administer this oath, but I apprehend it may be ad- ministered by any person who is qualified to administer oaths generally. «4 Giauque Manual for Guardians «5 § is^^s. and Trustees, 37. It must be ac- 86 § 10923 G. C, § 1314. knowledged the same as any other mortgage. 1193 ORDER § 1337 § 1337. Bond not void on account of informality. "No bond executed by a guardian shall be void, or held invalid on account of any informality in it, or of informality or illegality in the appointment of such guardian. Such bond shall have the same force and effect as if the appointment had been le- gallv made and the bond executed in proper form." [R. S. §6262.]" 8 1338. One bond for two or more wards, etc. Pees. "When a person is appointed o-uardian of several minors, chil- dren of the same narentap'c and inhpritin"- from the same estate, separate bonds shall not be rfmn'rpd. In such fases only one application is necessarv. and the letters of fniardianshin issued to such guardian shall be in one codv. and not one for each minor. The court annroviner and recnrdino- sur-h bond, and issuing such letters, shall ohart^p the fees allowed by law for such services, to be cbarcred but once and not once for each ward." [R. S. § 6263.]«8 § 1339. Order of Appointment. The Court having ascertained that the person for whom appli- cation is made is a minor, and that he is a resident of the county in which the application is made, and that it is proper and necessary that a guardian should be appointed, and that the applicant is a proper and suitable person, and has filed a statement of the property of the ward, and given a bond of sufficient amount with good freehold sureties, should proceed and enter upon his journal the order of appointment. The Probate Court being a Court of record, this order imports ab- solute verity, and cannot be impeached in a collateral pro- ceeding,*'^ and this would be true although the record might 67 § 10026 G C. profits arising and accruing from See Discussion of bonds, S 23.3. real and personal estate of his said , .,, .... , ,, ward and snail deliver up the same A bond with a condition as follows ^^ ^^^^ ^^^^^ ^,^p^ thereunto re- is sufficient: quired." Eichelberger vs. Gross, 42 "If the said guardian shall dis- O. S. 549. charge with fidelity the trust afore- One free-holder surety, if hehas ., . ,. , • T , ,, 1 enough property, may be sufhcient. said m him aforesaid, shall render ^rrowsmith vs. Gleason, 129 U. S. an accurate settlement of his trans- g(}_ actions, with a just account of the 68 § 10927 G. C. 69 Schroyer vs. Richmond, 16 O. S. 456. § 1340 GUARDIAN APPOINTMENT 1194 be silent as to the particular ground upon which the appoint- ment was rnade.^" It is, however, proper in order to prevent a collatrral attack, that the entry appointing should show the jurisdictional facts/' But the guardian himself will not be allowed to deny the legality of his appointment, although it might otherwise be void.'' And even where such entry does not show jurisdiction, it has been held that after a great lapse of time, proof will not be allowed to show that the minor, at the time of the guardian's appointment, was not a resident of the county.'^ § 1340. Form of Entry. The form of entry will vary, depending somewhat upon the fact whether the parents are living, or the minor is of the age of choice. The following may be used as general form : lu the Matter of the Guardianship of C. D. This day came A. B. and made application to be appointed guardian of C. D., and filed a written statement duly verified by his affidavit of the whole estate of said C. D. and the probable value thereof, and the probable annual rents of the real estate of said C. D. ; and also made an affidavit as to the age and the residence of said C. D. ; and also filed with his said appli- cation a written consent of said minor (or if the minor is under the age of choice, of E. F., the parent of said C. D. ). Whereupon the Court being satisfied that said C. D. is a minor of the age of and is a resident of this county, and that it is necessary that a guardian be appointed for said C. D., and that said A. B. is a proper and suitable person to receive said appointment, it is ordered that said A. B. -file herein his bond conditioned according to law in the sum of dollars, with surety thereto as required by law; and thereupon came the said A. B. and filed in Court his bond and accepted said trust, and the Court finding that said bond is executed and conditioned according to law and in an amount equal to double the amount of the personal estate of said minor and the probable amount of the rents of the real estate of said ward during his minority, and that the' sureties thereon are freeholders and sufficient. The said bond is approved and said A. B. is hereby appointed guardian of the person and estate of said C. D., and it is ordered that letters of guardianship be issued to him. § 1341. Letters of Guardianship. The statute nowhere expressly directs that letters of guard- ianship shall be issued, yet it is a practice to do so, and it may be inferred from the provision of one section of the General 70 King vs. Bell, 36 O. 'S. 460. § 90. 71 Commercial vs. Dean, 25 Bull. If the minor has a living parent, 250; Scoby vs. Gano, 35 0. S. 550. this entry should show that such 72 Woomer on Guardians, 111. parent has given his consent — or 73 Sprague vs. Litherberry, 4 Mc- tliat he has been notified and is evi- Lean (Ohio) 442. dcntly unsuitable, etc. 1195 LETTERS § 1341 Code that the law contemplates that letters be issued^* However, the order making the appointment is the one that au- thorizes the person to act, and if letters of guardianship be is- sued before such order is made, or before a bond is given, they confer no power and have no legal effect whatever/^ And ii a proper order be made by the Court, the person empowered by such order to act may do so, although no letters have in fact been issued.^® Woerner says : '^ The letters of guardianship may be looked on as an instrument in the nature of a certificate or commission, and is prima facie good and admissible to prove the authority of the appointment, although it does not recite the fact of nomi- nation by tlie minor. ^^ So the appointment may be entered of record nunc pro tunc at a subsequent term, if the clerk has omitted to make the entry at the proper time."^^ But the ap- pointment cannot relate back, so as to validate his prior act in respect to the property and estate of the ward; nor is parol evidence admissible to show an oral appointment and approve- ment of his bond prior to the date of the appointment as shown by the record. ^^ The following is a common form : Form of Letters of Guardianship. The State of Ohio, County, ss. To All to ^Yhom these Presents may Come, Greeting: Know ye, that the Honorable, the Judge of the Probate Court of the county of and State of Ohio, has appointed, and by these presents does appoint guardian to the person and estate of , child of , deceased ; hereby granting to said guardian all and singular the power necessary, and by law required, to enable fully to do, act and perform all and singular the duties of guardian for the aforesaid minor., according to the statute in such case made and provided. In testimony whereof I have hereunto affixed my signature and the seal of said Probate Court, at , this day of Anno Domini one thousand nine hundred and Probate Judge. 74 See § 10685 G. C, § 1338. ^8 Sprague vs. Literberry, 4 Me- 75 Carpenter vs. Sloane, 20 0. 327. I-ean, 442. 76Maxon vs. Sawyer, 12 0. 105. "^ Woerner on Guar., 110; Holden 77 The statute not requiring such vs. Curry, 85 Wis. 504. recital. Burrows vs. Bailey, 34 Mich. 66. § 1342 GUAKDIAI^ APPOINTMENT 1196 The State of Ohio, County, ss. 1, , Judge and Clerk ex-ofiicio of the Probate Court in and for said county, do hereby certify that the foregoing is a full and true copy of the original letters of guardianship issued by said Court to as guardian of said minor . .therein named. And that said on the day of 190.., in said Court, accepted of said appointment, and gave bond according to the laws of the State of Ohio, and that is now the lawful guardian of said minor. .. In witness whereof I have hereunto subscribed my name and afifixed the seal of said Court, at , Ohio, this day of 190... Probate Judge and Clerk ex-officio of the Probate Court. § 1342. Appeal and Error. The statute now gives a right of appeal from an order making an appointment of a guardian for imbeciles, lunatics, idiots and drunkards, but does not cover minors, etc. Sec. 11206, G. C. (§39), The order can be set aside by a proceeding in error prosecuted from the court which made the appointment. A very- wide discretion is conferred upon the judge in the exercise of a choice of a person to serve as guardian, and a reviewing court will very rarely, perhaps never, interfere with the same. Like- wise a wide discretion exists in the Probate Court in determining whether it is necessary that a guardian be appointed. For either one of these causes a reviewing court would only, if at all, set the appointment aside when there was a manifest abuse of the court's discretion, or where there had been a fraud practiced in making the appointment or a positive rule of law disre- garded.^°'' See §11206 G. C, §39, giving the Common Pleas Court may make right of appeal. the appointment. An uncle of a child may make a Order making the appointment is motion to remove a guardian and reviewable on error. Hare vs. Sears, may appeal from an order of the 17 Dec. 590. court dismissing the motion. In re 80a Since the text was written 1 Murray, 28 0. C. C. 652. find the following in 21 Cyc. 44: The Circuit Court may review the The selection of a guardian is within order of Common Pleas Court made the discretion of the court appoint- on appeal from the Probate Court, ing and unless there is a clear removing a gviardian for cause. abuse of their discretion the Ap- North vs. Smith, 73 0. S. 247. pellate Court will not interfere. There must be an actual appoint- Citing In re Van^Ieter, 115 N. Y. ment made before any one can ap- 666; [Lunt vs. Autens, 39 Me. 392; peal. In re Brutenstein, 17 Dec. 71. Adams vs. ' Woerner on Gr. 176. Mass. 213, 214; Woerner on Gr. 202. There is a special statute provid- Sch. Dom. Rel. 350. ^"8 ^^^^^ ^ guardian may improve „„ _, T. J 1 T7-*. the real estate of imbeciles, but 88 Thompson vs. Boardman, 1 \ t. ^^^^^^ ^^^^ .^ reference to minors. 367; Bond vs. Lockwood. 33 111. 212. §11004 G. C. (§1530) R. S. Ex- 89Torry vs. Black, 58 N. Y. 485; cept where it may be found neces- Truss vs. Old, 6 Rand. 556. «^7 ^o^" <-l'e ward's interest to make _ oDo-« O.T, o^n i I. ^ ^'^^^^ foi" hfteen years. §10962 See §§370, 371, 372, as to rents q (j ^g 1433). generally. * Cited, In re Connell, 56 Bull. 90 Green vs. Winter, 1 .Johns Ch. 143. Order of court required to use 26; Cornell vs. Vanartsdalen, 4 Pa. principal for repairs where income „ ' r . , ^ „<^ XT 1^ insulhoent. Jd. 12 N. P. 311; St. 364; Smith vs. Gummere, 39 N. 22 Dec. 690, If insufficient order J. Eq. 271; Willis vs. Fox, 25 Wis. of court may have. Jd. § 1395 guardian's power in relation to estate 1254 not have a lieu on the premises, but must look to the guardian personally for his recompense."" A guardian has no right to remove valuable improvements even if done so for the purpose of improving the premises.*^ § 1395. Release of ward's tax title by guardian. Effect of tender of deed. "When a minor has title to real estate by tax title only, if he deems it advisable, the guardian, by deed of release and quit claim may convey such minor's interest or title to the person entitled to redeem such real estate, upon receiving from him the amount paid for such tax title with the penalty and interest allowed by law in that behalf. If the guardian tenders such deed to the person entitled to redeem such real estate and he refuses to accept it and so pay, he shall not re- cover costs in any proceeding thereafter instituted to redeem or recover such real estate." [R. S. § 6294.] »^ § 1396. Partition and dower. In proceedings for partition, the guardian of a minor, idiot, imbecile or insane person may act on behalf of his ward, and may do and perform any act the same as the ward could if not under disability.®^ The guardian of an heir may assign dower in real estate ; ^® the ward, however, is not bound where an assignment is made by fraud or collusion,"" and in actions of partition, the guard- ian may act for a widow or widower who has been adjudged insane and may answer and appear for such insane person.®^ !>2Sch. Dom. Rel. 351. 95 §12044 G. C. (§1383). See 93 Johnson vs. Meyer, 2 Cleve. L Art. in Vol. XIX, O. L. R.; Vol. R. 81. !LXVI, Bull., Function of legal The making of improvements mav guardian in partition suits. be authorized by the Probate Court'; ^^ § V^fP^ ?i£n- !! ^n^' ^^'^^' and if that Court orders improve- q^s lomV-' n n /so--; ments to a certain limit, the limit gg § j.^ggO G. C: Woerner on Gr. fixes the extent of the guardian s 203. See § 1879 et seq.. Partition, authority, but is not an absolute it is the dutv of a guardian ad prohibition to go beyond it, and if litem to investigate tlie appraisc- the guardian exceeds the limit^ and nient of tlie property before one of the Court finds the excess to have the petitioners will be allowed to been necessary and useful, it will lie take it at tlie appraisement, and if allowed. May vs. Skinner, 1 19 "°t tlie sale may be held to be con- Mase. 37.5; 152 Mass 328- 15 Am structively fraudulent, and the per- & Eng. Encv. of Law 106 (2 Ed ) " !°" taking the same held to account 9* § 10960 G. C. 1^ *^'^ """°r-- T^^""-^^- ^^""■' ^ 0- L. R., 123 ; 1 1 Dec. / /3. 1255 PARTITION DOWER. EASEMENT §1397 § 1397. Easement. Appropriation. A guardian has no right to dedicate his ward's real estate to a public nse or make a deed conveying the right of way over it, for the purpose of establishing a public road except as the same may be provided by statute.^" The statute authorizes a guardian, with consent of the Pro- bat© Court, to sell land to a corporation where the same might be condemned.^"" In certain road proceedings, the guardian may act for the ward.^°^ § 1398. Completion of real estate contract. Additional bond. "The guardian of an idiot, imbecile, or lunatic, or an incompetant by rea.son of advanced age or mental or physical disability or infirmity, appointed by a court in this state or else- where, may complete the real contracts of his ward, or any authorized contract of a guardian who has. died or been removed, in like manner and by like proceedings as the real contract of a decedent, under an order of court, may be specifically per- formed by his executor or administrator. When by virtue of such contract or the completion of it, the guardian shall receive or be entitled to receive moneys not amply covered by his bond, the court shall require of him an additional bond with sureties, in respect of such moneys." [R. S. § 6313; 109 v. 74. j^^- § 1399. Contracts between ward and guardian. The guardian can make no valid contract with his ward. This results from two reasons. First, the minority of the ward, and second, the fiduciary relation that exists between them ; and even after the ward has arrived of age, and the guardianship has been terminated, contracts between a ward 99 Woerner on Gr. 178. from them it is rather that such 100 § 11040 G. C. (§1677). power, which would necessarily in- 101 §§ 7259, 7330, 7334 G. C. elude most of the special powers The numerous statutes in this granted by legislation, does not ex- State, conferring special powers upon tend. The State vs. Commissioners, guardians in special cases, do not 39 0. S. 61. authorize a sale or conveyance of i"- § 11003 G. C. the realty, or a dedication of any This section specifically refers to part of it to a public use, either ex- like proceedings had by an adminis- pressly or by necessary implication. trator. See § 523. Indeed, if any implication arises ^ 1400 guardian's power in relation to estate 1256 and the guardian are subject to the strictest scrutiny. In a case before our Supreme Court"^ it was said, " One standing in the relation of a parent and guardian — in fact, of a minor, having the custody and control of such minor and of his prop- erty during such minority, is bound to the most scrupulous good faith in the management of the estate, and where, on such minor's coming of age, he attempts to malce a settlement of his trust witli him, a court of equity will examine the transaction with extreme jealousy, to see that no undue influence has been exercised ; that the parties have been put on an equal footing by full disclosures, and that no advantage has been taken."^°* And this same principle applies to a will or a gift made by the ward in favor of the guardian during or soon after the trust re- lation.^°^ In such cases it devolves upon the guardian to show that the contract is entirely free from any doubt or undue ad- vantage, and he must also show that the ward had full and complete knowledge of the affair and the result that would follow to himself and his guardian, ^''^ § 1400. Ward's right of action against the guardian. During the guardianship, the ward has no right of action against the guardian. Whatever rights he may then have must be worked out through the Probate Court. If the guar- dian has mismanaged his trust, he should be removed, and then the ward's rights might be enforced.^*^^ § 1401. Guardian's right of action against the ward. During the guardianship, no action can be maintained by the guardian against the ward, either at law or in equity. The sole remedy that he then has, is in the Probate Court,^"^ and it 103 Berkmeyer vs. Kellerman, 32 484; Berkmeyer vs. Kellerman, 32 0. S. 239 O. S. 240; Tj'ler on Infancy, § 178. 104 In re Strickland, 7 R. P. 2:53 ; See § 1497, as to settlement with Perry on Trust, §200'; Sch. Dom. ward. Rel. 387, 512. io7 15 Am. & Eng. Ency. of Law, 105 15 Am. & Eng. Ency of Law, 2 ed. 80; Woerner on Gr. 152, 330, (2 Ed.) 87. 331, 478. 108 Long vs. Mulford, 17 O. S. los Davis vs. Ford, 7 O. pt. 2 104. 1257 CANNOT PURCHASE PROPERTY OF WARD § 1402 is said, that then after a settlement of the account and the fix- ing of the halance due to the guardian, no right of action could be maintained, since the ward had no right to make an ex- penditure in excess of the funds in his hands,^"'' but it has been held different, where an expenditure was made for necessaries. In such cases an implied promise results on the part of the ward to pay for the same. § 1402. Employment of attorneys, agents, etc.^°^* The guardian has the same right to employ an attorney in the management of an estate as an administrator or executor.^^" The question whether the employment of counsel was a reason- able and proper exercise of the 'guardiaii's discretion, is not de- termined by the test of success or failure ; but whether a pru- dent man would, under all the circumstances, have judged the expenditure a proper and necessary one in the interest of the ward,"^ and the same rule would be applied as to costs in liti- gation, which might be rendered against the guardian or ward. The guardian, likewise, has a right to employ agents wherever necessary, but allowance for these matters, rests largely if not entirely in the discretion of the Probate Court. No action will lie against the guardian in his representative capacity.* § 1403. Guardian can not purchase property of the ward, etc. It is a general rule applicable to all trustees that in all mat- ters, they must act for the best interest of the estate. In the application of this principle it is always held that a guardian cannot make a purchase of his ward's property to his own profit. If he does make such purchase, the entire profits must be ac- counted for to the ward's estate and what he cannot do directly he is not permitted to do through an agent or attorney."^ Purchases made by a guardian of his ward's property are 109 15 A. & E. Ency. of Law, 85 guardianship he avouM be liable in (o pA \ a settlomcrt for the balance due. ^T.,.. • ■ X J J X xu X 109a Cited, Payne vs. Recht, 38 O. This 13 intended to mean that no q ^ 253 right of action could bo maintained 110 See §§ 500, 510. resting on a promise of the ward, if m Woerner on Gr. 351. the ward had property during the "^ Cox vs. John, 32 O. S. 532. ^ 1403a GUARDIAN 'S POWER IN RELATION TO ESTATE 1258 not absolutely void, but voidable at the election of the ward Avithin a reasonable time/" but it has been held that a guar- dian may lawfully become the purchaser of his ward's real es- tate, sold by a sheriff under a judgment against the personal representative of the ward's ancestor.^^* The rule generally applicable to executors and administrators in this respect would be applicable to guardians/" § 1403a. Discovery of assets belonging to estate of ward, etc. Upon complaint made to the probate court or to the court of common pleas by a guardian or trustee of the estate of a minor, idiot, imbecile, lunatic, drunkard or of an incompetent by reason of advanced age or mental or ph3^sical disability or infirmity, or by any person interested in any such estate as a creditor thereof or otherwise, against any person suspected of being or having been in the possession of any moneys, goods, chattels, things in action, or efiPects of such estate, the said court shall cite the person so suspected forthwith to appear before it and to be examined on oath or affirmation touching the matter of said complaint. [109 v. 80.] "« § 1403b. Imprisonment for disobeying citation. If any per- son so as aforesaid cited shall refuse or neglect to appear and submit to an examination as aforesaid, or shall refuse to answer such interrogatories as may be lawfully propounded, the court shall commit such person to the jail of the county, there to remain in close custody until he or she shall submit to the order and direction of the court in that behalf. [109 v. 80.]^" § 1403c. Examination reduced to writing. All such exami- nations, including as vrell questions as answers, shall be reduced to Avriting, signed by the party examined, and filed in the court before which the same was taken. [109 v. 80.]^^^ § 1403d. Costs, etc. All costs of such proceedings shall be assessed against and paid by the party making the complaint. [109 V. 81.]^" 113 Woerner on Gr. 197. the Probate Court or Court of 114 Woerner on Gr. 197, citing Common Pleas, and answer concern- Cliorpenning's Appeal, 32 Pa. St. ing the same. Forms given in § 395 315. to § 407 can be adopted and com- But even in such matter, the ac- ments there made will be found tion of the guardian must be free useful in an action brought by a from any adverse action to the in- guardian, etc. § 1403b G. C. is terest of his ward. similar to §10675 G. C. (§402), 115 See §492; 15 A. & E. Ency. and § 1403c G. C. to §10670 G. C. of Law (2 ed.), 6G. (§405). Comments. — § 1403a C. C, is very The act does not go as far as the much similar to § 10673 G. C. one relating to administrators, and (§395), providing for discovery of permit a recovery, or judgment. If assets by an administrator, etc., any propertv is discovered, it will and confers the right upon a guard- he the duty of the guardian or ian or trustee of an estate, or any trustee to proceed and recover the person interested in tlie estatn as same by a separate appropriate a creditor, to file a complaint action, against any person suspected of ne § 109S3-3 G. C. having property in their possession ht § 109S!)-4 G. C. belonging to the estate, and have ^'^ § 109S9-5 G. C. the person cited to appear before "*• § 109S9-6 G. C. 1259 guaedian's sale of keal estate §1404 CHAPTER LXXVI. GUARDIAN'S SALE OF REAL ESTATE. § 1404 §1405 §140G §1407 § 1408 § 1400 §1410 §1411 §1412 §1413 § 1414 § 1415 §1416 §1417 Nature of action, etc. § 1418 Sale of personal and real es- tate of minors. One appli- cation for sale of real § 1410 estate of two or more wards. Two or more guard- § 1420 ians may join. § 1421 In what Court action to be § 1422 brought. When action may be brought. § 142,3 Parties to action. § 1424 What may be sold. Petition for sale of real es- § 1425 tate. Essentials of petition. Form of petition. § 1426 Notice of filing petition, etc. § 1427 Ordering notice, etc. § 1428 Service of notice. § 1429 Form of notice. Publica- tion, etc. § 1430 Guardian aid litem. § 1431 Hearing of petition. Ap- praisers. Survey into town lots. When order should be granted. Order to appraise. Oath of appraisers. Guardian to execute addi- tional bond before sale. Form of Guardian's Bond. Requirement of bond, sure- ties, etc. Order of sale of real estate, private sale when, laying out in town lots. Entry ordering sale. Public sale. Private sale. Report of sale, confirmation and deed. Form of Guardian's Deed. Appeal and Error. § 1404. Nature of action, etc. It was against the policy of the common law to permit, even under an order of Court, a change of a minor's real estate, into personalty,^ and it has always been the policy of both the com- mon and statute law, not to. permit a sale of an infant's real estate without an order of Court for that purpose. The right to sell such property is derogatory to the common law, and must be strictly construed. The guardian has no power to make such a sale except as is provided by statute.^ 1 Woerner on Gr. 225. Personal property may be sold 2 State vs. Commissioners, 39 0. without order of the court. S. 61. § 1405 guakdian's sale of real estate 1260 The statute must be followed substantially in all matters in order to permit a guardian to validly exercise the power.^ The action provided for by our statute is peculiar and is no doubt to be classed as a special proceeding, and not a civil ac- tion within the meaning of the Code. Like the action brought by executors and administrators for the sale of real estate with which it was formerly classed, it was under the former laws of our State a proceeding in rem and purely ex parte. It is still an action in rem, but by reason of a requirement that notice be given to the ward and others,* it has assumed some of the characteristics of an adversary proceeding. But the mere fact that notice is required does not make it adversary.^ These mat- ters will be adverted to again in subsequent sections of this chapter. Suffice to say here that sales of this character should only be made when the law has been strictly complied with. ? 1405. Sale of personal and real estate of minors. One application for sale of real estate of two or more wards. Two or more guardians may join. "The guardian of the person and estate, or estate only, when for the interest of the ward, may sell all or any part of the personal estate of the ward. "Wlienever necessary for the education, support, or payment of. just debts, or the discharge of liens on the real estate of such minor, or if the real estate of the minor is suffering unavoidable waste, or a better investment of its value can be made, and if satisfied that a sale of it will be for the benefit of the minor, the probate court by which a guardian of the person and estate, or of -the estate only, was appointed, on his application may order the real estate of such minor, or a part thereof, situated in this state, to be sold. Wlien a person is such guardian for two or more minors whose real estate is owned by them jointly, or in common, in one application he may ask for the sale of the interest of all or any number of his wards in such real estate; and if different persons are guardians of minors so interested jointly, or in common, in the same real estate, they may join in one application. On the hearing, in either case, the court 3Woerner on Gr. 233. See §10945 G. C, §§1392, 1404, 4 §10947 G. C. (§1413). 1530, 1522, 1534, 1678. 5 Barr vs. Closterman, 3 C. C. 441; 2 C. D. 251. 1261 WHERE ACTION BROUGHT § 1406 may authorize the sale of the interest of one or more of such wards, as, in its discretion, seems right. [R. S. § 6280.]'^ § 1406. In what court action to be brought. The above section is specific in its provisions that the action for the sale of the real estate of any minor must be brought in the Probate Court in which the guardian for the person and estate, or for the estate only received his appointment. No other Probate Court has jurisdiction.'' By a general provision,® it is provided that the Probate Court has concurrent jurisdiction with the Court of Common Pleas in the sale of real estate by executors, administrators or guardians. This general provision would seem to retain juris- diction of the Court of Common Pleas in such actions. The question tlien suggests itself, has any other Court of Common Pleas than that which exists in the county in which the guard- ian received his appointment, jurisdiction? This question is answered in the negative by the Supreme Court in the case of Foreman v. Haag." Here it is said, "As therefore, in our opinion, the Court of Common Pleas of Cuyahoga county, at the time of the creation of the Probate Court, was not' author- ized to order the sale of lands on the application of a guardian appointed in anotlier county, no such authority was vested in the Probate Court of said county by the act conferring juris- diction on that Court." In practice, where there are no questions arising as to prior- ity of liens and matters requiring the exercise of equity juris- diction, it would be better to bring the action in the Probate Court. But where the title is imperfect or there exist con- flicting claims and liens which require an exercise of equity e § 10945 G. C. ^ Forosman vs. Ilaag, 3G 0. S. If real estate is sold and the waiJ 102. die, it is to be distributed as real s § 505 R. S. (§28). estate, but if it is again invested 9 36 0. S. 106. in real estate it loses its former an- Guardians of different minors crstral character, and is to be dis- jointly interested, can only join in tributed as real estate acquired by an application, where they are all purchase. McCammon vs. Cooper, apjjointcd by the same court, other- 12 Dec. 677; 69 0. S. 368. wise each guardian must bring an See §§ 8578, 8579 G. C. (§921). action in the court where appointed. § 1407 gtjakdian's sale of keal estate 1262 power, it would be much safer to bring the action in the Court of Common Pleas in the county in which the guardian was appointed. The action not being a civil action within the meaning of the Code, and no express power being given to the Probate Court to determine a question affecting the title to the land, it is seriously doubted whether the Probate Court has such ju- risdiction/" § 1407. When action may be brought. The action can only be brought during the existence of the guardianship. An action brought after the ward is of age, or the guardianship temiinated, is absolutely void." The action can be brought by no other person than the legal appointed guardian.^" The statute specifically provides that the action may be brought, first, when it is necessary for the education, support or payment of just debts. Second, whenever it is necessary for the discharge of any liens on the real estate of such minor. Third, whenever the real estate of such minor is suffering un- avoidable waste. Fourth, when a better investment of the value of the real estate can be made and the Court is satisfied that a sale will be for the benefit of the minor. These are the only instances in which an action can be brought. The Court in all cases must be satisfied before the order is granted that the change ^vill be for the interest of the ward. To much cau- tion cannot be exercised in this direction by the Court. Care- less or designing guardians frequently endeavor to get control of funds of the ward in order to subserve there own purpose and before the ward arrives of age the estate has vanished. 10 A foreign guardian may bring the court full power to determine the action in any county in which all the equities of lienholders. the land is situated — and in either n Perry vs. Brainard, 11 O. 442; the Probate Court or Court of Com- Dengenhart vs. Cracraft, 36 O. S. mon Pleas. §10055 G. C. (§1481). 549." However, there is a section— 12 Woerner on Gr. 234, 239. § 10783 G. C. (§814), which gives See next section. 1263 PARTIES TO ACTION. § 1408 § 1408. Parties to action. The statute certainly confers power on no one to bring the action, except a person who is legally appointed, and acting as guardian of the minor.^^ Where different persons are guardians of minors who are in- terested jointly or in connuon, such guardians may join in the application.^* This much for parties plaintiff. As to parties defendant, the statute provides that notice be given, and states ^^ "that the ward or the husband or wife of such ward, and all persons entitled to the next estate of inher- itance in the real estate to be sold shall be defendants." In the former statute it was provided that only when the estate came by inlieritance, devise or deed of gift from an ancestor need the notice be given to all persons entitled to the next in- heritance, etc. There is now no such distinction, and all persons entitled to the next estate of inheritance must be notified, no matter whether the estate comes by purchase or descent. The purpose of making the ward defendant is that his friends or those who are interested may know of the pendency of such a proceeding. It is hardly expected that the w^ard himself will be in a position to know much about the advisability of granting the guardian's application. Formerly such applications were granted without notice even to the ward. "Theoretically," says Woerner,^" "he has no capacity at all to judge of what is best for him or for his estate, and to summon him into Court is therefore an idle ceremony; practically, however, especially when he is of an age approximating majority, he may suggest facts and views of policy worthy of consideration by the Court in exercising its discretion, and he may appoint an attorney to represent him." The object of making a husband or wife a party is that their dower right may be provided for and re- leased. The persons entitled to the next estate of inheritance are made parties for the reason that being next of kin if the ward should die during the minority they would inherit the "Dengcnhart vs. Cracraft. .36 0. i^ § 10047 C. C. (§ 1413). S. 572. 16 Woerncr on Cr. 241. 14 § 10945 G. C. (§ 1405). § 1409 guardian's sale of real estate 1264 estate; and although they would inherit the proceeds,^^ yet it might be injudiciously invested or squandered, and that if the order is made they may know of such conversion and protect tlieir interest in the fund. There is no provision for any other person to be made defendant ; and considering the nature of the action, I very much doubt if any other person can be a proper party defendant. If there are others interested in the real estate whose rights demand adjudication in order that the best price may be realized, the action had better be brought in the Court of Common Pleas, a court of general jurisdiction. The case of Doan vs. Bitely,^* in which it was held that it was proper for the Probate Court to bring in all parties and adjudicate all matters pertaining to the title of real estate in a case where an administrator sought to sell real estate, was founded upon tlie fact that the statute relating to sales by administrators made the action a civil action and further particularly provided that any person might be made a de- fendant who has and claims an interest in the controversy, adverse to the plaintiff or who is a necessary party to a com- plete determination or settlement of questions involved. Where there is a lien on the real estate which is uncontested, it would be well to give such party notice so that the purchaser might loiow that the money is applied to such lien. Otherwise the rule of caveat emptor applies. § 1409. What may be sold. "The real estate of such minor or any part thereof, situate in this State may be sold," is the language cf the statute.^^ In a case in New York it was held that "the term real estate includes every freehold estate and interest in lands, and that a right of present enjoyment of an estate, or an actual posses- sion, either by a termor or otherwise, is not necessary to a seizin when there is a fixed vested right of future enjo}Tnent, that is, when there is a vested remainder or reversion. ' ' "° And 17 See §1405; Armstrong vs. Mil- Tlie guardian can not give the ler, 6 O. 118; 7>?. re McCJabe, 16 Bull. property awav, even for a public 271; 51 11. I. 330. use. State vs. Hamilton, 39 O. S. 18 49 0. S. 588. 102. 19 § 10:}45 G. C. (§ 1403). Personal property may be sold by \et tliere is a statute which gives the guardian without an order the Probate Court full power to de- from the court, aitliough there may termine all the equities of lien- be times when it is advisable to holders, and order pavment to par- make formal application to the ties entitled. See §10783 G. C. court. Strong vs. Hope, 4 Bull. 1034. f§814). 20Woerner on Gr. 24S, citing 1265 PETITION FOR § 1410 in another case it was held, that the Court might order the sale of an infant's real estate where it existed in the form of a con- tingent remainder."^ The term " real estate " is generally meant to include every estate, interest and right, either legal or equitable in lands of which the person is seized or possessed or in any manner en- titled." These general definitions of real estate, seem to he broad enough to include every interest that a minor may hold in -such property, and there seems to be no substantial reason why such interest of the minor could not be sold, if the Court finds that the sale is necessary within the meaning of the statute. But it might be unwise to sell or attempt to sell real estate where there was a question as to the title without having such ques- tion first settled.^^ § 1410. Petition for sale of real estate. ' ' Such application for sale of real estate shall be by petition, which shall set forth, specifically : *'l. The value and character of all personal estate belonging to such ward that has come to the knowledge or possession of such guardian ; ' ' 2. The disposition made of such personal estate ; "3. The amount and condition of such ward's personal estate, if any, dependent upon the settlement of a decedent's estate, or the execution of a trust ; "4. The annual value of the real estate cf the ward, with a pertinent description thereof; "5. The amount of rent received, and its application; "6. The proposed manner of re-investing the proceeds of a sale, if asked for that purpose; "7. Each item of indebtedness, or the amount and character of the lien, if the sale is prayed for the discharge thereof; Jenkins vs. Fahey, 73 N. Y. 355, lands, etc., the date of the termina- 362. To sarae effect: Cooper vs. tion of which is not determined by Hepburn, 15 Gratt. 551; Bell vs. or ascertained from or at the date Clark, 2 Mete (Ky.) 573, 575; Thaw of the act which creates it, is real vs. Richie, 136 U. S. 519, 545. estate. Century Die. 21 Dodge vs. Stevens 105 N. Y. See § 820. 585, 588. ^' Woerner on Gr. 250. 22 At common law any estate in §1411 guardian's SALE OF REAL ESTATE 1266 "8. Tlio ago of the ward, and where and with whom re- siding ; "9. If there be no personal estate of such ward, in posses- sion or expectancy, and none has come into the hands of the guardinn, and no rents have been received, the fact shall he stated in the petition. If it is desired that the land sought to be sold, or any part of it, be laid out in town lots, that fact must be stated with the reasons therefor, and the manner in which it is to be laid out." [R. S. § 6281.]-" § 1411. Essentials of petition. The petition ought to contain all the facts required to be set forth by the above section. It may be presumed vrhere the peti- tion does not state otherwise, that it contains a description of all the real estate of the rainor.-'^ In addition to the facts required by the above section, the petition must state facts sufficient to give the Court jurisdic- tion. That is, that the person making the application is the acting guardian of the minor, and second, that the appointment was made in the Probate Court of the county in which the peti- tion is filed. It ought also to state whether or not the ward has a wife or husband living entitled to dower therein, and if it is desired to plat the land this fact should be stated. The petition should be titled like an ordinary adversary proceeding. It should also allege the reason for the necessity of the sale as provided in sec. 10945, G. C.,-"** and generally all facts necessary for the Court's knowledge in order to properly pass upon the question whether or not the sale should be ordered. It should be verified, the statute so requires. If there are any liens on the real estate, this matter should be alleged. TThile the court might not in a collateral proceeding set aside an action founded upon a petition in which some of the facts re- quired by sec. 10946, G. C.-'' were omitted, yet it would be exceedingly dangerous to file a petition in any case and omit any of the matters required by that section. 24 § 10946 G. C. include it in the petition, although See § 1482, Foreign Gdn. its sale would have to he made 25Mauarr vs. Parrish, 26 0. S. under the order of the court in such 636. ]\Iust describe all of^ the lands. state, and according to the laws See 3.3 L. R. A. 363. there governing. The petition must 25* § 1405. give all the property of the ward, 26 § 1410. although only a part is desired to If some of the real estate is he sold. Maurer vs. Parish, 26 O. located in another state, which it is S. 636. desired to sell, it might be well to 1267 FORM OF PETITION § 1412 § 1412. Form of petition. ( Title. ) Your petitioner, , represents that he is the duly ap- pointed and qualified guardian of , now of the age of years, and residing with at . . ; that he was appointed as such guardian by the Probate Court of county, Ohio, and that it is necessary to sell the real estate for the reason (here give one of the causes set forth in § 6280 K. S.) (§ 1405). (If there never was any personal property, say:) That no personal es- tate of any kind, belonging to said ward, ever came to the possession or knowledge of the petitioner. (But if there ever Avas any personal estate, then say, instead of the above: ) That all of the personal estate belonging to said ward, that ever came to the possession or knowledge of the petition- er, consisted of (here describe it generally; as, farming implements, horses, cattle, notes, moneys, bonds and mortgages, state stocks, bank stock, etc., etc.), and was of the value of dollars. That the petitioner has disposed of said estate in full (or if in part only, say, to the amount of dollars) , as follows, to-wit: Expended for said ward, in clothing, dollars ; boarding, dollars ; tuition, books, etc., dollars; in payment of a certain mort- gage held by , upon lot No , in Cincinnati, Ohio, dollars ; for taxes on same lot, dollars ; paying mechanics' lien thereon, dollars (and so of any other gen- eral expenditure). That there is no personal estate of said ward dependent upon the settle- ment of any decedent's estate or the execution of any trust, nor in expectan- cy (or if the fact be otherwise, instead of the above say. That there will be the amount of dollars, or an amount not yet ascertained, supposed to be about dollars, coming to said ward from the estate of , not yet finally settled ; or such an amount will be due tQ said ward from the trust estate in the hands of , who was made trustee by ) . That said ward is the owner of the fee simple (or life estate or leasehold, as the case may be) of the following described real estate, situate in county, Ohio, and described as follows, to-wit: (Here de- scribe it by metes and bounds), which real estate is worth, annually, dollars (or if wild land, say, which is wild land, and yields no income) . That the petitioner has received dollars, in rents, from all the real estate of his ward, and has expended the same as follows: In repairs, dollars ; taxes on real estate, dol- lars (etc., etc., as the facts are, and if any money is remaining on hand, so state, and the amount; or if all the lands yield no income at all, say, instead of the above. That the petitioner has received no rents whatever from any of said ward's real estate). That the sale of said real estate is necessary for the maintenance and education of said ward [or if it is proposed to reinvest the money arising from the sale, say or add. That the petitioner believes it will be for the interest of said ward to sell said real estate and reinvest the money arising therefrom in (state stocks, loans upon mortgage, or otherwise)]. That said ward is indebted to ( for necessaries in cloth- ing, in the sum of dollars; to for boarding, dollars ; to for tuition, dollars, etc.) ; (or if the fact be so, say. There is no indebtedness of the said ward). That has a lien on said real estate, by way of mortgage, to secure the sum of dollars now due (or not yet due, as the case may be) , and has a mechanics' lien for dollars, which accrued in the lifetime of father of said ward (or if no liens exist, say. There are no lions upon said real estate to the knowledge of the petitioner). § 1413 guardian's sale of keal estate 1268 (If there be a widow's dower in the land, say : ) That. widow of , lias a dower estate in said lands. That residing at and rcsidin§725. 2 X. P. (X.S.) 667; 15 Dec. 204j 41 § 10991 G. C, § 1367. The decision wis made withouj For further matters relating to reference to § 10833 G. C, and preparation of accounts, etc., see seems to the aut'ior to be somewhai doubtful. See § 738. 1317 EXCEPTIONS § 1493 " While Courts cannot be too strict and vigilant in the investiga- tion of accounts in cases where presumption of bad faith or dishonesty rebut the prima facie evidence, by reason of ex- travagant charges, purchase of articles not needed, concealment of funds or anything of the kind, yet guardians should not, in the settlement of their accounts, be held to the strictest rules of evidence. It cannot be expected that they can always have witnesses to their various transactions ; and were they obliged to prove the signature to every receipt for debts paid, supplies purchased, etc., the expense of summoning witnesses, taking depositions, etc., would involve heavy and oftentimes unneces- sary expenses." *^ Of course, the guardian must show, as the statute requires, a voucher, or by proper proof, that every expenditure set forth in his account has been made. It will also devolve upon the guardian to show that he has made proper investments of funds in his hands, and has in a proper manner discharged the duties devolving upon him. While the burden of proof as to the cor- rectness of credits claimed by the giiardian in the settlement of his account is on the guardian, in the absence of the showing of bad faith, the presumption will be in favor of the guardian that he has discharged his duties in a proper manner. The statute differs from that relating to administrators in reference to vouchers. The items of an administrator^ where the amount exceeds ten dollars, must be evidenced by a voucher, ,or there must he a specific affidavit as to such items.** All items in a guardian's account may be established by proof. § 1493. Effect of his settlement with Court. Eeview of such settlement. "The settlement in the probate court of the accounts of a guardian is final between him and his ward unless an appeal be taken therefrom to the common pleas court in the manner provided by law. But a subsequent guardian during the minority of his ward, or a ward, within two years after he arrives at full age, may open and review such settlement for «8 Woerner on Gr. 343. ** § 723. § 1494 guardian's accounting 1318 fraud or manifest mistake by civil action in the common pleas court o£ the county in which it was made, or the county where the former guardian resides when the petition is filed, as the plaintiff elects. " [ R. S. § 6289 ] ^- § 1494. When account may be opened up. '" The effect of the above section is to make each account, whether intermediate or final, a final account between the guard- ian and his ward as to every fact contained in the account, unless an appeal be taken as provided by law. There is only one reservation to this rule, that is, that the ward, within two years after arriving at the age of majority, shall have the right of opening the account for fraud or manifest mistake, by ci\dl action in the Court of Common Pleas. As to all matters con- tained in the account, the settlement by the Court becomes an adjudication,*" and as such cannot be attacked in a collateral proceeding. In an action upon a guardian's bond for the re- covery of the amount found due the ward upon the final settle- ment of the guardian's accounts in the Probate Court, the sure- ties are concluded by the settlement, and Avill not be heard in the absence of fraud and collusion to question its correctness or to demand a rehearing of the accounts.*' And where it is claimed that the payment made by the guardian Anth which he credited himself in his account, as approved by the l*robate Court, was in fact wrongfully made, the ward or a subsequently appointed guardian cannot bring an action against the party who received payment for such a claim.** A settlement by the Court, however, does not include matters which are not therein contained, or which may not by proper inference be presumed to have come Adthin the matter set forth in the account.*'' 45 § 10964 G. C. and straightened out, the costs at- This statute applies to guardians taching such examination shall not for idiots, imbeciles and drunkards. be taxed against the ward. In re see § 10!)81 G. C. Gorman, 2 X. P. (X.S.) 667; 15 46 Woodmansie vs Woodmansie, 32 Dec. 204. O. S. 18. Action to open up an account 4 7 Wegner vs. Wiltsie, 23 C. C. must be brought within the two 302; Braiden vs. Mercer, 44 0. S. years' limit provided by statute, and 339. not within four j'ears after the dis- 48 Lynch vs. Cogswell, 18 C. C. coverv of the fraud, under §11224 641; 7 C. D. 12; Walsh vs. IMiller, G. C.; Everett vs. Howard, 78 O. S. 51 O. S. 462. 109. 49 State vs. Parish, 1 Ind. App. Where the finding is made by the 441; Davis vs. State, 68 Ind. 104 Parsons vs. Milford, 67 Ind. 489 Briscoe vs. Johnson, 73 Ind. 573 Naugle vs. State, 101 Ind. 284 Wainwright vs. Smith, 106 Ind. 230 * Cited. In re Connell. 56 Bull Probate Court, upon a fraudulent statement of fact, and the law courts give no relief, a Court of Equitv will. Gantz vs. Grease, 82 0. S. 4i. A giiardian's final account is un- impeachable after two vears. Lamb- !.• - .._ Ti-u: in XT r> /XT ox 145; 12 N. P. (N.S.) 311. kin vs. Robinson. 10 N. P. (X.S.) Whore the guardian keeps such 1 ; 21 Dec. 40: Woodward vs. Curtis, loose and tangled accounts that it is 19 C. C. 15; 10 C. D. 400. necessary to have them examined 1319 APPEAL AND ERROR § 1495 It is a general practice, and one which no doubt the Courts will uphold, that where, in an intermediate account there is a palpable error in calculation or in omission to make a proper charge either for or against the guardian, to permit such error to be corrected in a subsequent or final account. Having given proper notice, the Court may pass upon the account regardless of the fact whether the ward has had actual notice or not.^" § 1495. Appeal and error. The general statute relating to appeal specifically provides that there may be an appeal from the decision of the Probate Court upon an account of the guardian." From the peculiar wording of sec. 10959, Q. C.,^^* which makes the account final unless appeal is taken therefrom as provided by law, the ques- tion whether a proceeding in error could be prosecuted from the decision of the Probate Court upon an accounting is an exceed- ingly serious one. The probability is that such jurisdiction would not be entertained and the party would be required to follow the remedy of appeal particularly provided by statute. § 1496. Settlement with succeeding guardian. When a guardian files his account before his ward arrives at the age of majority, it is his duty to pay to his successor in the trust the amount which the Court may find that is owing by him to his ward's estate ; and on failure so to do, his successor may sue him individually therefor or may enter suit on his bond and recover the same. If there was found anything due the guard- ian, it would be the duty of his successor to pay such amount whenever he had funds in his hands applicable for that pur- pose. As to the succeeding guardian's liability for investments and assets delivered into his hands by the former guardian, some difficulties have been encountered. Thus it is said that a dis- tinction exists between loans made by the guardian of funds in 50 Scobey vs. Gano, 35 O. S. 550. just and reasonable. In re Gorman, See §743, How account of admin. 2 N. P. (N.S.) 6G7; 15 Dec. 104. may be opened up. A subsequently appointed griard- 51 § 11206 G. C, § 31). ian or the ward liiniself may have ^'1* § 1493. an accounting witliin two years after Where a case is appealed from tlie account is filed, and if the oruardian decision of the Probate Court re- moves from the jurisdiction of the fusing to allow fees of a referee, the court, suit may be brouglit on the Common Pleas may proceed and tax bond. Engelcke vs. Engeicke, 3 N. the costs in the manner it deems P. (N.S.) 88; 15 Dec. 529. §1496 GUARDIAN S ACCOUNTING 1320 his hands, and simply retaining investments previously made by a former custodian, or by the owner of them ; the rule of lia- bility being much more stringent in the former than in the latter case.^" The succeeding guardian is not bound to take the securities tendered him if they are improper investments, but may insist on having them converted into cash, or, at any rate, he need only take the securities at their actual value, and then should collect the balance from the outgoing trustee. If he takes the securities at their inventory value, he will be responsible for them at that price.^' Especially would he be responsible, if he retained such security for a considerable time uncontroverted. He could not then charge his predecessor with any loss.°* 52 Woerner on Gr. 209. Thus where a guardian received from a former guardian three judg- ment bonds, constituting liens upon the property of the obligor (upon which there were prior liens), in lieu of the money secured by said bonds and belonging to his ward, he was held not liable for loss, although the obligor became insolvent before the maturity of the third bond, and the security turned out to be inade- quate by reason of the prior liens; the Court considering that the in- vestment had been made by the guardian's predecessor, with special reference to the interest of the v/ard, being made payable when she be- came of age, and was such as care- ful and prudent men would have deemed safe at the time the bonds were assigned to him. Jack's Ap- peal, 94 Pa. St. 367. 63 Loring Trustee's handbook 83, citing In re Salmon, 42 Cli. Div. 351; Thayer vs. Kinsej^, 162 M^ss. 232. 54 Thayer vs. Kinsey, 162 Mass. 232. A guardian who knows that his predecessor used the ward's money for his own purpose, but suffered his accounts to be passed without charg- ing this sum to him, Burke vs. Tur- ner, 85 N. Car. 500; or who accepts from the administrator (Eescher vs. State, 63 Ind. 302) ; or from his predecessor (State vs. Greensdale, 106 Ind. 364; 55 Am. Rep. 753) a note, instead of money is liable. But the guardian is not liable for a note taken by the executor which came into the guardian's hands as part of the estate, except upon a finding of negligence. Sanders vs. State, 49 Ind. 228. Where the guardian negligently failed to collect a note, but delivered it to his successor, it is no defense that the successor obtained a judg- ment and collected a pait. Ames vs. Williams, 74 Miss. 404. Compare Mattax vs. Patterson, 60 Iowa 434; State vs. Bolte, 4 Mo. App. 599; 72 Mo. 272. Where the guardian received from his predecessor a note, which might have been collected by immediate action, but was soon lost by the debtor's insolvency, he was held not liable, the Court saying: "He is not bound instantly to sue in all di- 1321 SETTLEMENT § 1497 As a general rule, it may be said that it is the duty of the succeeding guardian to examine the account of his predecessor, and to accept no securities from him at their face value without being satisfied that they are good and that he is willing to as- sume the responsibility of their collection ; and whatever he agrees to accept in discharge of the former guardian's liability, he will be held accoimtable. Thus, where by agreement be- tween a succeeding and a former guardian, the succeeding guardian agreed to accept a stock of goods in discharge of the former guardian's indebtedness to the ward, it was held that he made himself chargeable with the amount of such indebted- ness.^^ Where a succeeding guardian settled with his predecessor as if the amount he received was in cash, although he had accepted several mortgages in lieu of money, if such mortgages were not properly secured or invested in such trust funds as required by law, the responsibility of the guardian was held to be the same as if he invested the fund of his ward himself.^^ § 1497. Settlement with ward. We have heretofore seen that all contracts made by and be- tween a guardian and his ward during the guardianship, and its termination within a short time thereafter, are always sub- ject to the strictest scrutiny of Courts. ^^ In order to make a settlement binding between a guardian and the ward, the guard- ian must show that the ward had full knowledge of all his affairs, and that no undue advantage was taken in such settle- ment. For the protection of the ward, a presumption of law has arisen in reference to all transactions between a guardian and his ward, that if such transaction results prejudicially to the ward's interest it is construed to be fraudulent.^^ rections." Stem's Appeal, 5 Whart. b7 § 1399. (Pa.) 472; 34 Am. Dec. 56!); 15 A. os Woerner on Gr. 3G0, 3G1. & E. Ency. of Law, 2 ed. 92. The relation of gun naan and ward 65 Martin vs. Davis, 80 Wis. 37G. after settlement is that of debtn- 50 ]\ratter of Hathoway, 80 Hiin, and creditor Lamkin vs. Robinson, 18G, 188. 10 N. P. (N.R.) 1; 21 Dec. 40. See § 708j Successive administra- Six years bars a claim for a bal- tions. ance shown on a guardian's final See State vs. Beatty, 33 Bull. 100, account. Id. for action against former guardian for failure to collect money. § 1497 GUARDIAN ^S ACCOUNTING 1322 The ordinary conclusive presumption tliat all men know the law does not apply in such cases, and the ig^iorance of the legal effect of the transaction is a complete answer to the objection of undue delay in the assertion of his rights by the ward ; and if a guardian makes a final settlement with his ward, and is dis- charged without having in fact paid over the balance due his ward, neither the guardian himself nor the sureties upon the bond are released from liability. ^^ If a settlement is honest, it discharges both the guardian and his sureties ; but if it is tainted with fraud, or is afterwards set aside, it is wholly void."" Where such a settlement is fairly made, it can be enforced, and if the guardian induces his ward to sign a receipt for the money, and then does not pay it to her, she may sue him for the amount without in any way opening or reviewing the account which was settled in the Probate Court.®^ While a guardian may make a settlement out of Court, and before his final account has been approved by the Court, yet he always does so with some liability to himself. The better way is for the guardian to file his account, let it be passed upon by the Court, and then pay whatever is found due to the ward, and take the ward's receipt in full, having the ward's signature made in the presence of witnesses or in open Court, and have such re- ceipt recorded with the final account.®" 59Naugle vs. State, JOl Ind. 284. settlement with the administrator 60 Bohart vs. Atkinson, 14 O. 228; and took his receipt in full before Douglass vs. Ferris, 1.38 N. Y. 192; the account was passed upon by the 34 A. S. Eep. 435. Court. The widow of the ward 61 Lindsay vs. Lindsay, 28 O. S. claimed that she was a party in in- 157. terest and appeared in Court and See Berkmeyer vs. Kellerman, 32 filed exceptions, the Court sustain- 0. S. 239, where a conveyance by a ing her right to do so. While the minor on the day he became of age exceptions were not sustained and to his guardian was set aside. the account was finally approved by 62 The following came within the the Court, yet the guardian was re- author's personal experience. The quired to defend his account when ward having died and there being an all funds in his possession had been administrator appointed, the guar- paid out. dian at the time he filed his final ac- See further as to contracts be- count in the Probate Court made a tween guardian and ward, § 1399. 1323 HOW FINDING ENFORCED § 1498 § 1498. How finding of Probate Court enforced. The Probate Court has no power to compel obedience to its judgment or decree, or to enforce the payment of the balance found by execution;®^ there is no statute specially applicable thereto. If such amount is not paid, the succeeding guardian or ward must commence an action in the Court of Common Pleas to recover whatever may be due.''* § 1499. Settlement by executors, administrators, etc., of guardians. How enforced. "When a guardian dies or by reason of insanity or other incompetency, is placed under guardianship before the settlement in court of his or her guard- ianship account, the executor, administrator or guardian of such deceased or incompetent guardian, must settle such ac- count in the manner the guardian should have done. Any per- son having an interest in the settlement of the account, or the court by which such guardian was appointed, of its own motion, by citation to be issued, returned and proceeded upon accord- ing to the provisions of law then in force for the settlement of decedent's estates, may compel such settlement to be made by such administrator, executor or guardian. The executor, administrator or guardian making the settlement shall be al- lowed such compensation therefor as the court with which it is made deems reasonable." [R. S. § 6291.] ^^ 63 A failure to pay is not a con- ward exists, and over these the Pro- tempt of Court. Ex parte French, bate Court has sole jurisdiction. 4 Gaz. 209 ; In re Rowekamp, 27 B. Subsequent dealings after the ward 289. has become of age have nothing to do 64 The language of § 10848 G. C. with the guardian's account. At (§761), seems to permit an action that time tne relation of guardian to be brought in the Probate Court, and ward has ceased, and that of on the settlement of a guardian, the debtor and creditor has begun; Cro- same as an administrator's, etc — well's Appeal, 2 Watts, 295; and but in other sections, to-wit. both parties have passed beyond the §§ 10850 G. C. (§ 771.J ; §10856 G. control of the Probate Court, except C. ( § 783 ) , the codifters do not in- as to matters which occurred while elude guardians, although they are their former relations subsisted. in the original act. 58 V. 202, ;tc. IMeier vs. Herancourt, 8 Bull. 29; The accounts of a guardian msan Woerner on Gr. 110. his dealings on account of his ward <">'> § 10957 G. C. while the relation of guardian ;:nd See § 707. § 1500 guardian's accounting 1324 § 1500. Commeiits. LTnder tlie statute relating to administrators, it is made the duty of the administrator of a deceased administrator to file the account within six months."" The above section gives no such length of -time, and it is the duty of the administrator of a deceased guardian to forthwith file such account.*'^ The settlement hy the administrator of a deceased guardian is the same in effect as if made by the guardian himself.''^ The administrator has no power to manage the property of the estate, but only to transmit it to the succeeding guardian. He cannot maintain an action on the bond of a third person to recover a sum alleged to be due.®^ He has no authority to in- vest the funds, nor to discharge the guardian's general indebted- ness by setting aside a portion of the guardian's estate for that purpose.''" The executor of a deceased guardian has no right, it has been held^ to draw from the bank, nor the bank to pay out to him, money deposited by the deceased as guardian.''^ 66 § 10822 G. C, § 707. 69 Davis vs. Fox, 69 N. C. 435. 67 See § 1335; In re Est. Bruek- 7o Moorelicad vs. Orr, 1 S. C. 304; ^Trt} ^a^' ^^'^J ^" ^. r^ c Clark vs. Tompkins, 1 S. C. 119. esBraiden vs. Mercer, 44 0. S. ^ -A , \^« r, ^ ,o^ 339, 345 ; Scobey vs. Gano, 35 O. S. '' ^ary vs. Bank, 2G S. C. 538. 550. 1325 GUARDIANS OP LUNATICS, ETC. § 1501 CHAPTER LXXXII. GUARDIANS OP LUNATIC, IMBECILE AND IDIOT. § 1501 Guardian of idiot, imbecile § 1521 and lunatic. Who is an imbecile. § 1501a Guardian for persons con- § 1522 fined in State institutions. § 1502 Court having jurisdiction. § 1503 For whom appointment made. § 1503a Guardians for incompetents § 1522a and persons confined in in- § 1522b stitutiohs. § 1504 Application for appoint- § 1523 ment. § 1505 Form of application. § ISOe Notice, entry, etc. § 1524 § 1507 Form of notice and service. § 1508 Hearing, etc. § 1524a § 1509 When order should be made. § 1524b § 1510 Entry. Finding person in- capacitated. § 1510a Costs. § 1524c § 1511 Effect of finding of dis- § 1525 ability. § 1512 Who may or should be ap- pointed. § 1513 When guardianship to ter- § 1526 minate. § 1514 Procedure for removal, etc. § 1515 Appeal and error. § 1516 Laws applicable to guard- ians of lunatics, idiots, § 1527 imbeciles and their chil- dren. § 1528 § 1516a Settlement of such guard- ian. § 1520 § 1517 Exception as to voucher § 1530 and opening account. § 1518 Duties of guardian as to § 1531 welfare of ward. § 1532 § 1519 Duty of guardian as to ex- isting contracts. § 1533 § 1520 Insolvency of lunatics. § 1501 Guardian for idiot, imbecile and lunatic. Who is an imbecile. "The word 'imbecile,' as used in this chapter means a person who, not bom idiotic, has become so." [R. S. § 6302. ]i Upon satisfactory proof that a person resident of the county, or having legal settlement in any township thereof, is an idiot 1 § 10988 G. C. Suit by guardian of idiot, imbecile or lunatic, and revivor of same. Sale of real estate by guardian of idiot, imbe- cile or lunatic. Petition. Private sale. Parties de- fendant. Petition; what to contain. Husband or wife to be made defendant. Dower of insane, idiotic or imbecile person; how as- signed or sold. Procedure in assignment of dower. Application to sell and re- lease dower, etc. Entry authorizing and or- dering release of dower right, etc. Guardian's deed. Guardian empowered to lease and improve estate. Termination of lease. Lien of tenant. Long lease by guardian may be authorized by court. Lease for three years without order of court. Application for authority to make long lease. Proceedings on such appli- cation. Final hearing and orders. Guardian may improve real estate of imbecile, etc. Proceedings. May unite with owners of adjacent property. Guardian's report, etc. § 1501a GUARDIANS OP LUNATICS, ETC. 1326 or embecile, or lunatic, or an incompetent by reason of advanced age or mental or physical disability or infirmity, the probate court shall appoint a guardian for such person,, who by virtue of such appointment shall be the guardian of the minor chil- dren of his ward, unless the court appoints some other person as their guardian. No such guardian shall be appointed until at least three days after the personal service «f a written notice setting forth the time and place of the hearing shall have been served upon the person for whom such appointment is sought ; and also until at least three days after written notice has been served upon the persons next of kin of such person for whom appointment is sought, resident in the county in which applica- tion is made, to attend such hearing at the same time and place ; which notice shall be served by delivering a copy of it to each person named therein or by leaving such copy at his or her usual place of residence. [R. S. § 6302; 108 v. 387.] i* § 1501a. Guardian for person confined in state institution. Upon satisfactory proof that a person resident of the county, or having a legal residence therein, is confined in any state, benevo- lent or penal institution under the order of any court, the pro- bate court may on its own motion, or upon application, appoint a guardian for such person. No guardian shall be so appointed until at least three days' written notice to the person so con- fined and the persons next of kin resident in the county of such person is given to attend at the same time and place, which shall be served by delivering a copy of it to each person named therein, or by leaving a copy at his usual place of residence. [103 v. 471.] If Laws applicable. Laws relating to guardians for minors, idiots, imbeciles and lunatics or an incompetent by reason of advanced age or mental or physical disability or infirmity, and pointing out the duties, rights and liabilities of such guardians and their sureties, shall be applicable to guardians appointed under the provisions of section 10989-1 of the General Code. [103 V. 471; 109 v. 73.]^$ § 1502. Court having jurisdiction. The appointment must be made by the Probate Court of the county in which the alleged idiot, imbecile or lunatic resides, or in which he has a legal settlement in some township of such 1* § 10989 G. C. See § 1317, Kinds of Gdns. The clause providing for notice it § 100S9-1 G. C. was not in the statute prior to Mch. it § 10989-2 G. C. 1, 1889. 1327 WHEN APPOINTMENT MADE § 1502 county. This jurisdiction is exclusive, and no other court, either Probate or Common Pleas, has a right to make such appoint- ment. "What will constitute a resident of the county has been discussed in several previous chapters of this work.^ "Wliere a guardian is appointed for a lunatic or an imbecile, the residence of such person w^ould be that in which he lived at the time the imbecility or lunacy fastened itself upon him. An idiot himself can not change his place of residence, and in this respect is very much similar to a minor — that is, when he changes his residence, it must be by virtue of the direction of some one having legal control over him. The Probate Court can not appoint a guardian unless the person has resided con- tinuously, for a period of at least twelve consecutive months, or has come into such county with his father, or some one having legal control over him, with the intention of making it his permanent place of abode.^ The second requirement of the statute is that the alleged im- becile, idiot or lunatic must have a legal settlement in the town- ship of the county if he is not a resident of the county. "Legal settlement" has been defined to mean the continuous residence within the county for twelve months.* "Woerner says:^ "The subject of the settlement of paupers has given rise to considerable litigation, and two principles of law are said to be well established which throw light on the question of jurisdiction over persons of unsound mind: first, that an idiot (or person of unsound mind) can acquire no resi- dence or settlement in any place by virtue of his own acts ; and next, that a person having acquired a legal settlement in one place, that settlement continues until he acquires a legal settle- ment in another place in the State." § 1534, Gdns. of drunkards. where he or she made it his or her 2 §§ 116, 1322. home. In most instances there can ^ In re Canady, 4 N. P. 403; 7 be no difficulty in applying these Dec. 285. provisions of the law, in .the light In Payne vs. Town, 29 111. 125, it of which the statute must be read, is said: "The term residence men- in order to give it its legitimate tioned in this chapter, shall be taken office. One of these is, that an idiot and considered the actual residence can acquire no residence or scttle- of the party or the place where he ment in any place, by virtue of his or she was employed, or in case he or her own acts, for an idiot is in- or she was in no employment, then capable of exercising a will or do- it shall be considered and held to be ing any act binding on himself or § 1503 GUARDIANS OF LUNATICS, ETC. 1328 § 1503. For whom appointment made. The person for whom a guardian can be appointed under the provisions of sec. 10989, G. C.,° must be either an idiot, imbecile or a lunatic."'^ These various designations are intended to in- clude persons who by want of understanding are unable to properly take care of themselves or their estate. An idiot is defined to be one who has had no understanding from his na- tivity.^ When a man can not count or number twenty, nor tell his father's nor mother's name, or his age, having been frequently told, it is fair presumption that he is devoid of understanding.® others. His residence or settlement must be derived from bis father, or those having the paramount right to control him. ^ The object of the law in requir- ing the appointment to be made in the county in which the person for whom the appointment is sought, re- sides, or has a legal settlement, is that it be made where it is most likely that persons having an inter- est in such appointment or the wel- fare of such unfortunate person will have notice of such proceedings, and maj^ take such steps as will prevent an injustice being done. It is to prevent the spiriting away of such weak-minded person from his rela- tives or friends, to strangers, and there make an application, which by reason of no one to defend, might result in a great wrong. This court is, or at least should be, the special protector of such persons. In re Canady, 4 X. P. 404; 7 Dec. 283. 5 Woerner on Gr. 39S. G § 1.501 R. S. Ga See next section. 7 Bouv. Die, In Owing's Case, 1 Bland (Md.) 370, it was said: "Idiocy is that condition in which the human crea- ture has never bad, from birth, any the least glimmering of reason, and is utterly destitute of all those in- tellectual faculties by which man, in general, is so eminently and pe- culiarly distinguished. It is not the condition of a deranged mind, but that of a total absence of all mind. Hence this state of faculty can rare- ly or ever be mistaken by any — • the most superficial, observer. The medical profession seems to regard it as a natural defect, not as a dis- ease in itself, or as the result of any disorder. In law it is also con- sidered as a defect, and as a per- manent and hopeless incapacity." The difference between an idiot and a madman is, that "madmen put wrong ideas together, and so make wrong proposition, but argue and reason right from them; but idiots make very few or no proposi- tions, and reason scarcely at all." Com. vs. Haskell, 2 Brews. (Pa.) 491; 15 A. & E. Ency. of Law 924. SBouv. Law Die, Title, idiot. A person who has attended school for a number of years and is not able to tell how much ten times twelve is, or six times fifteen or sis per cent, of $100, or ten per cent, of $100, or how he would invest $400 other than he would put it in the bank, although in some small deal- ings he is close and careful, and is generally regarded as stingy, is not capable of taking care of his own property. Frantz vs. Frantz, 6 Dec. 555; 4 k. P. 278. 1329 IDIOCY IMBECILITY 1503 Our statute defines an imbecile to mean a person wlio is not born idiotic, but has become so. It therefore follows that idiocy and imbecility, within the statute applying to guardianship for such persons, mean the same thing,^ only the one has been such from birth and the other was acquired afterwards. An imbecile is defined as one destitute of strength, either of body or mind; one who is weak, feeble, impotent or decrepit,^" A lunatic is one who is insane, and insanity is defined to be the prolonged departure without any adequate cause from the states of feeling, modes of thinking, usual to the individual in health.^^ Another definition is that a lunatic is one who hath had understanding, but by disease, grief or other accident has lost the use of his reasoning.^- It will be observed that under this definition of a lunatic might also be included an imbecile — the difference being that lunacy results from an acute derangement of the understand- ing, while imbecility generally follows from a decay of under- standing, resulting from old age, disease, etc. But the main question before the court in this kind of proceed'ng is not whether the person is an idiot or an imbecile or a lunatic in the general sense of the term, but whether he is possessed of such understanding as will enable him to make that use of himself or his property as he would do were he possessed of his right faculties. It was held in one case by our Supreme Court that where a person was appointed and qualified as guardian of an infant, who was also of unsound mind, but the record was silent as to the ground of the appointment, and the guardian continued to act as such for seven years after the infant was of age, it would be presumed that the appointment 9 It evidently did not mean that 587, it was said tliat "infirmity of a person cannot be adjudged an im- mind, termed imbecility, as d'stin- becile unless he is a complete idiot guislied from idiocy or lunacy, is — that is, a person without mind usually incident to extreme a^e, and and capacity. It simply means that is generally the result of a gradual a person must have become infirm decay of the mental faculties." to the extent that he can not man- n Bouv. Law Die, age his business and affairs with See In re Shellcg, II Dec. 81. sufTlcient capacity to preserve his 12 1 Black. Com. 304. property. In re Emswiler, Ohio The word "insanity" will in- Leg. Xew. Vol. 8; 8 N. P. 132. elude imbecility. Eoss vs. Todd, 4 10 In Messenger vs. Bliss, 35 0. S. C. C. 1; 2 C. D. 385. § 1503a GUARDIANS OF LUNATiCS, ETC. 1329a covered both grouuds.^^ This question will again be referred to in a subsequent section." § 1503a. Guardians for incompetents and persons confined in state institutions. Since the former edition of this work the legislature has added three classes of persons for whom a guardian may be appointed, to-wit'. 1. An incompetent "by reason of advanced age or mental or physical disability or infirmity. § 10989 G. C. (§ 1501). 2. A person confined in any state benevolent or penal institu- tion under the order of any court. § 10989 G, C. (§ 1501a). 3. A person who is incapable of taking proper care of himself or herself, or his or her property, or neglects or fails to provide for his family, or for other persons whom he is chargeable by law to provide for by reason of improvidence. § 11011 G. C. (§1537). In the first two the procedure is the same as in the appoint- ment for a lunatic; in the latter the same as for a drunkard. The recent amendment affecting the appointment of a guard- ian for a lunatic, etc., now provides that no appointment can be made until at least three days after the personal service of a written notice setting forth the time and place of hearing shall have been served upon the person for whom the appointment is sought. It was the practice of many courts before this provi- sion became the law, to require this to be done; but it was not mandatory, and further this must be a personal service; it can not be made by leaving a copy at his usual place of abode. The facts that the order can not be made until after three days from date of service, and that the service must be a personal one, are jurisdictional facts, and an order made where the statute has not been complied with, would be null and void. In addition to this the notice must be given to the next of kin as formerly provided. The only difference in procedure for appointment of a guardian for a lunatic, etc., and a drunkard, etc., is in the length of time of notice to be given, and in the fact, where the application is for a drunkard, etc., only the person for whom the guardianship is sought, needs to be notified. 13 King vs. Bell, 36 0. S. 460. * This is uot essential, but mav 14 See § 1509. be desirable. 1329b IDIOCY IMBECILITY § 1504 What will constitute an incompetent, remains yet to be judi- cially determined, but it is now do doubt intended to apply to persons who may be neither idiots, lunatics, nor imbeciles, but yet not strong enough mentally or physically, or both combined, to properly take care of themselves, or their property. The same rule should be given as to want of capacity in all cases. The difference between guardianship under the statute relating to lunatics and that relating to drunkards, is, that under the latter the cause for the existing facts which justify a guardian, lies largely within the will of the party himself; under the former this is not the case. The question will sometimes arise, upon what ground the application shall be based, as these various causes which will justify a guardian, run into each other. The person about to make the application should carefully consider which of the following the evidence will show: 1, idiocy; 2, lunacy; 3, imbe- cility; 4, incompetency by reason of advanced age or physical disability or infirmity ; 5, confinement in any state benevolent or penal institution ; 6, incapable of I, taking proper care of him- self or herself; IT, of his or her property; ///, or neglecting or failing to provide for his own family; or 7F, other persons whom he is charged by law to provide for, by reason of a, intemper- ance; b, improvidence; c, or habitual drunkenness. Several of these causes I apprehend, might be joined in one application if the person was in doubt, only if the application be on the first five grounds, notice must be served on the next of kin and may be heard in three days. If on the sixth ground, five days' notice must be given. In all cases there must be a personal service on the person for whom the guardianship is sought. § 1504. Application for appointment. "Whenever it is sought to have the court make an appointment for a person under a disability, some interested party should appear in the Probate Court and file an application. This ap- plication should set forth, first, facts showing that the person making the application has some interest in the alleged idiot, imbecile or lunatic * ; second, that the alleged imbecile, idiot or lunatic is a resident of the county in which the application is made, or has a legal settlement in some township thereof; third, it should state the age of such idiot, etc. ; fourth, it should con- tain an allegation that the said person is either an idiot, lunatic § 1505 GUARDIANS OF LUNATICS, ETC. 1330 or imloecile; fftlh that such person is incapable of tailing care of or prcscrvir.fj his property ; sixth, it should state the amount, character and nature of the alleged idiot's, etc., property; seventh, it should state the name, and, if a minor, the age, and the place of residence of all of his next of kin ; eighth, it should contain a prayer for such appointment and be verified. The court should require an application of this kind to be filed even though it had previously passed upon the party's insanity and committed such person to the asylum. In proceedings to com- mit a person to a hospital for the insane, the statute does not require notice to be given to the next of kin or any person. But in proceedings to have a guardian appointed, such next of kin is entitled to notice, and it would now be held, although the Supreme Court held otherwise,^^ under the statute as it then existed, that an appointment made without such notice would be void.^® § 1505, Form of application. (Title.) Now comes A. B., a resident of , and represents to the Court that one C. D., age years, is a resident of this county and has a legal settlement in the tosvnship of in said county. That tlie said C. D. is an idot (lunatic or imbecile) (if a lunatic has been com- mitted to an asylum, state such fact) and by reason of such idiocy (im- becility or lunacy) he is incapable of taking care of (himself) or preserving his property. Said A. B. further represents that the following is the whole estate of said C. D., to-wit: personal property consisting of (here mention) of the value of dollars; and real estate (here describe) of the probable value of dollars. That the following named per- sons are the only next of kin of the said C. D. resident of this county Wherefore he asks and prays that a guardian of the person and estate of said C. D. be appointed and that the Court may fix a time for the hearing of this application and that notice thereof may be given to the said C. D. and his next of kin. resident in this cormty. State of Ohio. County, ss. A. B., being first duly sworn, says that the statements contained in the above are true as he verilv believes. Sworn to before me and subscribed in mv presence this day of , 190. ..17 §1506. Notice, entry, etc. Prior to 1889, the statute did not require notice to be given to any one, but now requires not only notice but personal notice in writing. "Whether or not the alleged imbecile must iSHeckman vs. Adams, 50 0. S. 16 See § 1536, Gdns. of drunkards. 305. 17 See § 1536. 1331 NOTICE, ETC. § 1506 be notified, when the statute does not so direct, is somewhat of a mooted question. In an early case, in the Court of Common Pleas, decided by a judge who was afterwards a member of the Supreme Court, it was held " that not to give notice is probably not in accordance with approved practice anywhere, and no such power could be safely lodged with any Court." ^® It was said afterwards, by a learned and distinguished jurist, that although the statute made no provision for it, notice ought to be given.^® This same Court, however, held where the stat- ute did not require notice to be given, that such notice was not jurisdictional, and a failure to give notice is an irregularity which can be complained of only in a direct proceeding to set aside the order of appointment.^" " It may, however," says Woerner, '' be laid down as a funda- mental principle of justice, essential to the rights of every man, that even in the absence of express statutory requirement, he shall have notice of any judicial proceeding, for the purpose of divesting him of his property, or of its control, that he may appear and defend his right ; and that an inquisition which, if the Court has jurisdiction, is conclusive, is void and of no ef- fect, if notice had not been given." ^^ Unquestionably a judgment would be void in a direct or col- lateral proceeding, were not the statute followed in giving notice to the next of kin in the county. When the application is filed an entry should be made, which may be in the following form ; {Title.) This day cair.e A. B. and filed his application for the appointment of a guardian of C. D., alleging that said C. D. is an idiot (lunatic or imbecile) and by reason thereof is incapable of taking care of and preserving his property. It is therefore ordered that said cause be set for hearing on the day of , at o'clock, at the Probate Court room of county, Ohio; and it is further ordered tliat at least three days' written notice personally served on said of the time and place of hearing be given to the said C. D. and all his next of kin, residents of this county, of tlie time and hearing of said applica- tion and th.at said notice be served by delivering to each person tliorein named a copy thereof, or by leaving a copy at their usual place of residence. 2t. 18 Cox vs. Cox, 1 W. L. M. 9(5. 21 Woerner on Gr. 303, citing a 19 Jui'.g3 Taft in Jordan vs. Dick- number of authorities. son, 20 Lull. 360. ^- If the notice is to be served by 20 Id. any one other than the sheriff, the § 1507 GUARDIANS OF LUNATICS, ETC. 1332 § 1507. Form of notice and service. State of Ohio, County, ss. To of said County, Greeting. You are hereby commanded to notify (here insert the names of the next of kin and the alleged imbecile) giving at least three days' notice, that on the day of , 190. .. filed in the Probate Court ol and State of Ohio, an application for a guardian of C. D., an alleged imbecile (idiot or lunatic) and that he is thereby incapable of taking care of and preserving his property. That said application has been set for hearing on the day of ., , at o'clock. At which time and place they are required to answer, touching said application. The statute directs the manner of service, and it should he strictly complied with.* Return of service should be made hy affidavit, if the notice has been served by a private individual, or otherwise by an official endorsement.^^ § 1508. Hearing, etc. Whatever the law may be elsewhere, it is settled in Ohio that the defendant is not entitled to a trial by jury.^* The Court in one case says: "Under existing legislation, the Probate Courts of this State have power to appoint guardians for deaf and dumb persons of full age, whom they find to be incapable of managing their affairs, without submitting the question of incapacity to a jury of any kind." "^ It was further held that proceedings for the appointment of guardians are not inter partes or adversary in their character. They are properly proceedings in rem.^^ The question, then, whether or not a guardian should be ap- pointed is submitted to the Court upon evidence, the burden be- ing upon the persons making the application to establish by satisfactory proof that a guardian should be appointed. The entry should designate who should 20 Bull. 361, it was held that if the make the service. alleged imbecile was present in See § 1536. court, that such action would dis- ci ,-, , .J ,^ ^ r, pense with notice given to him. bee Heckman vs. Adams, 50 0. S. ^ g^g s 153(5 305, where it is held that where the 24 Hagany vs. Cohnen, 29 0. S. 82. Probate Court acquires jurisdiction ^5 Shroyer vs. Richmond, 16 O. S. in an inquest for lunacy to send to „: ^ , ,~^ , ..,.,.■. . 26 Id. 4o6. an asylum, jurisdiction is mam- • 1501 tained until such person is dis- Sometimes the laws governing charged — and no additional finding particular state institutions require is required for appointment of a ^ome of the officers of that institu- . ^'^ tion to serve all papers on inmates. g^a.Tdia.n. etc. See §2001 G. C, Lima state 23 See Woerner on Gr. 394. 3!)5. hospital. In the case of Jordan vs. Dickson. ' 1333 HEARING, ETC. § 1509 jurisdictional facts of residence and notice must be fully estab- lished. The evidence introduced in such proceeding is not dif- ferent from that in proceedings generally of this character. Opinions of witnesses derived from observation are admissible in evidence from the nature of the subject when no better evi- dence can be obtained."' But such witnesses must state the facts upon which they base their opinion. The acts and conduct of a paity, from his boyhood up, are admissible to illustrate his state of mind, even at the time of the trial. One thing that the Court should always look at, and that is the motive of the person or persons who are seeking the appointment of the guard- ian. It is said the " Court will guard with peculiar care the alleged lunatic from interference springing from a hostile mo- tive, and will weigh with more precision the evidence, if the person by whom it is tendered appears to be actuated by a sinister intent." ^* As a general rule, it would be well to have the party himself present in Court, for there is something about the actions and ways of a person not possessing his ordinary faculties that are best determined from observation, and the experience of the Probate Judge derived from inquests of lunacy will give him peculiar ability to determine the question at issue from the ob- servation of the person liimself.^^ § 1509. When order should be made. One of the most delicate of the many duties pertaining to the office of Probate Judge is that of making a finding upon an ap- plication of guardianship for an alleged idiot, imbecile or luna- tic When the person's incapacity is clearly shown, no diffi- culty is encountered, but there are many cases, especially of imbecility, where the line of demarkation between sufficient and insufficient understanding or capability is exceedingly fine. Persons who have once had charge of their own affairs are loath to ever believe that they have lost their ability to properly man- 27 Hardy vs. Merrill, 56 N. H. 227. 29 Cline vs. Lindset, 110 Ind. 337. 28 Woerner on Gr. 409, citing See § 1536. Francke vs. His Wife. 29 La. An. 302. 303. § 1509 GUARDIANS OF LUNATICS, ETC. 1334 age their estate or themselves. Facts which will justify an appointment of imbecility have recently been passed upon by several of our inferior Courts. In a case in Hamilton county,^" where it was held that the facts were not sufficient, the follow- ing was quoted with approval : " The infirmity must be such as to render her incompetent to have charge of any affairs, or do any business. If it does not extend that far, then she should not be found by you incompetent. If Mrs. Storick is possessed of ordinary sagacity, and insight into affairs, so that she knows how to care for her house and table and clothing ; to deliver and transact ordinary affairs, and is not so insane, nor so foolish or imbecile, as to have no mind or intelligence regarding ordinary matters and affairs which she is accustomed to know of, then you are not to find her incompetent." In a recent case in Scioto county an application was again re- fused.^^ In this case it was held a gaiardian will not be ap- pointed of a woman on the ground that she is an imbecile and incapable of managing her affairs when it appears that she is seventy-seven years of age, her hearing is very much impaired, her memory is defective, and that she possesses certain pecul- iarities, when it also appears that she had managed her house- hold affairs, paid her taxes, water rent and insurance regularly, attended to market and visited her friends and conversed in- telligently with them. The Court says the action of Mrs. Shel- leig, in conveying property away, to most minds, and to the Court, seems unwise in the extreme; but the question is not what may seem wise or unwise to others, but did Mrs. Shelleig know what she was doing when she did it? ^^ 30 /w re Tempest, 21 Bull. 301. wasting his property, making disad- 31 In re Shelleig, 8 N. P. 399. vanlageous contracts, spending large 32 A person may be an imbecile, sums of money on property in which though able to govern himself so as he had only a life estate, and which not to need a guardian for his per- was not worth, when the money was son. Therefore, where a person has invested, one-half the sum expended become so infirm mentally that he on it, is an imbecile within the cannot manage his affairs with suf- meaning of the statute. In re Ems- ficient capacity to preserve his prop- wiler, 8 N. P. 132; 8 Ohio Legal erty, a guardian may be appointed. News. One who for some years has been See § 1539. 1335 FINDING EFFECT OF § 1510 A mere weakness of mind is not sufficient to justify an order of appointment when such decree is not necessary for the pro- tection of the party's property, or person or of society.^^ The Court should always be fully satisfied that the interests of the alleged imbecile or idiot, regardless of the desires of any one else, require the appointment to be made before a finding to that effect is entered. If it really be to the interest of the person, no hesitancy should occur in promptly making the order.''* § 1510. Entry, finding person incapacitated. {Title.) This day this matter came on to be heard upon the papers in the case, and testimony of witnesses and was submitted to the Court. Whereupon the Court finds that the said C. D. is a resident of this county and has a legal settlement in the townslwp of county of That the said C. D., E. F., G. H. and I. J., all of his next of kin residing in this county, have had due and legal notice of the pendency of this appli- cation and its prayer, as provided by law, and the fornier order of the Court. That the said C. D. is a lunatic (idiot or imbecile) and that he is thereby incapacitated from taking care of or preserving his property. Wherefore it is ordered that some suitable person upon making the proper application in tliis Court and filing a statement and a bond, as re- quired by law, be appointed guardian of the person and estate of the said C. D.S4 The entry should contain a finding on all jurisdictional facts, and where the facts actually were shown to exist, it might be entered by a nunc jnv tunc entry.'^ § 1510a. Costs, etc. Sometimes considerable costs are incurred in the trial of the question of the person's incapacity. Of course if the court finds that he is incapacited, etc., thea the guardian appointed is gen- erally taxed with such costs and it comes from the ward's prop- erty. And generally if the application is dismissed, the costs are taxed against the party making the application. This may, however, not always be just, and if the court believes that the application was made in good faith and upon reasonable grounds, 33 Woerncr on Gr. 414. In re Dickson, 18 Bull. 37. 33* See § 1503. After tliis entry is made then tlie 34 It has been made a question in person desiring to be appointed this state whether the court could sliould file an application, etc., in make an appointment of a guardian the same manner as if the guardian- of t!ie estate of a lunatic witliout ap- ship was for a minor. pointing a guardian of the person. This entry of finding that the But the Supreme Court has an- I)arty is incapacitated is not a final swered this question in the alfirma- order from wliicli appeal can be tive, and a guardian may now be j)rosecutcd. A guardian nuist be re- appointed either for the person or fused or appointed, and such order for the estate of a person under dis- will be the final order. In re Breiten- ability. Heckman vs. Adams, .50 O. stein, 4 N. P. (N.S.) 358; 17 Dec. S. 305; King vs. Bell, 36 0. S. 460. 71. Tlie statute as it now exists, 35 See § 1536. allows an appeal from the finding § 1511 GUARDIANS OF LUNATICS, ETC. 1336 the court iu the discretion vested in it, might tax the costs against the person for whom a guardian was applied for, or the costs might be divided.^^'' § 1511. Effect of finding of disability. It was formerly provided by statute that the finding that a person was under such disability, that the guardian ought to be appointed, was only prima facie evidence of his imbecility; and our Supreme Court then held that the fact of such imbecility might be inquired into by an alleged imbecile in an action brought by him to enjoin the guardian from interfering with the control and management of his property.^*' The statute does not now contain such provision, and in a very able opinion Judge Taft decided ^' that the due appoint- ment by the Probate Court of a guardian for a person as an idiot, imbecile or lunatic, is conclusive evidence of such per- son's incapacity to make or to ratify contracts, or to do any act in derogation of his guardian's authority pending the guard- ianship. As to the ward's capacity to marry, to make a will, or to commit a crime, the appointment is only prima facie evi- dence of incompetency.^^ While the person under guardianship is generally incapaci- tated to make a contract, yet he may incur a valid obligation for necessaries."^ § 1512. Who may or should be appointed. It is specially provided by statute that the wife may be ap- pointed guardian.**' This statute was enacted when the wife was under a common law disability. Since this disability as to her property rights has been removed, this statute is surplusage. Under early English rules, the appointment of an heir at law, or the one next entitled to the alleged idiots, etc., property, was not favored, I presume, upon the reason that such person would not properly look after the personal welfare of the person for whom he was appointed guardian. But this rule is not fol- that a "Tuardian should be appointed. Where an imbecile marries, it will See § 11206 G. C, § 39. be annulled upon suit by the guard- 35a § 11628 G. C. ian. Wavmire vs. Jetmore, 22 0. S. 36 Messenger vs. Bliss, 35 0. S. 271. 587. 39Blockway vs. Jewell, 52 0. S. 37 .Jordan vs. Dickson, 19 Bull. 64. 187; Hosier vs. Beard, 54 0. S. 398. 38 Jordan vs. Dickson, 20 Bull. Where a guardian never assumed 362: Woerner on Gr. 424; McCleary control of a will, the same reniain- ys. Barcalow, 6 C. C. 481; 3 C. D. ing in the possession of the ward, ^^7. a contract of the ward for repairs It is held that it was only prima will be enforced. facie and not conclusive evidence of Kimball vs. Bumgardner, 16 C. C. incompetency to enter into a legal 587; 9 C. D. 409. marriage. Millen vs. Younsr, 18 C. Pee §§ 1536, 1538. C. 575 ; 8 0. C. 394. ^ 40 § 10990 G. C. As to will, also see 8 1024. 1337 TERMINATION § 1513 lowed in our country. If no peculiar objection exists, a person who is bound by ties of kindred is better qualified and more likely to look after the welfare of the person under disability than an entire stranger. What was said about the Court ap- pointing guardians for minors could be followed in making selections of guardians for persons of adult age, but under dis- ability." § 1513. When guardianship to terminate. ' ' When the pro- bate judge is satisfied that an idiot, imbecile, or lunatic, or an incompetent by reason of advanced age or mental or physical disability or infirmity, or a person as to whom guardianship has been granted as such, is restored to reason, or that letters of guardianship have been improperly issued, he shall make an entry upon the journal that such guardianship terminate. Thereupon it shall cease, and the accounts of the guardian be settled by the court." [R. S. § 6316; 109 v. 76.]^^ § 1514. Procedure for removal, etc. Of course, the guardianship would terminate by death of the ward or the guardian in the same manner as if the ward were a minor. The guardianship might also terminate by reason of the guardian's removal from the State or other causes, the same as if the ward was a minor. The procedure for removal would likewise be the same as that for the removal of a guardian of a minor, and the forms and entries and suggestions made in the chapter for the removal of executors and administrators could easily be adopted for the proceeding for the removal of the guardian of an imbecile.*^ The matter of removal of the guardian rests largely in the discretion of the Court. But an appeal will lie from an order of refusal.** *i § 1330. See § 1359, for removal of guard- Woerner on Gr. 437. ians for minors. A guardian should bo appointed ** Hiett vs. Nebergall, 45 O. S. for a person under disability, «ven 702. though he has been admitted to sm See § 41. Who may prosecute xp- infirmary. Kissell vs. Gram, 4 N. peal. P. 333; 7 Dec. 233. Only the Probate Court cm enter- See § 1517. tain a motion of removal. This is 42 § 11010 G. C. true even where the Common Pleas See § 1541. Court made the appointment on ap- 43 See §214, for removal of ex- peal. In re Gdn. Oliver, Vol. IX N. ecutor. P. (N.S.) 178; 77 0. S. 474. § 1515 GUARDIANS OF LUNATICS, ETC. 1338 § 1515. Appeal and error. The general section relating to appeal'*' provides that "ap- peal may be taken in proceedings to appoint guardians or trus- tees for lunatics, imbeciles or drunkards, by any person against whom such order, decision or decree shall be made, or who may be affected thereby." And in a case before the Superior Court of Cincinnati, Judge Taft said that "I presume that a refusal by the Probate Court to set aside the appointment for irreg- ularity in making it may be carried up on error, because such refusal is a final order within the statutory definition, i. e., 'An order in a special proceeding afi'ecting a substantial right of a person interested.' " *° As the Probate Court is a court of record, and its order can not be attacked in a collateral proceeding, if the action of the Probate Court is questioned, it must be done in a direct proceeding in the Probate Court and followed to higher courts by proceeding by way of appeal or in error. § 1516. Laws applicable to guardians Cx limatics, idiots, imlaeciles and their children; settlement cf sucli {jaardi^-ns. "Laws relating to guardians for minors and their wards and pointing out the duties, rights and liabilities of such guard- ians and their sureties, shall be applicable to guardians, for idiots, imbeciles, lunatics and incompetents by reason of ad- vanced age or mental or physical disability or infirmity, and their children, except as otherwise specially provided. Be it further provided, that all sales, leases, encumbrances, or liens made or created on any real estate located in Ohio, by guard- ians for incompetents bj^ reason of advanced age or mental or phj'sical disabilitj'- or infirmity since the seventeenth day of August, 1919, by order of any court of this state shall not be, nor be declared to be, invalid for the reason that such guard- ians for incompetents were not vested with all the statutory powers given to guardians of idiots, imbeciles and lunatics; and to the extent that said acts of guardians for incompetents are hereby prohibited from being held invalid they are de- clared to be legal and effective." [R. S. § 6304; 109 v. 73.]*^ Common Pleas Court will not inter- ns § 11206 G. C, § 39. fere, if it finds there should be a 46 Jordan vs. Dickson, 20 Bull, jruardian. And it is held that the 2S2. finding of tlie Probate Court of the Where an appeal is taken to the necessity of the guardianship, is not Common Pleas from the Probate a final order that may be appealed Court, the entire case is taken up, from. The final order is the ap- and if the Common Pleas decides pointment. In re Preitenstein, 4 N. there should be a guardian that P. (N.S.) 358; 17 Dec. 71. court may appoint a guardian. And The statnte now permits an ap- the clerk of the Court of Common peal. See §11206, §39. Pleas should certify the ca?e back The guardian mav appeal from an to the Probate Court. In re Gdn. order terminating the guardianship, ^^^'^li^;^ Y\^l^' ^- ^- f^'S-) and he need not give bond if he Tf /i • , 1 appeals in his fiduciary capacity. Jt tliere is al?-?ady an appointment In re Kramer, 8 N. P (N.S.) 217- made and the appeal is from the 19 Dec. 444. • • • . order making the appointment, the ^7 § io991 G. C 1339 EXCEPTIONS § 1516a § 1516a. Settlement of such guardian. ' * In the settlement of the accounts of such guardians, no voucher shall be received from or allowed as a credit to the guardian of an idiot, im- becile or lunatic, or an incompetent by reason of advanced age or mental or physical disability or infirmity, which is signed or purports to be signed by such idiot, imbecile or lunatic, or an incompetent by reason of advanced age or mental or physical disability or infirmity." [R. S. § 6304; 109 v. 73.]^'* § 1517. Exception as to voucher and. opening account. It will be observed that two matters are excepted in making the laws relating to minors applicable to imbeciles, etc. The first is that no voucher signed by the ward shall be received from or allowed as a credit to the guardian. This simply means that the voucher itself shall not be prima facie evidence that the expenditure has been made, but that if such a voucher is taken, the guardian must establish by proof the same as if no voucher was given that tlie expenditure was made. It prob- ably has about the same effect as if a voucher were given by a minor.** The second exception is in reference to the time in which an account may be opened up or reviewed. The language of sec. 10991, G. C.,*®* is somewhat different from that in sec. 10954, G. C.,*^ which provides how and when the settlement of the guardian of a minor may be opened up and reviewed ; and if it stood alone, might lead to the opinion that an account might be opened up any time within two years after the guardian- ship was terminated, even though there was no allegation of fraud or manifest mistake. But this matter was very thor- oughly considered by the Circuit Court,^" and here it Avas held : " After an account rendered by the guardian of an imbecile has been passed upon in due form by the Probate Court having jurisdiction exclusively over the matter, the Court has no power, at a subsequent day, or in a subsequent year, upon the mere motion, suggestion, or request of the heirs of an imbecile, or of a ward, to open up the account, place the matter in statu quo, and impose upon the guardian the duty of going back and es- tablishing by evidence every item of debt which is contained in his account. This can only be done where it is shown by tlio excepting parties that a mistake or fraud has entered into such 47* § 10992 G. C. " §§ 1493, 1510. 48 § 1489. soMillen vs. Young, 18 C. C. 571; 48* § 1510. 8 C. D. .391. § 1518 GUARDIANS OF LUNATICS, ETC. 1340 settlements, and to that extent only can such settlements be re- formed and corrected." In case of a minor, the account can only be opened up by an action in the Court of Common Pleas. But in the case of an imbecile, etc., it can be opened up in the Probate Court within two years, where it is shown that there was a mistake or fraud. Otherwise each settlement made is a final one between a guard- ian and his ward. § 1518. Duties of guardian, as to welfare of ward. As to the guardian's general duties, both in respect to the ward and his property, the law applicable to guardians of minors is applicable to guardians of imbeciles, etc. The stat- ute makes the guardian of the imbecile also the guardian of the minor children of his ward, unless some other person be ap- pointed ; therefore, the additional duty devolves upon the guard' ian of looking after the welfare of the family of his ward. It is one of the principal duties of the guardian of a ward to s« manage the estate as to preserve it to be turned over to th6 ward upon the termination of the guardianship. The chiei duty of the guardian of a minor is to educate and maintain his ward and preserve his property. The chief duty of the guard- ian of an imbecile, or idiot, or lunatic, is to look after the wel- fare, comfort and security of the ward, and not alone to in- crease the estate.^ ^ The maintenance of a lunatic is not limited as an infant's is. It is not limited except by the fullest comforts of the lunatic. Fancied enjoyments, and even harmless caprice, are to be in- dulged up to the limits of income, and for solid enjoyments and substantial comfort the Court will, if necessary, go beyond the limits of income.^^ And, in another place, it is said it is not part of the guardian's duty to diminish the reasonable com- forts of his ward, or to prevent him from enjoying such lux- uries, or indulging such tastes as would be allowable and proper 51 May vs. May, 109 Mass. 252. An action for a tort committed 52 Woerner on Gr. 454, citing In by a lunatic must be against the re Pcrsse, 3 Molloy, 441, quoted with lunatic. It will not lie against the approval in Kendall vs. May, 10 guardian alone. Stankus vs. Keiper, Allen, 59, G7. 35 0. C. C. 4. 1341 WELFARE CONTRACTS, ETC. § 1519 in the case of a man similarly situated in other respects, but in the full possession of his faculties. It is not, therefore, the duty of the guardian to so manage the property that there may be something left for his heirs, but he should so use it that the ward could derive the greatest degree of comfort and happiness out of it that the circumstances would allow. Of course, the guardian should not permit an unreasonable expenditure, but he should, wherever he consistently can, favor the ward, especially in the many little things that such persons usually are very solicitous about. The gTiardian is not bound to apply the pension from the United States, payable to his ward, to the payment of pre-existing debts, nor is he bound to sell the fur- niture of his ward not subject to execution.^^ Where the Avard has, previous to his derangement, adjusted matters as to his living expenses, and matters of that character, if the estate is ample, the guardian should not interfere with the same, but should endeavor to give the ward the same degree of comfort that he bad before the appointment was made.^* § 1519. Duty of guardian as to existing contracts.. A giiardian appointed for an idiot, imbecile or lunatic should be exceedingly careful in executing contracts made by his ward before his appointment, or paying debts incurred by such per- son. If the contract was made or the debt incurred before the ward became an imbecile, or a lunatic, it would be an obliga- tion that the gaiardian must honor. But if the contract was made, or the debt incurred, after the ward became non compos mentis, then, as a general rule, the guardian is under no legal obligation to honor the same. There are two exceptions to this rule. The first is, where the debt was incurred for necessaries, or, second, where the contract was founded upon an adequate consideration of benefit furnished to the person making the same, and in good faith, without knowledge of his unsound mental condition. In either one of these two cases the contract 53 Fuller vs. Wing, 17 Me. 222: Hanibleton's Appeal, 102 Pa. St. 50; Woerner on Gr. 455. Matter of Heeney, 2 Barb. Ch. 326; B-iWoerner on Gr. 456, citing Shaffer vs. List, 114 Pa. St. 486. § 1519 GUARDIANS OF LUNATICS, ETC, 1342 will be enforced to the extent of the value of the consideration furnished.^*^ The validity of contracts of a person iwn compos mentis has been recently discussed in a very thorough and learned opinion by Judge Williams in our Supreme Court,^^ and there the above rules were laid down ; and it was further held in that case that a note signed by a person under disability, though negotiable in form, is not within that rule of commer- cial law which protects negotiable paper in the hands of a bona fide holder for the value against defenses to which it was subject in the hands of the payee. The purchaser takes it charged with notice of the maker's disability, and occupies no better posi- tion as against him than the payee, and is subject to the same burden of preof when the maker's incapacity is pleaded in de- fense to an action brought by the holder. In reference to obligations which were incurred by an im- becile or lunatic, near to the time of the guardian's appoint- ment, unless the same be within one of the above exceptions, the guardian ought not to pay the same. In such cases he should either disavow the obligation and compel the o^vTier to enforce the same in an action at law, or he may make application to the Probate Court for authority to allow the same, if he thinks it ought to be allowed, or possibly he may bring an action in tlie Court of Common Pleas under the provisions of sec. 10857, G. C.^^* If the guardian admits that the debt is just, the cred- itor might compel the payment of the same by an application in the Probate Court for that purpose under sec. 10939, G. C.^® As to carrying on the business of such ward, this has been discussed in a previous section, and reference will be made thereto." It very often happens that when an application is made for the appointment of a guardian of a person under disability that such person employs an attorney to represent him at the hear- ing; and the question arises whether the guardian should pay the bill of such attorney. As a general rule, it seems that such bill ought to be paid unless it is clearly manifested that the 54a A husband is liable for neces- 55 Hosier vs. Beard, 54 0. S. 398. saries furnished to his wife al- 55* § 33. though he may be insane or incom- 56 § 1362. petent to transact ordinary business. 57 §§ 1379^ 138O. Badger vs. Orr, 34 0. C. C. 328. 1343 INSOLVENCY OF LUNATICS § 1520 employment of such attorney was unnecessary, for the party charged with incompetency ought to be allowed the fullest privi- lege of defending his competency, and a reasonable attorney fee for defending him is proper and should be paid.^^ § 1520. Insolvency of lunatics. "If the estate of the idiot, imbecile or lunatic, or an incompetent by reason of advanced age or mental or physical disability or infirmity is insolvent, or will probably be insolvent, it shall be settled by the guardian in like manner, and like proceedings may be had as are re- quired by law for the settlement of the insolvent estate of a deceased person." [R. S. § 6314; 109 v. 75.] =» The above section provides the manner in which debts shall be paid, provided the ward is insolvent. Otherwise the same rule applies to payment of debts of irabeciles as to a minor.®" It has been held that a judgment rendered during the existence of a guardianship, against an imbecile, idiot or lunatic, and his legal guardian, is not a lien upon the lands of such imbecile,®^ and that execution can not be had against the property of a per- son under guardianship for disability.®- § 1521. Suit by guardian of idiot, imbecile or lunatic, and revivor of same. "Such guardian may sue in his own name, describing himself as guardian of the ward for whom he sues. "When his guardianship ceases by his death, removal or other- wise, or by the death of his ward, actions or proceedings then pending shall not abate, if the right survives. His successor as guardian, or such idiot, imbecile, or lunatic, or an incompetent by reason of advanced age or mental or physical disability or infirmity, if he be restored to his reason, or the executor or ad- ministrator of such idiot, imbecile, or lunatic, or an incompetent by reason of advanced age or mental or physical disability or in- firmity, as the case may require, shall be made party to the suit or other proceeding, as is provided by law for making an executor or administrator party to a suit or proceeding of a 58 So where one is restrained of "O § 13S0. his liberty without legal proeess, as See Woerner on Gr. 460. an insane person, and employs covin- 61 Neff vs. Cox, 5 N. P. 413; 5 sel to prosecute a writ of iiabeas Dec. 377. corpus in his behalf, for the purpose 62 § 13R0. of investigating the grounds and cir- See 8 950 et seq., as to settlement cumstances of the restraint, such of insolvent estates by adniinistra- counsel is entitled to recover a rea- tors. sonable compensation for his serv- The remedy in such a case would ices rendered in good faitli. if the be to apply to tlie Probate Court for condition of the party be such as to an order requiring tiie guardian to render investigation proper. Woer- pay the same. ner on Gr. 470. See Woerner on Gr. 460. 59 § 11008 G. C. § 1522 GUARDIANS OF LUNATICS, ETC. 1344 like kind, where the plaintiff dies during its pendency." [R. S. § G305; 109 V. 73]'^=' § 1522. Sale of real estate by guardian of idiot, imbecile or lunatic. Petition. Private sale. Parties defendant. "When a sale of the real estate, or coal from under, or fire-clay upon or under, the real estate of such ward is necessary for the sup- port of himself or his family, or the payment of his debts, or such sale will be for the interest of such ward or his children, the guardian may sell it under like proceedings as are required by law to authorize the sale of real estate by the guardian of a minor. Or, if it be more for the interest of such idiot, imbecile or lunatic, or an incompetent by reason of advanced age or mental or physical disability or infirmity, or his children, upon petition of the guardian, the probate court maj' authorize him to sell such real estate, or coal, iron-ore, limestone, fire-clay or other minerals upon, or under the real estate, or the right to mine them, at private sale, either in whole or in parcels and upon such terms of payment as the court prescribes." [R. S. § 6306; 109 V. 74.]'^* § 1522a. Petition, what to contain. "The petition shall contain a pertinent description of the real estate, coal or fire- clay proposed to be sold, a statement of its value as near as can be ascertained, and the facts upon which the application is founded. If, upon the hearing, the court is satisfied that it will be more for the interest of the ward that such real estate, coal or fire-clay be sold at private than at public sale, it may make an order authorizing the sale, and prescribing the terms thereof, first taking from the guardian a sufficient bond for the faithful performance of his duty in the premises, and to ac- count for the proceeds of all sales made under such order. Rut the guardian shall not be authorized to sell such real estate, coal, or fire-clay at private sale for less than its appraised value." [R. S. § 6306.]«-'* § 1522b. Husband or wife to be made defendant. "The ward's husband or wife shall be made a defendant to the peti- tion, and if he or she file an answer consenting to the sale, free and discharged of all right and expectancy of dower therein, on the sale being confirmed, such answer shall be a full release of his or her expectancy of dower. Unless in such answer an allowance in lieu of dower be waived, the court shall allow, out of the proceeds of the sale, such sum in money as is the just and reasonable value of his or her expectancy of dower." [R. S. §6306.]«^t 63 § lonns G. C. vs. Building Co., 11 c. c. (N.s.y See §§11401, 11407, 11408 G. C., 481; 31 0. C. C. 519. §■627. Trustee should be appointed for 64 § 10004 G. C. insane defendant in divorce, and 64* § 1000.') G. C. rialits of defendant can be passed on. 64t § 10006 G. C. Kerlick vs. Kerlick. 10 C. C. (N.S.) Guardian of idiot mav enter ap- 524; 30 0. C. C. 274. pearance in action against. Segal All the next of kin should be made parties, etc. 1345 SALE OF REAL ESTATE § 1523 The procedure for the sale of real estate under the above sec- tion is by it made similar to that of a guardian selling real estate of minors. Suffice here to say that the statute should be carefully read, and the forms and suggestions previously made in the chapter relating to sales of real estate by guardians of minors can be easily applied to an action brought under the above section.**^ § 1523. Dow^er of insane, idiotic or imbecile person ; how assio-ned or sold. "If appointed in this state, the guardian of an idiot, imbecile or insane person, or an incompetent by reas- on of advanced age or mental or physical disability or infirm- ity, w^ho has or is supposed to have a right of dower, or a con- tingent right to it, in lands or tenements, of which the hus- band or wife of such person was seized as an estate of inherit- ance or in land held by bond, articles or other evidence of claim, where the dower has not been assigned, may sell, com- promise, or adjust it upon such terms as he deems for the in- terest of such person, and as the probate court of the county in which the guardian was appointed approves, or if appointed in a foreign state, as the probate court of the county wherein the land is situated, approves. After such approval, the guard- ian may execute and deliver all the needful deeds, releases and agreements for the sale, compromise, or assignment of such dower, or contingent right to it." [R. S. § 6307 ; 109 v. 74.]«° Sec. 12021, G. C, provides that the Common Pleas Court may authorize and direct the guardian of an insane person to sell such dower right, and a guardian in any proceeding may elect for his insane ward.^" § 1524. Procedure in assignment of dower. In a previous chapter "^ we have seen that the guardian of an heir may, with the approval of the Probate Judge, assign to the widow a dower right. The above section confers the right upon the guardian to sell or adjust such dower right, upon the approval of the Probate Court. The guardian, wishing to 65 See § 1404 et seq., as to sale of «7 § 12020 G. real estate of minors. "^ § 057. 66 § 10997 G. C. § 1524a GUARDIANS OF lunatIcs, etc. 1346 make sucli assignment or sale of the dower right of his ward, should file an application in the Probate Court setting out all the facts, and have the court to make an order directing him to sell or release such dower right.*'^ § 1524a. Application to sell and release dower right. In the matter of the Guardianship of Probate Couet, Clabk County, OHIO. says that he is the duly appointed and acting guardian of , an insane person, appointed as such by the Probate Court on , 19... That the said is the wife of , and is years of age and as such has a contingent right of dower in the following described real estate : That the said [husband] has contracted a sale of said real estate to and for a consideration of [$10,300]. That there is a mortgage indebtedness thereon, which said mortgage amounts to [54,000], and was executed by the said [husband] and the said [wife], and the money secured thereby was applied on the purchase price of said land when purchased by said That the said [husband] lias agreed, out of the consideration so to be received for the sale of said real estate, that [$1,000] thereof may be paid to this guardian in full of the contingent dower right of the said in and to said real estate, which is the full and fair value of the same, and it would be to the interest of his said ward to accept the same. That said guardian, if it meets the approval of the court, has agreed to accept the same. Wherefore he asks t!iat the court may approve his agreement to accept the same in full of the contingent dower right of the said in said real estate, and that he may, as said guardian, and as and for said by deed duly executed, release, quit claim and convey to said and the premises hereinbefore described, upon receipt of $ State of Ohio, Clark County, ss. , being first duly sworn says that the allegations in the above application are true as he verily believes. Sworn to and subscribed before me in my presence this day of ,19... Probate Judge. By Deputy Clerk. GSiSee chapt. next to index, as to calculation of dower right. 1346a SALE OF REAL ESTATE § 1524b § 1524b. Entry authorizing^ and ordering release of dower right, etc. In the matter of the Guardianship of Probate Coubt, Clark County, Ohio. ENTRY. This day came , guardian of and filed lierein his applica- tion for authority from this court, to accept the sum of $ , as the reasonable and just value of the contingent dower right of , as the wife of , in the premises in said application described, and the same was submitted to the court; whereupon the court finds that $ js the full and fair value of the said dower right in said premises, and that it would be to the interest of the estate of the said for said guardian to accept the same, and it is therefore ordered that the said guardian accept the same in full of said dower right and that upon receipt of the same the said guardian, as such, and for the said , is author- ized and directed to make, execute and deliver to and , a deed duly executed, releasing and quit claiming and conveying to them all the dower claims the said might have in and to the premises in the application described. § 1524c. Guardian's deed. Know All Men by these Presents : That, whereas, on the 26th day of July, 1920, , was duly appointed and qualified as guardian of the person and estate of , an insane person, by the Probate Court of Clark County, Ohio, and Whereas, afterwards, on the day of the said guardian did file his application in said court for authority to accept the sum of $ as the full and fair value of the contingent right of dower of the said , as the wife of in the premises hereinafter described, and Whereas, the court did then find the same was the full and fair value of her said dower interest therein, and did order the guardian to accept the same, and did order this guardian, on the receipt of said sum of $ , to make, execute and deliver a deed conveying and quit-claiming to , his heirs and assigns forever, relinquishing to him all the dower rights and all claims in said premises as the wife of said Now, therefore, I, , guardian of , aforesaid, by order of said Probate Court and the powers vested in me by the statute in such case made and provided, and in consideration of the sum of $ paid me by do hereby remise, release and forever quit claim to the said , his heirs and assigns, forever, releasing and relinquishing to the said all rights and claims the said has, or may have, as the wife of the said , in and to the undivided, etc., [here describe the real estate.] To have and hold loith all the privileges and appurtenances thereunto belonging to the said , his heirs and assigns, forever, as fully and & 1525 GUARDIANS OF LUNATICS, ETC. 1346b completely as I, the said , as guardian, by virtue of said order of the court and of the statute made for such cases, might or should sell and convey the same. In loitness wh-ereof I, the said , as such guardian, have hereunto set my hand this day of Guardian of , lunatic. Witnesses. [Add acknowledgment clause same as ordinary deed.] § 1525. Guardian empowered to lease and improve estate. Termination of lease. Lien of tenant. "Such guardian also, in like manner, as the guardian of a minor, may be authorized to lease and improve the real estate of his ward. If the lease extends beyond the restoration of such ward to sound mind, or his death, it will determine on his restoration or death, unless confirmed by such ward or his legal representatives. If the lease determines by the restoration of the ward or his death, the tenant shall have a lien on the premises for any sum or sums expended by him in pursuance of the lease in making improvements and for which compensation was not made by the rent or otherwise." [R. S. § 6308.]^° This section is no doubt intended by the Legislature to confer similar rights upon the guardian of an imbecile, etc., as sec. 10967, G. C, confers upon a guardian of a minor, '^^ § 1526. Long lease by guardian may be authorized by Court. Lease for three years without order of Court. "Such guardian also may be authorized by the probate court to lease the real estate of his ward or any part of it for a limited term of years or by perpetual lease, with or without the privilege of purchase, when, on his application, the court finds that such lease is necessary for the support of his ward or of his family, or that it will be for the best interests of him or them. Such guardian may lease the real estate of his ward for not exceeding three years without application to the court." [R, S. § 6309.]"- The above, and the three following sections, are very much similar to sec, 10962, G. C., and the immediate following sec- tions, and suggestions there made can be adapted for procedure under the above.''^ § 1879 ct seq., Partition. 72 § 10999 G. C, 70 §10998 G, C. 73 § 1433, 71 § 1445. 1347 LEASE OF LANDS § 1527 § 1527. Application for authority to make long lease. ' ' The application for authority to make such long lease or leases, shall be by petition, setting forth the character of the idiocy, im- becility, or lunacy of the ward, whether curable or not, tem- porary or confirmed, and its duration, the number, names, ages, and residence of the family of the ward including the wife or husband of the ward, and of those who have the next estate of inheritance from him, all of whom as well as the ward must be made defendants. The petition also must contain a descrip- tion of the real estate, its value, and the amount for which it probably can be leased, the reasons for the proposed lease, and the terms, covenants, conditions and stipulations on which it is proposed to lease it." [R. S. §6310.]^* § 1528, Proceedings on such application. "On filing the petition, like proceedings shall be had as on petition for sale of the real estate of a minor, except that the appraisers shall ap- praise not only the value of the real estate, but the value of its annual rent upon the terms, covenants, conditions, and stipula- tions of the lease as proposed in the petition . In their report, the appraisers shall state whether in their opinion, the proposed lease wall be to the interests of the ward and his family. They may also suggest any change in the terms, covenants, and stipulations proposed in the petition. On the return of the appraisement, the guardian shall not be required to give an additional bond, but, in case of sale under the terms of the lease, he must give such bond before the confirmation of the sale." fR. S. §6311.]" § 1529. Final hearing and orders. "If, upon final hearing, the prayer of the petition be granted, the court may prescribe the terms, covenants, and stipulations of the lease, in accord- ance with those set forth in the petition or otherwise, and auth- orize the lease to be made by public or private letting, as it deems best. But in no case shall the leasing be allowed for a less rent than that named in the report of the appraisers, and the lease shall not take effect until it, with the security therein, is approved and confirmed." [R. S. § 6312.]'" § 1530. Guardian may improve real estate of imbecile, etc. "The guardian of an imbecile or insane person, or an incom- petent by reason of advanced age or mental or physical disa- bility or infirmity may use the moneys and personal estate of his w^ard in improving his ward's real estate, as follows: The 74 § 11000 G. C. '« § 11002 G. C. T5 § 11001 G. C. § 1531 GUARDIANS OP LUNATICS, ETC. 1348 guardian proposing to make such improvement, shall file in the probate court in which he was appointed, a petition describing the premises to be improved, the amount of rent the premises yield at the time the petition is filed, in what manner it is pro- posed to make such improvement ; how much it is proposed to expend therefor, what rent the premises will probably yield when so improved, with a statement of the value of the ward 's personal estate, and such other facts as are pertinent to the question whether the improvement should be made, and a prayer that he "be authorized to use so much of his ward's moneys and personal estate as may be necessary to make it. If the property is so situated that, to the best interests of the ward's estate, it can be advantageously improved in con- nection with the improvement of property adjoining and ad- jacent to it, the petition must show this, and have a prayer in accordance therewith. It also shall state the character of the imbecility or insanity or incompetency of the ward, whether temporary or confirmed, and its duration ; the names, ages and residence of his family, including the ward's wife or husband, and of those who have the next estate of inheritance from the ward, all of whom, as well as the ward, must be made de- fendants, and be notified of the pendency and prayer of the petition in such manner as the court directs." [86 v. 81, § 1 ; 109 v. 74.]" It will be observed that the next section provides that same proceedings shall be had as to pleadings and proof as are had on petition by a guardian to sell the real estate of a minor, and reference mil be made to that chapter for suggestions and forms, etc.''^ §1531. Proceedings. "Upon filing such petition, like pro- ceedings shall be had as to pleadings and proof as on peti- tion by a guardian to sell the real estate of a minor. The court shall appoint three disinterested freeholders of the county as commissioners, to examine the premises proposed to be improved, the surroundings, and report to the court their opinion whether the improvement proposed wall be advantageous to the estate of the ward." [86 v. 31, §2.]-« § 1532. May unite v/ith owners of adjacent property. "On the final hearing, if the prayer of the petition is granted, the court shall fix the a,mount of money and personal estate that may be used in making such improvement. It also may author- ize such guardian to unite with the o\\Tiers of adjoinina: and adjacent property in improving the premises of liis ward, and "§ 11004 G.C. See also, §1446 ct seq., as to 78 § 1404 ct seq. power to lease, etc. 79 § 11005 G. C. 1349 REroRT, ETC. § 1533 for the proper management and repair of the property, when Ro improved, upon such equitable terms and conditions as the court approves." [86 v. 31, §3.]«« §1533. Guardian's report, etc. "The amount of money and personal estate expended in making such improvement, the guardian shall distinctly report under oath, to the court, within forty days after the improvement is completed. In case of the ward's death, without being restored to reason, if there are heirs who inherit real estate only from him, then such money, so expended, shall descend and pass the same as his other per- sonal estate, and be a charge on the premises so improved in favor of the heirs who inherit the personal estate." [86 v. 31, §4.]«i 80 § 11006 G. C. 81 § 11007 G. C. U534: GUARDIANS OF DRUNKARDS 1350 CHAPTER LXXXIII. GUARDIANS OF DRUNKARDS, IMPROVIDENTS, ETC. § 1534 Laws relating to guardians generally, applicable. § 1535 When guardian to be ap- pointed for drunkards. § 1535a Improvidents, spendthrifts. § 1536 Procedure to appoint. § 1537 § 153S § 1539 § 1540 §1541 be served on Sale thereafter Notice to party, etc. is invalid. Incapacity to contract. When order of appointment should be made. When guardianship shall terminate. Procedure to terminate. § 1534. Laws relating to guardians generally, applicable. Sec. 11011, G. C.,' provides that all laws relating to guardians for lunatics, idiots and imbeciles, etc., shall be applicable to guardians of drunkards ; and another section ^ provides that all laws relating to guardians for minors and their wards, etc., shall be applicable to guardians for idiots, imbeciles and idiots. It therefore follows, from these two provisions of our statute, that all laws relating to guardianship generally are applicable to guardians of drunkards, tmless where from the nature of the subject matter, they cannot be so applied. It is therefore need- less to discuss the general duties and liabilities of guardians in reference to drunkards, as such matter has been fully discussed in previous parts of this work.^ § 1535. When guardian to be appointed for drunkards, etc. "Upon satisfactory proof that any person, resident of the coun- ty wherein the application is made, is incapable of taking prop- er care of himself or herself or of his or her property, or neg- lects or fails to provide for his family, or for other persons whom he is charged by law to provide for, by reason of intem- perance, improvidence or habitual drunkenness, the probate court forthwith shall appoint a guardian of the person and property of such person, or either, which guardian, by virtue of such appointment, shall be guardian also of the minor 1 § 1535. 2§ 10991 G. C. (§ 1516). 3 See § 1305 et seq., a^ to kind of guardians, etc.; §1319, As to ap- pointment and bond of guardians for minors; § x343, As to bonds; § 1354, As to duration of guardianship of minors, etc.; § 1361, As to powers and duties of guardians of minors; § 1378, Management of estate, etc.; § 1404, Guardian's sale of real es- tate of minors; § 1432, Lease of minor's real estate; § 1446, Lease for petroleum, gas and mining pur- poses; § 1459, Mortgage of ward's land; § 1484, Guardian's account- ing; § 1501, Powers and duties of guardians of lunatics, idiots, etc. See § 1317. 1351 PROCEDURE TO APPOINT § 1535a child or children of his ward, in case no other he appointed. All laws relating to guardians for lunatics, idiots and imbeciles, and their wards, and all laws pointing out the qualifications, duties, rights and liabilities of such guardians, and their sure- ties, shall be applicable to the guardians contemplated by this subdivision of this chapter." [R. S. § 6317; 99 v. 483.]* § 1535a. Improvidents. Spendthrifts. The above section originally only applied to drunkards, etc. It has been very much enlarged and now applies to intemper- ance, improvidence and habitual drunkenness. The guardian- ship is allowed whenever, from the existence of either cne of three causes, the person is (1) incapable of taking proper care of himself or herself, or (2) is incapable of taking proper care of his or her property, or (3) neglects or fails to provide for his family, or (4) neglects or fails to provide for other persons who he is charged by law to provide for. Nos. (1) and (2) seem to rest upon the incapacity of the person; Nos. (3) and (4) on his want of desire to act. Improvidence is defined as a want of care and foresight in the management of property.^^ The term improvident is probably used in our statute as synonymous with spendthrift, and the latter is defined to be a person who by excessive drinking, gambling, idleness or de- bauchery of any kind, shall spend, waste, or lessen his estate so as to expose himself or his family to want or suffering, or expose the town to charge or expense for the support of himself or his family."'' § 1536. Procedure to appoint. The procedure to appoint a guardian of an alleged drunkard is very much similar to that for the appointment of a guardian of an imbecile or lunatic, the only difference being in reference to the notice which is to be served. In the case of lunatics, a three days' notice is required, and in the case of drunkards a five days' notice. In the case of lunatics, it must be served upon all the next of kin resident of the county ; in the case of drunkards, it need be served only upon the alleged drunkard. But it would be well to make service upon some, at least, of the next of kin. The form of application for the appointment of 4 § 11011 G. C. reference to the care, management 4a 22 Cyc. 34. and preservation of the j)ro])erty in The symptoms of an improvident charge. Cite Webster's Dictionary. temperament would, evidently, be ^^ 36 Cyc. 800. Woerner Gdn. carelessness, indifference, prodigal- § 114. ity, wastefulness or negligence in § 1537 GUARDIANS OF DRUNKARDS 1352 a guardian of a lunatic can easily be adopted for the appoint- ment of a guardian of a drunkard.^ § 1537. Notice to be served on party, etc. Sale thereafter invalid. "At least five, but not more than ten days, prior to the time when the application for the appointment of the guardian authorized by the next preceding section is made, a notice, in writing, setting forth the time and place of its hear- ing, shall be served upon the person for whom such appoint- ment is sought. From the service of such notice until the hearing, or the day thereof, as to all persons having notice of such proceeding, no sale, gift, conveyance, or incumbrance, of the property of such intemperate person or habitual drunkard, shall be valid." [R. S. §6318.]« § 1538. Incapacity to contract. The above section invalidates the contracts of an alleged drunkard, provided the court finds that he is a drunkard or improvident, from the time that a person may have notice of proceedings to appoint ; and any sale, gift or conveyance or in- cumbrance of the property of such alleged drunkard or improvi- dent, made to a person with such knowledge, is void. Such alleged drunkard or improvident, however, is not prohibited from buying necessaries after service of such notice.'^ If an alleged drunkard or improvident would make a contract with a person that had notice of such proceedings, and no unjust advantage taken, the contract could be enforced. It therefore fellows that if it is desired that any particular person be prevented from con- tracting, a notice should be ordered served upon such person.' § 1539. When order of appointment should be made. The order is to be made when satisfactory proof has been presented that any person resident of a county is incapable of taking care either of himself or of his property by reason of intemperance or habitual drunkenness. The questions then to be established are first, that the party is incapable of taking care of his property and second that such incapacity results from intemperance or habitual drunkenness. If a person was unable to take care cf his property but not by reason of intemperance or habitual drunkenness, or improvident, the appointment could 5 See S 1504, Application for ap- e § 11012 G. C. pointment; §1505, Form of appli- 7 Broadway vs. Jewell, 52 0. S. cation; § 1506, Notice; § 1507, Form 187. of Notice; §1508, Hearing, etc.; s Woerner on Gr. 460, 413. § 1510, Entry finding person inca- See § 1511, Effect of finding of pacitated; §1511, Effect oi finding disability; §1024, As to making of disability. will. 1353 PROCEDURE TO TERMINATE § 1540 not be made under this section but probably under § 10989, G. C. (§ 1501) ; and if a person were intemperate or guilty of habitual drunkenness and still able to take care of his property, the appointment could not be made unless he should neglect his family or in danger of becoming a public charge. The same want of capacity to take care of his property should be shown as is required for any other adult person** § 1540. When guardianship shall terminate. "Upon rea- sonable notice to such guardian, and to the person or persons on whose application the appointment was made, and satisfac- tory proof that the necessity for the guardian no longer exists, the court shall order that the relation of guardian and ward terminate, and that the ward be restored to the full control of his property, as before the appointment." [R. S. § 6319.]' § 1541. Procedure to terminate. The above section differs from the statutory provision,^** which provides for terminating the guardianship of a lunatic, in this that before such guardianship is terminated, reasonable notice shall be given to the person on whose application the appointment was made. It, therefore, follows that there should be filed an application for removal and an order requiring no- tice to be given and the final entry should show that such persons as the statute requires were made parties.^^ Whether an appeal will lie from an order of removal, has never been settled by the Supreme Court. But it has been held that an appeal might be prosecuted from an order refusing to terminate the guardianship.^^ 8* See §1509. See §220 as to tors, §1359 for reriToval of giiard- wliat constitutes habitual drunken- ians of minors, ness. I2 11iett vs. Xebergall, 45 O. S.^ As to validity of contract made 702. by intoxicated person, see note to See § 39, Who may prosecute ap- Wright vs. Walker (Ala.), 54 L. peal. R. A. 440. The statute has recently While the statute limits the right had inserted therein as one of the to appeal to proceeding's to appoint grounds for guardianship, "ini])rovi- guardians for idiots, lunatics, im- dence." This has as yet received hcciles or drunlcards, I am inclined no judicial constructions. to believe it would include improvi- 9 § 11013 G. C. dence, as this was put in in amend- 10 § G316 R. S. (§ 1513). ing the statute relating to appoint- 11 See §214 for removal of execu- ments for drunkards. § 1542 ASSIGNMENT — ^APPOINTMENT 1354 CHAPTER LXXXIY. ASSIGNMENT. JURISDICTION. APPOINTMENT. § 1542 Definition, etc. § 1550 How made. § 1543 Effect of bankrupt act. § 1551 Filing in Probate Court, etc. § 1544 Jurisdiction of Probate § 1552 Filing deed in recorder's of- Court. fice. § 1545 Jurisdiction of Court of Com- . § 1553 Qualification of assignee, mon Pleas. § 1554 Bond, etc. § 1546 Assignee must give bond in § 1555 Order of appointment. Probate Court. § 1556 Effect of order and issue of § 1546a Assignment; when to take letters. effect. § 1557 Notice of appointment. § 1547 Who may make. § 1548 Who may be assignee. § 1549 What property may be as- signed. § 1542. Definition, etc. An assignment for the benefit of creditors is defined to be a voluntary transfer by the debtor of all or a part of his property to an assignee or assignees in trust to apply the same or pro- ceeds thereof to the payr:ient of some or all of the assignor's debts, and return the surplus if any, to him.^ Under our statute as at present constituted, this definition might be varied a little in this, our statute contemplates that when a debtor makes an assignment, that all of his property be transfeiTed to the assignee and that all of it is to be sold if needed, for the payment of debts, and the surplus returned to the assignor.^^ In many respects the assignee occupies a posi- tion in reference to the property placed in his charge, similar to an administrator in the administration of the estate of a de- ceased person.^ An assignee comes within the general term of trustee and he is liable and held responsible for negligence or failure to per- '- \'^\ '^ ^"^- ^^^^- °* ^*^'' ^"^- i* '^'"le owned and possessed bv the ^ 1 T.u '^"°^^"* °* creditors." assignor. Klaustermeyer vs. trust la The assignee for the benefit of Co., 89 O. S. 742 creditors takes the property as- 2 Kilbourne vs. Fav, 29 O. S. 264; f.*S"e?'. charged with all the liens, Straman vs. Rechtine, 5,S O. S. 443. liabilities and encumbrances against 1355 EFFECT OF BANKRUPT ACT §1543 form his duties in the same manner as an ordinary trustee. In some respects he occupies a position very much analogous to a receiver, appointed by the Court of Common Pleas to wind up a partnership or business and distribute the proceeds.' § 1543. Effect of bankrupt act. The effect of this act is well stated in a recent case,* where it is said, " When the petition in bankruptcy was filed by the de- fendant, all proceedings in the State Court should stop. In other words, in the language of the Bankrupt Act as con- tained in sec. 11, " The proceedings shall be stayed." This is mandatory. The State Court has no right to proceed further in an action there pending until the petition in bankruptcy has been adjudicated. When that has been done, the same may oe further stayed in the State Court at its discretion. But wheth- er it is stayed or not, the plaintiff in the State Court cannot obtain judgment against the defendant for any costs made after the petition in bankruptcy is filed, nor can he obtain judg- ment in the State Court for any interest upon his claim accru- 3 While our statutes relating to assignments for benefit of creditors are sometimes called insolvency laws, yet it should be remembered that they are not, strictly speaking, insolvency laws. All insolvency laws are similar to bankruptcy laws, and generally provide that if the creditor turns over all his property, that he may be discharged from all future liability as against all his past creditors. Our assignment laws make no such provision and future property of the assignor can be reached by creditors who have not presented their claims or have not received pajTnent in full. This fea- ture of our assignment laws, to- gether with other features of the bankrupt act, has taken almost all of such business to the United States Courts, so much sio, that in Cincin- nati the Insolvency Court is almost entirely deprived of business and it is now contemplated to abolish the same. Foreign assignment does not affect real estate in Ohio (Lesser vs. Ked- rick, 2 0. 234; Rogers vs, Allen, 3 O. 488), but a foreign assignment may be superior to a subsequent foreign attachment. Shortwell v«. Jenett, 9 O. 180; Mt. Morris Natl Bank vs. Werk, 17 Bull. 174. It has more recently been held that a foreign assignment of both real estate may be valid, even when prohibited by a subsequent foreign statute. Hall vs. The Ohio & West- ern Co., 24 Bull. 311. 4 Carpenter Bros. vs. O'Connor, 10 C. C. 526; 0. C. D. 201; affirmed, 41 Bull. 268. See In re Chase, 124 Fed. Rep., — ; 49 Bull. 17, where services of the assignee were allowed when ben- eficial to the estate. In a recent case in the Circuit Court of Franklin County, where the property of a corporation was placed in tlie hands of a receiver, and then a petition in bankruptcy was filed, and the directors of the corporation employed an attorney to resist the bankruptcy proceedings, the receiver also having an attorney employed, it was held that tlie receiver was tho proper person to employ suoli attorney, and the attorney of the directors could not, the l)nnkrupt«y proceeding having bi^en dismissed, assert his claim apainst the asset* in the hands of the receiver. § 1543 ASSIGNMENT APPOINTMENT 1356 ing thereafter. The running of the claim and all costs inci- dent to the procuring of a judgment against the claimant are arrested at once upon the filing of the petition in bankruptcy, and if the de."*^endant is declared a bankrupt, the plaintiff in the State Court is entitled to receive only his claim with in- terest and costs to that date. He may pay the costs in the State Court, which he rightfully made in the prosecution of his claim against the bankrupt in that Court, and present them to the trustee in bankruptcy to be allowed as a proper claim against the assets in the bankrupt Court. His rights are protected in the same degree in so far as the exemptions under the home- stead and other laws are concerned. The State laws govern entirely in the bankrupt Court in that regard." It is also held that an assignee or receiver appointed by said Court should de- liver the assets on demand to the trustee in bankruptcy.^ And it has also been held that if an assignment be made for the benefit of creditors and afterwards the assignor is declared a bankrupt that funds expended by the assignee in payment of Court costs or other costs attending the assignment for benefit of creditors, that such costs can not be recovered,® and that an assignee is not entitled to any fees or commission. But upon this proposition the Courts are not in accord, and it has also been held, where a voluntary assignment for the benefit of cred- ■ iters was set aside only for the reason that proceedings in bankruptcy supersede it, the voluntary assignee is entitl 3d to all reasonable expenses and compensation for his services.'' The United States Supreme Court has not to the writer's knowledge directly passed upon this question. It has, however, recently held, that an assignee for the benefit of creditors, has the right to have his claims for the amount paid to counsel or retained by him on account of commissions as assignee, before the bankruptcy of his assignor, adjudicated in the State Court in the customary mode of proceedings; and the bankruptcy 5 Davis vs. Coe 10 C. C. G39; 10 ■^ In re Kurth, 17 N. B. R., 573; C. D. 2G4. Fed. cases, 704S. « Stearns vs. Flick, 4 Am. B. E., If made six months before Lank- 723; 103 Fed. 019; Wilbur vs. Wil- ruptcy it is valid. FarrcU vs. Il.ir- 8on, 47 Cull. 90; 7 A. B. R. 54; In vey, 8 0. L. R. 415; 16 0. F. D. re McCauley, 44 Bull. 283. 474. J357 EFFECT OF BANKRUPT ACT § 1543 Court has no jurisdiction to finally adjudicate the merits of his claims, unless by his consent, and then only by a plenary suit.' It would seem, therefore, that the logical way to proceed in case bankruptcy proceedings were had in the United States Court would be for the assignee to cease administering upon the estate, file his account in the Probate Court and such Court pass upon the question of his compensation and expenses, etc., and turn the remainder of the property over to the trustee in bank- ruptcy.^^ This logical conclusion might be drawn further from the fact that it has been held by our State Courts,® as well as the United States Court,^° that the bankrupt act does not of itself deprive the Probate Court of jurisdiction, and therefore where an assignment is pending or is made, the Probate Court may rightfully exercise jurisdiction until the jurisdiction of the United States Court is invoked. Por, if the acts of the Probate Court are valid, then it must follow that all the acts of the as- signee in the lawful and proper performance of his trust, are valid acts. This would include his right to do everything that is proper in the administration of his trust, as well as com- pensation for his services thus rendered. Some of the United States Courts in holding that he is not entitled to com- mission, go on the assumption that the act of making the assignment is per se a fraudulent interference with the workings of the bankrupt law. This to the writer seems to be an erroneous view. It has been held that if creditors in any way consent to the assignment in the Probate Court, that such creditors would be precluded from filing a petition in the United States Court.'' 8 Louisville Trust Co. vs. Com- In Summers vs. Abbott, 122 Fed. in"-or, 7 Am. B. Rep. 421 (1902). R. 36, a fair compensation for the 'sain Wolfe vs. Union Stove, 17 assignee and his attorney was al- N. P. 213, this was laid down as lowed. tlie proper way when a receiver had If an assignment is made in the been appointed. Probate Court, the only way in which 9 Berk vs. Ilirsch, 8 X. P. 459. proceedings can be conducted with- 10 /» re Carder, 113 Fed. 130; In out danger of being interfered with re Romanow, !)2 Fed. 51. h.Y proceedings in bankruptcy in the 11 Armour vs. Brown, Minn. 1899; United States Court, is for one of 79 N. W. Rep. 522. two things to be done; citlier sufTi- See Randolph vs. Scruggs, 100 U. cient creditors must assent to such S. 533, as to allowance of claim assignment, so that there will not be of attorney for services rendered sullicient remaining creditors to file assignee. The court held that so a petition in bankruptcy, or a period far as the same was beneficial to of fo\ir months must be permitted to the estate the same miglit be allowed elapse between tlie date of the mak- as a preferred claim through the ing of tlie deed of assignment and assif'nee the proceedings in the Probate Court. § 15-44 ASSIGNMENT APPOINTMENT 1358 § 1544. Jurisdiction of Probate Court. It is provided hj statute, that the Probate Court shall have exclusive jurisdiction to qualify assignees and appoint and qualify trustees and commissioners of insolvent debtors, and control their conduct and settle their accounts/^ It is also provided by another section,^" that the Probate Court shall order payment of incumbrances and liens on any of the property sold or rights and credits collected. It is further provided that in case of sale of real estate, a civil action may be brought in either the Court of Common Pleas or Probate Court, making all persons in interest parties, that the Court may determine the rights of all. Notwithstanding these enactments of our Legislature and the further decisions of the Court, thai the Probate Court is capable of receiving any jurisdiction that the Legislature might confer upon it, the proper rights of the Probate Court in assignments, have only been acquired step by step, by contested cases in the Supreme and Inferior Courts. It is now settled that the filing of a deed of assignment and the qualification of the assignee confer upon the Probate Court, jurisdiction of all the assigned property and that the jurisdic- The better \> ay would be to have the Court. Louisville Trust Co. rs. creditors assent to the proceedings Comingore, 7 Am. B. Rep. 421, U. S. in the Probate Court. If they file Sup. Ct., 1902. answers or take moneys from the as- In case where proceedings in signee, they would be precluded from bankruptcy have been brought and filing the petition. Armour vs. the assignee files his account and Brown, 79 N. W. 522. settles in the Probate Court, a ques- Where the assignee claims the tion might arise as to what compen- property as his own, the United sation he should be allowed. The States Court in a bankruptcy pro- same rule should here be followed as ceeding cannot determine such ques- if the assignee had died and a new tion. The method to be pursued one was appointed, would be for the trustee to bring ac- See Loveland on Bankruptcy, 23 tion for whatever claims there are and 25. against the assignee in a separate 12 § 524 R. S. (§27). The as- proceeding, unless the assignee signee must qualify in the Probate should by filing his claim with the Court of the county in which the as- trustee bring himself within the ju- signer resides. risdiction of such United States is §§ 11026-11052 G C. (§1618). Court. Louisville Trust Co. vs. 1359 JURISDICTION OF PROBATE COURT §1544 tion so conferred is exclusive in all respects in which it ifl adequate.^* So the rule seems to be now well settled that in reference to assignment matters in all cases in which the Probate Court has power to grant proper relief to all parties it then has exclu- sive jurisdiction and where it has not such power then the Court of Common Pleas may grant relief/^ The Probate Court cannot hear and determine an action brought by stockholders of an incorporation to set aside an assignment for the benefit of creditors, on the ground that such assignment was uncalled for.^" 1* Mercer vs. Cunningham, 53 O. S. 353, citing Sayler vs. Simpson, 45 0. S. 141; Havens vs. Horton, 53 O. S. 342. 1'' See next section. See § 18 et seq. Before these decisions of the Su- preme Court were made, the juris- diction of the Probate Court came before the writer in the case of Wilson vs. Swigart, 31 Bull. 353, and it was there held that in all matters of assignment when the Pro- bate Court has power to grant com- plete relief to all the parties, its jurisdiction is exclusive, unless ex- pressly taken therefrom by statute; and that a mortgagee cannot main- tain an action of foreclosure of his mortgage claim in the Court of Com- mon Pleas, after the debtor and owner of the lands has made an as- signment for the benefit of creditors. In this case the assignor was a resi- dent of Clark county, owning real estate in Richland county. After he made an assignment, a mortgagor commenced proceedings in the Rich- land County Court and obtained a decree, the assignee likewise brought a civil action in the Probate Court of Clark county and asked for the sale of all the real estate of the as- signor, including the land in Rich- Inn d county. To this petition an answer was filed setting up the facts of the proceedings brought in Rich- land county. This Court held that the Richland County Court of Com- mon Pleas had no jurisdiction. This decision was affirmed by the Com- mon Pleas and Circuit Courts. It received considerable comment in the Bulletin, but was sustained by the case of Havens vs. Horton, 53 0. S. 342. 16 Jones vs. Standard, etc., 18 C. C. 189; 10 C. D. 41; aff". 64 O. S. 147. See Farwell vs. Findlay Dry Goods Co., 11 C. C. 100; 5 C. D. 303, where it was held that a suit to avoid an assignment as being a fraud of creditors will not lie in the Common Pleas. The Probate Court has jurisdic- tion to act under the deed of assign- ment, not in opposition to it. Home Ass'n vs. Jones, 64 O. S. 147. An assignee for creditors bringing suit to sell real estate, a mortgagee may, by cross-petition, obtain refor- mation of the mortgage, which de- scribed the lot as No. 328 instead of 338. The Probate Court has juris- diction to grant the relief. Adlard vs. Stockst.h, 5 N. P. 487; 5 Dec 493. See Harrison vs. Ellis, 15 Dec. 501 (1905). § 1545 ASSIGNMENTS JURISDICTION 1360 § 1545. Jurisdiction of Court of Common Pleas. As stated in the above section where the Probate Court has power to grant relief its jurisdiction is exclusive ; where for any reason it has not such power, the Court of Common Pleas may exercise jurisdiction. Thus where the assignment did not include all the property covered by a mortgage, and where the mortgagor after making the mortgage platted the land into lots and made an addition to the city, and without the consent of the mortgagee disposed of some of the lots, it was held that a suit might be brought in the Court of Common Pleas to fore- close the mortgage and that in such case, the Probate Court could not grant adequate relief/^ It was held that the jurisdiction of the Court of Common Pleas of an action in the nature of a creditor's bill brought under the authority of sec. 11760 G. C, is not ousted because of the pendency in the Probate Court of a petition for an order to sell lands for the benefit of creditors. The reason being that the wife of the assignor was liable and that over her property the assignee had no jurisdiction.^^ And where the owner of an estate for life and the owner of an estate in remainder in the same land, joined in a mortgage upon both estates and the remainderman afterward made an assignment of his estate for the benefit of creditors, it was held that the Probate Court had no jurisdiction to order a sale of the life estate upon the petition of the assignee.^® There seems to be some- controversy whether proceedings to set aside an assignment may be brought in the Probate Court or should be brought in the Common Pleas, In Jones v. Standard, etc, Co.,^'' it was held that the Probate Court had no such jurisdiction and the law does not permit the Court to adjudicate upon its legality or its execution, or whether the party had the right to make the assignment or not. No inquiiy is to be made by the Probate Judge in regard to it whatever. What further IT Robinson vs. Williams, 62 O. i9 Brock vs. Gregg, G3 0. S. 289. S. 401. 20 18 C. C. 189; 10 C. D. 41; af 18 Vandenbark vs. Mattingly, 62 firmed 64 O. S. 147, O. S. 25. 1361 WHEN TAKES EFFECT § 1546 duties he has to perform is in regard to directing the assignee in the disposition of the property, and in the management of the trust. The above decision seems to be contrary to that of Fairwell vs. Findley, etc.^^ The insolvency Court in Cincinnati has held that it has no jurisdiction to hear an attack upon the validity of an assign- ment based upon facts occurring prior to the filing of the deed," and, therefore, such an action would be required to be brought in the Court of Common Pleas. But such insolvency Court may pass upon the question whether the deed has been properly executed. ^^ § 1546. Assignee must give bond in Probate Court. Addi- tional bond. "When a person, partnership, association, or corporation, makes an assignment to a trustee of property, money, rights or credits, in trust for the benefit of creditors, within ten days after the delivery of the assignment to him and before disposing of any property so assigned, such assignee shall appear before the probate judge of the county in which the assignor rpsided at the time of executinQf the assignment, pro- duce the original assignment, or a copy of it, cause it to be filed in the probate court, and enter into a bond, payable to the state, in such sum and wnth such sureties as the court approves, conditioned frv the faithful performance of his duties accord- ing to law. The court may require the assignee, or any trustee subsequently appointed, to execute an additional bond whenever the interests of the creditors of the assignor demand it." [R. S. §6335.] 2* § 1546a. Assignment; when to take effect. "Such assign- ment shall take effect only from the time of its delivery to the probate judge, and the exact time of such delivery shall be indorsed thereon by the judge, who immediately shall note the filing on the journal of the court. It may be delivered by the assignor to the judge either before or after its delivery to the a>ssignee." [R. S. §6335.]-** 21 11 C. C. 100; 5 C. D. 303. , sion of a court of final resort to the See Paddock vs. Uaggett, 6 N. P. contrary, it will be safe to say that 385; 9 Dec. 371. the power and jurisdiction of tlio 22 Assignment of Consumers' Ice Probate Court will be upheld in all Co., 4 N. P. 172; 6 Dec. 132. matters pertaining to the settlement 23 /n, re Roherg, 7 N. P. 446; 5 of the assio;nment. Dec. 5S.5. 24 §11002 G. C. iSee § 1620, Sale of real estate. 24* §11003 G. C. The tendency of the courts now is As to form of deed, etc., see In re to hold that sill matters relating to Jo'^es, 5 N. P. 102; 7 Dec. 172. the property of an assignee may be It only applies to residents of worked out through the Probate Ohio, Wright vs. Youtsey, 5 N. P. Court, and unless there bo a deci- 57. § 1547 ASSIGNMENT APPOINTMENT 1362 § 1547. Who may make. The statute evidently contemplates that assignments shall not only be confined to individual persons, but that partner- ships, associations or corporations may make an assignment. When confined to a person it may be said that any person who is capable of making other legal contract may make a valid assignment for the benefit of his creditors. The right to make such assignment results from the right of absolute ownership which every man claims over that which is his own."^ In some States it seems that the person making the assign- ment must be in embarrassed or failing circumstances. Under our statute an assignment would be valid even though the assignor was not in an embarrassed condition.^* While it is recognized that a partnership may make an as- signment, some question has arisen about the rights of individ- ual partners. In this respect our Supreme Court has held ^^ " That one of the members of an insolvent firm can not, either before or after dissolution of the partnership, make a valid as- signment of all its effects for the benefit of creditors, against the will of a copartner, or without his assent when he is present or accessiiale." In another case it was held,^® " That a managing partner entrusted with the sole charge of the business and effects of the firm, may in case of its insolvency, make a valid assignment of his property for the benefit of creditors without having obtained the consent of a copartner who is a non-resident of the State and absent therefrom. In such a case, the assent of the absent partner will be presumed."-* It is probable that a surviving partner could make an as- signment.^" 25 It is said "every debtor has a 2" Holland vs. Drake, 29 O. S. 441, legal right to assign property for ^s Clafflin vs. Evans, 55 0. S. 183. the security of the debts due by him, 29 See ]\IcAlpin Co. vs. Finster- and so far from such ,an act being wald, 57 0. S. 524. reprehended by the law, it is justi- 30 Of course an assignment of a fied and approved." partner of partnership property Story, J., in Brown vs. Minturn, An insolvent corporation may 2 Gall. 557. make an assignment by a de facto 28Wambaugh vs. Insurance Co, Board of Directors. Harrison va 59 0. S. 228. Ellis, 15 Dec. 501. 1363 WHO MAY MAKE ASSIGNEE § 1548 While it is recognized that a corporation may make a valid assignment, yet it is held that after it has become insolvent, and ceases to prosecute the objects for which it was created, that while it might make an assignment, it could not when in that condition give preference otherwise to any of its credi- tors.'' It is said that such an assignment may be made by the board of directors without the express authority or consent of the stockholders.'^ But directors cannot make an assig-nment after they have ceased to act in that capacity, and a deed so executed by them would be set aside in an action brought in the Court of Common Pleas."' The proper method for a corporation to make an assignment would be for the board of directors to pass a resolution to that effect authorizing some member of their body to execute such power. If an unincorporated association desires to make an assignment, it could probably do so, through its board of trus- tees, although the liability of its members might be the same as partners. Corporations and partnerships are very often when in failing circumstances wound up by receivership in the Court of Common Pleas. § 1548. Who may be assignee. ]^o restriction is placed by the statute upon the assignor's choice of an asssignee; the person selected, however, should in all cases be a fit or suitable one. He may be a creditor of the assignor or a relative.'* Of course he should be a person ca- could not carry with it the indi- 32 Henry Pro. Law, 586, citing vidual property of the partners. Dana vs. Bank, etc., 5 W. & S. 223 ; An assignment for creditors of all De Camp vs. Alward, 52 Ind. 468. " property belonging to us," signed sa Home, etc., vs. Jones, 64 0. S. by persons individually, conveys the 147. individual property of each, includ- s* Henry Pro. Law, 588, citing ing a life estate, as well as the firm Jennings vs. Prentice, 39 Mich. 421 ; property. Perins' Assignment, 6 Guerin vs. Hunt, 6 Minn, 375 ; Cald- Dec. 347- 4 N. P. 262. well vs. Williams, 1 Ind. 405; Dun- Paddock vs. Daggett, 9 Dec. 371; lap vs. Bournonville, 26 Pa. St. 72; 6 N. P. 385. Caldwell vs. Rose (Ind.), Smith, 31 Rouse vs. Merchants' Bank, 46 190; Frink vs. Buss, 45 N. H. .'525; O. S. 493. Schultz vs. Hoagland, 85 N. Y. 464. § 1549 ASSIGNMENT — appoin'tment 1364 pable of contracting. The Court may at any time remove an unsuitable person, and the statute gives to creditors a right to select an assignee or tnistee.^^ No one is qualified to act until he accepts the appointment and gives bond as required by statute.^" § 1549. What property may be assigned. The statute says that " any property, money rights or credits may be transferred to the assignee for the benefit of creditors. These terms are broad enough to include almost every kind of projjerty. The statute expressly reserves or excepts the debt- or's homestead rights, etc.^^ It would not include subsequent services of the assignoir and likewise goods in transitu might be stopped before coming into possession of the assignee. Claims arising out of personal torts which do not survive the death of a person injured, would not pass. So goods sold upon condition might be retaken if the condition was broken. Property incumbered by liens would pass to the assignee and be sold, the lienor's interest being transferred to the fund.^* There can be no question, but that as a general rule, the statute means that every kind of property no matter of what na- ture or description which is then in a vested form, may be transferred to the assignee. The statutceven contemplates that property situate in otlier States shall pass. Whatever woul^i be assets in the hands of an administrator, would be such in the hands of an assignee.^^ 33 §§11096 and 11098 G. C. ally liable on the covenants of the (§§1564, 15G2). lessee. Nor is he bound to accept 36 § 1251 as to who niaj- be trus- the assignment of the lease if, in his t*6. opinion, it would be unprofitable to 37 §11111 G. C. (§1598). the creditors to do so. Wilder vs. 38 It has recently been held that McDonald, 63 0. S. 383. an assignee for the benefit of cred- 39 § s&S et seq. Articles bought itors by accepting the trust does not on the installment plan without become the assignee of a lease be- making any payment are not assets, longing to his assignor, nor person- Siebern's Assignment, 7 Dec. 280. 1365 HOW MADE § 1550 § 1550. How made. Assignments are usually made by deed. If it is intended to transfer real estate, the deed must be executed according to the law for transferring real estate. If only personal -property it would not need to be executed with such formalities.*" It is immaterial as to the form of such deed.*^ The following may serve as a general form for a deed of assignment : Deed of assignment. Know all Men by these Presents: That, whereas, , of county, Ohio, being unable at this time to make payment of his debts in full, and being desirous that none of his just creditors should have preference over others of said creditors in payment of their several claims: Now, in consideration of the premises and of one dollar to in hand paid by , of , the receipt whereof is hereby acknowledged, the said do. . . .hereby grant, bargain, sell and convey, transfer and assign unto the said , . .li. . . .heirs and assigns forever, all property and estate of every kind, character and de- scription whatsoever and wheresoever situate, be the same real, personal or mixed : This conveyance, assignment and delivery to the said being made in trust nevertheless for the benefit of creditors, to be by. .h. . . .administered under and according to the requirements and provisions of the assignment and insolvent laws of the State of Ohio, in such case made and provided, reserving unto hosvever all exemptions, homesteads and other rights secured to in any way or manner whatsoever, under the said laws : To have and to hold the above granted property (subject to said exemptions) to the said , . .h. .. .heirs, executors, administrators and successors in this trust forever, for the uses and purposes aforesaid. It witness whereof ha. .hereunto set hand this day of A. D. 190... Executed in the presence of us: The State of Ohio, County, ss. Before the undersigned in and for said county, personal- ly appeared , the grantor . . in the foregoing conveyance, and acknowledged the signing and sealing thereof to be. .h voluntary act and deed for the uses and purposes therein mentioned. In testimony whereof, I have hereunto subscribed my name and affixed my official seal this day of A. D. 190. .. hereby accept the foregoing trust, and undertake, .the discharge of the duties hereof, this day of A. D. 190. .. *o Kingman vs. Loyer, 40 0. S. *i Lee vs. Hennick, 52 O. S. 177} 109; Pfieflfer vs. Cook, 11 Bull. 320; Wambaugh vs. Insurance Co., 59 O. 12 Bull. 53. S. 242. § 1551 ASSIGNMENT FILING DEED 1366 § 1551. Filing in Probate Court, etc. The deed must be filed in the Probate Court in which the assignor resides and a delivery of the same to the Probate Judge is such .a delivery as will immediately pass the title to the property to the assignee, although the assignee may not acquire actual possession until some time thereafter. Such assignment takes effect from the time that it is delivered to the Probate Judge, and it is the duty of the Probate Judge to endorse on such deed the exact time of its delivery, and he shall also note the filing on the journal of his Court.*^ In one case it was held that where a person resided in another State, when he made out a deed of assignment and mailed it to the assignee in this State, the assignment was com- plete and passed the title to the assignee from the time the deed was placed in the postoffice.'*^ § 1552. Filing deed in recorder's office. As a general rule, it may be said that it is not necessary to file the deed of assignment in the recorder's office. Yet our Supreme Court has held that if the deed of assignment em- braces land situate in a county other than that of the assignor's residence, in order to be effective as against bona fide pur- chasers, it must be recorded in the county in which the land is situate ; and if a bona fide purchaser duly enters his deed for record in the office of the county in which the land is situate, as against the assignee, he mil take a good title.** It therefore becomes highly important that the deed of assignment should be filed in the office of the recorder in the county in which the land is situate where the assignor does not reside in such county. In order to show a complete chain of title, the deed ought also to be filed in the county of the residence of the assignor, pro- vided he has any real estate therein. "Clafflin Ck). vs. Evans, 55 O. « Johnson vs. Sharp. 31 0. S. 611. S. 193; Betz vs. Snyder, 48 O. S. ** Eggleston vs. Harrison, 61 O. S. 492. 397. 1367 QUALIFICATION OF ASSIGNEE . § 1553 § 1553. Qualification of assignee. Within ten days after the delivery of the deed of assignment to the Probate Judge, and before the assignee disposes of any property, it is the duty of the assignee to appear in Court and give bond. No doubt the assignee may and should take pos- session of the property iimnediately upon the filing of the deed ; and for various reasons, he ought at as early a date as can con- veniently be done, appear in Court and qualify as the statute requires. It is common practice in such cases for the assignee to appear and file an application for appointment. This may be in the following form : *^ Application and statement for appointment of assignee. Probate Court, County, Ohio. In the matter of The Assignment of in trust for the benefit of . .h . . . . creditors. No of county, Ohio, having accepted the trust as assignee.., submit, .the following statement of the estate and property, of said so assigned. The amount of personal estate will be about - - $ And the real estate about $ offer in bond the sum of $ with , and , all free- holders of this county, as sureties. The State of Ohio, County, ss. , being duly sworn, says that the statements in the foregoing application are true as he verily believes. Sworn to before me and signed in my presence this day of A. D. 190... , Probate Judge. APPLICATION FOR APPOINTMENT OF APPRAISERS. To the Probate Court of County, Ohio: The undersigned make . . application for the appointment of appraisers of the property and assets of , assignor. ., and suggest, .the names of and as suit- able, disinterested persons for such appraisers. *5 Acceptance by assignee is pre- Renounced after acceptance must sumed. Fleming vs. Stiefel, 9 Bull. be by order of Court. Gaylord V8. 350. Cramer & Watson, 1 H. .369. § 1554 ASSIGNMENT BOND 1308 § 1554. Bond, etc. The bond must be payable to the State, and in such a sum and with such sureties as shall be approved by the Court. What has been heretofore said in reference to the bonds of adminis- trators and executors would apply as to the bond of an as- signee." The statute gives the sureties a right to be released on such bond," and the practice in cases of release of sureties on ad- ministrator's bond might be followed.** And the statute gives to the Probate Court a right to require an additional bond whenever the interest of the estate demand the same.*^ The assigiiee might give a bond of indemnity if the sureties so re- quire.^" The following may serve as a form for bond: Assignee's bond. Enoio all Men hy these Presents : That we, are held and firmly bound unto the State of Ohio in the sum of dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our heirs, executors and administrators. Signed by us and dated at , Ohio, this day of A. D. 190... The condition of the above obligation is such, that whereas the above bound has been appointed assignee in trust for the benefit of the creditors of of county, State of Ohio, and has accepted said trust, and approved as such as- signee., by the Probate Court of said county. Now, if the said shall faithfully perform, .h. . . .diities as such assignee, .according to law, then this obligation to be void, other- wise to remain in full force. Executed in presence of This bond approved in open Court, this day of 190. . , Probate Judge. The assignee having appeared in Court and filed the proper application and the proper bond, the Court should make an en- try of such fact. There may be several entries required in the Probate Court previous to this. When the deed is filed in the *''' See § 2.33 et seq. as to execution *9 See § 250 et seq. as to liability and form of bond. of sureties. 47 §11098 G. C, §1562. so See §253. 48 See § 243 et seq. 1369 ORDER AND LETTERS § 1555 Probate Court, an entry should be made of such fact, which may be as follows : § 1555. Order of appointment. { Title. ) On this day of , 190 . . , at o'clock . . .M., came and filed in this Court a deed of assignment to him from one A. B. in trust for the benefit of his creditors (if at the same time the assignee files his application and his bond, the entry may proceed in the following manner) , and the said , having filed his application herein and accepted said trust and filed his bond in the sum of dollars, conditioned according to law, with and sureties, which bond is approved by the Court. It is therefore by the Court ordered that said be and is hereby qualified as assignee in trust for the benefit of creditors for the said A. B. ; and and and , three suitable disinterested persons, are appointed appraisers of the proper- ty assigned. 51 § 1556. Effect of order and issue of letters. The order of the Probate Court qualifying the assignee and accepting bond, like every other order made by the Probate Court coming properly within its jurisdiction, cannot be at- tacked or set aside in a collateral proceeding. The following may be used for a form of letters:^' Letters of Authority to assignee. The state of Ohio, County, ss. Probate Court. To all Whom these Presents shall Come, Greeting: Know ye, That whereas, , of county, Ohio, ha made an assignment of . .h. . . .real and personal estate, in trust for the benefit of . .h. .. .creditors. And, whereas ha.... been duly appointed assignee.. of said and ha. .. .accepted said trust and given bond as required by law, in said Probate Court, and in all things complied with the provisions of the statute in that behalf. Now, therefore, the said hereby authorized and em- powered as such assignee . . to administer said trust according to law, and to do and perform all things necessary and proper in the premises, to the just and faithful administration thereof. In testimony whereof, I have hereunto set my hand and affixed the seal of the said Probate Court at Ohio, this day of .A. D. 190... . , Probate Judge. 61 If the bond is not filed at the entry in accordance with the facta, time the deed of assignment, the ^2 § 90. above should be made in a separate § 1557 ASSIGNMENT APPOINTMENT 1370 The State of Ohio, County, ss. J , Judge and ex-officio Clerk of the Probate Court within and for said county, do hereby certify that the foregoing is a true and correct copy of the original letters of authority, granted in the premises by said Court, and remaining on file in my office. In witness whereof, I have hereunto subscribed my name and affixed the seal of said Court, at , Ohio, this day of A. D. 190... Judge and ex-officio Clerk of the Probate Court. § 1557. Notice of appointment. Immediately upon the issuance of letters, the statute makes it the duty of the assignee to give notice of such appointment. As was said when speaking of this matter of giving notice in the administration of estates of deceased persons,^^ the object and purpose of this notice is probably not only to give notice to creditors, but to serve as a proclamation or notice generally which will give the Court jurisdiction to proceed in the assign- ment. The statute and form of notice' relating thereto is as follows : "Each assignee, or trustee appointed on the failure of the assignee to qualify within thirty days after giving bond, must give notice of his appointment in some newspaper of general cir- culation in the county, for three successive weeks." [R. S. §6346.]^* Notice is hereby given tliat the undersigned has been duly appointed and qualified as assignee in trust (or trustee) for the benefit of tlie creditors of A. B., of county, Ohio, by the Probate Court of county, Ohio. A. B.. Assignee (or trustee), etc. Office, 53§534efseg. s* § 11108 G.C. 1371 REMOVAL OF ASSIGNEE §1558 CHAPTER LXXXV. EESIGNATION. REMOVAL OF ASSIGNEE, ETC. 1558 1559 1560 Introductory. On failure to file assifjn- ment or give bond, Court to appoint a trustee. Comments. Removal of as- signee. § 1561 Resignation of assignee. Appointment of trustee. Filling vacancy. Addi- tional trustees. § 1562 Removal of assignee, etc., by the Court. Effect of new bond. § 1562a Application for release of surety, etc. § 1562b Application by trustee for release of surety. § 1562c Removal for failure to give new bond. § 1563 Procedure, etc. § 1564 Election of trustee or trus- tees by creditors. § 1564a Proceedings. § 1565 Application for election of trustee. § 1566 Foi-m of petition for elec- tion of trustee. § 1567 Entry ordering citation, etc. § 1568 Form of citation, service, etc. § 156!) Hearing, etc. § 1570 Election by creditors, etc. § 1571 Entry. Form, etc. § 1572 Trustee appointed to give bond. His rights on giv- ing bond. § 1573 Settlement on resignation, removal or death. How enforced. § 1574 Appointment and qualifica- tion of trustee to operate as a conveyance. § 1575 Appeal and Error. § 1576 Unsettled assignments here- tofore made. Citation of assignee to give bail. § 1577 Raising an assignment. § 1558. Introductory. When the person designated in the deed of assignment is re- moved and a successor is appointed, such successor is desig- nated as a trustee instead of retaining the name of assignee. The statute relating to resignation and removal of assignees, ex- cepting the section which permits creditors to petition the Court for a removal, are very analogous to those providing for re- moval and resignation of administrators and executors.^^ For a full discussion of the povsrers of the Court, etc., reference is made thereto. It will be observed in the subsequent sections that a trustee may be appointed, first, where the assignee fails to give bond within ten days; second, where the assignee re- signs or dies ; third, where the assignee is removed for cause ; 55 § 208 et seq. See § 1.300 for removal of trustee and § 1358 for removal of guardian. § 1559 REMOVAL OP ASSIGNEE 1372 fourth, wliere he is ordered to give a new bond and fails so to do; fifth, where the creditors petition for his removal; and sixth, where the creditors are paid in full. These will be con- sidered in their order. § 1559. On failure to file assignment or give bond, Court to appoint a trustee. "If, for ten days after the execution of the assignment, the original or a copy of it, be not filed in the probate court, or if the assignee named thereon fails for that time to give bond, on application of the assignor, or any of his creditors, the court shall make an order removing such assignee and appoint a trustee in his place ; but if more than one assignee be named in the assignment, and some so fail to give bond, the court may permit the assignee or assignees com- plying with the two next preceding sectioUvS to qualify and enter upon the discharge of the duties of the trust." [R. S. § 6336.]^* § 1560. Comments. Removal of assignee. An inference might be gathered from the above section, that the court is not to act thereon except upon application of the assignor or of one of his creditors. But I have no doubt that the court may act of its own motion. While the assignee may be removed if he does not qualify within ten days, yet he may legally qualify and give bond at any time even though it be after the ten days' limit, "While an assignee can not dis- pose of property until he has given bond, yet the title vests in him to the property from the time that the deed is delivered to the Probate Court, and for that reason it requires an order of the court to remove him, even though he has not accepted or has failed to file the required bond; and the usual practice in such cases is for the assignor, or some creditor, to make an ap- plication for that purpose. This application need be very brief and simply set up the fact that ten days has elapsed and the assignee has not given the required bond. The statute does not require any notice to be given, but it seems that it would be proper to give notice and thus afford the assignee an op- portunity to give the required bond. If he does not give the bond the entry given in a subsequent section for removal of an assignee upon election of creditors might easily be adopted." §1561. Resignation of assignee. Appointment of trustee. Filling vacancy. Additional trustees. "An assignee, or trus- tee appointed by the court, who has qualified, with its consent, may resign his trust. In case of the death, removal, or resigna- tion of a sole assignee or trustee, the court shall appoint one or more trustees in his place; but if there be one or more 56 §11094 G. C. 57 See §1571. 1373 APPOINTMENT OF TRUSTEE § 1562 assignees or trustees who have not died, resigned, or been re- moved, the court either may fill the vacancy thus caused, or allow the remaining assignee or assignees, trustee or trustees, to execute the trust, as it deems best for the trust. At any time, on application of a majority of the creditors in amount, the court may appoint an additional trustee." [R. S. § 6337.]^* § 1562. Removal of assignee, etc., by the Court. Effect of new bond. "The court may remove an assignee or trustee, specifying in the order the cause of removal. [R. S. § 6339; 107 V. 421.]^^ § 1562a. Application for release of surety, etc. A surety of an assignee or trustee, or the executor or an administrator of a surety, at any time may make application to the proper probate court to be released from the bond of such assignee or trustee, by filing his written request therefor with the judge of such court, and giving at least five days notice, in writing, to such assignee or trustee. If, upon the hearing, the court is of opin- ion that there is good reason therefor, it shall release such surety. The death of a surety always shall be good cause. [107 v. 421.]^^* § 1562b. Application by trustee for release of surety. An assignee or trustee at any time may make application to the proper probate court for the release of his sureties, by filing his written request therefor w4th the judge of such court, and giving at least five days notice, in writing, to such sureties. If, upon the hearing, the court is of opinion that there is good reason to release said sureties, it shall order said assignee or trustee to file an account, as provided by law, and said sureties shall be released upon said assignee or trustee filing a new bond and its approval by the court. [107 v. 421.] ^^t § 1562c. Removal for failure to give new bond. If such assignee or trustee fails to give new bond, as by the court directed, he must be removed and his letters superceded. Such original surety or sureties shall not be released until the as- signee or trustee so give bond but the original surety or sure- ties shall be liable for said assignee or trustee's acts only from the time of executing the original bond to the filing and approv- al by the court of the new bond. [107 v. 421.] '^^t § 1563. Procedure, etc. The above section does not state for what cause the Court may remove an assignee, but I have no doubt any of the causes which would be sufficient to remove an administrator would be sufficient to remove an assignee,*"* or trustee,"^ or guardian."- 58 § lion.5 G. C. ""t § 11098-2 G. C. The above section is very much ^'H § 1100S-.3 G. C. Bimilar to § 10627 G. C. (§210) and «" See §220 et seq. §10020 G. C. (§21.3) and reference ei § 12.56. will be had to previous chapters for 02 § 1354 et seq. the method of procedure, etc. A trustee who is not free from 59 §11008 G. C. bias, etc., will be removed. Com- es* § 11098-1 G. C. ^ 1504 KEMOVAL OF ASSIGNEE 1374 As to the requirement of a new bond, the same procedure could be followed as is required when giving a new bond for execu- tors and administrators.^^ Before the Court should for any cause appoint a successor to an assignee or trustee, there should be filed by some interested person an application for such re- moval. This application should set forth the cause, and the form of procedure used in removing an administrator can easily be adopted and followed for the removal of an assignee.*** §1564. Election of trustee or trustees by creditors. "When a creditor or creditors of the assignor file a complaint allegmg that the assignee or assignees named in the deed of assignment, or the trustee or trustees appointed by the court are not suitable persons to administer the trust, or that their administration thereof will not be for the best interests of the creditors and assignor, the court thereupon shall issue a citation to such assignee or assignees, or trustee or trustees, and to the assignor if resident within the state, to appear before it at a time to be named therein. If, on the hearing, it be made to appear to the court that such complaint is true, and a petition is filed ^^nth the court, signed by creditors of the assignor, who own not less than one thousand dollars of debts against him, and their va- lidity is shown by the schedule of debts on file or othervtdse established to its satisfaction, pra3'ing for permission to elect a trustee or trustees, the court by its order shall fix a time for such election and cause notices to be sent by mail or otherwise to each creditor of the assignor, specifying a time when the creditors shall meet at the court room for the election of a trustee or trustees." [R. S. § 6338. ]«» § 1564a. Proceedings. "At the time named in such order, if creditors representing fifty per cent or more of the debts of the assignor are present or represented by attorney, they may proceed to the election of a trustee or trustees, a majority in value of all the debts so represented at such meeting being necessary to a choice. The proceedings of the meeting sho^A-ing what creditors were present, the amount of the debts held by them respectively, and who cast their several votes, must be made out and signed by the president and secretary of the meeting and filed with the court. If the court approves the ^ercial Bank /n re, 4 N. p. (N.S.) See Phillips vs. Ross, 36 0. S. 99; 6 Dec. 105. 458; /„, .-e Jones, 5 N. P. (X.S.) Assignee has no such title as will 112; 8 Dec. 123; State vs. Millard, entitle him to litigate question of 15 O. C. C. 460; 8 C. D 612. his removal. Campbell vs. Minor, 3 63 See § 243 et sea. ^. P. (X.S.) 138; 4 Dec. 96. 64 See § 214 et seq. 1375 ELECTION OF TRUSTEE § 1565 choice, and the trustee or trustees so elected appear within ten days thereafter and give bond, it shall appoint him or them as such trustee or trustees, and remove the preceding assignee or trustee. The summary determination of the court as to who are creditors and the amount of their claims in the next pre- ceding section provided, shall have no effect as to the validity of such claims, except for the purpose of such election." [R. S. §6338.]«2* § 1565; Application for election of trustee. There may be some question under the above section as to whether it confers an absolute right on the creditors to have an assignee removed, or whether the matter rests in the discretion of the Court. Several things unquestionably rest in the discre- tion of the Court. In the first place, the Court must be satis- fied that the assignee is an unsuitable person or that his admin- istration of the trust will not result to the best interest of the estate ; and secondly, the Court must be satisfied that the choice made by the creditors is a proper one. Undoubtedly the Court must entertain the application, and usually, if -made and pro- ceeded with as the law requires, the Court will obey the request of the creditors. The application must set out several facts. First, it must be shown that the assignee is not a suitable person to administer the tnist; or, if suitable, that his administra- tion will not be to the best interest of the creditors and the assignor. The petition must also show that the creditors filing the same own at least one thousand dollars of debts against the assignor. The petition ought to be sworn to, as upon its state- ments the Court will proceed and issue a citation for the as- signor and assignee, etc. The application may be in the fol- lowing form : § 1566. Form of petition for election of trustee. {Title.) The undersigned respectfully represent that tJiey are creditors of A. B. who has made an assignment in trust for the benefit of his creditors to C. D., which deed of assignment was filed in this C^ 1569. Hearing', etc. Upon the day set for hearing, the Court being satisfied that the petitioners are the owners of debts of the amount of one 66 See § 219. See also § 1003. 1377 ELECTION OF TRUSTEE § 1570 thousand dollars, as sbo\vn bj the schedule or otherwise, and being satisfied that the assignee is not a suitable person to ad- minister the trust or that his administration will not be for the best interest of the creditors, and being further satisfied that the assignee and assignor have both been notified as required by law, the Court should make a finding of that fact and order and fix a time for election of a trustee. The entry therefor may be in the following form : (Title.) This day this matter came on to be heard upon the petition of E. F. and other creditors of A. B., .asking for permission to elect a trustee instead of C. D., the assignee; and it appearing to the Court that A. B., the assignor, ajid C. D., the assignee, have both been notified of the time and hearing of said petition, as required by law ; and it further appearing to the Court that said C. D. is an unsuitable person to administer said trust, and that his administration will not be for the best interest of the reditors of the assignor and such assignees, it is therefore ordered by the Court that the creditors of said assignor shall be granted permission to elect a trustee to execute said trust instead of said C. D., the assignee thereof. It is therefore ordered by the Court that said election be held in this court room for the election of a trustee, on the day of 190.., at o'clocK; and that notice thereof shall be given by (here insert person or officer who is to give notice) to all the creditors of such assignor of the time of hearing said election. (Here state in what manner notice shall be given. The statute permits such notice to be served by mail, if the Court so order.) FORM OF NOTICE. To You are hereby notified that by order of the Probate Court of county, in the matter of the assignment of A. B. to C. D., in trust for the benefit of his creditors, that permission has been granted to the creditors of such assignor to elect a trustee, and that the said creditors will meet at this court room in the city of in said county on the day of , 190 . . , at ojclock, for the purpose of electing a trustee to execute said trust. § 1570. Election by creditors, etc. At the time mentioned in the order, if creditors representing fifty per cent, or more of the debts of the assignor are present, or represented by an attorney, they may proceed to the election of a trustee — a majority in value of all the debts represented shall be necessary to a choice. It would be proper for such a meeting to organize and elect a chairman and secretary and pro- ceed to take a vote. Their minutes should show the creditors present and amount of the claims of each, and by whom repre- § 1571 REMOVAL OF ASSIGNEE 1378 sented, and should be signed by the president and secretary and filed with the Court. Then, if the Court approves the choice, an entry should be made of such fact, and if the person chosen appears and gives bond within ten days from the time of such meeting, then the Court should remove the former as- signee and appoint the person so selected. If the person so chosen files his bond immediately, this may be in one entry, otherwise it should be in two entries. The first approving the choice, and ordering the person so chosen to be notified, and the second making the appointment. The following entry is intended where the person who is chosen appears at once and files his bond : § 1571. Entry, form, etc. (Title.) This day this matter came on to be further heard upon the petition heretofore filed herein, and the order made electing a trustee, and it appear- ing to the Court that due and proper notice has been given to all the creditors of the assignor, as required by law and the former order of the Court, and that in pursuance to said notice the creditors of the assignor had met in this Court as required by the former order, and that there was then present creditors representing more than fifty per cent, of the debts of said assignor, and that at said meeting G. H. was duly elected a trustee by persons representing a majority in value of all the debts presented at said meeting; and that the proceedings of said meeting show what creditors were present and the amount of debts held by them respectively, which has been filed in this Court. And it appearing to the Court that said G. H. is a suitable person to act as trustee in said matter, the choice of said cred- itors is hereby approved by the Court. It is therefore ordered that C. D., the assignee, be and is hereby removed from his said trust, and he is ordered to file forthwith in this Court, a full and complete account of his proceedings. It is further ordered that said G. H. be appointed trustee to execute said trust, in place of said assignee, and that he appear and file bond in the sum of dollars. Thereupon came the said G. H. in Court and accepted said appointment and filed his bond in the sum of dollars, conditioned ac- cording to law, with and sureties thereon, which bond is approved by the Court; and it is further ordered that letters showing such appointment be issued to said G. H.^t § 1572. Trustee appointed, to give bond. His rights on giving bond. "When the probate court appoints a trustee whether in place of an assignee, or of a trustee before ap- pointed, such trustee, within ten days after his appointment shall give bond as aforesaid, or, failing so to do, he may be considered as declining the appointment, and the place be filled. "When a trustee has given bond, he will succeed to all the rights, 67 The statute does not provide for a second election of a trustee. Bri- gel vs. Starbuck, 4 Bull. 83. 1379 SETTLEMENT, ETC. § 1573 powers, and prmleges of the preceding assignee or trustee. The court may make and enforce all orders necessary to put him into possession of all property, moneys, books, papers, evidences of title, and other effects covered by the assignment, or in any way belonging to the trust. By suit in the court of common pleas, or otherwise, such trustee may compel the de- livery to him of all such property, moneys, books, papers, evi- dences of title, and other effects." [R. S. § 6340.] «« Wlien the Probate Court appoints or approves the choice of the creditors for a trustee, then, if such trustee does not qualify within ten days, he is proceeded against the same as the orig- inal assignee and removed. Bond is required, and in all respects such trustee proceeds with the same powers as an assignee. § 1573. Settlement on resignation, removal, or death. How enforced. "On the resignation or removal of an assignee or trustee, appointed by the court, he forthwith shall file and settle his account, and on the death of such assignee or trustee, his legal representative forthwith must file and settle such account. Immediately after the settlement, the assignee or trustee, or his legal representative, shall pay over to his successor all moneys found due from him to the trust. On failure so to do, or to file and settle such account, or deliver over to his successor all property, moneys, books, evidences of title, papers, and other effects belonging to the tnist, such successor may proceed against such assignee, or trustee, by action in the common pleas court or otherwise, on his bond or his legal representative and the sureties in such bond." [R. S. §6341.]«» While the assignee when removed at once loses all power over the assigned estate, yet the Court does not lose jurisdiction over him until he has filed his account and the Court has passed thereon."^* It seems as if no action can be brought in the Pro- 68 § 11099 G. C. not so clear, possibly tlie assignee No doubt the Court mav make could be proceeded against in corn- tempt, isut without exception the whatever order it deems suflicient or trustee could institute an action in proper in reference to putting tlie replevin and recover such property. trustee into possession of the prop- After the account is filed, then suit ,,,.,,, . r,„. could be brouirht on the bond. erty belonging to the assignee. But C9 8 njoo fj C the question as to the manner in The successor of an assignee takes which such order mav be enforced is his place in a pending action. Greer vs. i Toward, 41 O. S. 597. § 1574 REMOVVIi OP ASSIGNEE 1380 bate Court enforcing the payment of money. Such an action must be brought in a Court of general jurisdiction. The pay- ment of money cannot be enforced by contempt proceedings.^" § 1574. Appointment and qualification of trustee to oper- ate as a conveyance. "When the court appoints a trustee to act in place of the assignee of the debtor, the appointment and qualification of the trustee so appointed shall operate as a con- veyance to him of all the property originally assigned to such assignee." [R. S. §6342.]^^ § 1575 Appeal and error. In a case passed upon by the Supreme Court some years ago, it was held that there was no right of appeal from an order made by the Probate Court in removing an assignee or trustee, the Court holding that the statute did not apply to such an order.'^ The Court intimated that such order was not defin- itive or final in its character, and holding that the same rule should be applied as is applied to the removal of an executor, administrator or guardian. It is now well settled that an order of the Court removing an administrator is not reviewable in proceedings in error," and it was formerly held that an order of the Probate Court removing an assignee is not a final order affecting a substantial right of an assignee, and error cannot be predicated thereon.''^ § 1576. Unsettled assignments heretofore made. Citation of assig-nee to give bail. "In all cases of assignments heretofore made, where no final settlement and distribution has been made, 69*Garver vs. Tissinger, 46 0. S. 74/^ re Jones, 5 N. P. 102; 56. Campbell vs. Minor, 3 N. P. 138; 4 TO/n re Rowekamp, 27 Bull. 289; ^ ' ^ Ex parte French, 4 Gaz. 209. ^^^- ^"• 71 § 11101 G. C. See Wambaugh vs. Ins. Co., 59 Upon the assignees removal and O. S. 228. appointment of a trustee title to ^^^^g^ assignee fails to pay, suit all the property rests in the trustee. , , , -r^ .,i. t. Wambaugh vs. Insurance Co., 59 O. ^^^ ^^ °^ ^°^'^- Phillips vs. Ross, S. 228. 36 0. S. 458; Voss vs. Loomis, 1 72Brigel vs. Starbuck, 34 O. S. C. D. 12; 1 0. C. C. 21; State vs. 2^1- , . 1 ni -, Go€bel, 1 C. D. 307; 1 0. C. C. Appeal is now also allowed. ' , „„ -r. n at^ t^- i i §11205 G. C. (§39). 550; affirmed 22 Bull. 475; Walsh V3§232. • • • yg Miller, 51 0. S. 480. Statute changed by legislature of 1902, and now allows error. § 11207 G. C. (§52). 1381 KAISING AN ASSIGNMENT § 1577 the Probate Judge of the proper county shall have the power, on the application of any creditor of the assignor, to issue a ci- tation against such assignee, requiring him to appear before such Probate Judge, on the day named in such citation, to show cause why he should not give bail for the execution of his trust according to the provisions of this chapter; and such Probate Judge, on good cause shown, may require such assignee to give bail according to the provisions of this chapter; and in case such assignee shall fail to appear as required by such cita- tion, or shall fail to give bail within the time ordered by such Probate Judge, such Probate Judge shall remove him and ap- point another trustee, and after the giving bail by any assignee, or trustee so appointed, as provided in this section, the same proceeding shall be had as provided in this chapter in case of assignments hereafter made." [56 v. 231, § 21.]''^ § 1577. Raising an assignment. There. is another cause for the removal of an assignee or trus- tee, and that is where the creditors have all been paid in full and an application is made for the termination of the trust. In such cases, there being no longer any reason for the assignment, the assignee should be removed and ordered to reconvey to the assignor the property remaining in his hands. This proceed- ing is generally known as " raising an assignment." In such cases it is usual for the assignor to make an application in the Probate Court for that purpose. This application should set forth the fact that all the creditors have been paid in full, and, as an evidence of such fact, there should be an exhibit attached to the application which should contain a receipt from all the creditors, or a consent that the assignment be raised. This ex- hibit might also contain a complete account of the assignee in his administration of the trust up to such time. The applica- tion therefor may be in the following form : {Title.) Now comes C. D. and represents that he is the assif^or herein and that he made an assignment to A. B. of all his property and effects for the benefit of his creditors, that since said assijjnment all of his creditors have been paid in full and there are no claims nntstandini? acfainst him; and he hereby attaches (which is marked Exhibit A.) a complete statement '6 § 6345 R. S. This section is marked executed by the codiller (1!)I1). §1577 RAISING AN ASSIGNMENT 1382 of said A B his assignee, of the ddministration of his said trust, and which exhibit 'also shows that the payment in full of all claims presented by his creditors. . ^ , j Wherefore he asks the Court to raise said assignment and order a re- conveyance to himself. ., , . .u • At Sworn to before me and subscribed m my presence this day of A. D. 190... The following may serve as an entry : ( Title. ) This day this cause came on to be heard upon the application of C. D. to raise the assignment herein upon the proofs and exhibits. The Court beinor satisfied that all creditors 6i said C. D. have been paid in full (or have consented to the raising of said assignment) and no reason appearing why the assignment should not be raised, it is ordered that the personal propertv transferred to said A. B. in said assignment, and yet undisposed of be delivered to the said assignor and that the real estate of said assignor so held by said assignee, yet undisposed of. be reconveyed by said assignee to said assignor by deed duly executed, and upon his failure to do so, this entry shall operate as a conveyance of the same, and that said assignor shall satisfy the assignee and pay to him the sum of . . . . ••,.••• • • dollars for his services, and the sum of dollars to his at- torney for services rendered in this assignment; and thereupon said as- signment is raised and said assignee is discharged.^e 76 Although there is no special provision made in the statutes to that effect, yet under the decision of the Supreme Court in Garver vs. Tissinger, 46 0. .S. 56, it is compe- tent for the creditors and for the assignee and assignor all agreeing, in cases of assignment for the beneht of creditors under the statutes, to consent to the discharge of the as- signee and to the closing up of the affairs of the estate, and where all creditors except four consent that the assignment be closed up, and it appears that these four creditors have failed to present their claims for more than six months after due publication of the notice to creditors to present their claims, the fact that such creditors do not appear, and the want of their consent to the closing up cf the assignment, will not prevent this being done and the assignee being ordered to pay over to the assignor the balance of the money in his hands belonging to such estate. Backus & Sons Co. vs. Backus, 18 €. C. 341; 9 C. D. 789. Where the Probate Court makes an order discharging an assignee for the benefit of creditors, at his own request and vacating the assign- ment, such order is binding on such assignee and on all parties having notice of such application until set aside by proper proceeding or re- versed on error. State vs. Millard, 15 C. C. 460; 8 C. D. 672. See § 1661, Report of payment. The Probate Court has no juris- diction to raise an assignment un- less all the parties in interest, in- cluding the assignor, assignee and creditors, consent. But a Court of Equity may, when the interest of all parties are preserved. As where a bond is given to pay all creditors in full. Harrison vs. Ellis, 15 Dec. 501. 1383 ASSIGNMENT CARE AND MANAGEMENT §1578 CHAPTER LXXXYI. MANAGEMENT OF DUTY OF ASSIGNEE AS TO CARE AND PROPERTY. § 1578 Introductory. § 1579 When transfer or assign- ment void. § 1579a To whom act applies. § 1579aa When purchaser or as- signee becomes trustee. § 1579b Receiver; appointment of. § 1579c Knowledge of fraudulent intent material; "mortgage, provisions as to. § 1580 How suit brought. § 1580a When creditor may bring suit. § 1581 For what cause action may be brouglit. § 1582 AVhen sale conclusively pre- sumed to be fraudulent. § 1583 Who may bring the action. § 1584 Jurisdiction. § 1585 Examination of assignor, etc. Orders to prevent fraudulent transfer. § 1585a Order to prevent fraudulent transfer. Procedure, etc. Court, on application of tliree-fourths of creditors, may order business of as- signor carried on by as- signee. Liability of assignee. Application. Form of application, etc. AssigTiee may complete sales of real estate, etc. Property taken possession of by another under lien or execution. § 1586 § 1587 §1588 § 1589 § 1.590 § 1591 §1592 § 1578. Introductory. It is the first duty of an assignee to ascertain and get posses- sion of all the property assigned, and to accomplish this, he is possessed of whatever rights and remedies the law affords to other trustees or individuals. In reference to the care and management of the property, his duties are very much similar to those of an administrator, except as to real estate, and then the assignee occupies a similar position as an executor directed to sell the same, and reference will he had to the chapter there- on, under the administration of estates.^ It is not only the duty of the assignee to get possession of all the property as- signed, hut may under certain circumstances he his duty to re- cover property that has heen conveyed away, provided the same has been sold in violation of the succeeding sections. 1 See § 506 et seq. The assignee is entitled to pos- session of real estate in possession of assignor, and held under a secret arrangement that the title is to re- main in tlie seller, and in such cases the fund derived from the sale of same belongs to the assignee for the benefit of general creditors. In re Cook, 6 N. P. (N.S.) 298; 18 Dec. 541. Where the assignee permitted the assignor to retain possession of the premises, it was held that he was not chargeable with failure to col- lect rent. In re McCray, 22 Dec. 697. § 1579 ASSIGNMENT — CARE AND MANAGEMENT 1384 § 1579. When transfer or assignment void. Sec. 11102. The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures per- taining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prose- cution of the business of the sellers, transferrer or assignor, shall be void as against the creditors of the seller, transferrer, assign- or, unless the purchaser, transferee or assignee demands and receives from the seller, transferrer or ai£:ignor a written list of names and addresses of the creditors of the seller, transferrer and assignor, with the amount of the indebtedness due or owing to each and certified by the seller, transferrer and assignor, under oath, to be a full, accurate and complete list of his creditors, and of his indebtedness ; and unless the purchaser, transferee or assignee shall, at least five (5) days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally, or by registered mail, every cred- itor whose name and address appears in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof. [103 v. 462.]- § 157Ca. To whom act applies. Sec. 11103, Sellers, trans- ferrers and assignors, purchasers, transferees and assignees, under this act shall include corporations, associations, co-part- nerships and individuals, but nothing contained in this act shall apply to sales by executors, administrators, guardians, receivers, trustees in bankruptcy or by any public officer under judicial process. [103 v. 462.]-* § 1579aa. When purchaser or assignee becomes trustee. See. 11103-1. Any purchaser, transferee or assignee, who shall not conform to the provisions of this act, shall at any time within ninety days after such sale upon application of any of the creditors of the seller, transferrer, cr assignor, become a trustee and be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his pos.session by virtue of such sale, transfer or assignment, provided, however, that any purchaser, transferee, or assignee, who shall conform to the provisions of this act shall not in any way be held accountable to any creditor of 2 §11102 G. C. Nassif, 26 0. C. C. (X.S.) 542. 2* § 11103 G. C. Honest intention does not aid. Tliis statute is constitutional. Gragdon vs. Atlantic Pho., 17 0. C. Steele, Hopkins and ]\Iereditli, 92 C. (X.S.) 236. A valid preference. 0. S. 115. It is strictly construed. Pabst Brewing Co. vs. Johnson, 17 Mollen, Thompson & James Co. vs. O. C. C. (X.S.) 1. See 245 U. S. Klein, 19 X. P. 415. Must be Gil; 176 Fed. 510; 218 Fed. 733. literally complied with. Romeo vs. 1385 FRAUDULENT SALE § 1579b the seller, transferrer or assignor, or to the seller, transferrer or assignor for any of the goods, wares, merchandise or fix- tures that have come into possession of said purchaser, trans- feree or assignee by virtue of such sale, transfer or assignment. [103 V. 462.] § 1579b. Receiver, appointment of. "A sale, conveyance, transfer, mortgage or assignment, made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them against himself or themselves in contemplation of in- solvency and with a design to prefer one or more creditors to the exclusion in whole or in part of others, and a sale, con- veyance, transfer, mortgage or assignment made, or judgment procured by him or them to be rendered, in any manner, with intent to hinder, delay or defraud creditors, shall be void as to creditors of such debtor, or debtors at the suit of any creditor or creditors. In a suit brought by a creditor or creditors of such debtor or debtors for the purpose of declaring such sale void, a receiver may be appointed who shall take charge of all the assets of such debtor or debtors, including the property so sold, conveyed, transferred, mortgaged, or assigned, and also administer all the assets of the debtor or debtors for the equal benefit of the creditors of the debtor or debtors in proportion to the amount of their respective demands, including those which are unmatured." [R. S. §6343.]=^t § 1579c. Know^ledge of fraudulent intent, material ; mort- gage, provisions as to. "The provisions of the next preceding section shall not apply unless the person or persons to wdiom such sale, conveyance, transfer, mortgage or assignment is made, knew of such fraudulent intent on the part of such debtor or debtors, nor shall anything in such section contained vitiate or affect any mortgage made in good faith, to secure any debt or liability created simultaneously with such mortgage, if such mortgage be filed for record in the county wherein the property is situated, or as otherwise provided by law, within three days after its execution, and when, upon foreclosure or taking pos- session of such property, the mortgagee fully accounts for the proceeds thereof." [R. S. §6343.]^J 2t § 11104 G. C. former statutes it was provided that 2t § 11105 G. C. after the suit was hrouj^ht in the §§ 6C43 R. S. and 6344 P.. S. as Court of Common Picas to set aside now standing, while containing sub- a sale and was sustained, then the stantially the law as contained in matter was taken to the Probate the former sections, is a complete Court and there the trustee was rearrangement of tlie matter there- appointed to sell the property and in. The present sections make some proceed as in assignments. Under additions and eliminations. In the the present statute if an action is ^ 1580 ASSIGNMENT — CARE AND MANAGEMENT 1386 §1580. How suit brought. "Any creditor or creditors, as to whom any of the acts or things prohibited in the next four preceding sections are void, whether the claim of such creditor or creditors has matured or will thereafter mature, may com- mence an action in a court of competent jurisdiction to have such acts or things declared void. Such court shall appoint a trustee or receiver according to the provisions of this chapter, who, upon being duly qualified, must proceed by due course of law to recover possession of all property so sold, conveyed, transferred, mortgaged or assigned, and to administer it for the equal benefit of all creditors, as in other cases of assignments to trustees for the benefit of creditors. And an assignee as to whom anything or act mentioned in the next four preceding sections shall be void, likewise must commence a suit in a court of competent jurisdiction to recover possession of all property so sold, conveyed, transferred, mortgaged or assigned, and if recovered, shall administer it for the equal benefit of all cred- itors as in other cases of assignments to trustees for the benefit of creditors." [R. S. §6344.]- § 1580a. When creditor may bring* suit. "If such assignee fails or declines, upon notice by any creditor or creditors to institute such suit, such creditors may themselves commence it within five days after serving notice upon the assignee to com- mence suit, and the procedure and administration shall be the same as is hereinbefore provided for suits begun by any creditor or creditors." [R. S. §6344.]^* § 1581. For what cause action may be brought. In order that the action may be sustained several things are necessary. In the first place, there must be a fraudulent act of some kind done by the assignor. If the sale is made upon a good consideration, even though it is then contemplated to make an assignment, the sale would be valid; and if a transfer were made in good faith to a preferred creditor, and secure to him brought and maintained, the Court Dodge, 19 C. C. 425; 10 C. D. 360. declaring the same to be void, shall See Whitt. Forms, p. 252, and appoint a trustee. The present Kinkead's Code PI. § 624 et seq., for statute allows an assignee to bring proper forms, etc. such action and if the action is sus'- s § 11106 G. C tained then it is the assignee's duty 3* § 11107 G. C to recover possession. If a conveyance be made to a wife, Two causes of action, one at law, it is good so far as she has a valid and one under § 6343 R. S., may be claim against her husband. Ger- joined in one petition, but must be man Bank vs. Gunther, 3 N". P. 311; separately numbered. Kennedy vs. 3 Dec. 686. 1 1387 ASSIGNMENT CARE AND MANAGEMENT § 1581 the payment of a valid existing debt, such act would not be suffi- cient to set the sale aside. It will not be within the scope of this work to go into these matters in detail. Our Supreme Court has held " that a failing debtor, knowing his insolvency, and in contemplation of making an assignment for the benefit of creditors, may prefer one or more creditors to others, pro- vided he does so in good faith, and by means calculated to hinder other creditors no more than is incidental to the prefer- ence, and this he may do by a chattel mortgage delivered to the mortgagee before the deed of assignment is delivered to the Probate Judge. Such transaction is not within the operation of sec. 11102, G. C, et seq., which provides that 'all assignments in trust to a trustee or trustees, made in contemplation of in- solvency, with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors in proportion to the amount of their respective claims. ' " * In another case it is said : " The good faith of the parties to such a transaction must be determined by its legal effect on the rights of others. If its legal effect works a fraud on their rights, the finding of a. Court that the parties acted in good faith is simply an erroneous conclusion of law from the facts." ^ < Cross vs. Carstens, 49 0. S. 348. made by an insolvent debtor, there 5 Bank vs. Trebein, 59 O. S. 316. are three essential elements that the Where a corporation for profit has creditor must make appear : First ceased to prosecute the objects for — An adequate consideration. See- which it was created, it was held it ond — Scrupulous good faith on the could not give a valid preference. part of Ihe creditor. Third — A Rouse vs. Merch. Nat. Bank, 46 O. purpose single and sole to the secu- S. 493. rity of his claim. Without either The burden of proof is upon the of these the preference must fall, person assailing the sale. Where an insolvent debtor makes A creditor of an insolvent debtor members of his immediate family acting in good faith and with a pur- his preferential creditors, the trans- pose, single to his own interest, may action is suspicious and calls for the take from his failing debtor a pref- closest scrutiny, and the disclosure erence even though he know that his of an adequate consideration and debtor is insolvent, and knows also the bona fides on the part of the that it is the intent of his debtor in creditors. In all this class of cases giving the preference to him to bin- the bona fides of the whole transac- der and delay his other creditors. tion is assailed by the creditors, and In order to maintain a preference where so assailed, the burden of § 1582 WHEN PRESUMED FRAUDULENT 1388 § 1582. When sale conclusively presumed to be fraudulent. By the act of 1900, a clause was inserted in sec. 6343, R. S., providing that every sale, etc., and every judgment suffered, etc., by any debtor or debtors, in the event of a deed of assign- ment being filed within ninety (00) days after the giving or doing of such act, shall be conclusively deemed and held fraud- ulent. This portion was stricken out in 1902, and as to the fact of such matter being conclusively presumed to be fraud- ulent, it remains as it was before, and the burden of showing that a sale or judgment suffered was fraudulent would devolve upon the party attacking the same. However, if preference was given by a chattel mortgage, and such mortgage was not recorded within three days after its execution, it would be con- sidered fraudulent, and it would devolve upon the party holding the same to show the contrary. The same thing would result if a chattel mortgage was taken on property and possession al- lowed to remain in the owner, and the owner allowed to sell the same, unless such owner was obliged to account for the proceeds of such sale. It is generally held that a chattel mortgage of personal property, where the mortgagor is permitted to retain possession and make sales, is invalid and conclusively fraud- ulent.** But if the agreement is that the mortgagor shall re- tain possession as agent of the mortgagee and pay the mortgagee the proceeds, it is valid.^ Mere possession by sufferance, and selling without an agreement to account, is not per se fraud- ulent.^ proof is upon the creditor not only 6 Kleine vs. Katzenberger, 20 0. to show that the preference was S. 110. upon an adequate consi.leration, but ^ Brubaker vs. Brubaker, 37 Bull, that it was done in the, utmost good 38. faith, and the introduction of the 8 [."ord vs. Miller, 5 N. P. -512; mere formal transfer raises no pre- 5 Dec. G03. sumption whatever of good faith. The understanding that the mort- Walker vs. Walker, 4 N. P. 324; 6 gagor ni.iy retain and dispose of the Dec. 355. ' goods for his benefit invalidates the See Remington vs. Cen. Press As- mortgage, but must be strictly soc, 3 N. P. 258 ; 4 Dec. 337 ; See proved. Canfield vs. Lathrop, Cleve. Brinkerhoff vs. Tracy, 55 0. S. 558. Rec. 67. 1389 ASSIGNMENT — WHO MAY BRING ACTION § 1583 § 1583. Who may bring action. The actibn to set aside a fraudulent sale may be brought by any creditor if no assignment has been made. If an assign- ment has been made, it is the duty of the assignee to bring the action. But if such assignee fails or declines upon notice to institute such a suit, then a creditor may bring the suit,^ § 1584. Jurisdiction. Unquestionably, the action brought to set aside a sale must be brought in a Court of general jurisdiction, and not in the Probate Court. If a creditor brings a suit before an assign- ment is made, the statute is clear that the Court in which such suit is brought, if the sale is set aside, must appoint a trustee, and such trustee shall administer the estate the same as an as- signee. . But if the action is brought by an assignee, or by a creditor, after an assignment is made, some question may arise whether, if the sale be set aside, the Court should appoint a trustee or merely direct that the assignee should take possession of such property and convert it into assets under and by virtue of the orders of the Probate Court. The language of the stat- ute will bear a construction that the assignee, if he recovers, may administer the same in Lis capacity as assignee, acting under the orders of the Probat'^ Court; and likewise, if the same were set aside by a creditor after an assignment had been made, in order that the trust might be administered by one person, it would be proper that the assignee take possession of the property when the sale was set aside. In such cases it would be well for the creditor when bringing the suit to make the assignee a party. §1585. Examination of assignor, etc. Orders to prevent fraudulent transfer. "On application of the assignee or of a creditor, or without application, the probate judge at all times 9 As this action miist be brought See Kinkead's Code PI. §624; in the Court of Common Picas it VVhitt. Forms, p. 252. does not strictly come within Pro- bate Practice. § 1585a ASSIGNMENT CARE AND MANAGEMENT 1390 may require the assignor, upon reasonable notice, to attend and submit to an examination on oath as to the disposal of his prop- erty, his trade and dealings with others, and his accounts con- cerning them, as to all debts due or claimed from him, and to all other matters concerning his property and estate, and the due settlement thereof, which examination, at the request of anv partv to the proceeding, may be reduced to writing." [R. S. §6349.]i"° § 1585a. Order to prevent fraudulent transfer. "The pro- bate judge, in like manner at any time before the final settle- ment of the accounts of the assignee, may require his attendance, or that of any otlier person as a witness, and examine him upon oath, as to all matters appertaining to the estate of the assignor or to the administration of the trust, and, upon or after such examination, make and enforce any orders upon proper parties, wliich he deems necessary to prevent a fraudulent transfer or change in the property or effects of the assignor or the allow- ance or payment of anv unjust or fraudulent claim out of his estate." [R. S. § 6349.V°* § 1586. Procedure, etc. The aboA^e section is very analogous in the provisions made for the examination of persons pliarged with having concealed assets belonging to the estate of a deceased person, ^^ and the method of procedure adopted therein can very easily be fol- lowed when seeking to enforce the provisions of the above sec- tion. This would probably permit the Court to imprison the party failing to obey the citation, and it would permit the Court to enjoin any person from making a fraudulent transfer or change of property or effects of the assignor. § 1587. Court, on application of three-fourths of creditors, may order business of assignor carried on by assignee. ' ' When satisfied tliat it would be for the advantage of the creditors of the assignor, and on Avritten application therefor by three- fourths in number and amount of such creditors, the court may order any business carried on by the assignor at the time of the assignment, to be continued by the assignee or trustee. When the court deems it to the advantage of the creditors to dis- continue the business, it shall order that to be done, and also 10 §11113 G. C. 11 See § 394 ef se?. 10* § 11114 G. C. 1391 ASSIGNMENT — LIABILITY OF § 1588 allow such compensation for conducting it, to the assignee or trustee, in addition to the .fees now allowed by law, as may be just." fR. S. §6350h.]^2 § 1588. Liability of assignee. In a previous part of this work the liability of an adminis- trator or executor carrying on the business of a decedent has been discussed, and as the duties of an assignee are very analogous, reference thereto may be made with profit.^^ An assignee continuing the business as to all persons dealing with him in the conduct of such business is personally liable the same as an administrator.^* There is no doubt, however, that if an assignee carries on the business by order of the Court, and especially, if under the provisions of the above section, that the estate wall be liable in the absence of fraud or gross negli- gence, to reimburse him for all liabilities incurred ; and this would be true even though the business resulted disastrously to the creditors. It has been held that where it is • necessary to preserve the property, the Court may make an order con- tinuing the business even though there has been no application for that purpose by the creditors ; and that even if conducted at a loss, the assignee must be first compensated or reimbursed for credits made.^^ § 1589. Application. Unless for the preservation of the property the Court should not make an order for the continuation of the business without a written application therefor. This application must be made by three-fourths in number and amount of the creditors. The application need not be granted unless the Court be satisfied that it would be to the interest of the estate, and the Court may make an order discontinuing such business any time it thinks it would be advantageous to the creditors to do so. It has been held that an assignee might continue the business for 12 § 1]125 G. C. Tn re Thompson, 8 N. P. 373; 11 13 § 518 et seq. Dec. .30.3. 14 Cin. Ice Co. vs. Peat, 5 Bull. i"' St. James Hotel Assignment, 3 710; Goepper vs. Pfau, 6 Bull. 17; N. P. 42; 4 Dec. 209. ^ § 1590 ASSIGNMENT — CARE AND MANAGEJIENT 1392 a reasonable time without an order of the Court, hut this should not be done ; and rarely should an order be granted without an application of the creditors. It may be well to know here that there is a distinction between power granted to continue a busi- ness and an order made to sell the property at retail. " Con- tinuing the business " means not only selling the materials that were assig-ned, but buying new material and replenishing the stock and manufacturing new articles, etc. It is frequejitly the practice to order an assignee to close out a business under an order of private sale, requiring the assignee to sell the stock for not less than two-thirds of its appraised value.^® § 1590. Form of application, etc. (Title.) Now comes A. B. et al., creditors of the said C. D., who has made an assignment to E. F., and respectfully represents that the creditors of said assignor, three-fourths in nvimber, and holding three-fourths in amount of the debts of said assignor, have and do hereby petition that the Court may grant an order to such assignee to continue and carry on the business, to- wit: (here describe) of said assignor, for the reason that the same will be for the advantage of the creditors of said assignor in this, to- wit: (Here insert reason.) They further represent that the entire number of creditors of such assignor is and the entire amount of claims presented is The entry thereon may be in the following form : (Title.) This day this matter came on to be heard upon the application of A. B. et al., creditors of said assignor, for an order of this Court directing said assignee to continue said business ; and the same was submitted to the Court. Whereupon the Court finds that three-fourths in number and amount of said creditors have signed said application, and that it would be for the advantage of the creditors of said assignor to continue said business. It is therefore ordered that said assignee continue said business of ( here insert ) until such further order of the Court. § 1591. Assignee may complete sales of real estate, etc. The statute provides ^^ that the assignee may, with the ap- proval of the Court, complete and enforce all sales of real estate made by the assignor. The provisions of this section are some- 16 See § 1379, Gdns assignee sihould endorse on such ap- See § 518, Adm'rs. plication his consent to continue the i'^ The creditors signing this pe- business. tition should state after their names is §§ 11119, 11120 G. C. (§ IGll). the amount* of their claims; and the 1393 PROPERTY TAKEN POSSESSION OF BY ANOTHER § 1592 what similar to that in reference to an administrator, etc,,^® and proceedings brought by an administrator can very easily; be fol- lowed by an assignee, and reference will be made to the discus- sion hereinbefore had of the same in the administration of an estate."' § 1592. Property taken possession of by another under lien or execution. It sometimes happens that shortly previous to an assignment a levy to enforce an execution has been made on the property of the assignor, or that possession of property covered by a mortgage has been delivered to the mortgagee to be sold, and the remainder returned to the assignor. In such cases the sur- plus, if any, being properly the property of the assignee, it will veiy often be found to be to the interest of the creditors of the assignor that the entire property be turned over to the assignee to be by him disposed of. The Courts have held that this can be done and the rights of the execution or lien creditor be sustained.^^ In such cases it would be proper for the Court to make an entry reciting the fact of such prior levy and lien, etc., and that the same was turned over to the assignee, reserv- ing the rights of the execution creditor, etc.^" 19 § 11922 G. C. (§523). asked, when such receiver has not 20 § 523 to § 532. been appointed. Callahan vs. Ice 21 Hughes vs. City Hall Bank, 61 Co., 7 C. D. 349 ; 13 C. C. 479. 0. S. 386, 16 C. C. 645; 9 C. D. 270; See assignment of Winehell, 1 N. 2 N. P. 77; 3 Dec. 166. P. 136; 1 Dec. 310; vk'here it was 22 An assignee for creditors may held that liens could not be de- take possession of the assignor's termined when assignment was filed, property, notwithstanding the pend- See § 1646. ency of a suit in which a receiver is § 1593 ASSIGNMENT — APPRAISEMENT 1394 CHAPTER LXXXVII. APPRAISEMENT. EXEMPTION, ETC. § 1593 Introductory. § 1598 Exempt property excepted § 1594 Appointment of appraisers. imless expressly waived, § 1594a Real estate without the and wife's property. Home- State, stead to be set-ofF. § 1595 Appraisers, etc. § 1598a Homestead. § 1596 What must be appraised. § 1599 ^Vho entitled to exemption. § 1597 Return of inventory and § 1600 Dower. schedule. § 1601 ^Mien Court may order property sold. § 1601a $500 in lieu of exemption. § 1593. Introductory. What was said about the importance of an inventor)' when treating of the administration of estates of deceased persons is equally applicable to the necessity of an inventory under assign- ments.^ Likewise what was said as to the manner in which such appraisement should be conducted will be applicable here. 'No notice is required to be given to any one, yet it would be well if the assignor were notified ; his presence would be of very much assistance, especially in setting aside real estate or personal property exempt, dower, etc. The statute intends that this appraisement should be made at the very earliest date after the assignee files his bond, that the same can be conveniently done. It must be filed within thirty days, unless longer time is granted. Real estate in all cases must be appraised, unless where located in another State, and the method to be followed is very much similar to that of the appraisement of real estate by an administrator.^ The statute relating thereto is as fol- lows : § 1594. Appointment of appraisers. ' ' Immediately upon the assignee giving bond, or if he fails to give bond, then upon the trustee appointed giving bond, the court shall appoint three J § 280. 2 See § 855 et scq. 1395 APPRAISERS, APPOINTMENT OP § 1594a suitable disinterested persons appraisers of the property and assets of the assignor. Such assignee, or trustee, within thirty- days after giving bond, unless for good cause the court allows a longer time, must make and file therein an inventory, verified by his oath, of all the property, moneys, rights, and credits of the assignor included in the assignment, which have come to his possession or knowledge, together with an appraisement thereof by such appraisers under oath. If any part of the estate or effects be in any other county, the assignee or trustee may have appraisers as to such part of the estate and effects appointed by a disinterested justice of such county." [R. S. § 6347.]* § 1594a. Real estate without the state. "Tf the assignment includes real estate situated without this state, it shall not be necessary to have it appraised, but the assignee, or trustee ap- pointed, shall sell such real estate at public or private sale, and the sale be confirmed, if the court finds that it has been made in good faith for a fair price. At the time of filing the inven- tory, the assis-nee or trustee also must file a schedule of all the debts and liabilities of the assignor within his knowledge, which shall be verified by the oath of the assignee or trustee; and contain the postoffice address of each of such alleged creditors so far as this can be given." [R. R. § fi847.]** § 1595. Appraisers, etc. There is no other requirement of the statute except that the appraisers shall be three suitable, disinterested persons. They are not required to be of the vicinity, neither are they required to be freeholders, although they should be both, and gener- ally, it may be said, that the law applicable to appraisers of the personal and real estate of deceased persons is applicable to appraisers in assignments for the benefit of creditors.^' The appraisers must make an appraisement under oath.'* Their duties are similar to appraisers of real estate and personal estate of deceased persons. The statute does not fix any particular sum to be paid them as fees, and this is usually determined by the Court." The oath cannot be administered by the assignee unless he is a notary public or other public official authorized to administer oaths. *§ 11109 G. C. Trustee must give notice of his 4* § 11110 G. C. appointment. M.Tnsfield vs. Post, 12 5 See §§860, 284. Dec. 23!). 5* For form of oath, see §291; « § 301. see also § 803. § 1596 ASSIGNMENT — APPRAISEMENT . 1396 § 1596. What must be appraised. All property that comes into the possession of the assignee, or of which he has any knowledge, must be appraised. Prop- erty specifically exempt to heads of families and widows,' and unmarried women,^ need not be appraised. Likewise real es- tate situate in another State need not be appraised.^ In ap- praising such real estate, the same must be done under actual view of the premises.^" Questions of assigning dower and homestead exemption in real estate usually are raised upon a petition for the sale of such real estate.^^ § 1597. Return of inventory and schedule. The inventory must be returned within thirty days, and at the time the inventory is filed there must be returned a sched- ule of debts. This schedule of debts should be a list of the creditors, the postoffice address of each, the kind of claim and the amount of the claim. Forms for schedules and inventories are now kept by all Probate Judges, and they will be omitted from this work. The Court, should enforce prompt obedience to this statutory provision. Very seldom can there be a suffi- cient excuse to allow more than thirty days in which an inven- tory should be filed. If the assignee is negligent in this re- spect, the Court should remove him, and proceedings might be had for that purpose similar to those for removing an adminis- trator for failing to file an inventory.^^ § 1598. Exempt property excepted unless expressly waived, and wife's property; homestead to be set off. "No assignment for the benefit of creditors shall include or cover any property exempt from levy or sale on execution, or from being by any legal process applied to the payment of debts, unless in the 7 § 11726 G. C. {§ 1598). 12 § 303 et seq. 8§ 11721 G. C. The assignee should soe that the 9§ 11100 G. C. (§ 1594,). appraisers' fees are taxed in the in- 10 S 864, Where question is dis- ventory. or they niav be missed and cussed. cause him son>e annoyance. "See § 1617 et seq. 1397 ASSIGNMENT — EXEMPTION §1598 assifrnment tho exemption is expressly waived, nor any property belonging to the wife of the assignor, nor require the assignor to deliver up any of such property." [R. S. § 6348.] ^^ 13 § mil G. C. See § 868. Space forbids entering into an ex- tended discussion of homestead rights. The following are the sec- tions of the General Code which are applicable and are applied in the levy on execution, etc. (Ex- emptions to heads of families and. widows.) Section 11725. Every person, who has a family, and every widow, may hold property exempt from execu- tion, attachment or sale, for debt, damage, fine or amercement, as fol- lows : 1. Ibe wearing apparel of such person or family, the beds, bedsteads and bedding '^or their use, one cook- ing stove and pipe, one stove and pipe used for warming the dwelling, and fuel sufficient for a period of sixty days, actually provided and designed for the use of such per- son or family; 2. One cow, or if the debtor owns no cow, household furniture to be selected by him or her, not exceeding thirty-five dollars in value, two swine, or the pork therefrom, or if the debtor owns no swine, household furniture to be selected by him or her, not exceeding fifteen dollars in value, six sheep, the wool shorn from them, and the cloth cr other articles manufactured therefrom, or, in lieu thereof, household furniture to bo selected by the debtor, not exceeding fifteen dollars in value, and sufficient food for such animals for a period of sixty days; 3. The bibles, liymn books, psalm books, testaments and school books used in the family, and all family pictures ; 4. Provisions actually provided and designed for die use of such person, or family, not exceeding fifty dollars in value, to be selected by the debtor, and other articles of house- hold and kitchen furniture, or either, necessary for such person or family, to be selected by the debtor, not ex- ceeding fifty dollars in value; 5. One sewing machine, one knit- ting machine, and the tools and im- plements of the debtor necessary for carrying on his or her trade or busi- ness, whether mechanical or agricul- tural, to be selected by him or her, not exceeding one hundred dollars in value ; 6. The personal earnings of the debtor, and the personal earnings of his or her minor child or children, for three months, when it is made to appear by affidavit of the debtor, or otherwise, that such earnings are necessary to the support of the debtor or of his or her family. Such period of three months shall date from the time of issuing an attach- ment or other process, the rendition of a judgment, or the making of an order, under which the attempt may be made to subject such earnings to the payment of a debt. If the claim, debt or demand for the pay- ment of which it is sought to sub- ject personal earnings, is one for necessaries turnished to the debtor, his wif(; or fam.ily, only ninety per cent, of such earnings shall be so exempt as against such claim, debt or demand. Nothing herein con- t:iincd shall render the personal earnings of such debtor's minor cluld or cliildren, for three months, sub- ject to its payment; § 1598a ASSIGN MENT EXEMPTION 1398 § 1598a. Homestead. ' ' The appraisers appointed by the court, on making- tlie appraisement, shall set ofif in the way that appraisers of property levied on or attached are required to do, homestead exemption, and exempt property that has to be selected by the debtor and his wife. If this setting off is then omitted, at any time thereafter, before sale, the court may order it to be done by the appraisers." [R. S. § 6348.]^^* § 1599. Who entitled to exemption. ' ' Husband and wife living together, a widow or a widower living with an unmarried daughter or unmarried minor son, may hold exempt from sale on judgment or order, a family homestead not exceeding one thousand dollars in value. The husband, or in case of his failure or refusal, the wife may make the demand therefor ; but neither can be allowed such demand, if the other has a home- stead. In case of assignment, for the benefit of creditors, upon filing the written consent of husband and wife to the sale of a homestead property exempt by law, such homestead may be sold subject to the dower and homestead right herein provided." [R. S. § 5435.] ^n 7. All articles, specimens and cabinets of natural history or science, whether animal, vegetable or mineral, except such as may be kept or intended for show or exhibition for money or jiecuniary gain. (R. S. §5430!) Cases applicable to the above sec- tions are as follows: Spence vs. Basev, 34 0. S. 42; Carpenter vs. Warner, 3S 0. S. 416; Rilev vs. Hitzler, 49 0. S. 651; Vandal vs. Daiber, 10 C. C. 355; 6 C. D. 585; Driscoll vs. Kelly, 5 N. P. 243; 4 Dec. 124; Kolley vs. Barnett. 36 Bull. 314; Stump vs. Frarv, 13 C. C. 619; 6 C. D. 357; Beckett' vs. Wish- on, 5 X. P. 1,55, i:'-* § 11112 G. C. i3t § 117.30 G. C. An assignor not a resident of Ohio on the day of making the assignment is not entitled to the exemption, even though he should before distribution, become a resi- dent of the state. In re Pennick, 57 Bull. 21, Cases applicable to the above sec- tion are as follows: 'Tavlor vs. Thorn, 29 0. S. 569; Dwinnell vs. Edwards, 23 0. S. 603; Wehrle vs. Wehrle, 39 0. S. 365; Ryan vs. Mil- ler, 40 0. 8. 232; Bills vs. Bills, 41 0. S. 206; MeComb vs. Thomp- son, 42 0. S. 139; Boettger vs. Fischer, 9 Bull. 337 ; Curtis vs. Sel- by, 1 C. C. 40; 1 C. D. 25; Aultman vs. Wilson, 55 0. S. 145; Dittey vs. Ellifritz, 8 C. C. 278; 4 C. D. 465; Weber vs. Beier, 14 C. C. 277; 7 C. D. 381. A married woman who has wrong- fully abandoned her husband cannot claim a homestead exemption! Home Banking Co. vs. Huffman, 1 N. P. (N..S.) 349; 14 De«. 225. See § 868, as to sale of real estate by administrator. Section 11734. On application of the debtor, his wife, agent, or at- torney, before sale, if such debtor has a family, and if the lands or tenements about to be levied upon, or any part or parcel thereof, con- stitute their homestead, the officer executing a writ of execution found- ed on a judgment or order, shall cause the inquest of appraisers, upon their oaths, to set off to such debtor, by metes and bounds, a homestead not exceeding one thousand dollars in value. Such assignment of home- 1399 ASSIGNMENT — DOWER 1600 § 1600. Dower. If the assignor is a married man, in addition to his home- stead exemption and personal property exempt, his wife will be entitled to dower in the real estate. As the statute now stands, where an assignment is made, the wife or husband of the as- signor may come into Court and ask that the premises be sold, stead shall be returned by the of- ficer with the writ, and be copied by the clerk in the execution docket. If no complaint be made by either party, further proceedings shall not be had against the homestead. Upon complaint of either party, and good cause shown, the court out of which the writ issued may order a reap- praisement and reassignment of the homestead, but the remainder of the debtor's lands and tenements, if any there be, shall be liable to sale on execution. If no application is made during the life of the debtor it may be made by his widow at any time before a sale. (R. S. §5438.) Cases applicable to the above sec- tions are as follows: Colwell vs. Carper, 15 0. S. 279; Frost vs. Shaw, 3 O. S 270; Wetz vs. Beard, 12 0. S. 431; Daviss vs. Dodds, 20 0. S. 473; Cooper vs. Cooper, 24 0. S. 488; Wuest vs. James, 51 0. S. 230; Nixon vs. Vandyke, 2 C. C. 63; 1 C. D. 36. Section 11738. Husband and wife living together, a widower living with an unmarried daughter or minor son, every widow, and every unmar- ried female having in good faith the care, maintenance and custody of a minor child or children of a deceased relative, resident of this State, and not the owner of a homestead, in lieu thereof, may hold exempt from levy and sale, real or personal prop- erty to be selected by such person. his agent or attorney, before sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted. Such selection and ex- emption shall not be made by the debtor, his agent or attorney, or allowed to him from monej', salary or wages due to him from any per- son, partnership or corporation as against a claim, debt or demand for necessaries furnished to such debtor, except to the extent of ninety per cent, of such money, salary or wages. Xo personal property shall be ex- empt from execution on a judgment rendered for the purchase price or any part thereof. (R. S. § 5441.) Cases applicable to the above sec- tion are as follows: Regan vs. Zeeb, 28 0. S. 483 ; Mortley vs. Flan- agan, 38 0. S. 401 ; Ryan vs. Miller, 40 0. S. 232; Wells vs. Bricker, 37 W. L. B. 295; Kelly vs. Duffy, 31 0. S. 437; In re Knepfle, 4 N. P. 213; 6 Dec. 417; Lippelraan vs. Boning, 3 Bull. 296; Johnson vs. Ward, 27 0. S. 517; Spence vs. Basey, 34 0. S. 42; Carpenter vs. Warner, 38 0. S. 416; Bills vs. Bill^, 41 0. S. 206; Niehaus vs. Faul, 43 0. S. 63; Con- ley vs. Chilcote, 25 0. S. 320; Dwinell vs. Edwards, 23 0. S. 603; Kcpner vs. Pierce, 5 C. C. 488; 3 C. D. 239. AIT. 32 Bull. 331; Gillett AS. Miller, 12 C. C. 209; 5 C. D. a88. § 1601 ASSIGNMENT — APPRAISEMENT, ETC. 1400 and receive a reasonable value thereof out of the proceeds. The statute relating thereto is as follows: "Wlien real estate is to be sold as herein provided, the hus- band or wife of the assignor may be made a party, and file an answer in the court to have such real estate sold free of his or her continoent risrht of dower and to allow him or her in lieu thereof, out of the proceeds of the sale, such sum of money as the court deems the jnst and reasonable value of t-he dower interest therein. Such answer shall have the force and effect, in all respects, of a deed releasing such contingent dower in- terest in such real estate." [R. S. § 63501] ^^ § 1601. When court may order property sold. If the husband or wife has not signed a mortgage barring her right of dower, then there is no way in which the real estate could be sold free from the contingent dower right, unless the consort file an answer as provided in a previous section. If she has joined in a mortgage upon the real estate, or if the as- signor has executed a mortgage upon the real estate for pur- chase money, then, whether the consort files an answer or. not, the Court will order the sale of the real estate, free from the contingent right of dower. The section relating thereto is as follows : "When the assignor and his ^nfe jointly have executed a mortgage upon real estate assigned, or when the assignor alone has executed a. mortgage upon any of such real estate to secure the payment of purchase money, or a part thereof, the court shall order its sale free from the contingent right of dower of such wife, and find and determine the just and reasonable value 14 § 11123 G. C. The matter of the right to an See §§ 943 and 801), as to sale of exemption is determined from the real estate. condition of the claimr,nt at the time The provisions of this section, distribution is ordered. Simmons § 1173S G. C., do not apply to non- vs. Moore, 3 C. C. (X.S.) 178; 23 residents. Campbell vs. Barrington, 0. C. C. 11. 4 C. C. (N.S.) 447; 2G 0. C. C. The mere fact that $500 has once 239. been exempted, will not permit a A widow must have in, good faith second application to be made, if the care and custody of a minoif the same has been used up. Hart & Brown vs Parham, 1 C. C. (X.S.) Co. vs. Cole, 73 0. S. 207. 602; 25 0. C. C. 640; affirmed 71 O. S. 516; 4 C. C- (N.S.) 34'.-. 1401 ASSIGNMENT — EXEMPTION § 1601a of her dower interests in the proceeds of sale remaining after the payment of such incumbrances as preclude her right to dower therein." [R. S. § 6350g.]^^ One matter should be observed in the above section of the General Code. A different rule is provided as the basis for the calculation of a contingent dower interest in assignments from that which prevails for the calculation of a dower interest in foreclosure, etc. In foreclosure cases, where the debt is not the debt of the wife, the dower is calculated on the entire value of the property or proceeds received from the sale. In assign- ment cases, the contingent dower interest is calculated on the balance of the proceeds after the payment of incumbrances, § 1601a. $500 in lieu of exemption. It frequently happens that it would result beneficially to the creditors, as well as the assignor, if the $500 allowed by law to be selected out of the personal property be allowed out of the proceeds of the sale. If the real estate is mortgaged so that a homestead cannot be set off, then there is no other way than to allow it out of the proceeds of the sale. The following form may be used and so changed as to suit the circumstances of each particular case: Form assignor's petition for allowance of money in lieu of set-off. Probate Court, County, Ohio. In the matter of the Assignment of To Petition. Said assignor respectfully represents, that.. he is married, husband and wife living together— a widower living with a. .unmarried daughter, minor son— a widow — unmarried female, having in good faith the care, 15 § 11124 G. C See § 869 et seq. for discussion See table in the chapter preceding in sales of real estate by adm'rs. the index as to method of determin- i" Compensation is to be awarded ing contingent dower. for contingent dower. Smith vs. See §943 et seq. for discussion of Rothchild, 4 C. C. 544, 551; 2 C. dower rights. ^- 6f)8. Unger vs. Leiter, 32 0. S. 210. § 1601a ASSIGNMENT HOMESTEAD 1402 maintenance and custody of a minor child of a deceased relative, is a resident of Ohio, and not the owner of a homestead, nor is the wife of the petitioner, the owner of a homestead. Your petitioner hereby waives the setting-off to h....by the appraisers herein, of property to be selected by h...., not exceeding five hundred dollars ($500) in value, in addition to the amovmt of chattel property otherwise by law exempted in kind, out o^ property — real or personal — herein assigned, in lieu of such homestead, on condition that the Court orders an allowance to h. . . .in money, in said sum of five hundred dollars, out of the proceeds of the assets so assigned, in lieu of such setting-off to h — Said petitioner claiming not to be the owner of a homestead, alleges h . . . . homestead to be mortgaged to its full value, as evidenced by the inventory and appraisement filed herein, to which reference is made. A. D. 190. WTiere the assignor waived specific property and $500, in lieu thereof, there heing no homestead, was al- lowed in the inventoiy, and this was approved by the Probate Court, and was ordered paid to the as- signor. This was not such a final order as would permit the assignee to sue thereon. Such matters can only be finally passed upon at the time of the final account. Circuit Ct. Clerk Co. 1910; Bentzel vs. Goodwin, 14 C. C. (X.S.) 65; 32 0. C. C. — . Husband and wife are living together within the meaning of § 1173S G. C. notwithstanding the fact that the husband, following an assignment for creditors, be- came unable to support his wife and even that his present domicile is unknown to her if she expects his return to her as soon as he is able to provide for her support. The fact that at the time of the assignment the assignor and his wife were living in the house which belonged to her and was heavily incumbered with liens and from which they removed and she has since collected rent therefor is no bar to an allowance in lieu of a homestead. In re C. \V. Davis, 23 Dec. 420. See Kunkle vs. Reesor, 5 Dec. 422 J 5 X. P. 401. 1403 ASSIGNMENT — COLLECTION OF ASSETS §1602 CHAPTER LXXXVIII. COLLECTION OF ASSETS AND SALE OF PERSONAL PROPERTY. § 1602 Shall convert assets into money. § 1603 Diligence required, etc. § 1604 When and what to be sold. § 1605 How to be sold. § 1606 Terms of sale. § 1607 Form of application for sale of personal property. § 160S Chattel mortgage claim, etc. § 1609 Public sale of personal prop- erty. § 1610 Court may order property disposed of at private sale. § 1611 Property to be sold at auc- tion if not disposed of pri- vately. § 1611a Compromise or sale of claims. § 1612 Order, etc., where property not sold. § 1613 Return and confirmation of sales. Order as to deed, acceptance of cash, sale of notes, etc. § 1614 Report of public or private sale. § 1615 Compromise of sale of des- perate claims. § 1616 Title conveyed. § 1602, Shall convert assets into money. ' ' The assignee, or trudree, shall proceed to convert the assets received by hini into money, and to sell the real and personal property assigned, in- eluding stocks and such bonds, notes and other claims as are not due and which can not probably be collected within a reason- able time, at public auction, eitlier for cash or upon such other terms as the court orders.'' [R. S. § 6350.]^" § 1603. Diligence required, etc. It will be observed from the above section that it is the duty of the assignee to proceed at once to convert the assets into money. The wording of the statute indicates that greater dili- gence is required on the part of an assignee than from an ad- ministrator, for within eight months he is to file his account or report. Creditors are entitled to speedy action, and the Court should enforce activity for this purpose on the part of the assignee. There may lie instances when want of diligence 17 § 11115 G. C. Probate Court may enforce the provisions of statute. Kiefer v.s. Spence, 5 N. P. 009. ;N.S.) 522; 5 Doc. ^ in04 ASSIGNMENT — COLLECTION OP ASSETS 1404 is excusable, but certainly no greater latitude in this respect will be allowed than is permitted to administrators or execu- tors.^® The power to collect assets would necessarily imply a power to bring suit and defend whatever action may be brought against the assignee in his official capacity. § 1604. When and What to be sold. While the statute contemplates that all assets should be con- verted into money, it does not direct that at once all property be sold. Promissory notes and other demands existing in favor of the estate which can be collected by suit or otherwise within a reasonable time are not expected to be sold. But if for some reason even such property cannot be converted into money in time to make a distribution within eight months, then they should be sold as desperate claims. All other property coming into the hands of the assignee should be sold at the very earliest time the same can be done for the benefit of creditors. Circum- stances may arise which will permit the sale of property tl> be deferred beyond the eight months, but as a general rule the creditors will be most benefitted by a prompt sale of the prop- erty, and an expeditious settlement of the estate. Personal property of a perishable and tangible character certainly should be disposed of quickly. ^'^ 18 See §§ 442 and 443 for diligence assignment or manifest interest of required and negligence permissible the creditors require it. All that on the part of an administrator. is required of a trustee is that he See § 1287 for duties of trustees. act in good faith, exercise a fair dis- " Although it is the duty of a cretion, and do in the premises, ac- Irustee, under an assignmont for the cording to his instructions, what a benefit of creditors, to proceed, with- man of ordinary prudence and care out delay, and in a proper manner, would do in regard to his own busi- to convert the property into money ness. Hoffman vs. Mackall, 5 O. S. and pay the debts, yet it has never 124, 137. been held that he is bound to proceed i9 Articles bought on the install- to make forced sales after the man- ment plan without paying anything ner of a sheriff holding property on are not assets. Seibern Assign- execution, unless the terms of the ment, 7 Dec. 280. 1405 ASSIGNMENT — TTOW TO BE SOLD § 16v05 § 1605. How to be sold. The property may be sold at either a public or private sale. It seems that if it is sold at public auction and for cash that no application need be made to the Court. But if it is sold upon other terms than for cash or at private sale, then an order of the Court must be obtained. It may be stated as a general rule that real estate should never be sold except on an order of the Court. If there are no liens on the real estate, and no dower or homestead right existing under the statute, a valid title could be conveyed without an application, merely having the same confirmed by the Court. The sale of real estate will be the sub- ject of the next chapter. While not in the same degree of im- portance as real estate, yet it may be said that, considering [he fact that personal property can only be sold at public auction for cash without an order of the Court fixing other terms, as a general rule an application ought also to be made for the sale of personal property. Especially is this true where there are existing liens on such personal property. It would then be proper for the assignee to file his application for an order of sale and make all lienholders parties defendant. It would also be well in such cases to make the general creditors parties de- fendant- so that they might defend if necessary. § 1606. Terms of sale. The property may be sold for cash or such other terms as the Court may order."' From the fact that a final settlement is contemplated at the expiration of eight months, unless whore it manifestly appears that a longer time will be required, the Court will not be justified in permitting property to be sold on payments exceeding six months. If deferred payments are given, the law as to security, etc., applicable to administration of estates, time, etc., may be followed."^ At private sale, in no instance can real estate be sold for less than tAvo-thirds of its appraised value unless such real estate be beyond this State. 80 §11115 G. C, §1602. 2i8§483 and 485. Sccurin * This stTtemcnt is quoted in In Ptate Bank vs. Estorly, 48 Bull. Rtatn vs. Esterly, GO 0. R. 15, as 009, GO 0. S. 15. tlio Supremo Court showing an intention as claimed by has finally settled this matter in the autlior. accord with the views of the author. 18 Owen vs. Ramsdell, .33 0. S. and the court so holds that there 443. should be an cnuitable distribution. 10 Pee §974, WTicre same question ""§ 11137 G. C. is discussed. § 1633 ASSIGNMENT — PRESENTATION OF CLAIMS 1426 § 1633. Form of affidavit, etc. There is little ambiguity in the above section, and it should be strictly followed. If the claimant holds collateral, the affi- davit must so state, or if he is security, it should so state. Pro- ceedings to examine the claimant in reference to the validity of such claim might be had similar to those provided under sec. 11113, G. C,-^ The following is a form generally used : The State of Ohio, County, ss. Before me personally appeared A. B., who being duly sworn, says he is one of the firm of A. B. & Co., the owners of the claim hereto attached; that said claim is just and lawful; that the consideration therefor is gooda sold and delivered to C. D. ; that there is now due and unpaid on said claim the sum of dollars with interest thereon at the rate of six per cent, per annum from day of , 190 . . ; that there are no set-offs, nor counterclaims whatever against the same; that said owners have (here state what collateral or personal security the claimants hold, or if none say) no security whatever for the same to the best of aflBant's knowledge and belief. Sworn to before me and subscribed in my presence this day of , 190.. .22 § 1634. How to be allowed or rejected. ~ The statute makes it the duty of the assignee to endorse his allowance or rejection on the claim. But this is not the only way in which a claim might be allowed or rejected. It is merely a conclusive method of establishing such a fact. If there is no endorsement made on the claim, the question whether the same has been allowed or rejected must be determined from all the surrounding circumstances, and the same rule might be applied to the determination of this fact as in the administra- tion of deceased persons' estates. ^^ The assignee may be re- quired to reject the claim as provided in the following section : § 1635. When claim shall be disallowed on application of assignor or creditor and proceedings in such case. "If the assignor or a creditor files in tlie court a written requisition on the assignee or trustee to disallow any claim or claims pre- 21 § 1585. § 560, Rejection of claim, where this 22 ^Tiittaker's Pro. Code. matter is fully considered. 23 See § 559, Allowance of claim ; 1427 PROCEDURE UNDER § 11136, G. c. § 1636 sented wliicli he has not reported as disallowed, and enters into bond to the assignee or trustee in such amount and with such sureties as the court approves, conditioned to pay all the costs and expenses of contesting them by the order of the court, they shall be disallowed, altliough theretofore alloAved by the as- signee or trustee. The assignee or trustee must forthwith give written notice thereof to the creditor or creditors, or his or their attorneys; whose claim or claims are so disallowed. Thereupon the same proceedings shall be had as required in other cases of disallowance in the two preceding sections." [R. S. §6353.]-* § 1636. Procedure under § 11136 G. C. The above section is very much similar to sec. 10724, G. C.^ in the administration ^f deceased persons' estates,^" and the comments and fonns suggested therein can easily be adopted to a procedure under the above section. ^*^ This section does not apply to the determination of the priority of the claim. Such a question must be made in the Probate Court."^ § 1637. When suit must be entered on rejected claim. If the claim is rejected, suit must be brought within thirty days after the same has been rejected, is the language of the statute,^® and the Court, in the settlement of the trust, may de- termine the matter of fixing the costs provided the claimant recovered. It has been held that thirty days is not a period of limitation, fecit fixes a time after which distribution of the es- tate may properly be made without regard to such rejected claim, if suit is not brought within the thirty days after its rejection.^^ It will therefore be seen that the rule is different from the six months' limitation required in case a claim is re- jected by an administrator of an estate. The law there being that if suit is not brought within such time the claim is forever barred.^" But the onlv effect of not suing the claim within the ^*§ in3€ G. C. 7 N. P. 391; 5 Dec. 167; Pettibone 25 See §561. Manuf. Co. Assgmt. 3 N. P. 42; 4 -•M.562, Comments; §563, Eequi- Dec. 123. sition to reject claim; §564, Bone?; 28 § 6352 R. S. (§ 1628). §505, Entry ordering notice; §566, 29 Kittredge vs. Miller, 12 C. C. Form of notice. 128; 5 C. D. 390. 27 Graham Lumlior Co. vs. Julien. •''" See § 009 et seq. § 1638 ASSIGNMENT — PRESENTATION OF CLAIMS 142S required time here is tliat the creditor may lose his right to participate in a dividend. An action may he brought any time that there are assets unadministered.^^ § 1638. In what Court action to be brought. The language of the statute is that the person " shall be re- quired to bring suit against the assignee or trustee, etc." If this statutory provision had been made with the present idea prevailing, as to the power of the Probate Courts, it might very well be contended that a suit might be brought in the Probate Court compelling an assignee to allow anlaim, but the probabil- ities are that the Legislature intended that such action should only be brought in a Court of general jurisdiction, and such has been the holding of at least one Circuit Court, in Meader vs. Root,^" and has been the general accepted idea of the bar for a number of years. Power to hear such an action could have been veiy properly conferred on the Probate Court, as the ac- tion is purely equitable,^^ and is not triable by jury.^* Suit is synonymous with action, and the proceeding is a civil action and not a special proceeding.^^ The only question that can be determined in such a proceeding is whether or not the assignee should allow the claim. ^® The Probate Court has full and complete jurisdiction to settle the question as to priority of different claims. A suit to prevent the allowance of a chattel mortgage must be brought in the Probate Court.^^ 3iKeIley & Son vs. Mills, 1 N. 32 n c. C. 81; 5 C. D. 61. P. 382 ; 2 Dec. 265. ss Gordon vs. Walton, 3 C. C. 433 ; Failure to sue within thirty days 2 C. D. 246. from the rejection of claim by a 34 Kennedy vs. Thompson, 3 C. C. trustee, or to present the claim for 446 ; 2 C. D. 254. allowance within six months from 35 id. 448. publication of notice of the appoint- 3g Clapp vs. Banking Co., 50 0. S. ment of the trustee, does not bar the 534. creditor from contesting his claim See also Wrightson vs. Bettinger, and having it allowed after these Assignee, 2 C. C. 381 ; 1 C. D. 543. periods have elapsed. Irwin vs. 37 Graham Lumber Co. vs. Julien, Lloyd, 20 C. C. 339; 11 C. D. 212. 7 N. P. 391: 5 Dec. 167. 1429 REPORT OF CLAIMS FILED § 1639 § 1639. Report of claims filed. The statute requires that immediately after the expiration of six months, the assignee shall file a report of all claims pre- sented.^^ It seems that the assig;nee is allowed two months for the purpose of paying preferred claims and filing his account upon which a general distribution is to be allowed. Although if a claim were presented before the order of distribution was made, even though the six months had expired, the holder would be entitled to participate in the general dividend. The following form suggests what it should contain: STATEMENT OF CLAIMS PRESENTED, In the Probate Court of Couuty, Ohio. In the Matter of the Assignment for the benefit of the creditors of Assignor. Assignee. Statement of claims presented to , assignee of , assignor for the benefit of creditors, in the Probate Court of county. Ohio, within six months from the time of the publication of the notice of appointment of said assignor, to-wit: from the day of A. D. 190.., to the day of A. D. 190... Claimants Postoffiee address Amount of claim $ Interest from $ Eate of interest $ Allowed — rejected — held under advisement. (State which.) Date of allowance or rejection RECAPITULATION. Total amount of claims presented . $ Total amount of claims allowed $ Total amount of claims rejected $ Total amount under advisement $ $ Assignee of. 38 § 11134 G. C, $ 1628. § 1640 ASSIGNMENT PREFERRED CLAIMS 1430 CHAPTER XCI. PAYMENT OF PREFERRED CLAIMS. § 1640 Introductory. § 1646 Lien existing at time of § 1641 Costs of administration. assignment. § 1642 Commission of assignee. § 1647 Claims preferred by statute. § 1642a Further allowance; counsel § 1647a Lien and security. fees. § 1648 Taxes. § 1643 Ordinary services. § 1649 Labor claim under § 11138 § 1644 Extraordinary services. At- G. C. torney fees. § 1650 Liens on § 8339 G. C. § 1645 Itemized bill. Affidavit, etc. § 1651 Miscellaneous matters, re- lating to labor claims. § 1640. Introductory. While the statute does not require an accounting to be made until eight months after the appointment and qualification of the assignee/ yet it is evidently contemplated that prior to such accounting certain claims against the estate should be paid, for upon the confirmation of the report or account a distribution is to be made to general creditors. These claims that ought to be paid, before an account is filed, may be designated as pre- ferred claims, and may be classified under three heads. First, costs of administration, which would include the costs of the Court, the care and management of the estate, etc.,^ commis- sion of assignee, etc. ; second, liens either in the form of mort- gage or judgment existing at the time of the assignment ; third, those given a preference by statute.^ These will be considered in their order. § 1641. Costs of administration. The costs of administering the estate ought always to be paid in preference to any, other claim, but some difficultv has been 1 § 11140 G.C., §1653. See §646, as to order and pay- 2 See § 506 et seq., as to adminis- ment of debts in administration of tration of estates. estates. 3§ 11138 G. C, § 1647. 1431 COST OF ADMINISTRATION § 1641 experienced by the Courts in adjusting costs between various creditors of an estate whose claims are entitled to a different order of priority. The fund receiving the benefit of an admin- istration should be charged with the costs which were neces- sary for its preservation, or reducing it into money for the bene- fit of the owner. As a general rule, it may be said that the assignor is entitled to his exemptions free from the costs of the assignment, the theory of the law being that exempt property does not pass to the assignee.* A mortgage lien holder is not to be charged with the general costs of administration. He is only to be charged with the costs that are incident to his par- ticular fund.^ Where the property is covered by liens, and is not sufficient to pay all of them, where the liens have different priorities, a doubt has been expressed as to whether those which come first in order are entitled to be first paid without deduction for the costs of the sale and assignee's commission, and the burden of these be placed on those who are last in priority ; or whether the lienholders shall contribute thereto ratably without, respect to priority.^ The Court is inclined to the opinion that the bur- den must be sustained by those last in priority.^* It has recently been held that " the fees and allowances of an assignee for the benefit of creditors, for services rendered to the general estate, and for the benefit of the general creditors, are not to be paid from funds or property subject to specific liens which rest upon the property at the time the assignment is made. In an assignment for the benefit of creditors, where 4 In re Marcy, 32 Bull. 6. each fund any expense specially in- In this case it was said " That cident to such funds. McLain vs. the costs of administration shall be Simington, 37 0. S. 660. paid as a second lien out of said s Moore vs. Feldwisch, 3 Bull. 427. fund, and to the extent any costs « See Alma vs. Fitton, 9 C. C. 255; may remain unpaid after the appli- 6 C. D. 415. cation of such surplus of such fund, «* McLain vs. Simington, 37 0. S. such balance of costs shall be paid 660; Harrison vs. Chatfield, 12 C. C. •pro rata out of the funds covered 294; 5 C D. 553. by the several m.ortgages including In Strong vs. Strong, 42 O. S. 53, this Crane mortgage, in proportion it is said, whatever deficiency there to the amount realized on said mort- is, must fall on the junior lien hold- gage liens, charging, however, to or. § 1642 ASSIGNMENT — COMPENSATION OP ASSIGNEE 1432 the assignee has sold property encumbered by mortgage, it would be reasonable and perhaps lawful, to allow to the as- signee fair compensation for such services as he might perform of benefit to the mortgagee in bringing the property to sale and in bringing the proceeds applicable to the mortgage debt unto Court/ ^ 1642. Commissions cf assignee. Further allowance. Counsel fees, etc. "Tefore a dividend is declared, the assignee or trustee may be allowed the fcllowing commission upon the amount of the personal estate collected and accounted for by him, and of the proceeds of the real estate sold under an order of court for the payment cf debts, which must be received in full compensation cf all his ordinary services ; for the first thou- sand dollars, at the rate cf six per cent ; for all above that sum, and not exceeding five thousand dollars, at the rate cf four per cent ; for all above five thousand dollars, at the rate of two per cent." [R. S. §6357.]« § 1642a. Further allowances; counsel fees. "Allowance also shall be made as the court considers just for necessary expenses, and extraordinary expenses, and extraordinary services not re- quired cf an assignee in the common course of his duty, and fiuch reasonable counsel fees as were necessary for the proper administration cf the assignment, whether performed by the assignee cr trustee as attorney, or such other as he employs. No such further allowance, extraordinary expenses or services, or attorney fees, shall be made unless a bill of items is filed, showing such actual and necessary or extraordinary expenses and services, or attorney fees, together with the affidavit of the person incurring such expenses or performing such services, that they were done for. and were necessary to, the assignment ; that the amount charged therefor is reasonable, and not more than is usually paid for such services. When such services have been performed by persons other than the assignee or trustee, the latter also must file an affidavit, stating tJiat such ser\dces were necessary for the proper administration of the assignment, that they were performed under his direction, that the charges there- for are fair and reasonable, and that the full amount thereof has been paid to the party performing such services." [R, S. §6357.]'^* 7 Reed vs. Terhune, 22 C. C. 544. the assignee continues business he 8 § 11143 G. C. accepts the terms of the lease made 8 § 11144 G. C. previously by the assignor. In re Rents becoming due after assign- Assign, of Frank W. Hopkins, 5 0, ment are preferred claims, and if L. R. 178; 52 Bull. 403. 1433 ASSIGNMENT ORDTN^VRY SERVICES § 1643 § 1643. Ordinary services. The statute divides the compensation of an assignee into two kinds, ordinary and extraordinary. The ordinary sei-vices are fixed upon the same basis as an administrator in the adminis- tration of estates.® Under either designation, they are prop- erly costs of administration. The percentage is calculated upon the money that is collected and accounted for and proceeds of real estate sold imder an order of Court But it must be money that has been actually received and accounted for, and if the real estate is bid off by a mortgage creditor, whose mort- gage lien covers the entire amount of the sale, the assignee is not entitled to percentage, although he might be entitled to ex- traordinary services in having the property sold.^*' Money not belonging to a trust fund cannot be considered in determin- ing the commission,^^ nor can commission be charged on the same amounts by the assigTiee and his successor. If there is a maladministration of the estate, no compensation in any form will be allowed.^^ § 1644. Extraordinary services. Attorney fees. The Court may make such allowance as is just and reason- able for necessary expenses and extraordinaiy expenses, and such reasonable attorney fees as may be necessary for the proper administration of the assignment, whether performed by the 9 See § 654 ct scq. per cent, upon the next four thou- 10 Andrews vs. Johns, 59 0. S. sand and two per cent, upon the 65; Shaw vs. 5th Ward Bldg. Ass'n, balance, and it is not within the 6 C. C. 41 ; 3 C. D. 340 ; Owsley vs. jirovinee of this Court to increase or Murphy, 37 Bull. 24G. diminish it even in the case of mal- 11 Commercial Bank Assignment, administration. The expression hy 3 N. P. 193; 4 Dec. 440. the Circuit Court in the Purcell 12 7w re Purcell, 15 Bull. 311; S. matter has been determined to be C. Goebel, 40. mandatory so fai as as this court is The 'Circuit Court must have hiid concerned. Reefer Assign, G N. P. down a di.Terent rule. For in In re 340; 9 Dec. 326. Reefer, Ferris, J., says, "an assignee This accords with the law in ref- is entitled to six per cent., four per erence to an oxecn^^or. § 055. cent, and two per cent. — six per See § 659, Extra compensation to cent, upon the first thousand, four administrator. § 1644 ASSIGNMENT EXTRAORDINARY SERVICES 1434 assignee himself or by some person employed by him. But the nature of sucli services shall be set out in an affidavit. ^^ Wh.at is meant by extraordinary services are such that it is not presumed that an assignee of ordinary capability is able to perfonn, and are not within the common duties of an assignee. Thus it v^as held that the employment of an auctioneer was not extraordinary services.^* In reference to such allowance it has recently been said " complaints are common of objectionable practice in this re- spect in some localities, where it is charged. The effect seems to be to conduct assignments as though they had been provided primarily for the benefit of assignees and their attorneys. The faith of the people in the impartial administration of the law by the Courts would be enhanced by a correction of the abuse, if it exists, and by the adoption of methods of administration by which the rights of creditors may be fully protected and enforced, and the trust estates, not depleted by extravagant charges and costs ; and no injustice to any would result." ^^ Wliere the nature of the services are such as are beneficial to the lienholders, the allowance should be made.^® If an at- torney has been employed and his fees are reasonable, the mere fact that a succeeding trustee refuses to make payment, will not justify the Probate Court in rejecting the claim. ^" A co- trustee may legally employ an attorney, who will be entitled to compensation.^* As to what are proper allowances, the same rule would apply as in the administration of deceased persons' estates.^® 13 § 11143 G. C, § 1642. Ass'n, 6 C. C. 41 ; 3 C. D. 540; In re The law applicable to administra- Baker, 47 Bull. 557 ; Richter vs. tors as to extra compensation might Schoenfeldt, 1 Bull. 133; Claflin vs. be followed. § 659. Goebel, 7 C. C. 384; 4 C. D. 645. 14 Ingham vs. Lindemann, 37 0. S. it Kittredge vs. Miller, 12 C. C. 218. 128; 5 C. D. 391. It seems to the author, that the is Commercial Bank Assignment, Court rather stretched the ordinary 3 N. P. 193; 4 Dec. 440. duties of an assignee, when it held is See §§ 508. 509 and 510. that the duty of an auctioneer comes A fee of $1,250 for ten days' of within such duties. almost exclusive service by an at- 15 Reed vs. Terhune, 22 C. C. 544. torney to an assignee of a bank with isSchaw vs. 5th Ward Bldg. large assets and liabilities is not 1435 ASSIGNMENT — COMPENSATION OF ASSIGNEE § 1645 § 1645, Itemized bill. Affidavit, etc. Before an assignee can be allowed compensation for extraor- dinary services, whether the same be rendered by himself or another, the statute is mandatory that it shall not be allowed by the Court, unless a bill of items be filed showing such ex- penditures to be actual and necessary. The statute is likewise express that the Court shall not allow such claims unless a spe- cial afhdavit is made thereto, and that the amount charged is reasonable and not more than is usually paid for such services.^" It must also show where the sei'vices were rendered by a person other than the assignee, that the bill had actually been paid, but such services are deemed paid where the attorney holds a check of the assignee for the sum, even though the check has not been presented.^^ The following may be used as a form of afiidavit: Affidavits as to attorney fees. Probate Court, County, Ohio. In the Matter of tlie assignment of No Counsel Fees. The State of Ohio, County, ss. Affidavit of Attorney. being duly sworn, says that he is an attorney at law of County, O. ; that he rendered valuable legal services to as assignee of as set forth in the bill of items hereto attached and marked Exhibit " A." That said services were performed for and were necessary to the proper administration of said assignment, and that the amount charged therefor is reasonable, and not more than is usually paid for such services. Sworn to before me and signed in my presence, this day of . A. D. 190.. excessive. Nor is $3,750 excessive allowed. ( The C'ommon Pleas in- for three months' further service. creased this. ) Purcell's Assignment Commercial Bank Assignment, 4 ... Goebel, 1G9. Dec. 440; 3 N. P. 193. 20 Challin vs. Goebel, 7 C. C. 385; Three per cent, is a proper allow- 4 C. D. G45. ance for extraordinary services irre- § 11143 G. C, § 1642. spective of the number of trustees. 21 Commercial Bank AssignnKiiit, e. g., .$2,700 for collecting $90,000, 3 N. P. 193; 4 Dec. 440. and if the ascertainment of wlio the See § (J59, Extra compensation to creditors are is erroneous, expenses administrators, of clerk, office and attorney will be § 1G46 ASSIGNMENT — COMPENSATION OF ASSIGNEE 1436 i'he State of Ohio, County, ss. Affidavit of Assignee. , assignee of , being duly sworn, says the services described in the bill of items attached to the foregoing affidavit, were necessary for the proper administration of the said assignment; that said services were performed under the direction of affiant; that the charges for the same are fair and reasonable, and that the full amount thereof has been paid to said , who performed said services. , assignee. Sworn to before me and signed in mv presence, this day of A. D. 190... § 1646. Lien existing at time of assignment. The assignor can by no act of his, change the status of his property or liens thereon existing at the time of his assign- ment Therefore valid liens existing at the time of such as- signment must be paid before there can be a distribution to general creditors ; and in this sense such claims are preferred. There seems to be no doubt where an assignee brings an ac- tion to sell the real estate and makes all lien holders parties defendant, that the Court may distribute the fund arising from the sale of such real estate before the time has elapsed in which a report must be filed in the Probate Court. The statute re- quires that the incumbrances and liens shall be paid out of the proceeds according to their priority and therefore general cred- itors have no right in the part required to be applied on the liens,^^ It might likewise be said, that if the Court ordered a distri- bution to be made upon a chattel mortgage or judgment lien, that the general creditors had no interest therein. 'But upon this question there is a difference of opinion. One Circuit Court having held that no distribution can be made until the eight months have elapsed, even on chattel mortgages, unless notice has been given to all parties having an interest, in- cluding general creditors. ^^ It seems, therefore, that the only safe way for an assignee to do, is to file an application in the Probate Court asking for an order determining the liens and in some manner make the 22 Eeed vs. Terhume, 22 C. C. 547. See Klaustermeyer vs. Trust Co., 23 Mooney vs. Lindley Fogg, 10 C. 89 O. S. 142, as to wliat will con- C. 327; 10 C. D. 551; Sylvester vs. stitute an equitable lien. Hesslein, 5 C. C. 256; 3 C. D. 128. 1437 ASSIGNMENT — PREFERRED CLAIMS § 1647 general creditors parties and give them proper notice. The assignee might pay the claim and make a report thereof in his account and when making payment, require the person to whom payment is. made to indemnify him, in case the Court in passing upon his report might find that the same was unlawfully paid.-* §1647. Claims preferred by statute. "Taxes of every de- scri])tion assessed against the assignor upon personal property held hy him before his assignment must be paid by the assignee or trustee out of the proceeds of the property assigned in pref- erence to any other claims against the assignor. Each person who has performed labor as an operative in the service of the assignor, within twelve months preceding the assignment, shall be entitled to receive out of the trust funds, before the paying of other creditors, the full amount of wages due for such labor, not exceeding three hundred dollars." [R. S. § 6355.]-^ 51647a. Liens and securities. "The foregoing provisions shall not prejudice or affect securities given, or liens obtained in good faith, for value, but judgments by confession on war- rants of attorney rendered within two months prior to such assignment, or securities given within such time to create a preference among creditors, or to secure a pre-existing debt other than upon real estate for the purchase money thereof, shall be of no force or validity as against such claims for labor, in case of assignment, to the extent above provided." [R. S. §6355. J -5* § 1648. Taxes. The statute prescribes that all taxes shall be paid in prefer- ence to any other claims against the assignor,^^'^ and it has been held that taxes on personalty, charged at the time of the assignment is a claim superior to chattel mortgages made within two months before the assignment to secure a past debt or create a preference and that labor claims are superior to such mortgages and taxes are superior to labor claims.^^ Whether taxes would be superior to the claim of costs of the assignment may be questionable. But it is a question that 24 See § 1592, Troperty taken pos- 20 § 11138 G. C, § 1G47. session under lien, etc' 27 Adair vs. Blackburn, GQ 0. S. 23 § 11138 G. C. 575. 25* §11139 G. C. See §043, taxes. §511, taxation. § 1649 ASSIGNMENT PREFERRED CLAIMS 1438 rarely occurs, as tiie taxes are usually comparativelv a small sum ; an assignee is not required to list personal property in his hands for taxation while the estate is being settled in the Probate Court, whether such property be in the form .of moneys, bills receivable, bonds, certificate of stock or oth«^ revise, ^® but if the assignee was conducting a business for the benefit of the creditors, then the projierty used in such business would be sub- ject to taxation and should be listed.^^ Eeal estate in the hands of an assignee, may be sold by the treasurer for unpaid taxes or assessments, and the treasurer may include the ten per cent, penalty.'^" But an assignee is not liable for taxes where he has demanded of a county treas- urer the tax bills against his assignor and pays all taxes required of him where such bills are not presented until after the estate is settled.^^ § 1649. Labor claims under § 11138 G. G. Two sections of the General Code, give preference to labor claims, to-wit, sees. 11138 G. C, 8339 G. C. Under the iirst, in order to be entitled to a preference, the labor must be performed by one as an " operative " in the seondoe of the assignor. As to what will constitute a person an operative, h^s been the subject of numerous decisions in our State. A secretary of a manufacturing company, though he acts as an overseer and perfonns manual labor is not an operative.''^ And where a president was also vice-president, having control of a department, with power to hire and discharge, his claim was not entitled to preferenoe.^^ But where a person su|3erintends, oversees and manages a contract to build a private street, it was held he was entitled t-o 28McXeill vs. Hagertv, 51 0. S. 32 Green vs. Weller, 6 C. C. 331; 259. 3 C. D. 43S. 29 In re Assignment of Jackson 33 Hanner vs. The JMaumee Brew- Brewing Co., 5 X. P. 43S; 6 Dec. ing Co., 6 X. P. 305; S Dec. 399. 396. • Operator does not include a di- 30 Baker vs. French, 18 C. C. 420; rector in a corporation acting as 10 C. D. 222. bookkeeper and sometimes as ship- 31 In re Assign, of Ehler, 4 X. P. ping clerk. In re Fairvie\y Glass 246; 6 Dec. 309. Co., 21 Dec. 822. 1439 LABOR CLAIMS § 1649 a preference.^* Likewise a director of a corporation, tliough he perform certain manual labor is not an operative.^^ But a bookkeeper who was also a traveling salesman could claim his priority.^® A salesman in a jeweliy store, whose duty it is to take customers about the store, etc., is an operative ; the statute is to be liberally construed.^' The Supreme Court has held that a traveling agent to obtain subscriptions and selling a legal directory and collecting accounts, is not an operativc.^^ " Operative " is not to be confined to skilled labor nor labor in manufacturing, but a common laborer may be entitled to protection under the statuta^'* In one case it was said that where a relation of master and sen^ant does not exist between employer and employed, the employe cannot be an operative.'"' Thus a blacksmith following an independent calling, cannot have a preference. Likewise an electrician who did repair work, and furnished material by special contract, was held not to be an operative, but could be protected to a certain extent under sec. 8339, G. C.*^ It has also been held, that a subcontractor, who' furnishes labor to a principal contractor is an operative and entitled to preference where the principal contractor makes an assign- ment.*^ A person who is performing labor as an operative, is entitled to his claim not exceeding three hundred dollars, where the labor is perfoi-med within twelve months preceding tlie date of assignment. 34 /n re Engle, 1 N. P. 110; 1 Dec. so Akron Iron Co. vs. William N. 101. Whitley, 25 Bull. 203; Lowry As- 35 Williams vs. Southard, 40 Bull. signment, 4 N. P. 395 ; 7 Dec. 282. 287. n-,rr^^ R R vs Dc'Wine, f)H Jiull. 4.Jn. the common practice since the Kevo- '22 t. & W. R. W. Co. vs. Daniels, lution, and the right to do so has jg q i., gj^Q never been a matter of serious ques- Bartley, J., in Kramer vs. Clevc, § 1666 APPROPRIATION 1456 not be technically construed." It should he held to include such matters as are reasonably exercised for the purpose for •which the grant was made, and therefore a grant to a railroad company to condemn land would include new side tracks, lead- ing from tho main road to its depot, whenever they become necessary in the proper management and operation of the road ;'■' and i^ may condemn land after the right of way has been condemntvl for the purpose of throwing waste dirt.^^ In one case it was held that the railroad company could not condemn a wharf for its exclusive use.^® Nor could a turnpike company condemn land for a toll gate.'^ But a railroad company might condemn :t'or terminal facilities.^® As an incidental power a railroad company may divert a stream permanently,"® and a canal company might condemn land on its margin for a towpath.^** But a power to construct branch roads, appropriate for side tracks, woald not give the company a right to condemn away from its permanent location.^^ etc., R. Pv. Co. (5 0. S. 140), said: "I insist, that if there be any man- ner of truth or value in the settled rules of judicia.1 interpretation, the constitutional grant of this power must be strictly construed; and that such exercise of it by private cor- porations, which always is upon oc- casion, not of public emergency, but simply of public convenience, should be well guarded against infringe- ments of the rights of private prop- erty. .See Piatt vs. Penn. Co., 43 0. S. 228, and cases cited. The General Assembly possesses the power to confer upon a corpora- tion the power to erect dams in non navigable streams for purposes of power. Little Miami Co. vs. White, 5 X. P. (X.S.) 201; 52' Bull. 354; affirmed 77 U. S. C33; and the judi- ciary will not interfere unless there is a manifest abuse of authority by the legislature. Id. As to what will constitute a pub- lie use, see Trumbull vs. Shilling, 53 Bull. 167. 23 C. & C. vs. Bridge Co., 63 O. S. 455. 24 T. & W. R. W. Co. vs. Daniels, 16 O. S. 390. 25 0. S. R. R. vs. Hinkle, 1 X. P. 63; 1 Dec. 682. Cited approvingly, Cleveland & Pittsburg R. R. vs. Dewine, 58 Bull. 441. A traction railroad may, in order to shorten its line or avoid danger- ous curves, condemn land and re- locate its track. Reush vs. Trac- tion Co., 24 0. C. C. 540; affirmed, 89 O. S. — . 26 Iron Rv. Co. vs. Citv of Iron- ton, 19 0. S. 299. 27 Kemper vs. C. C. & Wooster Turnpike Co., 11 O. 392. 28 Gin. Southern Ry. Co. vs. Handy, 9 Bull. 32. 29 Railwav Co. vs. Bohm, 34 0. S. 114. 30 Carpenter vs. State of Ohio, 12 0. S. 457. 31 Currier vs. Marrietta & C. Rv. 1457 WHEN MAY BE EXERCISED § 1667 § 1667. When may be exercised. While the power to exercise the right of condemning prop- erty exists in the Legislature, or to such person or corporajtion as the Legislature may delegate it, yet it can only be exercised where it is for a public use,^^ or, as elsewhere expressed, public welfare.^^ The question whether or not a contemplated use is a public use, or one for the public welfare, within the meaning of the Constitution, is a question for the Courts.^* As to what will constitute a public use, it is said that no question has ever been submitted to the Courts upon which there is a greater variety and conflict of reasoning and results than that presented as to the meaning of the words " public use," as found in the different State Constitutions regulating the right of eminent domain." ^^ Ii; such cases the inquiry must necessarily be, what are the objects to be accomplished ? not, who, are the instruip,ents for attaining them ? ^® The use that will justify the taking of private property by the power of eminent domain is used by or for the government, or some portion of it, and not used by or for a particular indi- vidual, or for the benefit of certain estates. The draining of marshes and ponds may be for the promotion of the public Co., 11 0. S. 228; Mills on Em. Land may be condemned for ap- Dom, §11; Lewis on Em. Dom., proacli to a railroad brid-e. Rail- §§238, 230 and 240. way vs. Taylor, 50 Bull. 20. Also It has recently been held that In- terminal facilities, terurban Railroads under § 9000 G. " See § 1724. C. can not condemn, and that under Cooper vs. Williams, 5 Ohio 391; § 9119 G. C, power is given only, Le Clerq vs. Town of Gallipolis, 7 0. when necessary to deviate from the pt. 1, 217. highway. Law is now amended so 33 Giesy vs. C. W. & Z. R. R. Oo , as to include Traction companies. 4 0. S. 308. 95 vs. 530. C. D. & X. Tr. Co. vs. 34 McQuillcn vs. Ilatten, 42 0. S. Marriott, 47 Bull. 357. 202. See 551008, 1749. Drainage is a public purpose. When the statute grants to rail- Thomas vs. Clark Co., 5 Dec. 503; roads a right to condemn land for 55 X. P. 449. the purpose of directing a stream, 35 Lewis on Em. Dom., §159; the power can only bo exercised in Cooloy Const. Lim. § 532. the original construction cf the road. ■■'' Willyard vs. Hamilton, 7 Ohio Railway vs. South, 78 0. S. 10. pt. 2, 111. § 1668 APPROPRIATION 1458 health and so become a public object; but the draining of farms to render them more productive, is not such an object.^^ However, in such cases it was held that if a ditch would be conducive to the public health, convenience and welfare of the neighborhood, a more general public necessity is not re- quired.'* In our State it has been held that property may be con- demned for a township road,^'' for depot purposes,*" for a canal,*^ for a toll bridge,'*^ for ditch drains, etc.,*' and one cor- poration may condemn the right to use the tracks of another.** Railroads,*^ and side tracks.**' It would also include trans- portation of natural gas, oil or water, and such like matter.*^ § 1668. What and how much may be taken. As a general rule it may be said tliat all kinds of property and every variety and degree of interest in property may be taken under the power of eminent domain.** Little difficulty is experienced in thfe application of this rule except where it is sought to appropriate property which has already been ap- propriated for a certain purpose. In such cases Lewis *^ lays 37 McQuillen vs. Hatton, 42 0. S. *i Willyard vs. Hamilton, 7 Ohio 202. pt. 2, 111. 38 Ry. Co. VS. Commissioner, G3 0. 42 Young vs. Buckingham, 5 Ohio, S. 23. 485. Lewis on Em. Dom., § 1G5, after *^ Thomas vs. Bd. of County Com- giving various definitions for the missioners, 5 N. P. 449 ; 5 Dec. 503 ; term "public use" is inclined to the Sessions vs. Crunkilton, 20 O. S. opinion that the matter is not one 349. for the Courts, but for the legisla- ** Toledo Elec. St. Ry. Co. vs. To- ture. ledo Con. St. Ry. Co., 26 Bull. 172; The mere fact that a railroad has 6 C. C. 362; 3 C. D. 493. both of its termini in the same 45 Giesy vs. C. W. & Z. R. R. Co., municipality will not prevent its 4 0. S. 308. exercise of the power to condemn. 46 T. & W. R. W. Co. vs. Daniels, Cin. Termini Co. vs. Murray, 1 X. P. 16 0. S. 390. (N.S.) 301; 48 B. 877. 47 Mills on Em. Dom., §12. The leasing of its road will not See § 1726. destroy its power. Id. 4S Lewis on Em. Dom., § 262 ; 10 39 Shaver vs. Starrett, 4 0. S. 594. Am. & Eng. Ency. of Law, 2 ed. 40 Giesy vs. C. W. & Z. R. R. Co, 1088. 4 0. S. 308. 49 T^„ is on Em. Dom., § 276. 1459 WHAT MAY BE TAKEN § 1668 down the following rules. First, all property held for public use is still subject to the eminent domain power of the State. with this exception, that it cannot be taken to be used for the same purpose in the same manner; second, the right to take property already devoted to public use must be given in express terms or by necessary implication ; third, whether such author- ity has been giveii in any case, either in express terms or by implication,, is necessarily a question for the Courts; fourth, whether the power exists in any given case is a question of leg- islative intent, to be ascertained in the first place from the terms of the statute, and in the second place by the application of the statute to the subject matter.^" One public ditch may be constructed over another, as the two easements are not inconsistent.^^ ' In an early case in this State it was held ^^ that only such interest as will answer the public wan»ts can be taken, and it can be held only so long as it is used by the public, and cannot be diverted to any other purpose. As a general rule, it may be said, that the extent of what may be taken* rests with the Legislature/^ and this grant of legislative power, as before stated, is to be strictly construed,^* and it has been held that under authority to take land for a highway, railroad or otlier 50 See Mills on Em. Dom., § 45 et It is not necessary to show that seq. the demands of trade require a rail- There is no taking within the road before the power to eondenm meaning of the Constitution when can be exercised. Steubenville Ry. there is no direct or special invasion vs. Cleveland Ry., 2 N. P. (N.S.) of property rights, and the only 45; 49 Bull. 240. damages complained of are remote Catholic school property may be and not different in kind, or hardly taken. Cin. Inter. R. R. vs. Murray, more appreciable in degree, than 1 K P. (N.S.) 301; 48 Bull. 877. what is suffered by the public gen; See 10 Am. & Eng. Ency. of Law, erally. Herzog vs. P. C. & St. l! 2 ed. 1088-1100. R. R., 6 C. C. (N.S.) 527; 15 Cir. oi Miller vs. Logan, 3 C. C. 617; D. 702; affirming 2 N. P. (N.S.) 2 C. D. 358; Marsh vs. Clark Co., 17; 14 Low D. 529; affirmed, no re- 26 Bull. 3. port, 74 0. S. 440; .25 0. C. C. saGiesy vs. C. W. & Z. R. R. Co., 702 ; affirmed 74 0. S. 440. 4 O. S. 309. Access to a lot is property. East 53 Lewis on Em. Dom., § 277. End Banking Co. vs. Cleveland, 1 54 Previous section, § KiOO. N. P. (N.S.) 493; 14 Dec. 33. § 1668 APPROPRIATION' 1460 use, only an easement can be acquired.^^ But if the statute so provided, a fee simple may be appropriated.^" It has also been held that a railroad cannot appropriate land for a limited period while its main track is being rebuilt.^^ So it was held that a turnpike company could not take beyond the one hundred feet prescribed by law, even for a tollhouse.^^ But "vhere the law prohibited the taking of more than sixty feet, a donation of more might be accepted.^" The term land, in statutes conferring power to condemn, in- clude both soil and buildings and other structures thereon and all interests therein. Land under water may be taken as well as any other land.*'" Wliere land is condemned for a right of way, tlie o\Amer of the fee retains the exclusive right of the trees, shrubs or herb- age for all purposes not interfering with the right of way."^ Trees may be cut down and used for constructing a highway.*'^ If there is a spring on the highway, this belongs to the owner of the fee."' If the public ceases to use the property appropriated, the right acquired ceases and reverts to the owner."* Selling to another railroad the right to lay its tracts along with the other on part of the width of the right of way acquired by appropria- tion is an abandomnent."^ A railroad cannot acquire by agree^ 55 McConibs vs. Stewart, 40 0. S. Vought vs. Railroad Co., 58 0. S. 647; Corwin vs. Cowan, 12 O. S. 629. 123; Aff. Walsh vs. Ry. Co., 176 U. 30 Malone vs. City of Toledo, 28 O. S. 4G9. Mills on Em. Dom., § 53. S. 643; S. C. 34 0. S. .541. Park property may be condemned 57 Currier vs. M. & C. R. R. Co., for a railroad. Ry. vs. Cincinnati, 11 O. S. 228. 53 Bull. 224. So may an unused 58 Lessee of Kemper vs. C. C. & street. Id. Wooster Turnpike Co., 11 Ohio 392. 62 Prather vs. Ellison, 10 Ohio, 50 Hays vs. Lewis^ 28 0. S. 326; 396. Lewis on Em. Dom., § 2S0. * ^^ Mills on Em. Dom., § 56. GO Lewis on Em. Dom., §285; Val- 64 McComb vs. Stewart, 40 O. S. ley Ry. Co. vs. Pouchot, 4 C. C. 187, 647. 2 C. D. 492. 65 Piatt vs. Penn. Co., 43 0. S. See §1700 in next chapter, Ne- ^28; Penn Co. vs. Piatt, 47 0. S. cessity for condemnation. 366- «iPhifer vs. Cox, 21 0. S. 248; 1460a TAKING WITHOUT RIGHT § 1669 ment or condemnation, exclusive right to occupy a part of a • street. ^^ The consents of owners of lots abutting on a street to the construction and operation of a street railroad on such street, are not property rights that can be appropriated under the power of eminent domain. Such consents are not property rights, but rights in their nature personal to each owner of an abutting lot^*'* § 1669. Taking property without right. Whenever a person's right to his property — that is, the right to possess, use and dispose of the same in any manner not inconsistent with the law of the land — is interfered ^\^th, then to the extent of such interference an appropriation has been made for which the owner is entitled to compensation. If such appropriation has been made by a person or body for a use that is not of a public character, the owner must seek his remedy by an action in damages. If the body or person ap- propriating the same is authorized to take the property under the power of eminent domain, then the owner has his choice of remedies. He may either bring an ordinary action of dam- ages or he may bring an action to compel the offending person or corporation to appropriate tlie property. It may be laid down as a general proposition, says Lewis,®^ based upon the nature of the property itself, that, whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exer- cise of tlie power of eminent domain, his property is jjro tanto, taken, and he is entitled to compensation. A difficulty is sometimes experienced in determining whether a certain matter has been included within the appropriation proceedings and the owner has received compensatory damages. For this reason, it becomes highly necessary that in such pro- ceedings the petition should fully set forth just what is to be 66 C, C, C. & St. L. R. K. Co. vs. eo* H. G. & C. T. Co. vs. Parish, City of Gin., Goebel 269. 47 Bull. 831. See § 1749 ''^ Lewis on Em. Dom., § 50. § 1670 APPROPRIATION 1460b taken. Then it might properly be held that all results that reasonably follow from such appropriation would be held to be. included, and compensation rendered in such proceedings. Whether or not a certain matter would be included is largely one of fact, depending upon the conditions surrounding each case. If the person has no property right or has surrendered the same, then there is no taking. Thus an abutting land owner has no such interest in the public market in the street as to be entitled to enjoin a street railway that will interfere with the market."^ It has recently been held that the making of a tile ditch through a farm is a taking without right, although there is but nominal damage.*''' A city running its sewage in a natural watercourse, may, if it cause a nuisance and injuriously affect the riparian proprietor, be a wrongful taking under the Constitution.''" § 1670. Additional servitudes. Questions frequently arise as to a party's rights when the property appropriated has been applied to a new and addi- tional usa In such cases, generally the person owning the fee is entitled to remuneration. Thus where a railroad ap- propriated a strip 100 feet wide, built its track on one-half the width, and sold to another railroad the right to lay its tracks on the other half, to the injury of the original owner's land, it was held the original owner had a right to recover.''^ Poles for telephone or telegraph wires in a sidewalk are additional servi- tudes.^^ So poles for an electric light company.'^ But poles for wires for an electric street railway are not.^* Pipes for 68 Sells vs. Col. St. Ry. Co., 28 ti piatt vs. Penn. Co., 43 O. S. Bull. 172. 228; Penn Co. vs. Piatt, 47 0. S. See Cincinnati & I. E. Pt. Co. vs. 366. Zinn, 18 0. S. 417; C. & P. Ry. Co. 72 Smith vs. Cent. Dist. Printing vs. Stack-house, 10 0. S. 567; Cooper & Tel. Co., 2 C. C. 259; 1 C. D. 473. v.s. Williams, 4 Ohio, 253, 286. 73 McLean vs. Brush Elect. Light 69 Railroad vs. Commissioners, 63 Co., 9 Bull. 65. 0- S. 29. See note 78 below. 70 Mansfield vs. Balliet, 65 0. S. V4 Simmons vs. City of Toledo, 8 451. C. C. 535; 4 C. D. 69; Mt. Adams & As to discussion of extent of pub- E. P. Incl. Ry. vs. Winslow, 3 C. C. lie easement in highway, see 49 Bull. 425 ; 2 C. D. 240. 14. 1461 TAKING WITHOUT RIGHT §1670 natural gas are an additional senatude," but the making of sewers in a street is not." The occupation of a highway by a railroad is unlawful/^ It has recently been held that telephone poles in a city are not/® but a different nile is applied in a highway in the coun- try/" and an electxic railway in the city is not an additional servitude/" unless it is on a different grade, *.^ Where the grade of a street is changed recovery can only be had, first, where one builds to an established grade, and it is changed; second, where he builds before a grade is established and afterwards a grade was established, and the grade after being so established is dianged ; third, where one builds before 75 Webb vs. Ohio Gas Fuel Co., 16 Bull. 121. 76 City of Cinn. vs. Penny, 21 0. S. 499. 77 Little Miami Ry. Co. vs. Nay- lor 2 O. S. 235 ; Parrot vs. C. H. & D. R. R. Co., 10 0. S. 624; Ry. Co. vs. Gardner, 45 0. S. 309; C. I. St. L. & C. Ry. Co. vs. Pfitzer, Goebel, 248. 78 Auerach vs. Cuyahoga Tel. Cb. & Cleve. Elec, etc., Co., 7 N. P. 633 ; 9 Dec. 389. The case of Callen vs. The Colum- bus Ed. Elec. Light Co., 47 Bull. 448; 66 0. S. 166, limits the doc- trine to poles put down for public service. If for private gain, the owTier is entitled to compensation. 79 Denver vs. U. S. Tel. Co., 10 Dec. 273. 80 Sanfleet vs. City of Toledo, 10 C. C. 460; 8 C. D. 711. It has recently been held that an Interurban R. R laid on the side of a public highway is an additional burden and the owner is entitled to compensation. Schaff vs. C. M. & S. P., 47 Bull. 455; 66 0. S. 215. The right of an owner of a lot abutting upon a street to access thereto is "property" but is subor- dinate to the right and duty of the municipality to grade and otherwise improve and maintain the street ir: a suitable condition to answer tlie pur- poses of its acquisition. East End Banking Trust vs. Cleveland, 1 N. P. (N.S.) 493; 14 Dec. 33; 49 Bull. 33. The land held by a railway com- pany which is not needed or used for the proper exercise of its fran- chise may be taken .«nd subjected to an adiiitionaf use. C. C. C. & St. L. R. R. vs. U. B. & N. U., 5 C. C. (N.S.) 583; 16 Cir. D. 180; af- firmed, no report, 73 0. S. 364; 26 0. C. C. 180; affirmed 73 O. S. 364. Land for a sidetrack may be taken. State e O. S. 429; Harrison vs. Incorp. Vil- hvant, .5 O. S. 270; Con. St. Ry. vs. j^^^ ^^ ,g^,,.^^^ ^ C. C. r,2; 1 C D. Ry., 8 Dec. 268; In re George, 5 C. 39. C. 214; 3 C. D. 104. 74 T. E. St. Ry. Co. vs. T. C. St. 72 T. E. St. Ry. Co. vs. T. C. St. Ry- Co., 20 Bull 172. As to wliat will constitute a pul)- Ry. Co., 26 Bull. 172. jj^ „^,. ^^^ Trumbull vs. Shilling, 'See Lewis on Em. Dora., §§.390, 53 Bull. 167. 391. § 1699 CONDEMNATION BY PRIVATE CORPORATIONS 1488 § 1699. Inability to agree. The third preliminary question is the establishment of the fact that the parties have been unable to agree upon a consid- eration, where the ovs^ner is capable of agreeing, and is not unknown or has a residence beyond the State."^ The inability of parties to agree as to the compensation for the property taken is established by proof of hona fide attempts to reach a settlement, and not merely colorable formal efforts. No spe- cial or set forms of words is necessary, and acts showing a desire and effort to agree may be as convincing as speech it- self.'^® The inability to agree required by statute does not mean an inability to buy at any price, but only at a price which the condemning party is willing to pay.^^ § 1700. Necessity for appropriation. A fourth matter to be heard on preliminary hearing is the necessity for the appropriation. This means that it is incumbent upon the corporation to show that the property sought to be appropriated is reasonably necessary to carry into effect the purposes of the corporation. As a general rule, the amount of land to be taken, '^ or the route to be pursued,'^ will rest in the discretion of the corporation when such discretion is not abused,*" and where the corporation resolves that it is neces- sary to appropriate a certain described piece of land and no abuse be shown, it will be presumed that it was a necessity; and the mere fact that it has already condemned a strip for a railway does not show absence of a necessity to take additional land to .widen the strip.** ^ 75 § 6415 R. S., § 1676. 142. In order to sustain a pro- 'G T. E. St. Ry. vs. T. C. Ry. Co., ceeding by a railroad to condemn 26 Bull. 172. an easement across a public landing 'i'' Lewis on Em. Dom., § 302. for an elevated tract, the evidence The purpose of the provision in must show botli the necessity for relation to agreement of parties is the appropriation and that the tak- to save expense and trouble. L. & ing will not destroy or seriously N. Ry. vs. Cin., 56 Bull. 317. impede the use to which the prop- An agreement not reduced to erty is already devoted. Cincin- writing will not be binding or nati vs. R. R., 8S 0. S. 283. sufficient to defeat t.ie action. C'leve- See T. E. & T. C. Rv. Co. vs. T. C. land & Pitts. R. R. vs. Dewine, 58 St. Ry. Co., 26 Bull. 172, where one Bull. 438. street railway may appropriate the '''S Schiable vs. Ry., 10 C. C. 334; right to use another street railway. 6 C. D. 505; Iron R. R. Co. vs. City There must be a definite under- of Ironton, 19 O. S. 299. standing that the proposition is one "9 L. E. S. & W. Ry. Co. vs. A. upon which the parties can not agree. & G. W. Ry. Co., 2 Bull. 188. If there is a misunderstanding as to 80 0. S. Ry. vs. Ilinkle, 1 N. P. the terms, there is no disagreement. 63; 1 Dec." 682. The discretion Steubenville R. R. vs. Cleveland, 2 vested in a corporation is merely a N. P. (N.S.) 45; 49 Bull. 240. primary discretion, the final de- An averment of inability to agree termination rests in the court. Cin- must be in the petition. Railway vs. cinnati vs. R. R., 88 0. S. 283. Diamond Stone Co., 51 Bull. 421. 81 Trustees vs. O'Meara, 2 Bull. If there are several joint owners 1489 JURORS DRAWN § 1701 If, upon hearing, the Court is satisfied that the corporation is abusing its power, it should refuse the application and dis- miss the proceeding. ^^^ But it being presumed that self-interest will dictate that it will not abuse its powers and make an im- provement where there is no demand for it, the exercise of this discretion will generally not be interfered with by the Court.*^ § 1701. Jurors to be drawn from box and venire issued. "If, as to any or all of the property, and persons interested therein, the judge determines such questions for the corpora- tion, he shall issue an order to the clerk and sheriff to draw sixteen names from the jury wheel, as in other cases, and within two days after the receipt of it they must execute the order, and the clerk forth^ath return it to the probate judge, with a list of the names drawn indorsed thereon, who shall issue to the sheriff a venire for the jurors so drawn to attend at his office at a time to be fixed by him, and named in the writ, not exceeding ten days from the date thereof. It shall be served and returned as in other cases." [R. S. § 6421.]^* § 1702. Finding and order to draw jury. The Court having determined all the preliminary questions in favor of the plaintiff, and that all parties entitled to notice have been notified as the law requires, will then order a jury to be drawn.*^ A distinction exists between a jury drawn under the above section for appropriation by private corporations and that provided under the section relating to appropriations by an effort ought to be made to agree foes are not to be taxed against the \yith all. Cin. Inter., etc., vs. Mur- plaintifT. Hill vs. Durr, 47 Bull, ray, 1 N. P. (N.S.) 300; 48 Bull. 440. 877. See Trumbull vs. Shilling, 53 The Circuit Court of Darke Bull. 167. As to necessity where County has held tlie opposite, and as one railroad condemns land of an- the author thinks rightfully, taxed other, see Steubenville vs. Cleveland, such costs against the plaintiir. 2 N. P. (N.S.) 4.5; 49 Bull. 240. The whole costs are assessed 82 Lewis on Em. Dom., § .393. against the corporation. Railroad See T. C. St. Ry. Co. vs. Ry. Co.. vs. County, 71 O. S. 454. 8 Dec. 268, whe"n Probate Court sr, Lamb vs. Lane, 4 O. S. 107, will not be reversed. where it is held, that the word jury 83 Mills on Em. Dom., §§ 61, 62. means a tribunal of twelve men, prc- See § 1686. sided over by a Court, and hearing Mere surveying does not give ex- ^i^e allegations, evidence and argu- clusive right. C. T. & B. Ry. vs. ments of the parties. Watson vs. Ry., .32 Bull. 186; 1 Dec. 627. Trustees, 21 0. S. 667; Smith vs. Necessity does not mean indis- ^ & q \\t_ Jiy Co., 25 0. S. 91. pensible. Shaver vs. Starrett, 4 O. ry]^^ action of the Court in filling iS. 499. Necessity to authorize a ^]^p j,„.v panel by selecting jurors railway to condemn private prop- ^y^^ flffy names" drawn from the erty is reasonable, not absolute, j,,^^ j,qj.' ^^t, (.,.ror. TTosbrock vs. Reusch vs. Traction Co., 24 O. C. C. Traction Co., 5 C. C. (N.S.) 209; 540; afTirmed no op., 89 0. S. 456. 27 C C 42; adirmed 75 0. S. 84 § 11047 G. C. 5R4 It has recently been held that jury § 1703 CONDEMNATION BY PRIVATE CORPORATIONS 1490 municipal corporations. There the clerk must draw the names in the presence of the Probate Judge, and twelve instead of sixteen, men.^® If the Court finds against tlie plaintiff, a simple entry of dis- missal will be sufficient. The following may be used as a gen- eral form of entry : ( Title. ) This cause having been continued from , 190. ., being the day heretofore fixed by the Court for the hearing of this cause, until , 190.., the date of this entry, thereupon this day came the plaintiff by its attorneys, and the defendants having been duly and legally served with process herein and appeared by their attorneys, the trustees and executors of the estate of J. A. having also filed their rnswer herein, whereupon this cause came on to be heard upon the questions of the existence of the corporation, its rights to make the appropriation, its inability to agree with the owners of the property, and the necessity for the appropriation, and the Court having heard the evidence and arguments of counsel, and being fully advised in the premises, do find that the plaintiff is a corporation and has a legal right to make the appropriation of the property described in the petition as prayed for; that the plaintiff i3 unable to agree with the owners of the property as to the amount of com- pensation to be paid therefor, and that there is a necessity for such appro- priation as prayed for in the petition; and the Court proceeding as directed by statute orders and directs that a jury be drawn as required by law. returnable at a time to be hereafter fixed by the Court (or on the day of , at o'clock A.'M.)87 When the clerk and sheriff make a return to the Probate Judge showing that a jury has been drawn, it would then be proper for the Court to put an entry on, directing that such persons be summoned to appear as jurors on a day fixed. The entry may be as follows : ENTRY ORDERING VENIRE TO BE ISSUED. (Title.) This day came the sheriff and clerk and filed a list of names <^rawn by them to serve as jurors in the above case, whereupon it is ordered that a venire shall be issued to the sheriff for the jurors drawn, returnable on the day of , 190 . . , at o'clock, at which time the jury shall be impaneled and the trial of the cause commenced.ss § 1703. How panel to be filed. Jurors to be interrogated by Court. "If, by reason of non-attendance, sickness, or other cause, any of the sixteen persons are not present and in condition 86 S 1700, New municipal code, 87 Whittaker's Prob. Code, makes it the same as civil actions, 88 See §§ 17C9, 1761 1844. in condemnation by municipal cor- See § 409, for form of order to porations. draw jury and form of venire. 1491 EMPANELING JURY § 1704 to serve as jurors, the judge shall order the sheriff to fill the vacancies with talesmen. When the list of sixteen is full, the judge shall call upon each separately, beginning with the first named on the list, to take his place in the jury box, and per- sonally inquire of each, as called, whether he is interested in any way in any of the property, rights, or interests sought to be appropriated, or in tlie corporation which filed the petition, either as owner, stockholder, agent, attorney, or otherwise. If such person answers in the affirmative, or if it be shown to the judge, by satisfactory evidence, that he is so interested, he shall be excused from serving on the jury, and the next person on the list be called, and interrogated in like manner. If the list of sixteen be exhausted before a proper jury of tweWe men is taken and accepted therefrom, the judge shall order the sheriff to fill the remaining vacancies in the jury box required to make up the number of twelve with talesmen, who shall be interrogated as above provided." [R. S. § 6425.]*® § 1704. Challenge to jurors and how vacancies filled. When a jury box is filled with twelve disinterested jurors, the owners of the property which is the subject of the trial, jointly, and the petitioner, shall each have the right to four peremptory challenges, and to challenge for cause. Vacancies arising in the jury from challenge, or otherwise, shall be filled with tales- men having the qualifications prescribed in the next preceding section, to be ascertained as therein provided." [11. S. § 6426.]®*' § 1705. 'Challenge of jury. When the jury of twelve men becomes complete, then, as in ordinary trials, the party should proceed to challenge for cause, and any matter which is sufficient to excuse a juror in the trial of ordinary civil proceedings would be sufficient in this kind of 89 §11051 G. C. appears to be interested as therein It should be observed tliat when- provided, the judge shall excuse ever it is discovered that tlio full him; and if the sixteen arc cx- sixteen are not present, that the haustcd before the twelve men are sherilT should fill tlie number of taken, ic should be filled by tales- talesmen and when the list is full men. the duty devolves upon the Court- See § 17G1. of making the inquiry of each one oo § 11052 G. C. in the order and as provided for in See § 1701. the previous section; and if a juror § 1706 CONDEMNATION BY PRIVATE CORPORATIONS 1492 a proceeding.^^ As to the right of peremptory challenges, it is held that it is limited to two for the plaintiff and two for the defendant, and the fact that there are a number of defendants •will not change this rule.®" While the parties may be entitled to a separate hearing of the case where there are a number of defendants, yet as to the empanelling of the juiy they act jointly, and likewise as to all proceedings prior to the hearing after the view made of the premises.®^ §1706. Oath to be administered to jury. "When a jury is filled, the probate judge shall administer to them the follow- ing oath: 'You, and each of you, do solemnly swear that, according to your best judgment, you will justly and impar- tially assess the amount of compensation due to the proper owners in the cases which will be brought before you in this proceeding, by reason of the appropriation of their property described in the petition, to the use of (here name the corpora- tion) in the proceeding now pending, irrespective of any benefit from any improvement proposed by such corporation ; and you do further swear that in assessing any damages that may occur to such property owners, by reason of the appropriation, other than the compensation, you will further ascertain how much less valuable the remaining portion of such property will be in consequence of such appropriation; this you swear as you shall answer to God.' " [R. S. § 6427.] «* § 1707. View of premises. After the jury is empaneled, the law places it within the power of any of the parties to demand that they view the prem- 91 See §§ 11437, 11438' G. C. their consideration. First, the com- 92 City of Cincinnati vs. Neff, 19 pensation to be paid for the land Bull. 404; O. S. E,. vs. Kloeb, 5 N. actually taken, and second, for dam- P. 4; 5 Dec. 217, now changed to ages that may occur to the remain- form — . ing lands by reason of the appro- 94 §Tl053^G ^C ^^*^' priation. It might also be consid- The wording of the oath, as set ^^^^ "F^^ ^^^^ question as to whether forth in § 6427, is important, as or not the matters brought to their indicative of the legislative mind attention in the view is to be con- upon the questions which are to be ^j^^^p^ „„ evidence This matter determined and justifies the con- ^^a^red as CMdence. inis matter elusion that two questions are for ^^J'^ ^^ discussed in §§ 1G72, 1710. l-i9^ OATH AND VIEW § 1708 ises. This demand is invariably made by some one of the par- ties, and I presume the Court might order the view without the demand. The desire for such a view may be made by a written or verbal motion. The statute providing for the form of writ to the sheriff is as follows : "Upon motion of eitlier party, the probate judge may issue the following writ to the sheriff, to-wit: 'To the sheriff of county : You are hereby commanded to conduct the twelve jurors named in the panel to this writ annexed, to view the property or premises sought to be appropriated by (here state the name of the corporation), and o^^^led by (here state the. name of each owner), on , the day of , then and there to view the premises or property aforesaid, in the presence of A. B. on the part of the corporation aforesaid and C. D. on the part of the owner, appointed by this court, and you shall make return of the manner you have ex- ecuted this writ to this court, on the day of , A. D ' The writ shall be signed by the probate judge, and certified under his seal of office." [R. S. §6428. JOS § 1708. Judge must deliver to sheriff description of prop- erty. May appoint persons to be present at view. Certificate of sheriff. Expense of view. No evidence given thereon. ''The judge also shall deliver to the sheriff a copy of that part of the petition containing a separate description of each parcel of property, and rights or interests sought to be appropriated within the county, which the jury is required to view. He may appoint, to be present at the view, the two persons named in the writ. The sheriff who is to execute the writ, by a special return upon it, shall certify under his hand that the view has been made according to the command thereof. The expenses of the view must be taxed in the bill of costs. No evidence shall be given on either side at its taking." [R. S. § 6429. ]»« 9.-, § 1.1054 G. C. demonstrated to him the advisabil- Under § 11054 G. C. the Court is ity of charging thorn as to their du- only authoiuzed to apjjoint one per- ties. A cliarge of this kind in a son on the part of the corporation d'ltch proceeding will be found in and one person on the part of the Thomas vs. Commissioners, 5 N. P. owner to be present at the view. 449; 5 Dec. 510. The Court should 90 § 11055 G. C. Ix! careful in defining the duties of Before the jury leaves to view the the jury on this view. premises the author's experience has § 1709 CONDEMNATION BY PRIVATE COKPOEATIONS 1494 § 1709. Entry empaneling a jury. (Title.) This day came the plaintifis and , their attorneys, and the defendants and , their attorneys ; and also came the f ol- lowng named persons, who were duly examined and sworn as jurors (here set out names of all jurors) ; and thereupon, on motion of , plaintiff, (or one of the defendants) an order was issued to the sheriff to conduct the jury to view the premises sought to be appropriated on the day of , (or forthwith) A. B., appointed on the part of the plaintifi's, and C. D., on part of the defendants, to show the jury said premises. Returnable according to law on the day of , (or forthwith upon the view being completed). The following part might be added to this entry, but it would » be better to have it in the entry making a finding, etc., to draw a jury:" ENTRY APPOINTING ATTORNEY. And it appearing to the Court that the defendant, , who has an interest in this proceeding, and who is a non-resident of this State (or is unknown, or his residence is unknown, p'- he is under some legal disability, and has no guardian or trustee withni this county), and that service has been made by publication (or by service of summons, if he be a minor, lunatic, or idiot, living in the county and having no guardian or trustee) ; it is ordered, that , a competent attorney, be and he is hereby appointed attorney, to attend upon the proceedings and protect the interest of said , Probate Judge.98 § 1710. Is the view evidence? Is the object of the view simply to enable the jury to better understand and apply the evidence, as is the rule in ordinary civil actions, or may they take into consideration all the facts which they learn upon such view as so much additional evidence upon which to found their verdict ? This is a matter upon which the decisions are not in accord. Neither are the textbook writers, Lewis, on " Eminent Domain,"' taking the view that it is only to enable the jury better to understand and apply the evidence."^ Where the attorneys and parties son & Blair Provision Co. vs. Chi- call the attention of the jury to cer- cago, 111 Ills. G51, 055; other cases tain facts on the view, it is such declare or support the same rule; conduct as may warrant the court Chicago & Evanston R. R. Co. vs. in setting aside the verdict. Nypano Jacobs, 110 Ills. 414; Peoria, etc., R. R. vs. Wadsworth, 9 G. C. (N.S.) Ry. Co. vs. Barnum, 107 Ills. IGO; 114; 2.9 0. C. C. 110. Green vs. Chicago, 97 Ills. 370; Chi- 97 See § 1702. cago, Iowa R. R. Co. vs. Hopkins, ssGilmore's Prob. Prac. 78. 90 Ills. 31G; Mitchell vs. Illinois & See §§ 17G2, 1823, 1850. St. L. R. R. & Coal Co., 85 Ills. 5G6; 99 See Lewis on Em. Dom., § 425, Peoria, etc., R. R. Co. vs. Sawyer, 71 citing the following cases in support Ills. 3G1; Evansville, etc., R. R. Co. that the view is evidence, Culbert- vs. Cochran, 10 Ind. 560; Parker vs. 1495 IS VIF.W EVIDENCE § 1710 The Supreme Court of our State has never directly, if at all, passed upon this question. In an early case,"° after defining the word " jury," as used in the Constitution, it is said, " It is hardly necessary to add that they may be sent to inspect the premises. That may be done in the trial of even a common law action, when it is expedient," While this is a mere dic- tum, it shows the bent of the judges' mind to be, that the rule was to be applied as in ordinaiy jury trials.^**^ In Williams vs. Lockoman,^°^ in a ditch proceeding, it was held that the jury might consider in evidence facts made known to them personally from an actual view of the premises. From an examination of this case it appears that the question of com- pensation upon which the Constitution guarantees a right to trial by jury, was not considered, but the facts upon which the jury passed were those relating to the necessity of the proposed improvement. In the recent case of Railroad Co. vs. Commissioners,^**^ an- other ditch case, in which the question as- to its necessity and compensation were both before the Supreme Court. On the question of necessity, etc., the Court again confirmed its for- mer opinion that upon such a question the jury are entitled to consider as evidence facts brought to their knowledge from their actual view of the premises. This matter was very exhaustively considered in a case in Boston, 15 rick. 198; City of Kan- 015; 7 Ency. of Plead, and Prac, sas vs. Butterfield, 89 Mo. G4G; 583. Omaha & Rep. Valley R. R. Co. vs. mo Lamb vs. Lane, 4 0. S. ISO. Walker, 17 Neb. 432; In re Barba- loi in Smith vs. A. & G. W. R. R. does St., 8 Phila. 498; Lehigh Val- Co., 25 0. S. 102, in defining the ley Coal Co. vs. Chicago, 20 Fed. R. word jury it is said that it lias uni- 415, and the following to the contra. formly been construed to mean a JelTersonville etc., R. R. Co. vs. tribunal of twelve men presided over Bowen, 40 Ind. 545; Heady vs. Turn- by a Court, and under its direction pike Co., 52 Ind. 117; overruling hearing the allegations, evidence and Evansville, etc., R. R. Co. vs. Coch- argument of counsel, and declaring ran, 10 Ind. 500; Close vs. Sainm, the truth upon the evidence submit- 27 la. 503; Harrison vs. Iowa Mid- ted, and the law given them by the land R. R. Co., 30 la. 323; Wash- Court, burn vs. Milwaukee, etc., R. R. Co., 102 4G 0. S. 410. 59 Wis. 3G4. ^""'03 0. S. 23. See 6 Am. & Eng. Encv. of I.aw, See note at end of section. § 1710 CONDEMNATION BY PRIVATE CORPORATIONS 1496 the Court of Common Pleas, and by a very able judge/®* and there the conclusion is reached that the facts made known to the jury upon the view is evidence. In this case the statute and the decisions of our and other States are critically examined. While not free from doubt, the author, in his experience as judge, was inclined to follow this case.^"^ In Consolidated St. Ry. Co. vs. Toledo Elec. St. Ey. Co.,'°« after calling attention to the statute providing that a jury shall be dra^vn and the testimony may be given by witnesses,^"^ and limiting their number, it is said that " this language of the statute clearly indicates the purpose of the Legislature that the examination which the jury shall make, as it is provided for in the statute, shall furnish them with evidence which may be con- sidered together with the testimony, which it is provided, may be given by the swearing of the witnesses, and their examina- tion before the Court and in the hearing of the jury." By adopting the view that what the jurors see on their view is evi- dence, a difficulty is experienced in bringing the question be- fore a reviewing Court, it being impossible to have tliis evi- dence set forth in a bill of exceptions, and therefore practically making it impossible for a reviewing Court to set aside a judg- ment and verdict for the reason that the same is contrary to law.^''^ But it may be said that upon this question it was 104 Sibley, J., afterwards judge of Judge Gralloway, Probat* Judge of Circuit Court in Israel vs. Zanes- Franklin county, charged the jury ville & E. R. Co., 19 Bull. 258. that the view of the premises is to 105 111 0. S. E.. R. Co. vs. Snyder, enable them to better understand 5 N. P. 461; 5 Dec. 480, the jury and apply the testimony of witnes- were charged : You w-ere ordered to ses and not for the purpose of ascer- view the land sought to be appro- taining the value of the proj^erty, priated in this case. This was for and they cannot take into consid- the purpose of enabling you better to eration their owa ideas of the value determine the questions before you. of the premises as fixed by their and to apply your own judgment in OAvn view of them. C. D. & M. E. regard to them, as well as to bettei ^7- vs. Knauss, 47 Bull. 807. J ^ 1 .1, -1 ' K A -f 106 6 N. P. 540; 8 Dec. 2G8 understand the evidence. And if u xi. a.. , t 1 ( ft 107 § 11056 G C, § 1713 any one of you knows of any fact ^, . x, . of his own knowledge, not common to los This matter is very distinctly all, bearing upon the case, he ought ^^t forth in Washburn vs. Milwau- to disclose it, and testify to it in ^ee Ry. Co., 59 Wis. 3G4. open Court. O. S. Ry. vs. Rawlins, See L. S. & M. S. vs. Gaffney, 9 C 29 Bull. 260. C. 32; 6 C. D. 94. 1497 SEPARATE TRIALS § 1711 the intention of the Legislature that there should be no re- view. While it is a question of great doubt in the author's mind, yet he is inclined to the opinion that the things which the jury saw upon their view and facts thus ascertained, constitute evi- dence in the case submitted/^" § 1711. Separate owners entitled to separate trial. They hold the afRrraative on trial. "The owners of each separate parcel, right, or interest, are entitled to a separate trial by juiy, verdict, and judgment. They shall hold the affirmative on the trial, which must be conducted, evidence admitted, and bills of exception allowed as provided in civil actions." [R. S. § G422.] ^^^ lof Reviewing Courts are now in- clined not to set aside any verdict on the mere ground that it is con- trary to the weight of evidence. IK' Our Supreme Court has re- cently held, "When upon the trial of the general issue, in an action upon a quantum meruit for services of a domestic character, the plaintiff offers evidence showing the facts from which the promise to pay may properly be inferred, and also show- ing the nature and extent of the services rendered, the case should be submitted to the jury although no witness expresses an opinion as to the value of the services." Hossler vs. Trum^, 62 O. S. 139. In the case of Alarsh vs. County Commissioners, 27 Bull. 56, the Pro- bate Court refused to set aside the verdict because it was against the weight of evidence for the reason that some jMirts of such evidence was not before the Court and rested within the knowledge of the jurors. The Probate Court was reversed by the Common Pleas Court, Hustain:;d by the Circuit Coiirt and bv the Su- preme Court. .33 Bull. 121, 131. The Supreme Court, however, did not report their decision, and whether the view on this particular question of the Probate Court was affirmed or not is not known. In City of Columbus vs. Bidling- meier, 7 "C. C. 1.36; 3 C. D. 608, un- der the general statute, §§ ,51Sfli and 5101, it was held it was not evi- dence followed. Besuden vs. Com- missioners, 7 C. C. 237; 4 C. D. 575. A distinction is made bv the Su- preme Court in views ordered under the general statute and statutes in si>ecial proceedings. Machader vs. Williams, 54 0. S. 344; 35 Bull. 182. See Bender vs. Buehrer, 8 C. C. 244; 4 C. D. 507. See §§ 1706, 1762, 1848. HI § 11048 G. C. In the case of Railroad Co. vs. Bolen, 76 O. S. 376, the Supreme Court has held that "The impres- sions made on the minds of the jurors in an appropriation case by a view of the premises are not of themselves evidence in the cause. Hence, a bill of exceptions which contains all the evidence given in a court at the trial is, with a record otherwise complete, sufRcient to pre- sent to a reviewing court the ques- tion of the weight of tlie evidence." In the opinion this work is cited and a conclusio is reached that by vir- tue of the provisions of the Constitu- tion giving in trial of condenmation, the riglit of what is known as a jury trial, that it therefore follows that only such can be considered as evi- dence as is produced to the jury in the presence of the court, and there- fore commends the rule followed in ordinary trials, and tliat is that "The view by the jury of the prop- erty which is the subject of litiga- tion ... is solely for the pur- pose of enabling tliem to apply the evidence ofTered upon the triai." Tlie court is, however, careful to ex- ee!)t, "that in passing upon issue of f'ct the jurors may take account of Uieir general knowledge of alTair.s, and likelv to be possessed bv all intelligent men or general knowledge on file subject of inquiry." Whether or not the court might cltnrge the jury that the things that they saw § 1712 CONDEMNATION BY PRIVATE COKPOEATIONS 1498 § 1712. Motion for separate trial and entry, etc. The above section was not in the original act."" Under tlie original act, however, it was said that it does not compel him (defendant) to proceed jointly after the jury have returned from the view, nor to encounter the jargon, confusion and un- certainty of a joint litigation. He has, then, the right to de- mand that his rights and interests shall engage the separate at- tention and examination of the jury,^^^ The party desiring the separate hearing should make a motion for that purpose, and the Court should grant the same and make a journal entry of that fact, and if there are a number of defendants, set forth the order in which their cases should be tried ; and when the verdict of the jury in one matter has been returned, an imme- diate trial should be had of another defendant's interest. After the view is taken, each defendant may proceed with his own case just the same as if they were separate actions. The fol- lowing may be used as a form of entry : {Title.) This day this matter came on to be further heard upon the motion of A. B., a plaintiff in the above action, for a separate trial. Wherefore it is ordered that said motion be granted and that the Court proceed to the hearing of testimony in the above matter in reference to the lands of said A. B., sought to be appropriated herein, and that on the day of testimony will be heard in reference to the lands of C. D., defendant of the above action, etc.n* §1713. Witnesses may be examined before jury. "Wit- nesses may be examined before the jury after its return to the court. If more than three witnesses be examined by either party, on the same point in the same case, the judge may tax the costs of such additional witnesses to the party calling them." [R. S. §6430.]"= upon the view, miglit be taken in dence from which they will largely consideration by them, is not di- draw to arrive at their final con- rectly passed upon, but what is dis- elusion. See Evidence, § 1673. tinctly passed upon is that the mere n- 50 Ohio Laws, 201. fact that the bill of exceptions does nsRannev, J., Uiesy vs. C. W. not show (and by the nature of the & Z. R E. Co., 4 0. S.' 322. case could not show) what the m See §§1704, 1S23, 1851, 18^8. jurors saw, would not 'prevent the us § 1105G G. C. case from being considered on error. See § 1G73. Evidence; and §§ 1760, The fact, remains, Jiowever, that 1G72, Benefits. from the nature of the case, the As the evidence to be produced to matters tuat the jury gathered from the jury is ordinary opinion evi- observation on the view, cannot be dence, the Court sliould not grant a considered as otherwise than evi- continuance bv reason of an absent 1498a TRIAL BURDEN OF PROOF § 1714 § 1714. Trial, etc. A trial before the Court proceeds in the same manner that jury trials in civil cases are ordinarily conducted. The statute provides "that the land owners shall hold the affirmative on the trial, which shall be conducted, and evidence shall be admitted, and bills of exception may be taken, as provided in civil ac- tions.""*' It has therefore been held that the burden of proof rests upon them.^^'' § 1714a. Burden of proof. Recently the Supreme Court has held: An action brought by a municipality to condemn private property under the consti- tution and laws of Ohio, is a proceeding in rem. In such pro- ceeding,, there are no formal pleadings or definite issues, which admit of affirmation upon one side and denial upon the other : hence the doctrine of burden of proof has no application. The jury acts merely as an appraising or assessing board, deter- mining the fair market value of the property from all the evi-' dence submitted."^"" "While this is a case brought by a munici- pality, the reasoning would adopt the same rule to a case brought by a private corporation. In the Martin case, the Court below charged the jury : ''The burden of proving the value of this property rests upon the defendants, the owners of the property, and they are witness when such witness could Store Co, vs. Cincinnati Southern only testify as to matters which Ry., 9 C. C. (N.'S.) 103; 19 Cir, D, could easily be supplied by others, 719; 29 0. C. C. 719. See C. J. & M. Ry. vs. Earcelow, "^ § 11048 G. C. (§ 1711). 2 C. D. 413; 4 C. C. 49, as to dis- H^ 0. S. E. E. Co. vs. Snyder, 5 cretion of judge. N. P. 461; 5 Dec. 480. Sec previous If a property owner submits to section, joint trial without exception, he can Sec § 11062 G. C. (§ 1718). not be heard in a reviewing court See § 1764. to complain that he did not have a n7a Martin vs. Columbus, 101 O. separate trial. Cincinnati Iron S. — . § 1714a CONDEMNATION BY PRIVATE CORPORATIONS 1498b required to prove its value by a preponderance; that is the greater weight of the evidence." For giving this charge, the judgment of the common pleas and court of appeals was reversed. While the matter of bur- den of proof in its application to condemnation proceedings was always one of perplexity, I am not sure that the decision of the supreme court has materially aided the trial of such eases. There is still a burden somewhere; the evidence, by its greater weight, must still be the rock upon which the verdict must stand. Even if the charge was technically incorrect, it is not easy to conceive how the land owner was prejudiced thereby. "While Ihere is no price or value of the lands fixed or claimed in the pleadings, yet there is an issue, and that issue is the fair value of the lands. The land owner claims that it is of one value; the corporation of another. This of course does not appear from the pleadings, but it is a fact generally known to the parties at time of trial. On this issue the land owner holds the affirmative — that is on his claim — and of course in order to sustain it, he must produce or have to support it the preponderance of evidence. It is dif- ficult to understand why the legislature gave the affirmative to land owner if it did not mean to put him in the same position, on the trial of the issue then at hand, as the law generally places on the party that holds the affirmative. In a former case the court held that the jury in condemnation cases, was that known to the common law, and that the impres- sions made on the minds of the jury, in their view was not evi- dence, etc.^^"'* The duties of a common law jury, are generally regarded differently from the duties of an appraising or assessing board, and some doubt might be raised as to how far a reviewing court might go into the matter of the weight of evidence necessary to support a verdict. 117b Railroad Co. vs. Bolin, 76 O. S. 376. See § 1710. 1499 FORM OF ENTRY AND VERDICT, ETC. § 1715 The result then of this decision is that the corporation has the burden of proof showing that the owner should be divested of his property, and as to what the corporation should pay, there is no burden of proof on either party. § 1715. When a structure is partly on land sought to be appropriated. "When a building or other structure is situ- ated partly upon land sought to be appropriated, and partly upon adjoining land, and such structure can not be divided upon the line between such two tracts without manifest injury, in assessing the compensation to any oM^ner of the lands, the jury shall assess its value exclusive of the structure, and make a separate estimate of the value of the structure. The owner of the structure may elect to retain its ownership, and to remove it, or accept the value estimated by the jury. If he fails to make such election within ten days from the date of the jury's report, or within ten days from, the termination of the cause in a higher court to which it is taken, he shall be deemed to have elected to retain and remove the structure. If he elects to accept the value of the structure, the title thereto shall vest in the corporation making the appropriation, with the right to enter upon the land for the purpose of removing it therefrom." [R. S. §6431.]^i« § 1715a. Verdict. Motion for new trial. Confirmation of verdict. "The jury shall render its verdict in writing, signed by the foreman, to the judge, who shall cause it to be entered of record. Unless for good cause shown, upon motion to be filed within ten days after the verdict is rendered, a new trial be granted, the judge shall enter a judgment confirming such verdict." [R. S. §6432.; 119 §1716. Form of entry and verdict, etc. When the jury arrives at its conclusion, it should return a verdict in writing, signed as above provided, and the judge 118 § 11057 G. C. C. & C. Bridge Co. vs. Dcvoto, 5 N. The question Avhether the struc- P. 330; 8 Dec. C40. ture is on the line and whether or H^ § 11058 C C. not it can be divided is a question See Central Ohio Ey. vs. Holler, of fact to be submitted to the jury. 7 0. S. 220, whore verdict was held not to conform to law. § 1717 CONDEMNATION BY PRWATE CORPORATIONS 1500 should immediately enter it upon his record. The following may be used as a form for a journal entry, the latter part of which contains the form of a verdict :, (Title.) This day came the parties (by their attorneys), and thereupon came again the jury, after having made a view of the premises (and thereupon A. B. demanded a, separate trial by jury, verdict, and judgment, which was granted; and the jury having heard the evidence and arguments of counsel and charge of the Court in reference to the rights and interest of the said A. B., retired to their room for deliberation, and in due time returned into Court, and delivered the following verdict in writing, to-wit: (Here copy verdict entire.) Or (and thereupon A. B. and C. D. demanded separate trials by jury, verdict, and judgment, which was gi'anted; and by consent, said A. B. and C. D. submitted the evidence on their respective claims separately, and they were separately argued, with the understanding and agreement that said jury are to hear the evidence and arguments and charge of the Court in all the cases before retiring, and render separate verdicts in the cases of said A. B. and C. D.) ; or, and thereupon, neither of the defendants demanding a separate trial, and the jury having heard the evidence offered by all the parties, and the arguments of counsel, retired to their room, and in due time returned into Court, and delivered the following verdict, in writing, to-wit: (Here copy verdict entire.) FORM OF VERDICT. County Probate Court. Case stated. VEUDICT. We, the jury, empaneled and sworn in this proceedings, do find and assess compensation and damages, to be paid by (name corporation) plaintiff, by reason of the appropriation of said property to its use, in the several cases submitted to us (or in the case of A. B., if his case is submitted separately) as follows: To , the owner of tract 1, as described in the petition, we assess, as compensation for land taken, $ As damages to residue of tract $ To, , the owner of tract 2, as described in the petition, we assess, as compensation for lands taken, $ As damages to residue of tract $ (And so on with all who have not demanded separate trials). We make said assessments, irrespective of any benefit of the owner from any im- provement proposed by said corporation. Date , Foremani2o § 1717. Motion for new trial, etc. The statute allows ten days' time from the time that the ver- dict is returned for the purpose of filing a motion for a new 120 See §§ 1766, 1823. opinion formerlv the rule seems now Where the attorney stated that the well established that three-fourths property was purchased at a certain of the jurv may return a verdict. price, and the court told the jury Smith vs. CraiT, 40 0. C. A. 544. to disrc"-ard the statement, it was The order of t'.ie Probate Court not error for which the verdict confirming the verdict of the jury, should be set aside. Devon vs. Cin. is a final order which may h'? re- viewed on error. Ftate vs. Waite, Term., etc., 4 0. L. R. 313; 29 O. 2 C. C. (N.S.) 40; a'^rmed, 70 0. G. C. C. 113. 140; 25 0. C. C, 216; affirmed, 70 While there was a diversity of 0. S. 149. 1501 NEW TRIAL § 1718 trial. The statute relating to condemnation proceedings does not set forth the grounds for which a new trial may be asked. The general statute relating to that subject therefore applies.^-^ While the finding of the court upon the preliminary hearing might be reviewed on error, it could not be so reviewed until after the verdict was returned and the judgment confirmed."^ §1718. New trial. Proceedings thereon. Costs." "A new trial shall be granted for cause only, shall take place m the court where the first trial was had, and be conducted in accord- ance with the provisions of this chapter so far as they are applicable. Upon granting the motion for a new trial, if the amount of the first verdict has been paid into court the judge shall retain it until the final termination of the second trial. On the new trial, if the verdict of the jury exceeds the amount of the first verdict, the corporation must pay the amount of the first verdict, together with the excess, to the owner of the property. Wlien the verdict upon the second trial is less than that of the first, the judge shall repay to the corporation the difference. If a new trial be granted at the instance of the owner of the property, and the verdict of the jury be the same or less in amount than that first rendered, he must pay all the costs of the second trial. If it be more than that first ren- dered, the costs of the second trial must be paid by the cor- poration." [R. S. §6436.] 123 ■ § 1719. Entry confirming verdict, etc. {Title.) This day came the parties by their attorneys, and the jury having assessed the total compensation to be paid by the plaintiff as appears of record herein, and the defendant, , havinsf elected to take the valuation fixed by the jury for the structure, to-wit: $..... , thereupon this cause came on to be heard upon the motion of the defendant, , to set aside the verdict of the jury and for a new trial herein, and was argued by counsel. On consideration wliereof the Court find that said motion is not well taken and the same is hereby overruled, to which decision of the Court and overrulin-^ of said motion the said.' excepted and his exceptions are entered of record. And the Court having examined the procecdin'jrs herein and the same being in all respects regular and proper, it is ordered by the Court that judg- ment be entered upon said verdict as required by law. It is therefore 121 §§ 11575-6 G. C. trial after verdict, lleusch vs. Trae- See § 52. * tion Co., 24 O. C. C. 540; allirnied 122 T. C." Street Ry. Co. vs. T. E. 8!) O. S. 283. Ry. Co., 6 C. C. 3G2; 3 C. D. 493. 123 § 11062 G. C. Tlic courts now See, however, recent decision of hold tliat if error is prosecuted from Supreme Court, P C. & St. L. H. K. the rrol)atc Court and llien to the vs. Todd, 72 O. S. 156, which liolds Court of Appeals and the case is that the 'final order is tlie confirma- there reversed, it sliould be re- tion of the verdict of tlie jurv, etc. manded back to tlie Probate Court. See §§ 1774, 18:3, 1853, aiid tlie Railway vs. Barger, 30 O. C. C). 06. time to present a review of all The same from the Supreme Court, questions, on preliminary hearing Cemetery Assn. vs. Traction Co., 93 or otliervvise, will date from the O. S. 182. overruling of a motion for a new § 1720 CONDEMNATION BY PRIVATE CORPORATIONS 1502 ordered and adjudged that said proceedings and the verdict be and the same are hereby approved and confirmed and that said plaintiff corporation, upon payment witliin thirty days from the entry hereof of the said sum of $ , the amount of said verdict, and costs herein taxed at $ , to the owners of said property as hereinafter described, or deposit the same with the Court for the use of said owners, shall be entitled to take possession of and hold and use the property, rights and interests of the defendants and each of them so appropriated for the uses and purposes for which the appropriation was sought, as set forth in the petition, said property being described as follows, namely: (Describe it.) And upon such j^ayment or deposit an order may issue to the sherifT of county to put the plaintiff in possession of said premises. And it is considered by the Court that the plaintiff pay the costs of this proceeding taxed at $ (or, if necessary, proceed as follows: It being made to appear that and , defendants herein, have each waived the issuing of summons and entered their appear- ance herein and filed their answer and cross-petition setting fort.h their mortgage lien against said premises, and the city of has filed its cross-petition herein setting forth its lien for the improvement of said street, it is ordered tliat this cause be continued for further hearing upon the rights of the several parties hereto upon distribu- tion of the money paid into Court as aforesaid and if desired refer the same to Court of Common Pleas (§ 1727). To all of which findings, orders and judgment of the Court, the said excepts, and there- upon the said filed his motion to vacate and set aside the same and to set aside this entire order and judgment, which motion was submitted to the Court, upon consideration whereof the Court over- rule said motion. To all of which the said excepts.) 124 § 1720. Petition in error may be filed by either party in Common Pleas, when. Bills of exceptions. "Bills of excep- tions may be taken and shall be allowed, as provided by law in civil actions. " [R. S. § 6437.]i2'5 § 1720a. Petition in error. "Either party may file a peti- tion in error in the court of common pleas of the proper county within thirty days after the time allowed for such signing of bills of exceptions, and the proceedings ir error shall be con- ducted as in civil cases." [R. S. § 6437.] i-^* § 1720b. Corporation may pay judgment and enter on prop- erty^ "On the rendition of final judgment in the probate court, the corporation may pay into the court the amount of the judgment for compensation, and costs therein rendered, and proceed to enter upon and appropriate property notwithstand- ing the pendency of the proceedings in error." [R. S. § 6437.] i2,5-|- 124 The entry overruling motion 125* § ii064 G. C. for a new trial and confirming the i25-}- 110G5 G. C. verdict is a final judgment from In proceedings for the appropria- which error may be prosecuted. C. tion of property by a private cor- J. & M. R. R. Co. v. Barcalow, 4 poration the determination of the C. C. 49; 2 C. D. 493. preliminary questions by the probate 123 § 11063 G. C. judge, as required by § 11046 G. C, 1503 PROCEEDINGS ON ERROR. §1721 § 1721. When error may be prosecuted. Error may be prosecuted from any final order, but the peti- tion therefor can only be filed within thirty days from the time that final judgment is rendered. This final judgment means the entry overruling the motion for a new trial and confirming the verdict of the jury.^-" "Wliere the statute provides a method of hearing cases on error, it must be followed. § 1722. Proceedings in Common Pleas on error. Costs. "Upon the hearing of the cause, if the common pleas court affirms the judgment of the probate court, all the costs in the § 1695, may be reviewed on error. A motion for a new trial, or re- hearing, of such preliminary ques- tions is not necessary. The time within which a bill of exceptions on such hearing should be taken is to be computed from the day on which said questions are de- termined, if no motion for a new trial is filed, and if a motion for a new trial is filed from the day the motion for a new trial is overruled. The time within which a petition in error must be filed in the Court of Common Pleas is to be computed from the final judgment of the Pro- bate Court either dismissing the pe- tition or confirming the verdict of the jury. If the Court of Common Pleas re- verses the judgment of the Probate Court for error in the determination of either of the preliminary ques- tions it should retain the case and hear and determine such questions de novo. P. C. &. St. E. R. vs. Todd, 72 0. S. 156; Ry. vs. Traction, 430. If the Common Pleas affirms the Probate Court and the case is taken to the Court of Appeals or Supreme Court and there reversed it is re- manded back to the Probate Court, not to the Court of Common IMcas. Railway vs. Barger, 30 0. C. A. 66; 10 0. App. 443; Cemeterv Assn. vs. Traction Co., 93 0. iS. 183. The undertaking or bond given by the corporation under § 6718 R. S., on proceeding in error to review the verdict and order of confirmation of the Probate Court, must secure the costs and attorney fees accruing in the Probate Court in case of an abandonment of the property bj' the corporation. 48 Bull. 943. An undertaking under § 6718 R. S. is not sufficient to staj' execution but must also be given under § 6725 R. S. State vs. Waitc, 25 C. C. 217; 70 0. S. affirming 2 C. C. (N.S.) 49; 15 Cir. D. 216. In State vs. Waite, 70 0. S. 151, it is held that "if the corporation chooses it may prosecute error to the Common Pleas Court by giving an undertaking, and if it does not take possession, it will not be re- quired to deposit the sum allowed as compensation, etc., and an action of mandamus will not lie to compel the Probate Judge to collect the same while such proceedings in er- ror is pending." Where the statute provides a method of hearing cases on error, it must be followed. Wiler v. Logan Nat. Gas & Fuel Co., 27 C. C. 257; 6 C. C. (N.S.) 20G; 17 Cir. D. 257; reversing \ N. P'. (N.S.) 277; 14 Low. D. 164; affirmed, nn report, 72 O. S. 628. 126 C. & M. V. Ry. Co. vs. Wick, 35 0. S. 247; Little :\nanii Ry. Co. vs. Hopkins, 1!) 0. S. 270; Wagner vs. Ry. Co., 38 0. S. 32; Stcuben- ville & I. Rj'. Co. vs. Patrick, 7 0. S. 170. See authority under previous note 111. § 1723 CONDEMNATION BY PRIVATE CORPORATIONS 1504 common pleas court shall be paid by the plaintiff in error. If it reverses such judgment, it shall retain the cause for trial and final judgment, as in other cases. The trial shall be had at the term of reversal, unless for good cause shown by either party a continuance is granted. On the trial of the cause in the common pleas court the same inquiry shall be made as to the interest of the jurors, and the same oath administered to the jury as hereinbefore provided." [R. S. §6438.]^-^ § 1723. When corporation may have possession. Any time after a judgment confirming the verdict of the jury has been entered, the corporation may pay or deposit with the If the verdict of the jury was eonfirmed and entry put on at the time it was rendered it would date from that date, notwithstanding the fact that a motion for a new trial had been filed. See Dowty vs. Pepple, 58 0. S. 395; Wilder vs. McDonald, 9 C. D. 259; 18 C. C. 232; Collins vs. Mans- field, 7 C. D. 445; 13 C. C. 258. National Union vs. Rothert, 39 Bull. 145; Selig vs. Akron, etc., 10 C. D. 535; 19 C. C. G33. Wiler vs. Logan Xat. Gas & Fuel Co., 27 C. C. 257; G C. C. (N.S.) 206; 17 Cir. D. 257; reversing 1 N. P. (N.S.) 277; 14 Low. D. 104; af- firmed, no report, 72 0. S. G2S. 127 § HOGG G. C. If the Court of Common Pleas reverses the Probate Court, then it shall retain the case and proceed in the same manner as if the cause had originally been brought in such Court. C. & C. C-o. vs. Magruder, 63 0. S. 455. Where the Comm.on Pleas Court reverses the Probate Court, such order of reversal can- not be reviewed by petition in error in the Circuit Court. Railway Co. vs. Bailey, 39 0. S. 170; 9 Bull. 296. Error could be prosecuted from any order made thereafter the same as from the Probate Court. But a reviewing Court will not reverse the Probate Court where there is no sub- stantial errors to the prejudice of the party complaining. Consol. St. Ry. vs. Toledo Elcc. St. Ry. Co., 6 N. P. 537; 8 Dec. 2G8; Banning vs. Trustees of Southern Ry., 3 Bull. 905. If reversed on preliminary ques- tions the Common Pleas Court re- tains it. P. C. & St. V. Todd, 72 0. S. 150. The fact that payment has been made by the corporation will not prevent the corporation from prose- cuting error. Trustees of Southern Ry. vs. Banning, 17 Bull. 319. The provision of § 6438 R. S., re- lating to error proceedings in ap- propriation proceedings, that the Common Picas Court "shall retain the cause for trial and final judg- ment, as in other cases," does not authorize a judgment for costs other or different from that prescribed by §§ 6414 to 6453 R. S. Hence, the fees of jurors, in appropriation proceedings, should be taxed as part of the costs under § 6414 R. S., et scq., and not under § 5182 R. S. Hosbrook vs. L. & C. Traction Co.. 27 0. C. C. 42; 5 C. C. (N.S.) 209. The original defendant may pros- 1505 CORPORATION MAY TAKE POSSESSION § 1723 Probate Judge the amount of the verdict, and the costs ^-^ that have accrued up to that time, and the corporation shall then be entitled to take possession of the property/-^ This deposit must be made in money, a certificate of indebtedness will not be sufficient.^^*' Where a corporation makes a deposit and on a new trial a lower judgment is rendered, the corporation might maintain an action to recover the excess.^^^ The statute relating to such deposit is as follows : "Upon payment to the party entitled thereto, or deposit with the probate judge of the amount of the verdict and such costs as lawfully accrued in the case up to the time against the corporation, it will be entitled to take possession of, and hold, the property, rights or interests so appropriated, for the uses and purposes for which the appropriation was sought, as set forth in the petition. The judge shall enter of record an order to that effect, and if necessary, proper process shall be issued to place the corporation in possession thereof." [R. S. § 6433.]"^ ecute error to protect officers of the Court. Hosbrock vs. Traction Co., 5 C. C. (KS.) 209; 17 Cir. D. 42; affirmed, no report, 75 0. S. 584 ; 27 0. C. C. 42. This applies to a case taken up from the Insolvency Court. Cin. vs. Lohman, 10 C. C. (KS.) 119; 30 O. C. C. 92. If the Court of Common Pleas af- firms the judgment, it cannot ren- der a judgm.cnt but should approve the action of the Probate Court and remand the same to that Court. C. 6 M. Valley Ry. Co. vs. Wick, 35 0. S. 247. 128 Jury fees are not costs to be taxed to a party. Hill vs. Durr, 47 Bull. 440. The Circuit Court of Darke County has decided otherwise, and likcwisG the Supreme Court. De- troit Southern vs. Lawrence Co., 71 0. S. 454. 120 Wagner vs. Ry. Co., 38 0. S. 32, 130 City of Toledo vs. Sanwald, 13 C. C. 496; 7 C. D. 110. 131 Trustees Cin. Southern Ry. vs. Banning, 21 Bull. 9. 1-2 §11059 G. C. After such deposit the title passes to the corporation. Hueston vs. E. & H. R. R. Co., 4 0. S. G85. JIandam.us will not lie to compel the corporation to pay in the amount of the verdict, etc. 48 Bull. 942. If a proper undertaking is given in proceeding in error, tlie deposit need not bo made, unl-^ss the cor- poration takes possession. State vs. R. Waite, etc., 70 0. S.; affirming 2 C. C. (N.S.) 49; 15 Cir. D. 21G; 25 C. C. 21G. If the company pays the money into Court, under a stipulation that tlin money may be withdrawn, with- out prejudice to any other right, the Court may, in its discretion, proceed to a second trial without a rcfundcr by the land owner. Cov- ington vs. IMagruder, 8 C. C. (N.S.) 303; 18 Cir. D. C07; 28 0. C. C. G07; affiirmcd, no report, 76 0. S. GIO. See City of Cleveland vs. Cuya- hoga Agricultural Soc, 41 0. S, 600. I § 1724 APPROPRIATION BY PRIVATE CORPORATION 1506 § 1724. Entry when deposit made. As a corporation is entitled to possession of the property, the Court should make an entry of the fact of deposit, etc., which may be in the following fonn: ENTRY OF PAY:MENT OF A^^IOUXT OF VERDICT, ETC. {Title.) This day came the plaintiff, the C, R. &. B. C\)mpanv, a corporation un- der the laws of Ohio and Kentucky, by its attorney, and pays into Court and deposits with the judge of this Court the sum of dollars, the amount of the verdict of the jury herein, and pays the costs of this action, and thereupon, it is considered ordered and adjudged that the plaintiff, the C, R. & B. Company, be entitled to the posse.^sion of and to hold, use and enjoy, the real estate, property, rights and int«rests of the defendants and each of them in and to the real estate, property and rights appropriated herein to the uses of plaintiff' as set forth in the petition and described as folloAvs: (Descuibe it.) And a writ or order may issue on the application of plaintiff directed to the sheriff of county, Ohio, to put the plaintiff in possession of said premises. ( To all of which the defendants , excepts.) isa § 1725. When and how corporation may abandon proceed- ing. "The corporation may abandon any case or proceeding after paj'ing into court the amount of the defendant's costs, expenses, and attorney fees, as found by the court. If the cor- poration fails in any case to make payment or deposit, as pro- vided in the next preceding section, within thirty days after confirmation of the verdict, on motion of the party entitled to such payment, to be filed within ten days after the expiration of such thirty days, the judge sb^all enter an order directing the corporation to make such payment or deposit within thirty days after the date of the order. Unless such corporation, Adthin such time makes such payment or deposit, it shall be held thereby to have abandoned the property, rights, or interests so appro- priated, and all claims thereon under its proceeding, and the judge shall issue an order to that effect. He also shall enter a judgment against the corporation, and in favor of the party entitled to such payment, for such amount of expenses, including time spent and attorney fees incurred by him in the proceeding, as, upon the evidence offered in that behalf, the court deems just, for which execution may be issued against the corporation. The directors of the corporation shall be individually liable upon such judgment, and may be made parties thereto by action." [R. S. § 6434.] 1=^* 133 Whittaker Prob. . Code. the property, or pay the costs and See § 1667. decline to take the property. 134 See 48 Bull. 942; § 11060 G. C. It has been very much doubted if In all cases the corporation may the Probate Court could try the pay the judgment and costs and take question of attorneys' fees, etc., and 1506a ABANDONMENT §1726 § 1726. What is an abandonment. It may be generally said that the corporation may discontinue the proceeding at any time, at least before the submission of the inquiry to the jury.^^D ^ corporation can legally abandon the proceeding after a verdict is rendered, although the Court makes no record or journal entry of such a fact. The land owner, however, has a right immediately after the verdict, and its confirmation by demand, to have the plaintiff corporation indicate whether it will abandon the proceedings or not.^^*' In appropriation by municipal corporations, after the aban- donment has been made, an action may be brought to again appropriate the property.^" But not if the abandonment has been made in bad faith.^^® that judgment could be rendered for such amount as the Court might think fit. , 'See Logan Natural Gas Co. vs. Anna L. Wiler, 1 N. P. (N.S.) 277 (1903) ; 14 Low. D. 164. See, however, Wiler vs. Gas Co., 6 C. C. (KS.) 306; 17 Cir. D. 257; reversing 1 N. P. (N.S.) 277; 14 Low. D. 164; affirmed, no report, 72 0. S. 628; 27 0. C. C 257; 6 C. C. (N..S.) 206. § 11091 G. C, § 1C75. 135 D. & W. Ry. Co. vs. Marshall, 11 O. S. 497. The Probate Court may include reasonable attorney fees, and its judgment will not be disturbed un- less it appears to have abused its discretion, and may hear evidence on the value of the same. Wiler vs. Gas, etc., 27 C. C. (N.S.) 257; 6 C. C. (N.S.) 206. The corporation may abandon part before verdict. Cin. vs. Trustees, 14 Dec. 466. If a proceeding in error is pend- ing, there is no abandonment even though there be no deposit made. 70 0. S.; affirming 2 C. C. (N.S.) 49; State vs. Waite, 25 C. C. 216. If the Court orders a deposit and this is not done, this will be an abandonment even though the case be pending on error. Id. If the corporation is compelled to abandon proceedings by reason of a decision of the Supreme Court, this will not excuse it from paying costs. Expenses include all reasonable and proper expenses incurred in defense of suit. What is reasonable attor- ney fee, see Railroad vs. Farmers Co., 53 Bull. 13; 50 L. R. 530. 136 State of Ohio, ex rel. Hayes vs. C. & I. R. R. Co., 170 S. 105. 137 Trustees of Cincinnati S. Ry. vs. Haas, 42 0. S. 239. See City of Cincinnati vs. ITosea, 19 C. C. 744; 10 C. D. 018. 138 Cin. vs. Hott, 5 N. P. 418; 8 Dec. 043. § 1726a APrROPRiATioN- by private corporation 1506b A railroad failed to take advantage of a verdict for six months; it was held it might bring a new action.^^^ § 1726a. When action may be brought for costs and ex- penses. "If such judgment is not satisfied within thirty days after its rendition, or if the party entitled thereto is not satisfied with its amount he shall have a right of action against the petitioner for such expenses, including time spent and attorney fees, and also for his expenses, including reasonable attorney fees, incurred in prosecuting such action. But it must be brought within six months after the rendition of the judgment in the probate court." [R. S. § 6435.] "° § 1727. Entry of distribution where there are no conflicting claims. If there are conflicting claims, then the Probate Court has no right to adjudicate upon such rights, but an action thereon must be brought in the Court of Common Pleas.^^^ Jjy&d. though proceedings in error are pending, the Probate Judge is not entitled to keep the fund, but must turn it over to the persons entitled thereto. ^^- The entry therefor may be in the following form : OEDER OF DISTRIBUTION. {Title.) This proceeding came on this day to be heard upon the application of for distribution on deposit of $ made by the 139 C. P. & V. Ry. vs. Blank, 5 error has been commenced. 48 Bull. Dec. 569. 943. See §§ 1(567, 17S3. The undertaking in such a case 1*0 § 11061 G. C. being held, to answer that purpose. "i§§ 11072, 11073, 11074, 11075 However, if the corporation takes G. C, §§ 1728, 1720, 1730. possession the deposit must be made. 142 Meily vs. Zurmehly, 23 0. S. If the case is dismissed on motion 627; Wagner vs. Railway Co., 38 0. of defendant, because there is no S. 36. showing made of inability to agree, Tl:e corporation cannot be held to the defendant is not entitled to abandon its proceeding even if no costs. Devon vs. Ry., 4 0. L. R. deposit be made, if a proceeding in 319; 17 Dec. 134. 1507 ORDER OF DISTRIBUTION § 1728 plaintiff, and the Court being fully advised in the premises, find that there is due to and upon their mortgage described in their answer and cross-petiton, including interest thereon at five per cent, per annum from , 190 . . , to , 190 . . , the date of the entry hereof, the sum of $ , which is the first and best lien upon said premises and said fund, after paying the assessment to the city of , and the Court further finds that there is due to the city of , for the unpaid assessment on all the premises fronting on street, the sum of $ , which is the first and best lien upon said premises and said fund, and the Court find that the residue of said fund, viz: $ , belongs to the de- fendant, It is therefore considered and ordered by the Court, that the clerk of this Court pay out of said fund of $ , 1st. To the city of , or its solicitors, the sum of $ 2d. To the defendants, and , upon tlieir can- celling the mortgage held by them, the sum of $ , and 3d. To , or his attorneys of record therein, the residue of said fund, viz: $ i*3 S 1728. When Probate Court cannot order distribution. For some legislative reason which is not very apparent to the writer, the Probate Court cannot order a distribution of a fund when there are diverse or conflicting claims, legal or equitable to the real estate appropriated, or any interest therein. It seems that the Probate Court might as well, having all the par- ties before it, be authorized to adjust the equities existing be- tween them, and make such distribution as the law and equity of the case might require. The action brought in the Court of Common Pleas, when neither is in possession, is one of an equitable nature, and the parties are not entitled to a jury trial. If the issue is one triable by jury, it must be so tried."* The three following sections provide for such actions in the Court of Common Pleas : When there are diverse or conflicting claims, legal or equitable, to the real estate, or any interest therein, sought to be appro- priated under the provisions of this chapter, the jury or court shall not pass upon them in the proceedings for appropriation. Such claims shall be reserved for adjudication as hereinafter provided. [R. S. §G442.]"= 143 Whittakcr's Prob. Code. into consideration tlic rcasonablo Sec § 1774. value of the property condemned, m Skerrett vs. Presb. Soc, 41 0. And tlie decision of tlie Probufo S. COG. Court will not be distiirbcil unless it See § 11075 G. C appears to b(( an abuse of discretion i'»'> § 11072 G. C. Of clearly against tlio weiglit of the For tlie purpose of proving value evidence. Wiler vs. C.as Co., C. C. of attorney fees tlie Court may take (X.S.) 20G; 27 0. C. C. 257. § 1729 APJ'ROPRIATION BY PRIVATE CORPORATION 1508 § 1729. Conflicting claims adjudicated in Common Pleas. Petition therefor. Disposition of fund. "Upon the payment of the money into court by the corporation, a party claiming a legal or equitable interest in the property,, or the money arising therefrom by such appropriation, may file his petition in the common pleas court of the proper county, making the other claimants to the property or money parties thereto, setting forth the facts on which the claim is founded, the fact of the appro- priation of the property, the amount of money so paid in and such other facts as are required to enable the court to hear and determine the matter between the claimants," [R. S. § 6443.] ^*® § 1729a. Custody of the funds. "The court forthwith shall appoint some master, or otlier suitable person selected by the parties, to hold such fund, or invest it in the manner the court directs, after hearing the parties. Such fund thenceforth will represent the land, and the interests therein, and be subject to the control of the court having jurisdiction of the case, by orders entered in this action, according to the rights of the parties to the land or fund, as from time to time it determines." [R. S. § 6443.] i^*-'* §1730. Such proceeding a civil action. "Such proceeding in the court of common pleas, shall be a civil action; and the conflicting claims of parties to such fund shall be determined by the court, or by a jury trial, according as the claim is equitable or legal, as if the land had not been converted into money." [R. S. § 6444.] "^ § 1731. When unfinished roadbed of railway company may be condemned. The Legislature has authorized a railroad corporation to con- demn an unfinished road bed of any other railroad company, as provided in the three following sections : A railroad corporation of this state may condemn and appro- priate to its own use the interest and easement in and quiet title to any unfinished road-bed, or part thereof, lying within the state, and on the line of its proposed road, owned or claimed by another railroad company or companies, person or persons, partnership or corporation, when such road-bed, or part thereof has remained in an unfinished condition, and without having A remainderman's interest is not and 11074- G. C. do not apply to affected by life tenant's deed. Gor- ordinary appropriations by railroads. rill vs. Pvv., 2 C. D. 620 ; 4 0. C. C. Valley Ry^ Co. vs. Pouehot, 2 C. D. 398. ' 492; 4 0. C. C. 187; affirmed 51 0. 146 § 11073 G. €. S. 571. 140* §11074 G. C. §11071 G. C. does not give a i4r§ 11075 G. C. jnrv trial. Skerrett vs. Presbyte- It has been held that §§ 11073 riaii Soc, 41 O. S. 630. 1509 CONSTRUCTION OF TERMS § 1731a the ties and iron placed and continued thereon for the period of five years or more, immediately preceding the commencement of proceedings to condemn or appropriate it as herein authorized. Every such company, or companies, person or pei-sons, partner- ship or corporation shall be made a party defendant to such proceedings to condemn or appropriate it, and be required to answer therein, setting forth fully its or their title to or interest in such road-bed, or part thereof, so sought to be appropriated, if any, it or they claim, to which answer the plaintiff must plead issuably, unless it admits the validity of the defendant's claim. In such case, if a party defendant be a non-resident of this state, or a foreign corporation, service of summons may be made by publication, as in other proceedings to appropriate the property of foreign corporations, or persons not residing in Ohio. [R. S. § 6445.] "« § 1731a. Construction of terms. ''The terms 'company or companies' used in this chapter, also embrace 'person or persons,' 'partnership or corporation' as used in the next preceding section." [R. S. §6445.] "«* § 1732. Judgment and costs in such case. When jury to determine amount of compensation. "When it is determined by the court, upon issue of law, or by the jury upon issue of fact, or by the admission of the pleadings, or by reason of failure to plead that any company asserting such ownership or claim is not entitled thereto, judgment, including costs, must be rendered accordingly. But when in like manner it is determined that such a company has an interest in such road-bed, or part thereof, so sought to be appropriated, the jury shall determine and state the amount of compensation due to such company, according to law, on account of the appropriation of such interest. [R. S. § 6446.] ^*9 § 1733. In what Courts such proceedings may be commenced and how conducted. Case may be taken out of its order. Pro- ceedings in error. Provisions as to viewers not to apply. Sworn statement of president of intention to complete road. 25 per cent, of cost of completion to be expended within a year. Words "road-bed" include what. "Such proceedings may be commenced in the probate court, the common pleas or the superior court of any county in which such road-bed, or part so sought to be appropriated or condemned i:^ situated. All or part only of such road-bed within this state may be included in one proceeding, and when it is begun in the common pleas or superior court, the same proceedings shall be had as are pre- scribed in this chapter for its conduct in the pubate court, so 14S § i]07r, n. c. i4»nin7ft o. c. 148* § 11077 G. C. § 1733a APPROPRLITION BY PRIVATE CORPORATION 1510 far as applicable and not excepted in this section. On motion, the case shall be taken out of its order by the court or by a reviewing court, and determined without unnecessary delay. The provisions of this chapter as to viewers shall not apply to appropriations of road-beds as herein authorized. |R. S. § 6447.] ^^'^ § 1733a. Error. "Proceedings in error to such common pleas or superior courts, may be commenced directly in the supreme court. " [R. S. § 6447.]'^°* § 1733b, Statement of intention. "When a railroad cor- poration commences proceedings under section eleven thousand and seventy-six, its president shall make, subscribe and file in the court where such proceeding is had a statement under oath, declaring that it is the bona fide intentian of such corporation to complete and operate a railroad on the road-bed so sought to be appropriated." [R. S. § 6447.] i''«** § 1733c. Failure to occupy roadbed for one year. "For a period of one year after it acquired right to occupy the road- bed, if such corporation fails to expend in and about the com- pletion of a railroad thereon a sum equal to twenty-five per cent, of the total cost of completing it, to be estimated by the railroad commission of Ohio, then such road-bed will be open to appropriation and condemnation by any other railroad cor- poration." [R. S. § 6447.]i=n § 1733d. Interpretation of word "road-bed." "The word 'road-bed' used in any of the preceding sections includes rights of way, depot grounds, and other easements connected there- with, and it will .be sufficient in the petition and proceedings under this chapter to designate the road-bed as the road-bed of the railroad corporation by which the route of the road was located and established with the terminal points within which appropriation is sought." [R. S. § 6447.]^^°$ § 1734, When land owner may compel appropriation. Wliere a corporation has taken 'the property of another with- out rendering compensation therefor, provided the property be taken for a use coming within the power of eminent domain, the o\\'ner may compel the corporation to pay for the same by proceedings to condemn the property already appropriated. If IS? J 11079 G.^C. Right of action under the statute 150* § 11080 G. C. ' does not begin or arise until a per- i5o*» § 11081 G. C. .son is entitled to right of possession, isof § 11082 G. C. and where the hind is held by a life 150 J § 11083 G. C. tenant, the right of the remainder- 1^^^ WHEN LAND OWNER MAY BRING § 1735 the corporation has taken property which it has no right to con- demn, llien the owner might recover his property by an action in ejectment. He might also permit the corporation to keep the properly and bring an action for damages. The provisions of our statute relating to the action brought by the land owner to condemn the land appropriated will be discussed in the fol- lowing sections : § 1735. When land owners or school officers may notify cor- poration to institute proceedings; petition on failure of cor- poration to act. "When a corporation, authorized by law to make appropriation of private property or lands reserved for school purposes, has taken possession of and is occupying or using the land of any person, or such school lands for any pur- pose, and the land so occupied or used has not been appropriated and paid for by the corporation, or is not held by an agree- ment in writing Avith the owner thereof, or the trustees or school officers .having possession or control of such school lands, such owner or owners, or either of them, or such trustees or school officers, may serve written notice upon the corporation in the manner provided for the service of summons against a corpor- ation, to proceed under this chapter to appropriate the lands. On the failure of such corporation for ten days so to proceed, the owner or owners, or such trustees or school officers may file a petition m the probate court of the proper county setting forth the fact of such use or occupation by the corporation, that the corporation has no right, legal or equitable, thereto, and in cases of reserved sections sixteen and twenty-nine, or any part of sec- tions granted by congress instead of section sixteen for school purposes, no right, legal or equitable, derived from the trustees and officers named therein, that such notice has been duly served, that the time of limitation under the notice has elapsed, and such other facts, including a pertinent description of the land so used or occupied, as are proper to a full understanding of the case." [R. S. §6448.] ^•"■^ § 1735a. Demand of written statement describing the land occupied without appropriation. "Such owner or owners, or such trustees or seliool officers, intending to institute such pro- ceeding, may demand, in writing, from the president or cliief officer of such corporation a specific description of each parcel of land so used or occupied without appropriation hy it, of the work, if any, constructed or intended to })e constructed thereon, man dnos not begin until the doatli I'l § 11084 O. C. of the life tenant. Webster vs. R. R., 78 O. S. 87. § 1376 APPROPRIATION BY PRIVATE CORPORATION 1512 and the luse to which it is to be applied. Upon failure of the corporation for ten days to furnish this as fully as would be required of it in a proceeding to appropriate lands, the fact of such demand and failure may be alleged in the petition in such proceeding. On notice to the corporation and proof thereof to the probate judge having jurisdiction of such appropriation, he shall restrain it from the use and occupation of the land until such demand is complied with. Or, such owner or owners, or trustees or school officers may cause the necessary surveys to be made therefor, and the costs thereof must be taxed to the cor- poration in such proceeding." [R. S. § 6448.] ^^^* § 1736. Who may bring action. The action might be brought by any person who has an in- terest in the real estate ^^^ — that is, any person who should rightfully be made a party defendant where the action is brought by a corporation — it seems ought to be a party that would have a right to bring the action. There might be some question whether a party who is not entitled to possession could bring the action. It has been held that only the owner of the legal title could maintain such an action.^^^ If an owner sells his land after the road has wrongfully taken the property, his grantee is the person who is entitled to bring the action.^^* § 1737. When and where action brought. The action should be brought in the same Court, in which, if the corporation were condemning the land, it would be required to bring its action.^^^ The action can only be brought when several facts exist.^^® Such an action is not barred in less than twenty-one years from the time of the company's occupation.^^' But if an action was brought for wrrongful possession, it would be barred in six years.^^^ A person merely standing by and i8i» 11085 G. C. 157 Fries vs. Railway Co., 56 O. 152 Railroad vs. CyHara, 48 0. S. S. 135. 355. 158 Id. 153 Rapp vs. 0. S. Ry. Co., 5 N. Railroad Co. vs. O'Harra, 48 0. S. P. 407; 5 Dec. 453. 343. 154 C. P. & V. R. R. Co. vs. Davis, A railroad company cannot bring 19 C. C. 589; 10 C. D. 745. proceedings under this section, nor 155 Previous section, § 1680. can any action be brought against 156 See §11084 G. C. it, unless the occupation is under See subsequent section, § 1740, Es- an agreement in writing. Collins sentials of petition. vs. Shipbuilding Co.. 7 C. C. (N.S.) 350; 27 0. C. C. 802. 1513 NOTICE TO CORPORATION § 1738 seeing the occupation of tlie land by a corporation will not estop him from compelling an appropriation.^^'' § 1738. Notice to corporation. Before the owner can maintain his action against the corpo- ration he must notify the corporation to proceed to appropri- ate. This notice should be served in the same manner as a summons, and it must have been served at least ten days before the owner can bring the action. This notice ought to describe the property that has been appropriated, and may be in the following form: To Corporation, You have taken possession of and are now occupying and using the following land owned by me (here describe) without having appropriated or paid for the same and without any agreement in writing with me therefor. You are hereby notified to proceed to appropriate said lands as provided for in §§ 11038 to 11091 General Code. § 1739. Demand of description of property. Before the owner institutes a proceeding as provided for, such owner has a right to demand of the president or chief offi- cer of the corporation, a specific description of each parcel of land so used or occupied, and, if occupied without a work con- structed thereon, shall have a right to demand the kind of work that will be put thereon and the use to which the same shall be applied. This application must be made at least ten days be- fore the filing of the petition. It is probable that this appli- cation for description could not be made until the expiration of the ten days mentioned in the previous section. Such applica- tion may be in the following form : To Corporation. The undersigned hereby makes application to you to furnish him with a specific description of the property now occupied by you. situate (here describe in a definite manner) and used by you for the following purpose (hero set forth). (If said property is not in use, the following should be used.) You will also give to me a description of the work that will be placed thereon and the use to which the same will be applied, as provided for in 159 Railroad vs. Perkins, 22 C. C. Stat« vs. Harrison, 11 C. C. (N.S.) ^g 503; 81 O. S. 105. Owner standing by is not estopped. Owner lias lien superior to niort- Pitt. &) VV. Ry. vs. Perkins, 12 C. D. gage given by railway where rail- 676- 22 C. C. 031; alTirnied 49 way seiws land. Hatry vs. Ry., 1 R 326 <^'- !>• 238; 1 O. C. (". 420. Procee'^dings under this section is Wliere owner dies right descenda not to recover the value of tlie land. to him. Lawrence vs. O Hara, 60 0. S. 667. § 1740 APPKOPEIATION BY PRIVATE COKPOKATION 1514 § 6448 of the Revised Statutes. Said description, etc., to be furnished with- in ten days. If not so furnished, the undersigned will make application to restrain said corporation from the use of land as provided in § 6448 of the Revised Statutes. § 1740. Essentials of petition. The petition ought to set forth the facts required by the stat- ute/^° and ought to contain the following matters: First, that the person bringing the action is the owner of the land appropriated.^®^ Second, it should contain a description of the property in the same manner as if the corporation was seeking to condemn. Third, it must allege that the corporation has taken posses- sion of and is occupying or using said land. Fourth, the same has not been appropriated or paid for by said corporation. Fifth, that it is not held under any agreement in writing with the owner.^*^^ Sixth, tliat a written notice was served on the defendant, notifying it to proceed under the statute to appropriate said lands. Seventh, that more than ten days have elapsed since the ser- vice of said notice, and that said corporation has failed to pro- ceed. Eighth, that said corporation has no right, legal or equitable, to said lands."^ Ninth, that said corporation is authorized to make appropria- tion of private property. Tenth, that the property appropriated is used for a public purpose. Eleventh, petition should be verified."* § 1741. Form of petition. {Title.) Plaintiff says that he is the owner of the following described real estate (here describe as contained in description furnished by the corporation). 160 See previous section, § 1686. i63 /n re George, 5 C. C. 207; 3 C. 161 Railroad vs. O'Hara, 48 O. S. D. 104. 355. 164 See § 1751. 162 Railroad vs. Perkins, 22 C. C. 636. 1515 PETITION § 1742 That said defendant has taken possession of and is occupying and using said land above described. That the same has not been appropriated or paid for by said corporation, nor is the same held by any agreement in writing with plaintilf. Plaintiff further says that on the day of , he caused a written notice to be served on defendant, notifying it to proceed under the statute, to appropriate said land as required by law. A copy of said notice, showing the manrter of service, is hereto attached, and made part hereof; that more than ten days have elapsed since the service of said notice and said defendant has failed to proceed, as required thereby. (If the defendant refuses to give a description of the land, the plaintiff might state such fact and that ten days have elapsed since such demand was made, and might also state the fact, that plaintiff had the same sur- veyed as provided by law. A better way, however, where the defendant refused to give, such description is to have tlie defendant enjoined from using said land.) ics Plaintiff further says that said corporation has no right, legal or equitable, to said land and that said corporation is authorized to make appropriation for private property, and that said property is appropriated by said corporation for a public purpose. Wherefore plaintiff prays that such proceedings may be taken, as author- ized by law, to appropriate said land to the use of said corporation and compensate the plaintiff therefor as provided by law. (If the corporation has refused to give a description of the land the following should be followed.) And that said corporation may be by order of Court, restrained from the use or occupation of said land until plaintiff's demand for a description thereof be complied with. (Petition should also be verified.) § 1742. Summons in such case. "A summons shall issue and be served upon the corporation, and thereafter the proceedings in such court be conducted to final judgment as provided in this chapter. [R. S. §6449.]i«« § 1742a. Judgment and execution. "If the corporation fails to pay the judgment and costs awarded against it in the proceeding, they may be collected by execution as in other cases. This section and the next preceding section shall not impair or lessen the right the owner or o\^^lers or the trustees or school officers may have to proceed against the corporation as in other cases of the unlawful entry upon lands." [R. S. § 6449.] ^<"'* § 1743. Procedure, etc. The above section specifically provides that procedure shall be the same as where the corporation is plaintiff and seeks to appropriate the property. A question lins Ix-cn mode, wlietlier 18') §§ 11084-5 G. C. Judgment is a lien. Stewart vs. 186 § 1108G G. C. Ry-, 53 0. S. 172. ICC* § n087 G. C. § 1744 APPROPRIATION BY PRIVATE CORPORATION 1516 npou the preliminary bearing, the Court must find, before a jury can be empanelled, upon all the questions set forth in the petition. The Supreme Court, however, has decided that only the same preliminary questions need be passed on as is required where the corporation brings the suit. " The other issues set forth are triable by jury.^^^ If no demand be made for a jury, the Court might hear all tlie questions.^®^ § 1744. When corporation may be enjoined from occupying the land. "If execution issued as provided in the next pre- ceding section be returned unsatisfied, in whole or part, with the indorsement that no goods, chattels, lands or tenements, can be found whereon to levy, or if the judgment remains unsatisfied for more than sixty days from its rendition, the court, by injunc- tion, may restrain the corporation from using or occupying the lands until the judgment and costs are paid." [R. S. § 6450.] ^^ § 1745. Motion for injunction, etc. If an execution' is issued and no goods can be found upon which to levy, or if the judgment remains unsatisfied for more than sixty days, the Court may by injunction restrain the cor- poration from using the property. Whenever a person brings himself within the protection of the statute, he is entitled to an injunction.^^° The following may be used as a form of motion under the preceding section : (Title.) Now comes the plaintifT and moves the Court for an injunction, restrain- ing -the defendant from occupying the lands appropriated in this case for the following reasons: (Here state either that an execution has been issued and returned unsatisfied and indorsed, " No goods or chattels, lands or tenements can be found whereon to levy, or more than sixty days have elapsed since the judgment was rendered herein, and no part thereof has been paid.) The following may be used as an entrj granting the same : ( Title. ) On motion of the plaintiff, and it appearing that (here state the facts 167 Kramer vs. Ey. Co., 53 O. S. "Ry. vs. Perkins, 22 C. C. 630; 49 436. O. S. 326. 168 Railroad Co. vs. O'Harra, 48 0. les § 11088 G. C. S. 343. The court may enjoin although The value of the land is to be de- proceedings in error have been termined at the time the proceed- commenced, hi re George, 5 C. C. ings are brought, notwithstanding 207; 3 C. D. 104. the fact that the railroad has been I'O Varwig vs. Railroad Co., 54 O. a trespasser for fifteen years, etc. 1517 TENDER § 1746 relied upon as stated in the motion) ; it is ordered that the defendant be, and it is hereby restrained from using or occupying the land appropriated in this proceeding for any purpose, or in any manner until the judgment and costs herein, amounting to dollars, be fully paid.i^i § 1746. Tender made by corporation. If at the time the corporation files its petition it makes a tender of a certain amount, and no more is recovered, then the Court may apportion the costs, as provided in the following section : "A corporation, by its proper officer, agent, or attorney, at the time of filing the petition with the probate judge, may deposit with him such sura of money, for each separate parcel of property as it deems a just compensation for the property, rights, and interests described in the petition, and sought to be appropriated. If the final verdict of the jury as to any parcel of property does not exceed the amount so deposited, and the owner has refused, after notice of such deposit, to accept it, the whole costs of the proceeding as to such parcel shall be eciually di\aded between the corporation and the owner or o^^•ners of the property. Wh^n the final verdict as to any parcel or parcels exceeds, and as to other parcel or parcels does not exceed, the amount deposited, the probate judge shall apportion the costs in such manner as he deems just." [R. S. § 6452.] ''- S. 455; Toledo Bending Co. vs. Rail- null and void. In re George, 5 C. C. way Co., 2 N. P. 317; 3 Dec. 430; 219; 3 C. D. 104. Root vs. Railroad Co., 7 N. P. 337; ^'- § HOOO G. C. 5 Dec 315. § ^^^^^ ^- ^- ^'^^^^^^ entirely to iTiA copy of this journal entry the fees of witnesses, officers and should be served by a corporation in probate judge and the same is not the same manner as a summons. herein inserted. The fact that the case is taken up See Hill v. Durr. -17 I'.uH. 440, on error would probably not prevent where it is held that the jury fee is the granting of an injunction. not taxable against the corporation The same rule being applied as in but is paid by the county like other a proceeding brought by a corpora- cases. This seems not to be the law. tion to appropriate the property, See Cin., M. & L. Traction Co vs. therefore the filing of a bond for Felix, 5 C. C. (N.P.) 270. 25 O. C. C. proceedings in error would be no de- 304 ; Detroit Southern Ry. vs. Law- fense against the injunction. rence Co., 71 0. S. 454; Hc^«brook A writ of injunction issued before vs. Traction Co., 5 C. C. (N.S.) 209, sixty days had expired would be 27 0. C. C. 42. § 1747 APPROPRIATION B\ PRIVATE CORPORATION 1518 § 1747. School lands, how appropriated. ' ' When a railroad company, incorporated in this state, has located its railroad through a part of reserved section twenty-nine or sixteen, or through a part of sections granted by congress instead of section sixteen for school purposes, and such lands remain unsold, or through a town lot or parcels of ground used for or devoted to school purposes, it may appropriate so much of such land or lots as is necessary for its purposes. Service of the summons made on such trustees or school officers, as have possession or control of the lands, shall have the same force and effect as sendee in other cases on owners of land sought to be appro- priated. The money arising from such appropriation must be disposed of by such trustees or school officers in accordance with law." [R. S. § 6439.] ^" 173 §11067 G. C. bank of canal. State vs. Ry., 37 Board of Public Works cannot 0. S. 171. grant right to lay track along berme 1519 CONDEMNATION BY MUNICIPAL CORPORATION § 1748 CHAPTER XCV. CONDEMNATION BY MUNICIPAL CORPORATION. § 1748 Introductory. § 1767a § 1740 When action can be brought. § 1750 Application to Court, etc. § 17G7b § 1751 Essentials of application. § 1752 Form of petition or appli- § 1768 cation. § 1770 § 1753 Filing of application or § 1771 petition. § 1754 Service of notice to owners § 1772 of property, etc. § 1755 Notice, etc. § 1773 § 1756 When to be heard. § 1757 Jurisdictional questions, pre- § 1773a liminary hearing. § 1758 Court to fix time for assess- § 1774 ment of compensation by jury. § 1775 § 1759 Entry finding on prelimi- nary questions and order- § 1776 ing jury. § 1760 How jurors drawn in Pro- bate Court. § 1777 § 1761 Empaneling jury, etc. § 1762 View of premises may be § 1778 required. § 1763 How jury to return assess- § 1779 ment. Open and close of case, etc. § 1763a Guardian md litem. § 1780 § 1763b Deposit of money. § 1763c How assessment signed. § 1781 § 1763d When appropriation includes part of building. § 1782 § 1764 Trial, etc. § 1765 Verdict in -whole or in part. § 1766 Form and return of verdict. § 1783 § 1767 Orders as to payment or deposit of assessment. Effect of payment or de- posit. Re-appropriation to perfect title. Distribution of funds. Costs, how paid. No delay from doubt of ownersliip. Interested parties may give bond, etc. Review of proceedings by motion. Appeal to court of Common Pleas. Motion and proceedings on new trial. Entry confirming verdict, etc. Proceedings in error. How execution of order sus- pended. Appeal to Court of Common Pleas. Notice of intention to ap- peal. Appeal by guardian, execu- tor, etc., and married woman. Probate Court shall furnish transcript. Original papers may be used. Corporation not to appeal; or prosecute error except on leave. EITcct of failure to pay for or take possession of land within six months. § 1748. Introductory. The Legislature has provided, by diilerent sections of the General Code for the condemnation of property by munic- ipal corporations than is provided for private corporations. The rca.son for tliese different provisions is not very apparent. Especially is this ti-uc in that part of the proceedings which occurs after the empanelling of a jury. There is certainly no reason why the Probate Court should have exclusive original § 1749 APPROPRIATION BY MUNICIPAL CORPORATION 1520 jurisdiction where the action is brought by a private corpora- tion, and but concurrent jurisdiction when brought by a mu- nicipal corporation, and why a municipal corporation should have the right to appeal and a private corporation should not. The main issues to be tried and the constitutional provisions re- lating thereto are the same in both instances, although the pro- cedure is somewhat different.^ § 1749. When action can be brought. The action can only be brought by a mmiicipal corporation when authorized so to do by the Legislature, and in this respect, like in appropriation by private corporations, the law must be strictly complied with. The first three sections of the new municipal code provide when and how the corporation must proceed before its petition can be filed in Court. These sec- tions are as follows : Special powers. ' ' Municipal corporations shall have special power to appropriate, enter upon and hold real estate within their corporate limits. Such power shall be exercised for the purposes, and in the manner provided in this chapter. "1. For opening, widening, straightening, changing the grade of, and extending streets, and all other public places, and for this purpose the corporation may appropriate the right of way across railway tracks and lands held by railway companies, where such appropriation mil not unnecessarily interfere ^rith the reasonable use of the property so crossed by such improve- ment, and for obtaining material for the improvement of streets and other public places; * ' 2. For parks, park entrances, boulevards, market places, and children 's playgrounds ; ^'3. For public halls and offices, and for all buildings and stnictures required for the use of any department; "4. For prisons, workhouses, houses of refuge and correction, and farm schools ; 1 See § 1664, Constitutional provi- projiriate land of a railroad for sions. street purposes. Railway vs. Alo- §1665, Who may exercise power. rose, 13 Dec. 411; affirmed, 25 O. C. § 1672, Benefits. C. 739 ; Cleveland Terminal & Ry. § 1673, Evidence. Co. vs. City of Akron, 6 X. P. (N.S.) § 1674 et seq., Condemnation by 81, 18 Low. Div. 231; 74 0. S. 457; private corporations. affirming, without report, 1 C. C. See §§ 1675, 1811. (KS.) 174; 4 C. C. (N.S.) 632; 16 A municipal corporation may ap- Cir. D. 525. 1521 FOR WHAT MAY § 1749 "5. For hospitals, pesthouses, reformatories, crematories and cemeteries ; "6. For levees, wharves and landings; \7o' S°^ bridges, aqueducts, viaducts and approaches thereto; 8. t or libraries, university sites and grounds therefor ; ''9. For constructing, opening, excavating, improving or ex- tending any canal, or water course, located in whole or in part withm the limits of the corporation or adjacent and contiguous thereto, and which is not owned in whole or in part by the state, or by a company or individual authorized by law to make such improvements; ''10. For sewers, drains, ditches, public urinals, bath-houses, water-closets and sewage and garbage disposal plants and farms ; "11. For natural and artificial gas, electric lighting, heat- ing and power plants, and for supplying the product thereof ; * ' 12. For establishing esplanades, boulevards, park ways, park grounds, and public reservations in, around and leading to public buildings, and for the purpose of reselling such land with reservations in the deeds of such resale as to the future use of such lands, so as to protect public buildings and their environs, and to preserve the view, appearance, light, air and usefulness of public grounds occupied by public buildings and esplanades and parkways leading thereto ;- "13. For providing for a supply of water for itself and its inhabitants by the construction of wells, pumps, cisterns, aque- ducts, water pipes, dams, reservoirs, reservoir sites and water works, and for the protection thereof; and to provide for a supply of water for itself and its inhabitants, any municipal corporation may appropriate property within or without the limits of the corporation ; and for this purpose any such munici- pal corporation may appropriate in the manner provided in this chapter, any property or right or interest therein, thereto- fore acquired by any private corporation for any purpose by appropriation proceedings or otlierwise. Either party to such appropriation proceedings .shall have the same right to a change of venue as is now given by law in the trial of civil actions ; "14. For the construction or operation of street, interurban, suburban or other railways or terminals and the necessary tracks, way stations, depots, terminals, workshops, conduits, elevated structures, subways, tunnels, offices, side-tracks, turnouts, ma- chine shops, bridges and other appurtenances for the trans- portation of persons, packages, express matter, freiglit and other matter, in, from, into or through the municipal corporation ; and for such purpose or purposes any municipal corporation may appropriate any property within or without its corporate limits; any municipal corporation may appropriate any property 2 § 10, § 3677 G. C. § 1749 APPROPRIATION BY MUNICIPAL CORPORATION 1522 or rjght or interest therein theretofore acquired by any private or public utility corporation for any purpose by appropriate proceedings, as well as the right to cross on, over or under any street, avenue, alley, way or public place or part thereof of any other municipality, township or country [county]." [103 v. 496.] May appropriate outside of corporate limits. Cemetery, etc. In the appropriation of property for any of the purposes named in the preceeding section, the corporation may, wdien reason- ably necessary, acquire property outside the limits of the cor- poration. No land shall be purchased for public cemeteries within two hundred j^ards of a dwelling house without the con- sent, in writing, of the owner of the tract of land on which such dwelling house is situated. But any municipal corporation shall have the right to appropriate land for the establishment of a cemetery or the enlargement of any existing cemetery, within two hundred j^ards of any dwelling house, when such consent in writing can not be obtained, by making the owner of such dwelling house a party to all proceedings and actions for such appropriation ; such appropriation shall be made in all respects according to the provisions of the chapter, and the amount of damages to which such owner will be entitled by reason of locating said cemetery within two hundred j^ards of such dwelling shall be determined by such appropriation pro- ceedings. In such appropriation proceedings the damage to the remainder of the land of such owner shall be determined and included in the amount of damages, provided how^ever, that for the purpose of making a necessary enlargement of an ex- isting cemetery, any municipal corporation which shall own, or shall acquire by purchase, any lands suitable for such en- largement, may devote and use the same for cemetery purposes as such enlargement of such existing cemetery, if the said land shall be distant from any dwelling house not less than one hundred feet or the width of an existing street or alley inter- vening. The addition of any land across a street or public road, as now located or which shall be hereafter established, shall not be considered an enlargement of an existing cemetery un- der the provisions of this section. [103 v. 550.]^ Resolution declaring intention to appropriate. ""WTien it is deemed necessary to appropriate property, council shall pass a resolution, declaring such intent, defining the purpose of the 3 § 11, § 3678 G. C. 7 0. C. C. 298; affirmed, 5Q O. S. These sections are the sole provi- 726. sions for appropriation of private Includes all incidental purposes, property by municipal corporations. Want vs. Bridge, 6 O. S. 15. Pitts., C., C. & St. L. B.J. vs. Green- As to cemeteries, see ]\Ioslock vs. ville, 69 0. 'S. 492. Hostman, 12 C. D. 778; 10 0. C. C. ]\Iust be strictly construed. T. & 509: Cleveland vs. Poynter, 6 N. P. • O. Cen. Ey. vs. Fostoria, 4 C. D. 602; (X.S.) 129: IS Dec. 815; Mansfield vs. Ballest, 65 O. S. 460. 1523 ESSENTIALS OP APPLICATION §1749 appropriation, setting forth a pertinent description of the land, and the estate or interest therein desired to be appropriated. For water works purposes and for the purpose cf creating reservoirs to provide for a suppiy of water, the council may- appropriate such property as it may determine to be necessary." [99 V. 208, §12.]* Proceedings on passage of resolution. "Immediately upon the passage of such resolution, declaring such intent, for which but one reading shall be necessary, the mayor shall cause written notice thereof to be given to the owner, person in possession thereof, or having an interest of record in, every piece of property sought to be appropriated, or to his authorized agent, and such notice shall be served by a person designated for the purpose, and return made in the manner provided by law for the service and return of summons in civil actions. If such owner, person, or his agent can not be found, notice shall be given by publica- tion once a week for three consecutive weeks in a newspaper of general circulation in the corporation, and council may there- upon pass an ordinance by the votes of two-thirds of all members elected thereto, directing such appropriation to proceed." [99 v. 208, §12.]* The council of such municipality has not power, by an ordi- nance passed while the condemnation suit is being tried, to change the terms of its resolution and of its application so as to ask to appropriate more or less than is therein demanded.** 4 § 12, § 3679 G. C. §§ 1807-1809 G. C, Benevolent in- * § SG80 G. C. stitutions. The municipal corporation previ- § 2446 G. C., County commission- ous to the filing of its application «rs. in the court must have strictly §§3441, 3455 G. C, Townsliii) followed the above provisions. In trustees. § 3679 G. C. above, it is provided See §§ 1680, 1683, 1665, 1666, that notice shall be given to the 1668. owners of the property sought to be 4* Grant vs. Hyde Park, 47 Bull. appropriated. By §2235 it is pro- 831; Joyce vs. Barron, 48 Bull. 114. vided that owners must file a claim Whether there must be a certifi- in writing with the clerk of the cate of the clerk of the nuinic'ipal corporation setting forth tlic amount corporation filed showing tliat there of damages claimed and the courts are unappropriated fujids, etc., is a have held that if the owner fails so question upon which the courts arc to do, he waives his right. By. Co. not in accord. vs. Defiance, 52 0. S. 262. Tlie matter has never, in written Another matter that is to be ob- opinion, been decided by the Su- served is, that the ordinance must preme Court, and tlio last Circuit pass the council bv a two-thirds vote Court decision is t'.iat such certifi- of all the members elected thereto cate must be filed or the proceedings not merely two-thirds of the votes will be enjoined. Hurst vs. Bello of those present. Valley, 30 0. C. C. 563. See § 1651—2 B. S., Boards of education (§7624 G. C). § 1750 APPROPRIATION BY MUNICIPAL CORPORATION 1524 § 1750. Application to Court, etc. ' ' Upon the passage of such ordinance, the solicitor shall make application to the court of common pleas or to a judge in vacation, to the probate court. or to the insolvency court, in the county in which the land sought to be taken is located, which application shall describe as correctly as possible the land to be appropriated, the interest or estate therein to be taken, the object proposed, and the name of the owner of each lot or parcel thereof." [98 v. 164, § 13.]^ § 1751. Essentials of application. Whenever, as provided for in the previous section, the mu- nicipal corporation has in a proper manner passed a resolution to appropriate the property, then an application can be filed in the court for that purpose. For all general purposes this application might as well be called a petition, the proceedings, however, being a special proceeding and not a civil action. The first essential, or allegation, of the application should be that the plaintiff is a corporation duly organized under the laws of Ohio; second, that by the laws of Ohio it has power to ap- propriate property for the purpose alleged in the petition; third, that an ordinance has been passed by the council, etc., in the manner provided by law, to appropriate the premises in the petition described; fourth, an accurate description of the prop- erty; fifth, the purpose for which the property sought to be appropriated is to be used ; sixth, the name of the owner of each lot or parcel of property to be taken ; and while the law does not so state, it ought to be verified as pleadings usually are.'' However, the case of Pansing vs. thereafter that court has exclusive Miamisburg (mills), 31 0. C. C. 130, original jurisdiction to determine all which was decided the same year as questions in the case. Cleveland the above and was affirmed by the Terminal & Ey. Co. vs. Akron, 25 Supreme Court without opinion, 79 0. C. C. 789; affirmed, 74 O. S. 457; O. S. 430, holds that the certificate 6 N. P. (X.S.) 81; 18 Low. D. 231; can not be required in advance of 74 0. S. 457; affirming, without any knowledge of the cost of the report, 1 C. C. (X.S.) 174; 4 C. C. property and that proceedings are (N.S.) 632; 16 Cir. D. 525. not invalid if such certificate is not See Coppock, Municipal Code, 322. on file at the time the appropriation There is no provision for filing proceedings are heard. answer but the court can permit 5 § 13, § 3681 G. C. , same. Cin., P. & V. Ry. vs. Hyde The above section is very much Park, 6 Dec. 327; 4 N. P. 296. similar to former § 2236 R. S., ex- A copy of the ordinance should cept that it gives jurisdiction to the be attached to the petition as an insolvency court. exhibit. Where the action has once been 6 See §§ 1686, 1740. As who should commenced in the probate court, be made parties defendant, see § 1687. 1525 FORM OF PETITION OR APPLICATION § 1752 § 1752. Form of petition or application. Court of County, Ohio. Application to Assess Compensation. Tlie City (or Village) of , Plaintiff. vs. (Insert as defendants the names of all persons owning, or claim- ing any interest in the property appropriated), defendant. PlaintiflF represents that it is (village, or city of the grade of the class) organized under the laws of Ohio, and that by virtue of the laws of Ohio it is authorized to appropriate property for the purpose of (here insert for what purpose property is to be appropriat- ed) and that the council of said city, by ordinance, a copy of which is hereto attached and marked "exhibit A," declared its intention to and did appropriate to public use for street purposes for opening (widening, straightening, etc., as the case may be) street, the following ^described property, to-wit: (Here describe as accurately as possible the entire piece of property ap- propriated.) The defendants own, or claim to own, or have some interest in or title to said property, as the same is divided into lots or parcels and delineated on the plat filed herewith and made part hereof. The description of said several lots or parcels, and the names of the parties who own, or claim to own, or have an interest in the same are as follows: (Here insert separate description of each piece of land taken, as the same may be divided by ownership or occupancy.) Lot No. 1. (Accurate description) belonging to or in which owns a leasehold estate for three years at a monthly rental of $50.00; owns a life estate by way of dower, as the widow of ; and owns the remainder therein after the expiration of the life estate of the said ; and in which claims an interest by way of mortgage (or any other interest that may exist). Lot No. 2. Etc., etc. Wherefore plaintilT asks the Court to cause a jury to be impaneled to make inquiry into and assess the compensation to be paid by the plaintiff for the property appropriated as above set forth, and that upon the pay- ment to the owners or deposit of the amount so assessed, as the Court shall order, possession of said property may be awarded it according to law. Solicitor of the city (or village) of County, Ohio. (Add verification.) The City (or Village) of 1 i PRECIPE. vs. f • et al. J To the Clerk: Issue notice to the defendants named in the above application, that the plaintiff will apply to the Honorable , Judge of the Court of county, on the day of 100.., at o'clock... M., for the impanelling of a jury to make inquiry into and assess the compensation to be paid by the city (or village) of to the owners, for the following properly, to-wit: (Insert description of the entire piece of property appropriated, aa first above set forth.) Solicitor of the city (or village) of § 1753 APPROPRIATION BY MUNICIPAL CORPORATION 1526 § 1753. Filing of application or petition. The procedure intended by the Legislature in the acts relat- ing to the appropriation of property by municipal corporations is not very clear, but it seems to the writer that the better practice to be followed would be that, when the petition is properly prepared, it be filed in the Probate Court, and then that notice be given of the time when said application will be for hearing. In this manner the application would be on file and the parties could inspect the same, so that when the time came to determine the question whether a jury should be im- paneled or not, all the preliminary questions could be properly made,'^ The practice of filing a precipe, as suggested in the above form ^ commends itself, and therefore when a petition is filed the following entry might be appropriate: ( Title. ) This day came the plaintiff and filed its application or petition for the appropriation of certain property therein described, naming the defendants as persons owning or having an interest in such property and filed therewith its precipe for a notice for A. B., C. D. and E. F. Wherefore it is ordered that a notice be issued directed to the sheriff of county to notify said A. B., C. D. and E. F. that on the day of , at o'clock. . .M. an order will be asked to empanel a jury to assess the compensation to be paid by the city of to the owner for the property in said petition described. Said notice to contain an accurate description of the entire piece of prop- erty to be appropriated. Said notice to be served at least five days before the time of said hearing; and it further appearing to the Court that G. H., one of the parties defendant, is a non-resident of the State, it is ordered that notice be given to said G. H. by publication as authorized by law, and that said application be set for hearing on the day of , for the purpose of empanelling a jury. (Notice must be published for three weeks next preceding the time of application.) § 1754. Service of notice to owners of property, etc. "No- tice of the time and place of such application shall be given in the ordinary manner of serving legal process, to all owners or agents of owners resident of the state, whose place of residence is kno-\M3, and to all others by publishing the substance of the application, with a statement of the time and place at which it is to be made, once a Aveek for three weeks next preceding the time of the application in some newspaper of general circulation in the county." [96 v. 28 § 14.]'' 7 For a landowner, it seems, must The above section is substituted take notice that such appropriation for former §2237 R. S. and is almost will take place from the time that identically the same. the ordinance passes the council. § 3682 G. C. Toledo vs. Bayer, 7 N. P. 324; 5 i^ Courts have power to decide Dec. 87. when service is complete and the 8 Taken from Coppock's iNlunicipal same can not be collaterally at- Code, 323. tacked. Cin., S. & C. Ry. vs. Belle 9 § 14, § 3682 G. C. Center, 48 0. S. 273. 1527 NOTICE — WHEN TO BE HEARD § 1755 § 1755. Notice, etc. Every person to be in any way affected by the proceeding should be notified in the manner provided by law. These notices should be served the same as ordinary summons." Where an owner is to be served by publication, it would be well to make an affidavit of the facts which would permit the service in that manner." It should be observed that this notice, whether actual or constructive, must contain the sub- stance of the application, with a statement of the time and place at which it is to be made. The following is a form of notice by publication which can be adopted for actual notice: NOTICE BY PUBLICATION. LEGAL NOTICE. A. B., who resides in , county of , Indiana, and all other persons interested in the propertj^ hereafter described, are hereby notified that an application in waiting substantially as herein set forth will be made by the city (or village) of to the Hon. , judge of the Probate Court of county, Ohio, on the day of , 190. ., at o'clock. . .M. to im- panel a jury to assess the compensation to be paid by said city (or village) to the owners of the following described real estate. (Describe entire strip, and lots into which it is divided, giving the names of the owners.) Said property having been condemned and appropriated to public use for the purpose (state the purpose of the appropriation) by a resolution (or ordinance) passed by the coimcil of said city (or village) on the day of , 190. ., and plaintiff asks that upon payment into Court or to the proper owners the defendants, of the amount of compensation equal to the sum so assessed as the value of the parcels of ground described in said application, the appropriation of said land may be allowed accord- ing to law and that the Court will divide the sum so paid or order its distribution among the several claimants in respect to their interests in the property. Solicitor for said city (or village.) 12 § 1756. When to be heard. The first hearing to be had in the action is the empanelling of the jury." It is further provided that if at the time of the application it appear that any of the owmers of the property sought to bo taJ^en are infants or insane, and they have no Where defendant dies during suit '- W'liit. Prob. <'(uh\ it is to be continued in name of It must ho. pulilislicd mm', a week heirs. Valley Ry. vs. Bohni, 29 O. S. for three weeks in a newspaper of g33 general circulation, etc. 10 See §1091; also §839. §1754. 11 § 1693. " § 308.^ G. C. § 1757 APPROPRIATION BY MUNICIPAL CORPORATION 1528 guardians, a guardian ad litem skall be appointed in their be- half/* Not only should a guardian ad litem be appointed, if it appear at the time of the application, but if it appear at any time, such appointment should be made. In no instance can the case be heard until five days have elapsed from the time that notice is given or when the application is completed. Some question may arise here, whether a case can be heard at the time publication is completed, when notice is given in that manner, or must five days intervene from the time that the pub- lication is completed. It seems that the trial could be had when the publication is completed without waiting five days.^' The Court would have power to make a continuance from time to time until all the parties have been properly served. § 1757. Jurisdictional questions, preliminary hearing. The statute does not provide in so many words that certain jurisdictional questions must be determined as is set fortli where an appropriation is made by a private corporation. That is, the legal existence of the corporation, its right to make the appropriation, and its inability to agree with the owner, and the necessity for the appropriation. One Court has held that all these questions are left with the. municipal corporation, and the Court has no power over theiru^^ In another case it was held that at least three jurisdictional facts must be heard and determined. First, that the Council has duly passed a resolution; second, tliat the appropriation will not necessarily interfere with the reasonable use of such right of way (where the same was held by a railroad company), and at least five days' notice of the time and place of the hear- ing of the application has been duly ser\'ed.^" And in another 1* § 16 New Code^ § 2243 former It seems the Probate Ciourt has IjO R. S. ' jurisdiction over theni. P., C. & C. 15 See § 15 Xew Code, § 1758. & St. L. vs. Greenville, 69 0. S. 487; § 845, As to appointment of guard- Railway vs. Youngstown, 5 C. C. Ian ad litem. (X.S.) 332; '26 C. C. 697. § 1694, Condemnation by private i7 T. «& 0. Cen. Ry. Co. vs. City corporations. of Fostoria, 7 C. C. 293 ; 4 C. D. 602. 10 Toledo vs. Bayer, 7 N. P. 324; 5 Dec. 87. 1529 ASSESSMENT OF COMPENSATION BY JURY § 1758 case it was held that the necessity was a question for the Pro- bate Court to determine/^ It is very doubtful whether the position taken in the case of Toledo vs. Bayer/'-* that the question as to necessity, and a right to appropriate and the existence of the corporation, are abso- lutely left in the discretion of the corporation. It seems that these matters are jurisdictional, and while it may not be re- quired that the court actually pass upon them before a jury is impaneled, yet they are questions which may be taken' ad- vantage of before the jury is impaneled, and in order to pre- vent a collateral attack, it would be well that at the time the jury is ordered that the court pass upon the following ques- tions: First, that the plaintiff is a corporation organized un- der the laws of Ohio; second, that it has a right to appropriate the property in the petition described ; third; that it has in the manner provided by law, appropriated the property, and that the same is necessary for the purpose therein described; fourth, that all the parties having an interest in the property have been properly notified, as provided by law, at least five days before the time of hearing.-" The question of what is to be appropriated is determined by the resolution of the council and the application filed in court in conformity therewith.-*'* The Supreme Court has settled the question that the only preliminary question before the Probate Court is whether the five days' notice has been given, and that if the proceedings prior are illegal the complaining party must go into a court of equity and have the proceedings enjoined-"^ In the opinion of the writer here is a good opportunity for legislation that will permit all these questions to be raised and heard in the appropriation proceedings. § 1758. Court to fix time for assessment of compensation by jury. "If it appears that su(-h notice has been sei'vcd hve days before the time of application, or has been duly published, 18 T. A. & K M. R. R. Co. vs. it seems it would be hotter if jiH Toledo, 7 N. P. 285; 5 Dec. 300. these preliminary questions could be The Court in this case founds its raised in one proceeding, and in tlie decision upon that of Ry. Co. vs. court in which the proceeding to Village of Belle Center, 48 0. ,S. 273. appropriate was pending. See Rail- 19 7 N. P. 324; 5 Dec. 87. way vs. Youngstown, O' C C. (N.S.) 20 See § 1759 for entry. 332, 26 C. C. 67!). It has recently been held by the And the necessity for the appro- circuit court, basing its opinion on priation cannot be (picstioned except the decision of the Supreme Court for fraud. Pausing vs. Miamisl)\irg, in P., C, C. & St. L. R. R. vs. C.ren- 11 C. C. (X.S.) 511; 31 (). C. C. ville, 69 0. S. 487. that the only pre- 130; affirmed 79 O. S. 430. liminary question before the probate 2"* Crant vs. Hyde Park, 47 Bull. court, is whether the five days' notice 831. has been given. That if the other 20a p.^ C., C. & St. L. R. v.s. Green- questions are souglit to be raised it ville, 09 0. S. 487. must be in a separate proceeding in ^l § 3683 G. C. a court of equity, bv injnncti flio por- 43 § .3693 G. C. Iioratinn cl ps not dosirp to inako the It has been held in Hamilton approprintion excert whom some in- county that the juiy fees are to be tpiested pprson will become resiron- taxcd as in ordinary civil actions, sible for the costs. Hill vs. Durr, 47 Bull. 440. But All tlie costs n^ay be assessed this is believed not to be tlic Ir.w. ji/^ninst the corporation. Railroad 44 § 22.'i0 II. 'S. Co. vs. 0;.unty, 71 0. S. 45G. 45 Sec § 1(5 Municipal Code, § 1703. ]?„t the case intimates that tliero 40 § 20, § 3094 G. C. niay be a distincfion as to jury U'vs The al)ove section is very much i„ j,jip,-opria1ion by a municip:il c\>uthern Ry. vs. Haas, 42 0. S. -239. § 1784 ROAD APPEALS 1542 CHAPTEE XCVI ROAD APPEALS. § 1784 Appeals in road matters. § 1808 § 1785 When order to open road to § 1809 be executed. § 1810 § 1786 When may appeal. § 1811 § 1787 Matters upon which appeal § 1812 may be taken. § 1813 § 1788 Matters upon which appeals lie. § 1814 § 1789 Questions for the jury and § 1815 the court. § 1790 Who may appeal. § 1816 § 1791 Xotice of appeal and specili- § 1817 cations sliall be in writing. § 1818 § 1792 Xotice of intention to appeal, § 1819 when to be given. § 1793 Form of notice of intention § 1820 to appeal. § 1794 Bond, etc. § 1795 Form of appeal bond. § 1821 § 1796 Date when notice must be given. § 1822 § 1797 Appeal by minors. § 1798 Commissioners shall trans- § 1823 mit papers. § 1824 § 1799 Transcript. § 1800 Entry in probate court. § 1801 Hearing preliminary ques- § 1825 tions and motions. § 1826 § 1802 Power of court to dismiss action. § 1827 § 1803 Hearing on questions. § 1804 Granting appeal. § 1828 § 1805 Trial by jury, drawing, etc. § 1829 § 1806 Entry, preliminary hearing, § 1830 etc. § 1807 When cases may be consoli- § 1831 dated. § 1832 Challenge of jurors. Oath of jurors, form. Right to view premises, etc. View, etc. Trial. Verdict of jury ; what it shall contain. Verdict, form, etc. Journal entry confirming ver- dict, etc. Record of proceedings. Taxing costs. Enforcement of judgment. Transcript and papers certi- fied, etc. When orders for payment of compensation and damages shall be issued. Additional compensation, how. Order as to payment of damages. Entry form. Procedure when proceedings for appropriation aban- doned. Abandonment. Fees and compensation of officers. Procedure after judgment establishing improvement. Reversal, etc. Appeal, limitation. Review of judgment of Pro- bate Court. Proceedings after trial. Entry, form. § 1784. Appeals in Eoad Matters. Under the road law as it existed when the second edition of this work was issued, there were at least four different proceed- ings in road matters, each of which might reach the Probate Court by way of appeal. 1543 APPEALS IN ROAD MATTERS § 1784 The first was an appeal from the order of the County Com- missioners in granting a road. This was considered in chapter XCVI. The second was an appeal from the order of the Township Trustees granting a road. This was considered in chapter XCVII. The third was an appeal upon the question of compensation, etc., from the order of the Countj^ Commissioners or Township Trustees. This was considered in chapter XCVIII. The fourth was an appeal on question of compensation when exceptions were taken to the action of the Commissioners or Trustees in approving a report of viewers, etc. This was con- sidered in chapter XCIX. All these causes and methods of appeal in road matters have been consolidated and there is now but one method of appeal to the Probate Court in Eoad Matters. There are still a number of different instances in which there may be an appeal. The first is that provided by § 6891 G. C, et seq. This is the general provision and provides for appeals from the order of County Commissioners in locating, establishing, altering, straightening, widening or changing the direction of a public road. No other body now has authority to establish a public road but the County Commissioners, excepting when the same might be done hy virtue of the law granting to the Town- ship Trustees or the State Highway Authorities power to recon- struct, etc., a public road, and when any such authority is conferred and an appeal is granted, it is to be done under Sec. 6891, a C, et seq. Thus where a road is reconstructed, etc., by the Township Trustees, an appeal is granted for compensation under Sec. 3298-11, a C, as provided in Sec. 6891-1, G. C, and a like provision is found when a township road district reconstructs a road under Sec. 3298-36, G. C. So also when a county highway superintendent enters for the purposes provided for in Sec. 7207, G. C, and the County Com- missioners or the Township Trustees can not agree on compensa- tion, an appeal is provided according to the pmvi^inns of Sec. 6891-1, G. C. Also when the line of a State highway deviates, etc., and it is necessary to appropriate certain lands, the County Commission- ers or the Township Trustees must secure the land required, Sec. 1201, G. C, and an appeal * * * as provided in Sec. § 1785 ROAD ^VPPEALS 1544 6891-1, G, C, et seq., from the compensation by them allowed. The statute does not seem in the latter ease to provide an appeal upon any question but that of compensation. The order of the State authorities deciding its necessity seems to be final upon the right of taking the property and the vesting of such power in the State Highway Commissioner is not unconstitutional so long as the right to appeal to a jury on the question of com- pensation is provided for. Appeal is also provided for in case of the apportionment of assessment between the life tenant and remainderman. Sec. 3298-15, G. C., etc. ; Sec. 6925 G. C. § 1785. When order to open road shall be executed. No order for the County Commissioners for locating, establish- ing, altering, straightening, widening or changing the direction of a public road, shall be executed until ten days have elapsed after the County Commissioners have made their final order in the matter of compensation and damages, on account of said improvement. If, at the end of ten days, any person, firm or corporation interested, shall have effected an appeal, then said order shall not be executed until the matters appealed from shall have been disposed of in the Probate Court. [106 v. 583, § 37.]* § 1786. When may appeal. The object and purpose of this preceding section is to give the person desiring to appeal time in which to perfect his appeal. If his appeal is perfected, by giving the required notice and filing bond, and a transcript is filed in the Probate Court, then all further action on the part of the commissioners is stayed, until the matter of appeal is decided by the courts. § 1787. Matters upon which appeal may be taken. Any person, firm or corporation interested therein, may appeal from the final order or judgment of the county commissioners made in the proceeding and entered upon their journal deter- mining either of the following matters: 1. The compensation for land appropriated. 2. The damages claimed to property aifected by the improve- ment. 3. The order establishing the proposed improvement. 4. The order dismissing or refusing to grant the prayer of the petition for the proposed improvement. [106 v. 583, § 38]** § 1788. Matters upon which appeal lies. The statute specifies four matters upon which an appeal may be taken. * § 6890 O. C. ** § osni G. C. 1545 QUESTIONS FOR THE COURT AND JURY § 1789 The first is that upon the question of compensation for the land actually taken in the improvement. Not much question can arise as to what it may include. If a property right has been taken, even if the injury be but nominal, compensation must be allowed. The second is for damages to property affected by the im- provement. This means injury that may result to property rights and not included in the property taken, for which com- pensation must be allowed. The third is from the order establishing the proposed road. This would include all the proceedings upon which this order was granted. This would seem to take to the Probate Court all questions that might have been raised before the Commis- sioners that would affect the legality of their decision in making the order. Upon all questions that might be raised upon this third ground, except whether or not the improvement will be conducive to the public convenience and welfare, will be ques- tions for the court, and not the jury. The fourth is from the order dismissing or refusing to grant the prayer of the petition. This would give the appellant the right to have the question as to whether the improvement will be conducive to the public convenience and welfare submitted to a jury, provided there were no other legal reasons justifying the order of dismissal made by the Commissioners. § 1789. Questions for the Court and Jury. If the party appeals on all the grounds permitted by th^ statute, the effect would be just the same as if the right of appeal was granted by the statute in general terms upon the orders made by the Commissioners in establishing the road, and the rules generally applicable to appeals would apply. But the statute permits or rather requires the person appealing to specify the grounds of appeal, and therefore the matter could only be heard in the Probate Court on the matters specified in the notice of appeal. If only the matter of compensation or damages was appealed from, it might be held that the party had waived all irregularities that might have been in the pro- ceedings of the Commissioners and the legality of the order of the Commissioners granting the improvement could not be gone into, and the only thing for the court to do, provided the appeal is properly perfected, is to submit to the jury these questions. § 1790 ROAD APPEALS 1546 However, if the appeal is from the order establishing the improvement, then all matters pertaining to the legality of the action of the Commissioners would be before the court; and if this matter should appear from the record it would be a matter for the court to decide, and on motion the court might dismiss and hold for naught the entire proceedings. If the matter was appealed upon the question of compensation or damages, and the record likewise should show that the person appealing had not presented his claim in writing, and within the required time, the proceedings in appeal should be dismissed. These matters which are strictly of a legal character, are for the court to decide. The three questions for the jury to decide, provided they are all raised by the appeal, are, first, the amount of com- pensation; second, the amount of damages; third, whether the improvement will be conducive to the public convenience and welfare. § 1790. Who may appeal. The statute says any person, firm or corporation interested therein may appeal. Just what the nature of this interest must be the statute does not determine. It can not be confined to persons having rights directly affected by the improvement, for the statute permits one to be a petitioner if he is a free holder and resides in the vicinity. And if the Commissioners refuse to grant the petition, such petitioner would certainly be a party interested therein even though not directly affected in his prop- erty rights. ^owever, if a person is neither a petitioner or is not in any manner affected in his property rights by the proposed road, it is not easy to see how he would have sufficient interest to con- stitute him a ''person interested therein" within the meaning of the statute. The former statute, however, provided an appeal might be taken by a person having an estate in fee, for life, or years, in lands or tenements, situated in a township in the county, in or through which such road passes. A person interested^ we think would include a petitioner, all persons whose property rights might be affected, and possibly such other persons owning land in such close proximity to the proposed road, that they might be considered as interested in the question whether or not the road should be established. 1547 NOTICE OF INTENTION TO APPEAL § 1791 § 1791. Notice of appeal and specifications shall be in writing. (§6891-1.) Any person, firm or corporation desiring to appeal to the Pro- bate Court, when the improvement is located in two or three counties, may appeal to the Probate Court of either county in the manner hereinafter provided. Any person, firm or corporation desiring to appeal from the final order or judgment of the county commissioners upon any of said questions, shall at the final hearing had before them upon such matters of compensation or damages, give notice in writing of an intention to appeal, specifying therein the matters to be appealed from. The commissioners shall fix the amount of the bond to be given by the appellant, which shall be reasonable, and cause an entry thereof to be made upon the journal. Appeal bond. The appellant within ten days thereafter shall file, with the auditor, a bond in the amount so fixed with sure- ties to be approved by the auditor, and such bond shall be con- ditioned to pay all costs made on the appeal, if the appellant fails to sustain such appeal or the same is dismissed. [lU6 v. 584. § 39.] § 1792. Notice of intention to appeal— when to be given. The time of the final hearing upon the matters of compensa- tion and damages is the time fixed when a notice in writing must be given. This is an awkward statutory provision. Until this final hearing is completed and the order is made, it is pre- sumed that the parties have no knowledge what it will be, and are not in a position to determine whether it is desirable to appeal or not. It would have been more consistent if a short time would have been fixed after the final order is made, within which the notice of appeal should be given, say three days. If any one requests, it is suggested that after the commis- sioners have finally made up their minds, that they adjourn the matter for a few days to give the party time to consider whether he wishes to appeal, and upon what matters he desires to appeal. Generally, however, it is known in time that notice can be filed at once. If a party desires to appeal he .should take no chances, but have his notice ready and file it as soon as tiie final vote is taken. The commissioners shall fix the amount of tlic bond, and the party giving the notice has ten days in which to file his bond. This notice should be filed with the auditor. § 1793 KOAD APPEALS 1548 § 1793. Form of notice of intention to appeal. In the matter of the road petitioned for, A. B. et al.: The undersigned hereby gives notice that he intends to appeal from the orders of the commissioners herein, on the following matters: 1. Compensation for land appropriated. 2. Damages claimed to property affected by improvement. 3. The order establishing the said improvement. [Or, if the cases should be such.] 4. The order dismissing or refusing to grant the prayer of the petition for the proposed improvement. In order that the record might show the fact if a minor or other person under a disability appeals, it would be well if this notice would show the fact of disability. BOND, ETC. Within ten days from the time the order is made the appellant must file a bond with the auditor. The commissioners having fixed the amount, the bond is made subject to the approval of the auditor. When filed the auditor should mark his approval thereon and the date of filing. Minors and persons under disability need not give bond. [§6894.] Their property, however, is liable for costs, etc. At the end of the final order this fact of there being a minor, etc., and his not being required to give bond should be added when there is an appeal and a minor owns prop- erty afifected. FORM OF ENTRY— FIXING AMOUNT OF BOND, ETC. [Title.] C. D. having given notice in writing of his intention to appeal from [here insert matter appealed from] it is ordered that the amount of his appeal bond be fixed at $ [or, if a minor (and it appearing that C. D. is a minor) no appeal bond is required of him] and upon the filing of such bond the auditor is directed to make a transcript of the procedure herein and file the same in the Probate Court of this county. § 1794. Bond. Within ten days from the time the order is made, and notice of appeal is filed, the appellant must file a bond with the auditor. The commis- sioners having fixed the amount of the bond, it is made subject to approval by the auditor. When filed the auditor should mark his approval thereon, and the date of filing. Minors and persons under a disability need not give bond, but they should give notice of an intention to appeal. These matters are all jurisdictional so far as the right of appeal is concerned, and it would be well if appellant would personally see that they are done. § 1795. Form of appeal bond. Kjjow Alt. Men by these Presents, That we, A. S., L. R. and M. S., of County, Ohio, are held and firmly bound unto the State of Ohio, for the use of County, in the sum of dollars, to the payment of which we jointly and severally bind ourselves, our heirs, executors and administrators, by these presents: Signed by us at , on the day of , 19.. . The condition of the above obligation is such that whereas, the said A. S. appeals to the Probate Court of said County, Ohio, from the final order of the commissioners of said County, made at their session, , 19..., establishing a county road [or, altering or 1549 COMMISSIONERS SHALL TRANSMIT PAPERS TO COURT § 1796 vacating a state or county road, or, changing the width of a county road, as may be] from to , petitioned for by A. B. and others. Now, if the said A. S. shall pay all costs that may be adjudged against him in the Probate Court, or in any other court to "which the proceedings may be removed by petition in error, then this obligation shall be void; otherwise it will be and remain in full force and effect. A, S., L. R., M. S. Filed and approved , 19 . . . W. C, County Auditor. [Entry as to filing bond, mid form of.] To keep the chain of the road record unbroken, an entry of the filing of the bond should be made in the commissioners' road record, which may be as follows: In the matter of the road, > * - ^,- . i. -i petitioned for by A. B. and others. \ ^' ^ ^^'""^ ^PP^*^ ^o^^- A. S. appeals from the order of the county commissioners of County, Ohio, made at the session, 19..., establishing said road [or, otherwise, as may be, see the bond] and "has this day liled his appeal bond, approved by the auditor of said county." § 1796. Date when notice of appeal must be given. (§ 6892.) In case the petition for an improvement is dismissed, or the prayer thereof be not granted, then a person, firm or corpora- tion desiring to appeal therefrom must give the notice herein- before provided on the date when tlie order is made dismissing said petition, or refusing to grant the prayer thereof, and file the bond required within the time prescribed herein, [106 v. 584, § 4U.J § 1797. Appeal by minors, etc. (§ 6893.) Minors, or other persons under disability, or their respective guardians, may ap- peal to the Probate Court as aforesaid, without giving bond for the payment of costs. The Probate Court shall, however, cause an entry showing such disability to be made on the .iournal. The estates of such persons shall be liable for all costs adjudged against them or their legal representatives. [106 v. 584, § 41.] When the party appealing is a minor, etc., this section makes it the duty of the Probate Court to cause such matter to appear on its journal. It would have been better had this duty been cast upon the commissioners, and it would be well if, notwith- standing this provision, the commissioners would make such entry. § 1798. Commissioners shall transmit papers to court. (§ 6894.) Within ten days after the filing of such appeal bond or the making of the entry as aforesaid, the county commission- ers shall transmit to the Probate Court the original papers in the proceedings, and a certified transcript of the record of said commissioners of all proceedings in connection therewith. Upon receipt thereof, the probate judge shall forthwith docket the cause and the appellants shall be designated as the plaint ifl's. and the county commissioners Jind other parties in interest shull be designated as defendants. 1 106 v. 584, § 42.] § 1799 ROAD APPEALS 1550 § 1799. Transcript. This transcript means a certified copy of the commissioners' journal, containing the record of all the proceedings had in the road improvement under consideration. It must be transmitted within ten days after the bond is filed. If the auditor should fail so to do the right of appeal would not be lost. [Geddes vs. Rice, 24 0. S. 60.] When the transcript is filed with the probate judge, it is his duty to docket the ease and put an entry on the journal of this fact. The party appealing shall be the plaintiff and the county commissioner.s and the petitioners in the original proceedings shall be the defendants. If several parties appeal, an entry should be made of each one separately, and then the court should further order that all the cases should be consolidated and tried together. The statute does not seem to provide for joint appeal, and a proper proceeding where several persons desire to appeal would be for them to perfect their appeals separately, and the court thereafter might order the cases to be tried together. The court must fix the time for the hearing of preliminary motions and examination of the papers filed. This hearing shall be fixed not more than five days thereafter. §1800. Entry in Probate Court. A. B. vs. Board of Co. Com. of County and C D. Pkobate Court Countt, Ohio. This day there was filed in this court a transcript of the proceedings heretofore had by the commissioners in the matter of a road petition for by C. D. and others, duly certified to, as showing all the proceedings had County, Ohio, made at the session, 19..., establishing said road Also all the original papers in said matter Were this day received from the auditor of said county in reference to the matter appealed from. It is therefore ordered tluit the hearing of preliminary motions and examina- tion of papers so filed be fixed for the day of , 19..., at o'clock, and it is further ordered that tlie plaintiff notify the defendants of the time of said hearing. If the party appealing is a minor or a person under a disability, the court must cause the entry to show the fact. § 1801. Hearing' of preliminary questions and motions. (§6894-1.) The probate judge shall designate a day not ex- ceeding five days thereafter for the hearing of all preliminary questions and motions on said appeal, and for the examination of the papers and proceedings. On the day so fixed all pre- liminary motions and questions arising upon the appeal shall be heard and determined, and if the Probate Court finds that 1551 POWER OF COURT TO DISMISS ACTION § 1802 tlie proceedings are irregular, or that the appeal is not perfected according to law, he shall dismiss it at the cost of the appellants, and certify such dismissal with his proceedings thereon to the commissioners. The court may waive technical defects, errors or omissions in such proceedings. [106 v. 584, § 43.] § 1802. Power of Court to dismiss action, etc. Sec. 6894-1, G. C, bears a close similarity to Sec. 6469, G. C, formerly relating to appeals in county ditch cases,^ which in turn bear considerable similarity to the statutes formerly re- lating to appeals in township ditch appeals.- In a case in the Circuit Court,^ affirmed by the Supreme Court without opinion,* it was held that in "The Probate Court on appeal from the proceedings of township trustees in the loca- tion of a ditch, is not made a court of error to review their rec- ord and pass upon error and irregularities therein; but its jurisdiction is by statute limited to hearing and determining the preliminary questions pertaining to the case, and the dismissal of the appeal, if it is found that the same is not perfected ac- cording to law." In this case the error complained of was that no sufficient bond was filed by the petitioners with the township trustees, etc. If this was true, as a matter of course the trustees had no jurisdiction to act, and all proceedings were null and void. Whether or not this question was raised in the Probate Court does not appear. The only thing disclosed was that the Pro- bate Court found the proceedings relating to the appeal was regular, and ordered the matter submitted to a jury. It may have been for the reason that the matter was not properly raised in the Probate Court, that the decision of the Circuit Court was affirmed by the Supreme Court. In a subsequent Circuit Court case,^ affirmed without opin- ion,*^ the doctrine that the Probate Court had no authority to review the proceedings of the trustees for supposed errors or irregularities, etc., was applied evidently, on the authority of the case in the first Circuit Court report. The question here made was whether under the petition presented to the trustees 1 § 1833 G. C. The law relating i 19 Bull. a.'jO. to ditcli appeals has boon niatcrlally 5 Board of Trustees vs. Jackson, changed by the act of 1919. 2 C. C. 48. 2 § 1857 G. C. c 27 Bull. 187. 3 Miller vs. WcLor, 1 C. C. 130. § 1802 ROAD APPEALS 1552 they had power to extend the improvement 290 feet beyond the terminus described in the petition. The Probate Court took the view that they had no such authority, and on trial limited the matter at issue to the route covered by the petition, and the Cir- cuit Court held that the Probate Court had no right to limit the matter, but should have heard the case on the route as ordered by the trustees. In this case two questions were involved, on either one of ■which the Probate Court might have been reversed, to-wit : first, that the Probate Court could not review the order of the trustees ; second, that even if it had power to review, there was no error made by the trustees. The first was only considered by the Circuit Court, but its decision might have been affirmed by the Supreme Court on the second question. The doctrine that the Probate Court had no authority to re- view, etc., was followed in a county ditch appeal case,^ which was likewise affirmed by the Supreme Court without opinion.* Here the question involved was whether the commissioners could locate a county ditch over the route of a township ditch. The Nisi Prius Court held that they could, but even if they could not, this question could not be raised on appeal. Thus it will be seen that the question whether or not the court could review the proceedings of the commissioners and reverse for error, was not a vital one if the order the commissioners made was within their jurisdictional powers. There is much in the course of rea- soning of the judges delivering the opinions in these cases that would justify the holding that the Probate Court has no power to review the orders of the commissioners, etc., but it has never been so held by the Supreme Court, nor was such holding necessary to justify the inferior courts in the decisions by them made. It must certainly be admitted that the statute is not clear or unequivocal in the language employed. But we believe, while admitting that the law relating to road appeals is very similar to that relating to ditch appeals, that the proper and legal thing for the Probate Court to do, especially if the appeal is made from the order of the commissioners grant- ing or refusing to establish the improvement, is on the hearing of preliminary questions, especially on motion of a party to review the proceedings of the commissioners, and if substantial - Marsh vs. Clark Co. Commis- « 33 Bull. 121 and 131. sioners, 26 Bull. 3. 1553 HEARING ON QUESTIONS § 1803 error has been committed, to dismiss the entire proceedings and certify the action back to the commissioners, and let the peti- tioners commence anew their proceedings. If the error is not jurisdictional and does not materially affect the rights of any one, it should not be considered vital, and the court should allow a correction by amendment when that is possible to be done. We have come to this conclusion principally for two reasons : first, a fair and liberal construction of the statute justifies it; second, it is the proper and logical way in which such errors should be reviewed. To the court's findings, exceptions may be reserved, which may all be reviewed in proceedings in error in the Common Pleas Court, made after the matter has been submitted to a jury. We think, however, that only such questions as appear from the record, i. e., an examination of the papers and pro- ceedings, could be considered. If the errors complained of do not appear on the record, a suggestion of diminution of the record should be made, and the records made to conform to the truth. To hold that the Probate Court can not review the proceed- ings of the commissioners, is to split up the remedies that may be pursued to prevent the injustice that may follow therefrom. If the Probate Court can not review such errors, it is difficult to see how the Common Pleas Court could have power to review them, on prosecution of error to that court from the proceedings in the Probate Court — and if it could not, the complaining party would be compelled to prosecute error in a separate action, direct from the commissioners to the Common Pleas Court, and at the same time prosecute his appeal in the Probate Court. Further, the finding of the jury in the Probate Court, if it was in the negative on any of the questions submitted to them, would nullify the action of the commissioners, whether such action were legal or illegal, and make unnecessary any other .action. Yet this could hardly occur before the time limit for filing a petition in error to the Common Pleas Court direct from the commissioners had expired. § 1803. Hearing on questions. If all the provisions of the statute have been complied witli, then the action is properly pending in the Probate Court wIk'm § 1804 ROAD APPEALS ~ 1554 the transcript of the proceedings before the commissioners is filed in such court, and no finding of the Probate Court could affect their legality; however, as a precautionary matter that a jury might be called and attaching costs incurred, when there is legally no right to an action, or to even a pending action, the statute wisely provides that the court shall fix a day when preliminary questions may ber heard. While every person who has received notice of the proceedings when the same was pend- ing before the commissioners is bound to take notice of all future proceedings without further notice, the court should be satisfied before it goes into the hearing on preliminary questions, that the defendants know of the time of this hearing. If no objec- tion is made that could properly be made to any matter, and the court should make its finding that the appeal has been prop- erly perfected and the proceedings are substantially regular, the finding of the court would be conclusive and no such question could be again raised. In view of this fact it becomes very important that the parties interested in contesting the action should make their objections in writing and exceptions be reserved that the record may show all things fully. There is no rea.son why a party should sit idly by and allow a jury to be called and all the cost of a trial incurred, and then if the matter ends not to his liking, he be permitted to raise a question, and cause it dismissed, when it could have been done before the jury was called. § 1804. Granting appeal. If no question has been raised as to the legality of the pro- ceedings before the commissioners, then the court should con- sider the questions which relate to the legality of the proceedings relating to the appeal. That is, that a proper transcript was filed within the time limits and that a proper bond was filed within the required time, and that a proper notice of intention to appeal was given at the time required, etc. If the proceed- ings in relation to the appeal have been so irregular as to mate- rially affect the legality of the proceedings, or if the matters required by the statute have not been complied with, so that the appeal has not been properly perfected, the proceedings of appeal should be dismissed, and the case should be certified back 9 Geddes vs. Rice, 24 O. S. 60. 1555 ENTRY ON PRELIMINARY HEARING § 1805 to the commissioners, who would then proceed with the im- provement. These matters relating to appeal are remedial and are liber- ally construed, and if the court finds the provisions of the statute have been substantially complied with, the proceedings of appeal ought not to be dismissed. If the appellant has done whatever he was required by law to do, he should not be denied his remedy. Thus if the auditor fails to file the transcript within the ten day limit, or, if he filed an imperfect transcript,^ this would not defeat the appeal. If there are matters relating to the appeal or to the proceedings before the commissioners that are not of a substantial nature, they should be disregarded by the court, and where proper, supplied by amendments so that substantial justice should be meted out to all. § 1805. Trial by jury ; drawing and listinof of names ; venire. (§6894-2.) If the probate judge finds that said appeal has been properly perfected, and that said proceedings are substan- tially regular, he shall fix a day, not more than twenty days thereafter, for the trial of the case by jury. He shall forth- with notify the clerk of the court of common pleas, who shall cause to be drawn from the jury box in the manner provided by law, the names of sixteen persons as jurymen. The clerk shall make a list of such names in the order in which they are drawn and certify it to the probate judgf, and he shall issue a venire commanding them to appear on the day, and at the hour set for trial. He shall deliver it to the sheriff who shall serve it within five days thereafter, and make return of such service before the day set for trial. [106 v. 585, § 44. T" § 1806. Entry on* preliminary hearing. If the court finds that the appeal has not been perfected, or that the proceedings are irregular and clearly illegal, then a simple entry of dis- missal might be put on ordering the costs paid as the court might deem proper. If the appeal is perfected then an entry should be put on containing a finding of such fact and ordering a jury to be drawn, which entry may be in the following form: [Title.] This dav ^avin'? Tieon liproto^oro flvf^fl for tlin lioarini nf proliin'mary questions and irotions, and for an examination of ttio paiK-rs and proceed- inps herein, the parties appeared \or failed to appear, as the case may bel, and this cause came on to be heard on tlie motion of defeuilants to dismiss said appeal Fand was artrued bv eounsell, and the court, beini; fullv advised in the premises, do find sa'd motion not wcdl taUcii. ami the same is over- ruled rto whicli defendants except and their excejjtions are entered of 10 This notice would be similar to that in appropriation cases. § 1807 KOAD APPEALS 1556 record ], and the court having examined the papers and the proceedings, do lind'that said proceedings are substantially regular and said appeal is properly perfected; and thereupon the court fixes the day of , 19.. at 8 o'clock, a. ni., as the time for the trial of said case to a jury, and it is ordered that a notice issue to the clerk of the Court of Com- mon' Pleas, and the sheriff of the county, to draw sixteen names from the jurybox to serve as a jury herein, as provided by law; that said clerk certifv a list of the names so drawn, in the order in which they are drawn, to this court fortliwith, and that a venire issue for said jurors, returnable, as required by law, commanding them to appear at the day and hour above named, until which time this cause stands adjourned. , Probate Judge. §1807. When cases shall be consolidated. (§6894-3.) If more than one party appeal, the probate court shall order the cases to be consolidated, and tried together, but the rights of each person, firm or corporation, as to compensation or damages shall be separately determined by the jury in its verdict. [106 V. 585, § 45.] (Consolidation of cases — Entry, etc.] The statute does not indicate at what time in the proceedings that this order for consolidation should be made, but it ought to be made as soon as all appeals have been made that can be made. When the cases are ordered consolidated, the questions presented on pre- liminary hearing might be tried at the same time. If any plain- tiff has not perfected his appeal, then as to him, the court should make .such order as is proper. The idea of consolidation is, that there shall be but one jury selected, parties, however, having a right to have their cases separately heard after a view of the premises has been made. The entry consolidating several cases might be as follows : CONSOLIDATION OF CASES. \ County, Probate C»urt. ^'S- I Appeal from the decision of the The board of commissioners of/ commissioners as to [describe matter County, and I appealed from]. / County, Probate Court. The board of^'^commissioners of\ Appeal from the commissioners' County, and ) decision as to [So state each appeal, then say:] / [State matter appealed from.] The above stated cases, being all appeals from the decision of the county commissioners in reference to the several matters noted in each, in the same proceedings, to-wit: [state the improvement by the name or description by which it is known in the record of commissioners' pro- ceedings]. It is ordered that said several causes be consolidated, and tried together, as provided by law. , Probate Judge. § 1808. Challenge of jurors. (§ 6894-4.) On the trial, the probate judge shall take the list of jurymen as furnished by 1557 RIGHT TO VIEW PREMISES § 1809 the clerk and call each name in the order in which it appears on the list, until twelve answer, when each of them must answer as to his qualifications as a juror. If a juryman is challenged for cause and excused by the court, the next on the list shall be called, until the panel is full, [Filling of panel.] If the panel is not filled from the jury- men whose names appear on the list, the sheriff shall fill the panel from among the bystanders who have the lawful quali- fications, unless for good cause shown the court order a special venire to issue. The appellants shall be considered as one party and the defendants as one party, and each party shall have the number of peremptory challenges allowed in civil cases in the common pleas court. [106 v. 585, § 46.] As the statute now stands" this would give all the plaintiffs four peremtory challenges and all the defendants the same number.^- § 1809. Oath of jurors. (§ 6894-5.) The probate court shall administer to the jurors an oath that they will faithfully, im- partially and to the best of their ability, determine the particu- lar matters appealed from, and render a true verdict according to the evidence, under the charge of the court. [106 v. 585, §47.] FORM OF OATH TO JURY. You and each of you, do solemnly swear that you will faithfully, and impartially and to the best of your ability, determine the matters nar- ticularly appealed from, in the cause now pending before you, in which are plaintiffs and are defendants, and render a true verdict according to the evidence under the charge of the court. This you do as you shall answer unto God. § 1810. Right to view premises before testimony submitted. (§6894-6.) On motion of either party, the jury under the care of an officer of the court and with such person or per- sons as the court may designate to show them the premises, and before any testimony shall be submitted, except the plat and a survey of the improvement and the title papers of the claimant, if produced, which the jury may take with them, shall examine the route or location of the improvement as peti- tioned for or as ordered, and the property of the sovcrjil chiim- ants who have appealed on account of property taken therefor, or alleged to be damaged thereby, and after making sucli ex- amination, the jury shall return to the probate eoni-t at the time appointed therefor. After the jury has returned to tlie probate court, the parties shall offer their evidence to the jury under the direction of the court, upon the matters appealed fi-oiii. 11 § 11439 G. C. 12 See § 114:57 G. C. for cauHcs for challenge. § 1811 ROAD APPEALS 1558 The rules of law and procedure governing civil cases in the common pleas court shall apply to the trial of the cause in the probate court. [106 v. 585, § 48.] § 1811. View, etc. Either party has a right to demand a view of the premises along the route of the proposed road; invariably such right is exercised. The jury will be under the care of an ofiicer of the court, and such other persons as the court may designate may go along to shoiv the jury the premises. These persons should not try to influence the jury, other than call the jury's attention to pertinent matters along the route that will enable the jury to properly consider the questions for them to decide. This view shall be made before any evidence is heard. The court should charge the jury before the view as to their duties on such view.^^ An entry should be put on, which may be in the following: FORM OF EXTRY— ORDERIXG VIEW. [Title.] A jury having been impaneled and sworn as provided by law, on motion of it is ordered that said jury under the care of , an ofiicer of this court, shall examine the route and location of the said proposed road improvement, and shall examine the property of and , claimants, who have applied on account of property taken therefor or damaged thereby, and and are hereby designated as persons to accompany said jury and show them the premises. After making such examination, the jury is ordered to return to this court on day of , 19 ... , at 8 o'clock, a. m., for further hearing, to which time this cause is adjourned. § 1812. Trial. At the time to which adjournment has been made, the case shall come on for trial under the rules of law and procedure governing civil cases in the Court of Common Pleas. In such trial the defendants, petitioners, shall be en- titled to the opening and close, and it might be said the bur- den of proof is on them.^* When several persons "appeal, they are not entitled to separate trials, but the rights of each party appealing is entitled to have his compensation and damages separately determined by the 13 See Thomas vs. Commissioners, the technical sense of the term there 5 N. P. 449 ; 5 Doc. .'503, where there is no burden of proof. That the is given a charge to a jury before jury merely acts as an appraising view in a ditch proceedings, which or assessing board, determining the may aid in forming a charge to be fair market value of the property given in a road appeal. from all the evidence submitted. 14 See recent case of INIartin vs. 101 O. 'S. — . Columbus, where it is held that in 1559 VERDICT § 1813 • jury, and they must fiud separately the compensation of each in their verdict. The view is not evidence, although if no other evidence is offered I apprehend a verdict would not be set aside for want of evidence to sustain, or because it is not sustained by the evidence. The statute is not as broad as that in ditch appeals, where it has been held that the view is evidence, and the court would probably hold that the rule should be applied the same as in condemnation cases.^^ § 1813. Verdict of jury; what it shall contain. (§ 6894-7.) At the conclusion of the trial, the court shall charge the jury and the jury shall find and return a verdict separately upon each claim for compensation and damages, if a final order or judgment or the county commissioners in reference to com- pensation and damages be appealed from. The jury shall also determine in their verdict whether the improvement petitioned for or granted will be conducive to the public convenience and welfare, if an order establishing the proposed improvement or dismissing or refusing to grant the prayer of the petition be appealed from. [Rendition of judgment.] If a new trial shaU not be granted for cause shown, the probate court shall render a judgment in favor of the appellants for the amount of the verdict, if any, returned by the jury in their favor. He shall also make a finding for or against the improvement, based on the verdict of the jury. [Error proceedings.] In case of error proceedings to the common pleas court, a bill of exceptions shall be allowed as in cases in the common pleas court. [10(3 v. 586, § 49.] § 1814. Verdict, etc. At the conclusion of the trial — that is, the introduction and evidence and arguments of coun.sel — the judge shall charge the jury, etc., and the jury shall return a verdict, etc. Particular attention of the jury should be called to the ques- tions they must consider. There are four things upon which there may be an appeal; only three could be in one appeal, to-wit: 1. Compen.sation ; 2. Damages, and 3. Granting the improvement. Tlie fourth matter upon which there might be an appeal, to-wit. refusing to grant the improvement, would necessarily be in an action on that question alone. 15 See Railroad Co. vs. Bolen, 7G 0. vS. 376. § 1710. § 1815 ROAD APPEALS 1560 • On the question of granting or refusing the improvement, the statute requires that the jury find whether the improve- ment granted as petitioned for, will be conducive to the pub- lic convenience and welfare. It seems, then, that if the question was alone on the grant- ing of the improvement the following might be used as a FORM OF VERDICT. [Title.] We, the jury, impaneled as such in the above case, do find that the granting of tlie improvement as establislied by the order of the commis- sioners herein, will [not] be conducive to the public convenience and welfare, and that in favor of or against the establishment of the same as ordered by the commissioners herein. Foreman. FORM OF VERDICT WHERE DA]VIAGES ARE CLAIMED, ETC. [Title] We, the jury, duly impaneled as such in the above case, do find that the granting of the improvement as established by the order of the com- missioners herein, will be conducive to the public convenience and welfare, and we find in favor of the establishment of the same. We further find that John Jones is entitled, as compensation, to $ and damages, $ , total, $ ; and Sam Smith is entitled, as compensation, to $ and damages, $ , total, $ Foreman. Three-fourths must agree on all matters contained in the ver- dict/° and they must find for the entire route, not part; also must find on each person's claim for both compensation and damages. § 1815. Journal entry confirming verdict, etc. , et al. \ County, vs. f Probate Court. The Board of Commissioners of C Appeal [or consolidated appeal] County et al. / from County Commissioners. This day came the parties [by their attorneys], and the jurors whose names are attached to the verdict below, having been heretofore duly impaneled and sworn, according to law, and having been sent to view the premises, came again into court, and having heard the evidence and argument of counsel [and charge of the court], retired for deliberation; and in due time returned into court, and delivered their verdict in writing, which was received by the court, and which verdict is in the words and figures following, to-wit: [Here copy verdict entire.] The said findings and said verdict are 16 The three-fourths jury law road. Smith vs. Craig, 40 0. C. C. applies in verdicts assessing the 544. value of land taken for a county l^^l TAXING COSTS § 1816 approved and confirmed, and the court finds in favor of said improve- ment as established by order of the commissioners herein; and thereupon this cause came on further to be heard, upon questions arising touching the taxing ot costs; and the court, being advised in the premises, proceeded to tax the costs herein as follows: The appellants, , having prevailed in all matters appealed from by them, the costs are taxed in their favor, and against the defendants It is therefore considered that the said , recover of the board of commissioners of County, and ..'.... their costs herein taxed to $ ' ' ' , Probate Judge. [Motion for new trial, etc.] If any of the interested par- ties desire to take tlie case to a liigher tribunal, they can do so on all matters had in the proceeding. The method to be pursiied is the same as in ordinary jury trials had in the Court of Common Pleas in proceedings in error. This matter of procedure is fully discussed in Bates' Plead- ing and Practice, Sees. 805 to 842, to which the reader is referred, § 1816. Record of proceedings in probate court. (§ 6895.) The probate judge shall make a record of all proceedings be- fore him, and tax the costs in favor of the prevailing party and again.st the losing party. If more than one matter be appealed from, and a party prevail as to one matter and lose as to another, the court shall determine how much of the cosis each party shall pay. The costs on motions or continuance and the like shall be taxed and paid as the court directs. [Taxing costs.] If there are several persons upon the side taxed with costs, the court shall apportion the co.sts equitably among them, and in case several persons are interested on one side of the case and part of them fail, the court sliall make such order as to costs as he .shall deem jiist and equitable. In cases not hereinbefore specifically provided for, the court shall render such judgment in respect to costs as is equitable, and the county commissioners shall pay any costs adjudged against them out of the county treasury. [106 v. 586, § 50.] § 1817. Taxing" costs. In these matters of appeal the appel- lants are plaintitfs and the other parties in interest shall be defendants. Just exactly who are meant by "the other par- ties in interest" is not clear, but the author is of the opinion that it Is intended to mean the petitioners. Especially is this true if the commissioners had ordered them to pay the com- pensation and damages assessed in favor of or against the appealing landowners. If the appellants lose on all proposi- tions, then the statute is clear tliat the cost must be taxed against them; if appellants prevail on all matters, the costs would need to be taxed against tjie commissioners and the § 1818 ROAD APPEALS 1562 petitioners. The statute gives no rule for guidance, whether in such cases it sliall all be taxed against the commissioners or all against the petitioners. If the road was not of suffi- cient public importance to justify the commissioners in issu- ing an order that the county pay the costs of compensation and damages, and the court is of the opinion that the com- missioners were right in the order they made, then the court might be justified in assessing all the costs against the losing petitioners. How^ever, no general rule can be laid down; the court should tax the costs in an equitable and just manner. If the road was of sufficient importance to justify the county in paying the assessments made for compensation and dam- ages, then there are strong reasons for the court to assess the costs entirely against them. Then, too, as the petitioners defendants generally employ counsel and assume the costs in that direction, there may be strong equitable grounds for, in almost every case where de- fendants lose, to assess a portion or all the costs against the county. This is equally true in a case where an appeal is made from their order against allowing the road. The author re- members that cnce in a hotly contested ditch case where the petitioners bore the burden of the costs of employing counsel, a considerable sum, and they lost, all the costs were assessed against the county. §1818. Enfcrcement of judgroeTit. (§6896.) Any judg- ment rendered by the probate court in favor of any party in such cause may be enforced by execution issued out of the pro- bate court on its own motion or at the instance cf the persons entitled to said judgment or a part thereof, and the money when collected shall be paid to the persons respectively entitled thereto. [106 v. 586, § 51.] [Comments.] If the amounts recovered on appeal do not exceed the amounts that had been allowed — in the aggregate — this must mean the aggregate allowed each claimant, and not the a-ggregate to all claimants, for if there is a variance between what any claimant was awarded by the commissioners and the jury, then the same must be adjusted by the commis- sioners, provided the county does not pay all the damages and assessments. 1563 ORDER AS TO PAYMENT OF DAMAGES § 1819 Where the amounts are not all the same, the auditor should wait for action by the commissioners before assuming to act under this section. § 1819. Transcript and papers certified to county auditor. (§6897.) The probate judge shall make a record of all pro- ceedings had in the probate court, and after the termination of such proceedings, or at the conclusion of error proceedings, if error be prosecuted, shall certify the same to the county auditor, together with all of the original papers filed with the probate court on appeal. [106 v. 586, § 52.] § 1820. When orders for payment of compensation and damages shall be issued. (§ 6898.) If it appears 1)y the, tran- script so transmitted to the county auditor, that the damages allowed on appeal do not in the aggregate exceed the amount assessed, approved and ordered paid to the claimants by the county commissioners, then the auditor shall forthwith make a record of the proceedings had on appeal, together with the proceedings had before such commissioners prior to the appeal, and the county auditor shall issue the necessary orders for the payment of compensation and damages in connection therewith. Such orders shall be drawn in favor of claimants for the amounts allowed them on appeal in all cases where appeal is taken to the probate court. [106 v. 587, § 53.] § 1821. Additional compensation and damages, how deter- mined and paid. (§ 6899.) If the compensation and damages so assessed exceed in the aggregate the amount allowed by the commissioners, the county auditor shall lay the papers and tran- script of the proceedings before the county commissioners at their next meeting. Thereupon, the county commissioners may order said improvement established, and order the ailditioual compensation and damages allowed to be paid out of the county treasury, or they may order such additional compen.«ation and damages to be paid by the petitioners, or they may order a portion of such additional compensation and damagis paid out of the county treasury, and the balance thereof by the peti- tioners. In determining whether the damages so allowed on appeal exceed the amount of the aggregate allowed by the com- missioners, the aggregate amount of such compensation and damages allowed in the probate court on appeal in favor of the appellants, shall be added to the compensation and damages awarded to the claimants who did not appeal. [106 v. 587, § 54.] § 1822. Order as to payment of damages, etc. When the auditor receives the transcript and orders of the court he must, at the next meeting of the commissioners, lay the mat- ter before them. Whatever adjustment is necessary as to pay- § 1823 ROAD APPEALS 1564: ment of the extra sums allowed, or vice versa (for, I assume, there will be cases in which the matter will work the other way and appellant will receive less than the commissioners had awarded him), the commissioners should take up the matter and make such orders as are just and equitable. From this order of the commissioners there seems to be no appeal, nor would the order be interfered with on proceedings in error unless there was fraud or manifest abuse of discretion. § 1823. Form of Entry. [Title.} This day the auditor laid the papers and transcript of the proceedings, had in the above matter, before the Probate Court of County, Ohio, before the commissioners, and it appearing that the amount allowed appellants is greater in the aggregate than tiie sum allowed them as compensation and damages, before the commissioners, it is ordered that the said sum of $ which is the sum so found in the aggregate in excess of that found by the commissioners, be paid by the county to the extent of $ , and the petitioners pay the balance, to-wit : $ That the sum of $ , including that made by former order of the commissioners in this action, to-wit: $ , and the above sum of $ , both be now paid by tlie county and that the petitioners pay into the county treasury the sum of $ , including that made by the former order of the commissioners herein, to-wit: $ and the above sum of $ , within ten days from this date. That upon the payment of the sum above ordered paid by the pe- titioners, the auditor is ordered to draw an order on the county treasurj' for the sum of $ , compensation and damages awarded John Jones, and the sum of $ , compensation and damages awarded Sam Smith ; and tliat upon the payment of said sums and the issuance of such orders, it is ordered and directed that tlie said road petitioned for in this pro- ceeding be, and the same is established and the county highway superin- tendent is ordered and directed to open the same, in such manner as in his judgment is wise and as provided by law. And it is further ordered that the auditor make a full and complete record of the proceedings had in this matter, including those had before the commissioners and the Probate Court. The same to be made in the Road Record of this county. § 1824. Procedure when proceedings for appropriation of land abandoned. (§ 6900.) The county commissioners may abandon the proceeding for the appropriation of lands for any such improvements as aforesaid, upon paying into the pro- bate court the amount of the appellant's costs and expenses, and attorney fees as fixed and determined by the court, and the court is hereby empowered to fix and determine the same. In case the county commissioners fail to pay the compensation and damages awarded to appellants within thirty days after confirmation of the verdict, on motion of any party entitled to such payment, the judge shall enter an order directing the county commissioners to make such payment, or deposit the same with the court within ten days, and unless the county commissioners within the time fixed make such payment or 1565 ABANDONMENT § 1825 deposit, they shall be held thereby to have abandoned the prop- erty, rights or interests sought to be appropriated, and all claims under said proceedings, and the judge shall so order. [Judgment against commissioners.] He shall also enter a judgment against such commissioners and in favor of the parties entitled thereto for the amount of costs, expenses, and attorney fees, as the court may deem just, for which execution may be issued as in other cases. In case the county commissioners abandon the improvement contemplated by the proceedings, they shall so order upon their journal; provided, however, that in case error is prosecuted to the proceedings had in the probate court, the probate court shall make no order in respect to the payment or deposit of the amount allowed as compen.sation, damages, costs or attorney fees, until such error proceedings have been finally determined. [106 v. 587, § 55.] § 1825. Abandonment, etc. The commissioners, and through them the petitioners may abandon the proceedings, even after verdict is had and judgment rendered, provided they pay the costs and attorneys' fees as jixed by the court; that is, if the commissioners and the other parties interested as defendants feel that the improvement is not worth the cost, which they must pay, they can drop the matter. This is abandonment by positive action on their part. The other way is when they fail to pay the damages and compensation awarded, an interested party may invoke the order of the court, and unless the damages, etc., are paid within ten days, the proceedings shall be held to be abandoned. In ease error is prosecuted no order of abandonment can be made until the proceedings in error have been finally terminated. §1826. Fees and compensation of officers. (§6001.) For their .services required on appeal tlie officers and other per- sons herein mentioned shall be entitled to the fees and com- pensation which they are entitled to by law for like services in other cases. The persons appointed by the court, if any, to show the premises to the jury, shall receive such compen- sation as the court may direct, and the same shall be taxed with the other costs in the case. [106 v. 588, § 56. j § 1827. Procedure after judgment establishing improve- ment. (§ 6902.) If an appeal is taken from the order of the commissioners dismissing or refusing to grant the prayer of the petition, and the jury find in favor of sucli improvement, the probate court shall render judgment establishing sucli improve- ment, unless a new trial is granted by the probate court, and § 1828 ROAD APPEALS 1566 the said improvement shall henceforth be established unless the judgment of said court be reversed by proceedings in error. [jflatted and surveyed.] The commissioners shall there- upon take the necessary steps to have said improvement plat- ted and surveyed, and shall proceed in the manner hereinbe- fore provided to have the compensation and damages, on ac- count of said improvement determined. [Notice for compensation.] The commissioners shall give notice as hereinbefore provided of the time of hearing on the questions of compensation and damages, and all proceedings shall thereafter be had as if no appeal had been taken. [106 V. 588, § 57.] § 1828. Reversal of order dismissing proceedings. This sec- tion is applicable when the appeal was had from an order of the commissioners dismissing the petition. If the jury find for the improvement, that is, that it will be conducive to the public convenience and welfare, and the proceedings are cer- tified back to' them, then the commisioners order the sur- veyor to plat and survey the same just the same as they would have done had they under § 6 considered that said im- provement was of sufficient public importance to justify the same. In this order they shall fix the time and place for hearing of claims for compensation and damages, and shall give notice as required in Sec. 6871. An appeal may be had on the orders that the commissioners make on compensation and damages, but there having been one appeal on the question of the granting of the improvement, no further appeal on that question is permitted. §1829. Appeal; limitation. (§6903.) An appeal may be taken from the order of the commissioners upon the questions of compensation and damages when said improvement is estab- lished by the verdict of the jury upon appeal. But no further appeal can be taken upon the question of whether the improve- ment will be conducive to the public convenience and welfare. [106 V. 588. § 58.] § 1830. Review of judgment of probate court. ( § 6904. ) The final judgment of the probate court may be reviewed by proceed- ings in error as in other cases. If error is prosecuted to the judgment of the probate court, the county commissioners may enter upon the land appropriated by first paying into the court for the use of the appellants, the amount of the judgment in their favor with the proportion of the costs and expense of said proceedings adjudged against the county, and at the same time, the commissioners shall pay to those persons who did not 1567 PROCEEDIXCS AFTER TRIAL § 1831 appeal, the amount of compensation and damages allowed such persons; provided, however, if an appeal has been taken to the probate court involving the question of whether said improve- ment will promote the public convenience and welfare, such commissioners shall not enter upon .said land until said pro- ceedings are finally disposed of. [106 v. 588, § 59.] ^^ § 1831. Proceedings after trial. There is no appeal from the Probate Court to any higher court; if any person desires to litigate farther he must do so by petition in error. If the county is to pay all the compensation and costs, or if the petitioners have paid in the sum ordered to be paid by them, the commissioners may order that payment be made to claim- ants, who are not prosecuting error, the sums found due them for compensation and damages, and paying into court the sums found due those prosecuting error, and then enter upon the lands appropriated and order the road opened. The following might serve as an entry for the commissioners "to make: § 1832. Form of Entry. [Title.] It appearing in the above matter that C. D. and E. F., claimants of compensation and damages, have prosecuted error from the findings of the Probate Court to tlie Court of Common Pleas, and that the money ia now in tlie county treasury, tlie petitioners liaving paid the sum ordered paid by tliem, and it appearing further that said improvement sliouM be establislied and said road opened to tlie public, it is ordered that the auditor draw a warrant on the county treasury for the sum of $ in favor of G. H. and the sum of $ in favor of I. K., the several sums due them as compensation and damages, they being persons wlio are not prosecuting error; and that said auditor draw a warrant on the county treasury in favor of the Probate Judge for the sum of $ , the same being the total amount heretofore awarded in this matter to C. D. and E. F., as compensation and damages herein, tliey being persons now prosecuting error to the Court of Common Pleas, including therein all costs and expenses herein adjudged against the commissioners and the petitioners. And it is further ordered tliat upon the auditor's compliance with this order, tliat the county superintendent of highwavs in this county enter upon the lands herein approi)riated for said road and open the same to the public, and the improvement herein petitioned for, be and is hereby established as a road for the uses and purposes prescribed by law. If the only question involved in the appeal to the Probate Court was whether the improvement was conducive to tlie pub- lic convenience and welfare, then the commissioners could not enter upon the lands until this question was finally disposed of. The same rule would no doubt apply whore this question was one of the matters appealed from, if error was prosecuted on this question. 17 § 6904. §1833 CONDEMNATION, ETC., FOR ROAD BUILDING 1568 CHAPTER XCYII CONDEMNATION OF MATERIALS FOR ROAD BUILDING. § 1833. § 1S34. § 1835. § 1836. § 1837. § 1838. § 1839. § 1840. § 1841. (7214) Power to purchase materials and appropriate land: application to court. Condemnation of road ma- terial. What may be condemned. Resolution to appropriate. Application to probate judge. (7215) Xotice to land- owner; how served; con- tents. Proceedings in probate court. Xotice to landowner. (7216) Appointment of ap- praisers ; assessment of value and damage. § 1842. § 1843. § 1844. § 1845. § 1846. § 1847. § 1848. § 1849. Entry appointing ap- praisers. Report of award. (7217) Copies of award to commissioners and owners; summoning jury. Entry of return of award. Form of appeal bond. Costs and expenses. (7218) Bond when jury trial requested. (7219) Date and conduct of trial. §1833. Power to purchase materials and appropriate land; application to court. (§7214.) The county commissioners or township trustees may contract for and purchase such mate- rial as is necessary for the purpose of constructing, improv- ing, maintaining or repairing any highways, bridges or cul- verts within the county, and also appropriate additional land necessary for cuts and fills together with a right of way to or from the same for the removal of material. If the county commissioners or township trustees, and the owner of such material or land, can not agree on the price therefor, the county commissioners or township trustees may apply to the probate court or common pleas court of the county in which the same is located, and on receipt of such application, the court shall pro- ceed to assess the value of the material or right to be appropriated in the manner hereinafter provided. [106 v. 645, § 230.] § 1834. Condemnation of road material. Private property shall remain inviolate, but ever subservient to public welfare. The appropriation of private property to the building and re- pairing of roads is a public use; however, in all such cases, before the property can be taken, compensation must be made to the owner, and unless the price be agreed upon, the owner has a right to have a jury fix the value of the same. I 1569 WHAT MAY BE CONDEMNED § 1835 The commissioners or trustees, as the case may be, dependent upon the fact which body desires the material, etc., are to determine the necessity of condemning the same, and their judg- ment will not be reviewed or disturbed, in the absence of fraud or gross abuse of discretion. Three things should be done before appropriation proceedings are begun: First. An investigation should be made and the advice of the county highway superintendent acquired as to whether the property is suitable and proper for the purpose desired, and how much should be acquired, and its probable value. Second. An attempt should be made to buy it from the owner at an agreed price. Third. A resolution should be passed determining to appro- priate the same. In all these matters the minutes should show a call aye and nay vote. § 1835. What may be condemned. "Whatever the commis- sioners or trustees determine is necessary, for the purpose of constructing, improving, maintaining or repairing any high- way, bridge or culvert within the county, may be taken ; also when additional land is required to make a cut or a fill, it may be condemned, as well as a right of way from the land condemned, to a public highway. These statutory provisions seem to be broad enough to cover everything that may be necessary or proper to be acquired for road building or main- tenance purposes. The lands of neither a cemetery nor pub- lic institution can be condemned. It is probable although the statute is not very clear that all that can be appropriated is an easement in the land, to take from it all such material as the trustees may need or desire for road purposes. § 1836. Resolution to appropriate. Whereas in the judgment and opinion of the commissioners of county [or trustees of county], it is necessary to ac- quire [here describe land, material, etc., desired for the purjjose of con- structinfr, improving and repairing the highways of this county |, and tliey are unable and can not agree with the owner tlicrcof, as to the price to be paid. Therefore, be it resolved by the commiHsioners \or trustees] that it is deemed necessary, and that it is intended by said board to condemn said property, and that said board does liercl)y condemn and appropriate for the purpose of [here state purpose] the following described property, to-wi< : [here describe] and it is ordered that an application be filed with the probate judge of this county to proceed under the statute laws of this state to have the same appropriated for the uses and purposes above declared and allowed by law. § 1837 CONDEMNATION, ETC., FOR ROAD BUILDING 1570 § 1837. Application to probate judge. To tbe Hon , Probate Judge of County, Ohio ; On the day of , 19.,., a resolution was duly passed by this board, a copy of which is as follows [here insert resolution] and they hereby make application and petition the court to proceed to assess the value of the property, etc., sought to be appropriated, as provided by law. Commissioners of County, Ohio. §1838. Notice to landowner; how served; contents. (§7215.) Upon the filing of such application, an order shall be made by the court, directing that notice in writing be served by the county commissioners or township trustees upon the person or persons whose property is sought to be appropriated, that at a day fixed which shall not be less than ten days there- after, appraisers will be appointed to assess the value of the same. Such notice shall contain a description of the property or rights sought to be appropriated, state the use to which it is to be put and the time when such appraisers will be appointed. [105 V. 646, §231.] § 1839. Proceedings in probate court. "When the applica- tion is filed in the Probate Court, the case should be docketed' styling the case with the commissioners, etc., as plaintiff, and the landowner defendant, and an entry should be put on order- ing notice to be given that on a certain day appraisers will be appointed to assess the value of the property to be appropriated. The time for naming the appraiser must be within ten days from the time the application is filed. EXTRY ORDERING NOTICE. Commissioners of ■\ County, Ohio, Plaintiff, / p^^^^^^ ^^^^^^ bounty, Ohio. , Defendant. ) This day came the commissioners of county and filed lierein their application for the appointment of appraisers to assess the value of certain property in said application described, and the court fixes the ...... day of , 19. . ., at 10 a. m., as the day upon which three disinterested persons will be appointed to assess the value of the property appropriated, and also assess the damage, if any, that will accrue to the owner by the removal of said through his premises, and it is ordered that notice be given by, the commissioners to said the person whose property is sought to be appropriated, of the time so fixed for the appoint- ment of said appraisers, and that said notice shall contain a description of the property sought to be appropriated, and state the use to which it is to be put. Said notice shall be served upon said by the commissioners through the county auditor, by mailing the same in a registered letter to bis last known address, within three days after the order is made, and this cause is adjourned to said day of , 19. . . 1571 NOTICE TO LANDOWNER § 1840 §1840. Notice to landowner. This notice must be served on the landowner by the commissioners or some person author- ized by them. The statute does not fix how the notice shall be given; it is a general rule where the statute does not fix the manner of service that the court may do so. A very good way is to send the same by registered letter, and have the commis- sioners file a copy of the notice, with the statement that it was mailed on a certain day, and also the card cf its receipt, signed by the owner. Of course, the notice must be in writing. FORM OF NOTICE. To Yoii are hereby notified tliat on the day of , 19..., tlie commissioners of county, did file in the Probate Court of County, Ohio, tlieir application to appropriate the following described property [here describe fully], the said property to be used for [here state fully use to wliich it is to be put] and the court has fixed the day of , 10..., at 10 a. m. as the time when three disinterested free- holders of the county, will be appointed to assess tlie value of the property appropriated, and also assess tlie value of the damages that will accrue to your property by removal of same through your lands. Commissioners of County, By , Auditor. § 1841. Appointment of appraisers ; assessment of value and damage. (§7216.) Upon the day so fixed, the court before which such application is filed, shall appoint three disinterested freeholders cf the county, who, after being duly sworn to im- partially assess the value of the material or right to be appro- priated, shall enter upon the premises of the owner and assess the value thereof. They shall also assess the damages, if any, that will accrue to the owner by the removal of the material through his premises, and within ten days after their appoint- ment, they shall return their award to the court. [IGG v. fi4G, § 232.] § 1842. Entry appointing appraisers. [Title.] This day this cause came on for hearing upon the matter of appoint- ing of appraisers, and the court finds tliat has been duly and h-galiy notified of the day fixed by tlie court, for tlie appointment of three ap- praisers, as required by law and the former orders of the court. After due consideration thereof, ihe court appoints , and , throe disinterested freeholders of the county, to, after being duly sworn, enter upon the premises of the said and assess tlie value of the property appropriated, and asseps the damages that may nrerue, to the remaining property, and they shnll make return to this court within ten days from this date of their proceedings hereunder. § 1843 CONDEMNATION, ETC., FOR ROAD BUILDING 1572 NOTICE AXD AWARD OF APPRAISERS. , and will take notice that on the day of , 19..., tliey were appointed to assess the value of [here insert description of property appropriated], by the commissioners of [or trustees] sought to be appropriated in their application filed in this court. You will, after being first duly sworn, enter up the premises of the said , owner thereof, and assess the true value of the property ap- propriated, also damages that may accrue to his remaining property by use of You will make due return of your proceedings hereunder, within 10 days from this, the day of ' , 19 . . . Probate Judge of County, Ohio. OATH. State of Ohio, County, ss. : , and do hereby swear that they will faithfully and impartially fix the value of the property sought to be appropriated by the commissioners [or trustees] in a proceeding pending in the Probate Court of County, Ohio, now belonging to and the damages that may accrue therefrom, to the best of their ability. Sworn to and subscribed before me and in my presence this day of , 19. . . § 1843. Report of award. The undersigned respectfully report that on the day of , 19..., after being duly sworn, they did enter upon the premises of the said and did view and appraise the property sought to be ap- propriated herein, as directed in the application of the commissioners of county, filed in the Probate Court, and the damages that might result from appropriation to said : And we do find and assess the value of the property sought to be ap- propriated of herein at $ and the damages, etc., at Appraisers. § 1844. Copies of award to commissioners and owners ; sum- moning jury. (§ 7217.) The court upon the return of the award shall forthwith furnish the county commissioners with a copy thereof, and also furnish a copy to each owTier of the material or right which it is sought to appropriate. There- upon, if either party within three days after such copy is furnished requests, the court shall cause a jury to be sum- moned in the manner provided in the statutes relating to ap- peals in road cases. If neither party requests the court to summon a jury, the court shall forthwith render judgment for the amount of compensation and damages awarded by the appraisers aforesaid, and order that upon payment of such sum and costs, to be taxed by the court, the county commissioners] 1573 FORM OF APPEAL BOND § 1845 or township trustees may enter upon such lauds and remove such material and enter into possession of such rights or ease- ment as may have been appropriated. [106 v. 646, § 233.] § 1845. Entry of return of award. [Title.] This day came the appraisers heretofore appointed in this ease and filed herein, their award of the value of the property sought to be ap- propriated in this proceedings, and it is ordered that a copy thereof be furnished to the commissioners [or township trustees] and a copy to the landowner of the land (or material] appropriated. ENTRY OF JUDG]\IEXT. {Title.} This matter came on further to be heard and the court finds that a copy of the award made by the appraisers heretofore appointed and filed in this court was duly furnished to and to on the day of , 19. . ., and three days having elapsed, and neither the said nor the said having requested a jury to be sum- moned, judgment is rendered against said for $ compensation and for $ damages, a total of $ , and the costs, amounting to $ in favor of , and it is further ordered upon payment of the said sum $ , the amount awarded to and the costs herein taxed by the court, the said commissioners [or trustees] may enter into possession of the property appropriated, and enjoy and use the same for the purposes and uses as in their application herein filed, set forth. ENTRY WHERE REQUEST FOR JURY IS MADE. [Title.] This day this matter came on further to be heard and the court finds that a copy of the award made by the appraisers, heretofore appointed, and filed in this court, was duly furnished to and , (m the day of , 19..., and within three days after the same was so furnished to the said , he appeared in court and requested that a jury be summoned to fix the value of the property sought to be appropriated, in the manner provided in the statutes relating to appeals in road cases, and it is therefore ordered that the amount of the ajjpeal bond be fixed at $ , conditional that the said shall pay all the costs and expenses of said trial, in case he fails to recover more at the hands of such jury than the amount fixed by the appraisers. § 1846. Form of appeal bond. Know All Men by thesk Presents, That we, A. S., L. R. and M. R. of County, Ohio, are lield and firmly bound unto tlie State of Oliio, for the use of county, in the sum of dollars, to the pay- ment of which we jointly and severally bind ourselves, our heirs, executors and administrators, by these presents: •Signed bv us at , on the day of , 19 . . . The condition of the above obligation is such that whereas the said A. S. et al., appeal from the awards of the appraisers fixing the compensa- tion of land and materials taken, and damages thereon to him awarder! has requested a jury trial of the same. Now if the said A. S. et al, shall pay all the costs and expcnseH of said trial in case he fails to recover more than tlie nmnunt fixed b,\ the appraisers in their said award and judgment that may l)e rendcr-rl § 1847 CONDEMNATION, ETC., FOR ROAD BUILDING 1574 against them for the same, then the obligation shall be void; otherwise to be and remain in full force and effect. § 1847. Costs and expenses. The statute does not indicate who shall pay the costs of the proceedings in the Probate Court prior to the jury trial, and the matter no doubt rests in the discretion of the Probate Court. Generally in condemnation cases the costs of the trial in the first instance is taxed against the party condemning, the idea being that that should be done so that the property owner may get the full value of the prop- erty condemned, and I see no reason why the rule should not be followed here. If either party appeals and dees not succeed in getting a better verdict than the award of the appraisers, such party is taxed the costs caused by the appeal. The fees of the appraisers are not fixed by statute ; probably a fair rule to follow would be that allowed to ordinary appraisers of real estate, to-wit, $2 per day. The court might increase this if it thinks proper so to do. The remainder of the proceedings is similar to that ill road appeals and the condemnation of property. § 1848. Bond when jury trial requested. (§ 7218.) In ease an owner of land or material sought to be appropriated, re- quests a jury trial, the court shall fix the amount of bond which shall be given by the party making such request, and such bond shall be conditioned that the party requesting such jury trial shall pay all costs and expenses of said trial in case he fails to recover more at the hands of the jury upon such trial than the amount fixed by the appraisers heretofore pro- vided for. [106 V. 646, § 234.] §1849. Date and conduct of trial. (§7219.) In all cases where a jury trial is requested the court shall forthwith after the drawing of such jury, fix a date for such trial, which shall not be more than twenty days thereafter, and such trial shall be conducted in all respects as is provided in appeals in road cases, and in all matters not covered by the practice re- lating thereto the ordinary rules governing similar matters shall apply. [106 v. 646, § 235.] 1575 DITCH CONSTRUCTION AND APPEAL §1850 CHAPTER XCYIII APPEAL IN CONSTRUCTION OF DITCHES, SINKHOLES, LEVIES, ETC. § 1850. Ditcli construction and ap- peal. § 1851. What deemed final order (§6473). § 1852. Final order. §1853. Who may appeal (§6474). § 1854. Persons that may appeal. § 1855. Notice of appeal. § 1856. Form of notice of appeal. § 1857. Perfection of appeal (§6475). § 1858. Bond. § 1859. Statement to be filed in court of common pleas, etc. § 1860. Form of statement. § 1861. Auditor to file transcript (§6476). § 1862. Filing transcript. § 1863. Issue; how determined. § 1864. Trial governed by rule in civil cases (§ 6477). § 1865. Trial by the court. § 1866. Trial by jury. § 1867. View of location by jury (§6478). § 1868. Verdict by jury (§6479). § 1869. Matters pertaining to ver- dict. § 1870. Judgment; motion for new trial (§6480). § 1871. Xew trial, etc. § 1872. Transcript after judgment (§6481). § 1873. Proceedings in erron (§6482). § 1874. Proceedings shall not sus- pend construction (§ 6483). § 1874a.Stay of proceedings. § 1874b.When Owner may recover tax paid, etc. (§6484). § 1874c.Claims from owner not having notice. § l874d.Evidence in action to re- cover taxes, etc. ( § 6485 ) . § 1874e.Action in proceedings to en- join. § 1874f.Xot enjoined for error; when (§6486). § 1874g.When injunction will not lie. § 1850. Ditch construction and appeal. The first general law for the construction of public ditches gave the jurisdiction to township trustees.^ Later this act was repealed and juris- diction was given to the county commissioners.- And still later jurisdiction was restored to the trustees,^ and from the time of the last above act, 1862, until the present law of 1919, Vol. 108 V. 926, both the county commissioners and the trustees had juris- diction. In the meantime the laws were ;it various times amended. The county commissioner.s exercised jurisdiction gen- erally when the ditch att'ected two or more townships, but the 151 vs. 351. 2 58 vs. 49. 3 59 vs. 93. § 1851 APPEAL IN CONSTRUCTION OF DITCHES, ETC. 1576 jurisdiction of the trustees was enlarged so they might act jointly when two or more townships were interested. This distinguish- ing feature, however, finally was more one of construction than anything else. In county ditches the work was sold out to the highest bidder; in township ditches the work was apportioned among the interested parties, so that they could do themselves, or have done, the work. If they failed or refused it was then sold. Some of the early laws did not provide for appeal and jury trial on the question of the appropriation of property and were declared unconstitutional. These were supplanted by amend- ments providing for such appeal. This appeal was, so far as I am aware, always to the Probate Court, and very properly so as that court had exclusive jurisdiction in condemnation by private corporations, and concurrent in municipal corporations, and such was the law when the former editions of this work were issued. The present ditch law takes this jurisdiction away from the Probate Court and puts it in the Court of Common Pleas. Whether this was wise or not remains to be seen. As the Probate Court has now no jurisdiction, the matter might in this volume very properly be omitted, but as the matter of appeal in ditch cases was treated of in the former editions, it has been deemed proper not to omit it in this. The act itself is the result of a commission appointed a few years ago to codify the ditch laws of Ohio. Experience no doubt will show that it will need some amendments. All former laws relating to the construction or maintenance of ditches, drains, sinkholes, levees, etc., have been repealed. § 1851. What deemed final order. (§ 6473.) The finding of a board of county commissioners, or the court, for or against any improvement petitioned for under this chapter, and the decision or judgment of either upon any claim for compensa- tion for property taken or damage to property by reason of the construction of an improvement or the confirmation of any assessment for benefit to property shall be deemed to be a final order of the date on which such finding or decision is made. And the same shall be entered as of such date on the journal record of proceedings of said improvement. [108 v. 947.] § 1852. Final order, etc. The present law very wisely de- fines what is the final order from which an appeal may be taken. This is a matter of vital importance, and in other instances con- siderable confusion and uncertainty has been experienced in 1577 WHO MAY APPEAL § 1853 determiuing what constituted the final order from which an appeal could be taken. Notably in condemnation proceedings. The first matter that is specified is the finding for or against the improvement petitioned for. This is the action of the com- missioners under Sec. 6449, G. C, if they find for the improve- ment, and Sec. 6453, G. C, if they find against the improve- ment. The matters that are decided under these sections, are the necessity of the improvement, whether it will be conducive to the public health, convenience and welfare, and whether the cost will be disproportionate to the benefits, etc. When the order is one of dismissal the commissioners shall put a finding of the facts on which the order is made, on their journal. If they find for thg improvement the papers in the findings and the record of the commissioners will contain the facts upon which the appeal may be taken. The second matter upon which an appeal may be taken is the judgment or decision of the commissioners upon the question of compensation for land taken or damage to property by reason of the construction. This is provided for under Sec. 6449, G. C. In all cases the actual value of the land taken must be allowed, unless the parties have waived the same by not filing their writ- ten claim for it. If a person has not been notified or is under a disability, the failure to file a written claim would not be a waiver. The statute provides, that in considering the question of com- pensation for property taken or damages, no deduction shall be made for any benefits that the property might receive from the improvement. Sec. 6479, G. C. The third question upon which an appeal may be had is that upon the amount of assessments charged to the various proper- ties to pay for the construction of the proposed improvement. This is the order made under Sec. 6472, G. C. The question of granting or dismissing the improvement and confirmation of assessments shall be tried by the court. The question of com- pensation and damages are to be submitted to a jury. Sec. 6477, G. C. § 1853. Who may appeal. (§ 6474.) Any interested party to an improvement proceeding under this act, or any number jointly interested, may appeal from any final decision or order made therein, by a board of county commissioners, to the com- mon pleas court of the county wherein the proceeding was in- stituted. And if the county commissioners of any county be a § 1854 APPEAL IN CONSTRUCTION OF DITCHES, ETC. 1578 party, and the proceeding was commenced originally in the common pleas court, then any interested party may appeal from any final order or judgment of such common pleas court grant- ing, refusing or locating the improvement petitioned for, to the superintendent of public works as the drainage commissioner provided for in a subsequent section of this act. Notice of. Notice of appeals herein provided for may be given at the time the decision, order or judgment is made or rendered, and noted by the commissioners or court on their minutes or docket; or written notice of such appeal may be filed in writing within three days from the date of the decision, order or judg- ment, with the county auditor, or clerk of court, as the case may be. Put on journal in absence of party. But if the decision be rendered in the absence of parties interested, notice of appeal shall be entered for them as a matter of course, by the county commissioners or court. [108 v. 947.] § 1854. Persons that may appeal. Any interested party in the improvement may appeal singly, or join with others jointly interested. Persons interested, we apprehend here, mean one whose lands adjoin, or whose lands are assessed for the costs of the improvement. And yet there might be others ; for instance if the proposed improvement should direct a stream of water, or cause an unusual flow of water on his land. However, the mere fact that an assessment Avas placed on the county or town- ship or municipality, would not give an individual taxpayer of the county, township or municipality the right of appeal. Pos- sibly the township or the municipality would be an interested party and have the right of appeal. Where different persons join in an appeal, all must be interested in the matter upon which they jointly appeal. This would leave it an open matter whether they could join on an appeal on the question of com- pensation and damages or assessments. Probably not unless they were tenants in common of the land affected. The safer way in such cases would be to file a separate appeal. § 1855. Notice of appeal. It is well settled that all matters of appeal in court proceedings are purely of a statutory nature, and no appeal exists unless provided for by the statute, and in order to have an appeal the statute must be strictly followed. If the party is present when the decision is made, he must, within three days, file a written notice of his intention to appeal. If the party is absent it is the duty of the commissioners to enter a notice of appeal on their journal. The commissioners 1579 PERFECTION OF APPEAL § 1856 may, no doubt, if they so choose, enter his notice or appeal if he is present, but they are not obliged so to do. When the person is present and files his written notice, it would be advisable for the notice to state upon what matter the appeal is taken. If the appeal is entered for him in his absence, it would include what the record shows. § 1856. Form of notice of appeal. In the matter of the ditch improvement No To the commissioners of County, Ohio. The undersigned, an interested party, hereby gives notice of his inten- tion to appeal from the decision made by you on the day of , 19. . ., on the question of granting said 'improvement [or dismissing the proceedings for said improvement] [or upon the amount allowed me for compensation and damages] [or upon the amount assessed against me or my lands for payment of the costs of said proceedings]. § 1857. Perfection of appeal. (§ 6475.) To perfect appeal, the appellant shall within ten days from the date of the final order appealed from, file with the county auditor, if the appeal be from the decision or order of the county commissioners, and with the clerk of the common pleas court, if it be from the deci- sion, order or judgment of the court. Bond. An appeal bond, with surety to be approved by the auditor or clerk, as the case may be, conditioned to pay all costs on appeal if the decision, order or judgment appealed from be sustained on the hearing or trial thereof. Time for filing". Within said ten days the appellant shall also file in the court or with the drainage commissioners, to which- ever the appeal is taken (wherein it shall be docketed as are other civil cases, and entitled in the matter of the improvement known as — giving by name and number, if it have one — ), Statement for appeal. A concise statement of the decision, order or judgment appealed from, and the grounds of such deci- sion, order or judgment as entered of record, and the claims of the appellant as to the error or injustice thereof; and on default of such bond and pleading being filed within said ten days said appeal shall be without effect and shall be dismissed at tlie cost of the appellant. [108 v. 947.] § 1858. Bond, etc. Within ten days (including the three days in which notice of appeal is given) from the date of the final order, appealed from, an appeal bond must be filed with the auditor, with surety to be approved by the auditor, con- ditioned to pay all costs on ap,;ea], if the judgment, order or decision appealed from, be not sustained, etc. It would be well § 1859 APPEAL IN CONSTRUCTION OP DITCHES, ETC. 1580 if the party appealing would see that this bond is filed and ap- proved by the auditor within the time limit. The form of bond used in road appeals, Sec, 1795, might easily be changed to use in ditch appeals. There are no particu- lar qualifications attached, as to who may be accepted as surety or their number, but they must be such as the auditor approves. Of course it should be signed by the person appealing and the surety. § 1859. Statement to be filed in court of common pleas, etc. Within the same time that a bond is filed a statement must be filed in the Court of Common Pleas. This statement must be a narration in concise form of the decision, order or judgment, as entered of record, and the claim as to the error or injustice of the same. This statement will serve as the petition in the case. It need not be verified. As the case is to be docketed and therein entitled in the matter of the name and number of the improve- ment, it would be advisable to so head this statement to preserve uniformity. As a matter of fact the person appealing occupies the position of plaintiff, and all the other parties defendants. § 1860. Form of statement. In the matter of the im- \ , provenicnt known as I the ditch im- > C ourt of Common Pleas, County, Ohio. provement. \ No ; STATEMENT OX APPEAL OF Now comes , an interested party in the above proceedings had before the commissioners of county, and says that on the day of , 19..., the said commissioners made and entered a finding on their journal in favor of granting the said improvement; that the said improvement is necessary and will be conducive to the public welfare and convenience, according to the statements and prayer of the petition filed in said proceedings [or, whatever the matter is upon which an appeal is taken]. That said improvement is not necessary, that it will not be conducive to the public convenience; that the costs of constructing said improvement will exceed the benefits that would accrue therefrom, and the cost and expense thereof will be greatly disproportionate of the benefit to the petitioner, or advantage to the public. Wherefore the under- signed asks that said proceedings be dismissed. §1861. Auditor to file transcript. (§6476.) If said appeal be perfected, the auditor or clerk, as the case may be, shall within ten days from the filing of the appeal bond and state- 1581 FILING OP TRANSCRIPT § 1862 ment, make and file in the appellate court or with the drainage commissioner, a full transcript of the journal entry containing the finding and decision appealed from, with the original peti- tion and engineer's report, assessment or such other original papers as are pertinent to the appealed issue. Issue made for trial. The issue for hearing or trial shall be deemed to be made by the original petition, the said statement of the appellant and the entry of the decision appealed from, and all parties to the proceeding not joining with the appellant in the appeal shall be considered defendants, and prima facie opposed thereto. Answer not required. No answer need be filed by any de- fendant. But after appeal has been perfected by any party, any other interested party may by motion made in person, or by counsel, oral or written, in se.ssion or at chambers, be entered on the record and considered as joined in interest with the appellant, and in such case, shall, with the appellant, be bound for costs, if the decision, order or judgment appealed from be sustained. [108 v. 948.] § 1862. Filing of transcript. Within the same time limit of filing bond and statement, the auditor must make up a tran- script of the proceedings before the commissioners, and file it and the papers in the ease in the Court of Common Pleas. While the failure of the auditor to file the papers required within the time limit would not defeat the appeal, it is always advisable for the appellant or his attorney to see that these things are done within the time limit. If all papers are not filed that should be, the court on motion will order them filed. §1863. Issue. Determined how. Issue is made up in this kind of a case from the original petition, the statement of the appellant and the entry of the decision appealed from. All per- sons in the proceeding other than the appellant, are considered as defendants, and opposed to the appeal. No other pleadings are required. These may be made however. Motions may be filed the same as in other civil cases. It is particularly pro- vided that on motion an interested party may be made a party joined in intei-est with the appellant. No notice need be given as all the parties who were notified of the proceedings before the commissioners are in court from that time on, and are bound to take notice of all future proceedings in the case. When, however, there are persons interested who are under a disability, it might be advisable to appoint a guai-dian ad litem for them. § 1864 APPEiVL IN CONSTRUCTION OP DITCHES, ETC. 1582 §1864. Trial governed by rule in civil cases. (§6477.) Trial or hearing of said appeal on the issue made shall be had under the rules of law for civil eases, so far as the same are applicable, the appellants being considered as plaintiffs having the affirmative, and being required to produce the predonder- ance of evidence to reverse or modify the decision, order or judgment appealed from. When heard by court. If the appeal be from a decision or order for or against the locatoin or construction of an improve- ment, or an assessment for benefits, the same shall be heard by the court as a case in equity. When heard by jury. But if the decision, order or judgment appealed from be for the payment of, or the refusal to pay, a sum of money in compensation for property taken for such im- provement, or as to damages to property affected thereby, the trial shall be to a jury as for a money demand. If the appeal be from a court of common pleas to the drain- age commissioner, the same shall be heard and decided by said drainage commissioner, or his official board of appeal, if he summon the same, as in this act provided, as are equity eases in courts having such jurisdiction. Precedence for trial. So far as consistent with the rights of others, appeal under this act, shall by the trial court, or drain- age commissioner, be given precedence over other matters. Jury may view premises. The common pleas court, when the" ease is triable by jury, may at the request of plaintiff.s or de- fendants, under rules as in other civil cases, have the jury view the location of the improvement, and the expense of such view shall be taxed as are other costs upon the appeal. [108 v. 948.] § 1865. Trial by the court. If the appeal is upon the ques- tion of the granting of the petition for the construction of the improvement, or dismissal of the application, or upon the ques- tion of the assessments, the matter is tried before the court. The court proceeds to try questions of both law and fact. The ordinary rules of civil cases apply and the court sits as a court of equity. The proceedings before the commissioners are prima facie correct, and the appellants are under obligation by a preponder- ance of the evidence to show that they are wrong before he can prevail. § 1866. Trial by jury. If the matter appealed from is upon the question of compensation for property taken or damages caused to property by reason of the improvement, it is to be tried by a jury. The appellant would have the opening and 1583 VERDICT OF JURY, ETC. § 1867 closing of the case, and notwithstanding the fact that the Supreme Court has recently held in condemnation of property by a municipal corporation, that there is no burden of proof, and the jury acts merely as an appraising or assessing board, determining the fair market value of the property from all the evidence submitted.* The burden of showing by a fair preponderance of the evidence on the part of appellant would be required before the former decision could be disturbed. The jury would be selected in the same manner as is done in civil cases in the Court of Common Pleas; the same rules of evidence would apply. In analogy the action would be much similar to condemnation proceedings. Upon request of the ap- pellant, the jury may view the premises. Such view wouhl probably not be considered as evidence, but merely to enable the jury to better apply the evidence produced in open court. Three-fourths of the jury could return a verdict. § 1867. View of location by jury. (§ 6478.) The sheriff, or his deputy, and the surveyor or engineer who surveyed, leveled, apportioned, and platted the improvement, in case a view be directed, may accompany the jury, and point out its location and route ; but no other person shall give any information to the jurors in the discharge of their duty. On return of jury, etc. After the jury has fully examined the premises, and returned to court, either party may be heard, in person or by counsel, and offer evidence to the jury under the direction of the court, upon any matter given it specially in charge as in other civil trials. [108 v. 949.] §1868. Verdict of jury, etc. (§6479.) The jury shall, upon the case being submitted to it, under the proper charge of the court, and upon a form provided by the court, return its ver- dict determining the matter in issue appealed from, upon which judgment shall be rendered by the court as in other cases. How signed. The verdict shall be signed by the jury as is provided by law, and by at least nine of the panel to make the same effective. The amount of the compensation or damage to be paid, if any, is the issue to be determined by the jury, and it may sustain the award that has been appealed from, or if it does not find such amount to agree with justice and equity determine the amount which upon the facts put in evi- dence does so accord. Where differ from award. Tn case such amount differs Fi-oin the award appealed from, the difference shall be pro-rated by i Martin vs. Columbus, 101 0. S. — . § 1869 APPEAL IN CONSTRUCTION OF DITCHES, ETC. 1584 addition or deduction from the assessments, if assessments have been made, upon the property assessed for such improvement. Where more than one appellant. If in jury trials there are more than one appellant, and with separate claims and issues as to different properties, the court may in its discretion submit all the several claims and issues to the same jury together, or it may direct separate trials for the separate claims and issues or any number of them. In case of such joint submission, the jury shall be approximately charged, and provided with a form to return the compensation or damage separately as to each prop- erty and appellant. Where appeal on different matters. Also if one appellant shall have appealed from an award as to each compensation for property taken and damages to property caused by the improve- ment the verdict of the jury shall separately state its findings as to each issue in controversy. In finding its verdict for compensation for property taken, or for damages to a property by an improvement, the jury shall not consider, or deduct, the value of any benefit that it will receive from the construction of such improvement. Court to hear court matters, others submitted to jury. If the appeal be upon both court issues and jury issues as in this act defined, the court shall appropriately separate the same for hearing and trial, and render its order or decree upon the court issues, and its judgment upon the verdict of the jury. [108 V. 949.] § 1869. Matters pertaining" to verdict. The above section has several matters of importance in the matter of trial and rendition of judgment. First, the verdict shall in form be returned as usual in civil cases. Second, the verdict may be returned by nine of the jurors. If the panel should by agreement be less than twelve, at least nine must sign. Third, it seems that the amount returned by the jury may be modified by the court to agree with justice and equity. Fourth, if the amount found by the jury should be different from that allowed by the commissioners, the court shall change the assessments to meet the same. Fifth, if there are a number of appellants, the court may direct separate trials or all may be submitted to the same jury at the same time, the jury finding or designating each appel- lant's claim, etc. Sixth, the jury shall separately state its findings on matters of compensation and damages. 1^8^ NEW TRIAL § 1870 Seventh, no deduction shall be allowed for benefits on either the matter of land taken, or damages to property. In condemna- tion cases no deduction can be allowed on the question of com- pensation for land taken, but special benefits might be deducted on the question of damages. Eighth, if the appeal involves the issues that are properly- triable to the court, such as the granting or dismissal of the pro- ceedings, or matter of assessment, and also those that should be tried by jury, the court shall separate them and hear them in the proper way. §1870. Judgment— Motion for new trial. (§6480.) The court trying such appeal shall receive the verdict, and if no motion for new trial thereof be filed within three days, which motion may be filed as in other civil cases at law and for like causes ; or if such motion be overruled, it shall render judgment according to said verdict, and for or against the plaintiffs sepa- rately, if there be more than one. Taxation of costs. And the court shall tax the costs on ap- peal in favor of the prevailing party or parties. If the plain- tiffs prevail, then their costs shall be taxed against the county, and the county commissioners shall pay the same from the gen- eral ditch improvement fund, and add the same to the costs and expense of the improvement to be assessed upon all benefited property. If the plaintiffs shall not prevail, then the costs on appeal shall be taxed against and collected from them on their bond as in other civil cases. Where several matters appealed. If more than one matter is appealed from, and plaintiff' prevails as to one, and loses as to another, then the court shall determine how much of the costs each party shall pay and tax the same accordingly against and collected from them or their bond as in other civil cases, plaintiff', and casts be taxed against them, the court sliall ap- portion and tax the costs to be paid by the plaintiffs equitably among them. [108 v. 950.] § 1871. New trial. If a party wishes to prosecute error upon the findings of the court or verdict of the jury, witliin three days from the return of the verdict, a motion for a new trial must be filed as in other civil cases, and for like causes. If no motion is filed or if it be overruled, the court shall render judgment according to the verdict. Exceptions may be taken on the motion for a new trial and also on the judgmnnt rendered by the court on the questions triable to the court alone. § 1872 APPEAL IN CONSTRUCTIO]^r OF DITCHES, ETC. 1586 §1872. Transcript after judgment, (§6481.) After the final judgment, decree or order upon an appeal is rendered by the appellate court, the clerk thereof shall within ten daj's make a transcript of the same, and certify and transmit it with all original papers in the case and the taxed bill of costs to the county auditor, or the court from which it came on appeal. Duties of auditor on receipt. The auditor, or clerk of court, receiving such transcript and papers shall forthwith notify the county commissioners, or court, of such receipt and the judg- ment, decree or order shall be entered en their journal, and thereupon such commissioners or court shall proceed with said improvement proceedings in compliance with such final judg- ment, decree or order, from the point at which they were termi- nated by such appeal, as if the same had not been taken. Costs, etc. And if costs have been taxed agamst the plain- tiffs, and are not paid before the assessment for the improve- ment is placed upon the property, such costs may be added to the amount of the assessmrnt of such plaintiffs, and certified to the county treasurer for collection and collected with the a.ssess- ment for benefit, and upon collection paid to the proper court for distribution to the persons, or fund, to which they belong. And any such costs belonging to the county shall be paid into the general ditch improvement fund. [108 v. 950.] §1873. Proceedings in error. (§6482.) In addition to the right of appeal in the preceding sections of this act provided for, error may be prosecuted to the court of appeals from a final order or a judgment rendered by a court of common pleas upon either proceeding in the matter [manner] of a petition original- ly filed therein, or heard or tried therein on an appeal from a final order of a board of county commissioners. Governed by rule m civil cases. Proceedings in error here- under and the costs thereof shall be governed by the provisions of law now or hereafter in force in civil cases. Who made parties. If the plaintiff or plaintiffs in error be not a board of county commissioners, or joint board of county commissioners, it shall be .sufficient to make the board or joint board of county commissioners which originally rendered the decision complained of, or is opposed in interest, defendant in error, and such board or joint board shall be deemed to represent those opposed in interest to the plaintiff in error ; and if the plaintiff or plaintiffs in error are a board or joint board of county commissioners, it shall be sufficient to make the peti- tioners for the improvement defendants in error. Who deemed parties. All parties to said proceeding in the court of common pleas affected by said proceeding in error shall be deemed to be parties defendant in error, and opposed to the contention of the plaintiffs in error, unless by motion therefor 1587 STAT OF PROCEEDINGS § 1874 they be admitted and joined with plaintiffs in error or interest. [108 V. 950.J § 1874. Proceedings shall not suspend construction. (§ 6483.) No appeal, nor any proceeding in error allowed or provided for the parties to an improvement proceeding under this chapter, except an appeal from a final order granting a petition for an improvement, shall operate to suspend or defer any of the pro- ceedings provided for the surveying and estimating the cost of any improvement, or the letting of the contract for and the con- struction of it, all of which shall proceed as if no appeal had been taken or error had been prosecuted. [108 v. 951.] § 1874a. Stay of proceedings. The above section only gives one ground upon which an appeal or error proceedings may operate as a stay upon the proceedings, that is upon the final order granting the improvement. Of course there is another which necessarily follows, from its nature and character; that is upon the order dismissing the proceedings. If the question of appeal or error is for compensation or damages, or on assessments, the commissioners may go ahead with the proceedings, letting contract, etc. § 1874b. When owner may recover tax, etc. (§ 6484.) Any owner of land affected by an improvement as defined in this chapter, who has not received notice thereof, and had oppor- tunity to be heard as in this act provided, may bring an action in the common pleas court of the county wherein the improve- ment is located, against the county commissioners in their official capacity to recover any tax or assessment therefor, if paid, or to enjoin any tax, assessment or levy therefor upon his lands, or to recover for any damages sustained, or for compensation for any property taken, and his rights and remedies in such action shall be as for any like demand arising from any other cause. But in such action, it shall be competent for the defendant to plead and prove the value of any actual benefit, or increase of value of the premises affected by the improvement by reason thereof in mitigation of any claim for damage or compensation that may be pleaded by the plaintiff. [108 v. 951.] § 1874c. Claims from owner from not having notice. It sometimes happens in proceedings for construction of ditches, some one who should have been notified, has not been notified as the law provides. Nothing is known until it is attempted to collect an assessment that has been placed against his property. Then on the ground of not having been notified, he seeks to en- join the collection of the assessment. Of course if he has re- § 1874d APPEAL IN CONSTRUCTION OF DITCHES, ETC. 1588 ceived no notice, not having had his day in court, he is entitled to relief. But it often happens, yes, generally happens, that his property has received some benefit from the improvement, and it is obvious from a sense of justice, that he should not reap a benefit without paying his just proportion of the cost of that which causes the benefit. That this may be done is the object and purpose of the previous section, a very commendable one. § 1874d. Evidence in action to recover tax, etc. (§ 6485.) The court in which a proceeding is brought to recover a tax or assessment paid, or to declare void the proceedings to locate or construct an improvement, or to enjoin a tax or assessment, levied or ordered to be levied to pay the costs and expense thereof. Manifest error. If there is manifest error in the proceedings, whether the same be before the court on appeal, or by action brought as in this act provided, shall allow the plaintiff in the action to show that he has been injured thereby : May order survey, etc. And the court in its discretion upon application of either party may direct and cause any necessary survey of the premises affected to be made by a competent dis- interested engineer, who shall upon oath report his findings by his survey upon the matters covered by the court's order, and such report shall be received and considered by court and jury as is other competent evidence upon the issue to be determined. Oral testimony as substantial compliance. And the court shall allow oral testimony that any acts required by law for an improvement hereunder have been substantially complied with, notwithstanding the record required to be kept, or kept by any board or officer. Case if notice actual may be shown. And in case of claimed want of notice as by this act required, any evidence may be offered that the plaintiff had knowledge of the proceedings for said improvement and actual opportunity to appear therein and be heard, which also may be considered upon the issues. When may bear upon question of necessity. And if said cause is tried before the construction of said improvement is let by contract, then oral evidence may be offered for and against the necessity of the same, and whether it be conducive to public health, convenience and welfare as defined in this chapter. Such judgment shall be rendered as is equitable. Upon such trial to the court or jury, the court shall upon its findings^ or upon the verdict of the jury, render such judgment or make such order as will be equitable, and may order any tax or assess- ment to remain on the duplicate for collection, or order it to be levied, or perpetually enjoin it or any part thereof as to the plaintiff, or if it has been in whole or part paid under protest 1589 ACTION IN PROCEEDINGS TO ENJOIN § 1874e or without knowledge, order the whole or such part as is just and equitable to be refunded. And if said improvement is not constructed, and would irreparably injure the plaintiff if con- structed so that his damage could not be measured by money recovery, the court may perpetually enjoin such construction. And upon a partial recovery by the plaintiff the court may ap- portion the costs equitably between the parties. [108 v. 951.] § 1874e. Action in proceedings to enjoin. The above sec- tion is somewhat similar to former § 6500, G. C, and §§ 6645 and 6646. The object and purpose is to permit in such an action all matters to be gone into, so that justice may be done all parties. It of course is clearly a proceeding in equity, and if the party bringing the action has a remedy at law, he must fail in this action, or if he can have a remedy under the previous section. §6484, G. C. (§1861).^ The basis of the above action is that there is manifest error in the proceedings. If the proceedings are substantially correct the writ will not be allowed. The court may have a re-survey by a disinterested engineer. If the plaintiff alleges want of notice, a very common com- plaint, and one which from the nature of the proceedings is likely to occur, the court may hear evidence as to whether or not the plaintiff had knowledge of the proceedings and had actual opportunity to appear and be heard. If he did and failed to take advantage of his knowledge and opportunity, he shall not now be heard, to complain. The nature of the proceedings is such that they can hardly be carried on without an aft'ectcd landowner knowing as he ought to know, of the proceedings. The law intends to give every one his day in court in every instance where his individual or property right will be affected, but it also expects him to be diligent in asserting them, and if he knows of a matter that may or will affect him, if he lies still when he should have acted, he will have sinned away his day of grace. If the action is brought before the contract for the improve- ment has been let, the question of the necessity of tlie improve- ment may be considered, and whether it is justified, or will be conducive to the public health, convenience and welfare. If it is past this time, this matter can not be considered. Of course in no ease can any of these questions be considered on an injunc- 5 See Commissioners vs. Krauss, Ilicksvillc, 17 Dec. 201; 4 N. P. 53 0. S. 628. See Andersonville vs. (N.'S.) 545. § 1874f APPEAL IN CONSTRUCTION OP DITCHES, ETC. 1590 tion proceedings, if the party had proper notice of the pro- ceedings. If in justice an assessment should be enjoined, in whole or in part, the court will do so. If paid under protest or without knowledge, it may in like manner be in the whole or in part refunded. And if the improvement is not constructed, and would irreparably injure the plaintiff if constructed so that his damage could not be measured by a money recovery, a perpetual injunction may be granted against its construction. The next section provides when it shall not be enjoined. This section may cure irregularities, but it does not save juris- diction where no jurisdiction existed or where jurisdiction had been lost. Anderson vs. Miller, 13 N. P. 42; 22 Dec. 166. § 1874f . Not enjoined for error, when. (§6486.) Neither the location or construction of an improvement, nor the taxes or assessments levied or ordered to be levied to provide for the cost and expense thereof shall be perpetually enjoined, nor the proceedings therefor declared void in consequence of an error committed by the engineer, the county auditor, county commis- sioners or other officer, in the location, construction or record thereof ; nor shall such error if not materially affecting the rights of any interested party, or causing actual damage to property, be a defense to the collection of any tax or assessment therefor levied thereon, if such tax assessment or levy was made or done within the jurisdiction conferred by law on the board or taxing officer making or levying the same. [108 v. 952.] § 1874g. When injunction will not lie. First, an injunction is a proceeding in equity, it will not be granted when plaintiff has a remedy at law. Second, it will not be granted if the plaintiff was properly notified of the proceedings. Third, it will not be granted in consequence of an error com- mitted by the engineer, the county auditor, the county commis- sioners or other officers in the location, construction or record. Fourth, nor for any error that does not materially affect the right of an interested party. Fifth, neither shall such error be a defense against the col- lection of an assessment, if the same was done within the juris- diction conferred by law on the board or officers making it. 1591 FRANCHISES § 181 CHAPTER XCIX. PRESCRIBING MODE OF USE OF STREET BY TELEPHONE AND TELEGRAPH COMPANIES. § 1875 Introductory. § 1876a Compensation only for dam- § 1876 How right to use public ages. grounds acquired. § 1877 Petition. Form, etc. § 1878 Hearing and decree. § 1875. Introductory. The statute^ has placed upon the Probate Court, the duty of detemiiiiing- under certain contingencies, tlie manner in which a telephone or telegraph, company may use the streets of a municipal corporation. It has been seriously contended, that this statute was unconstitutional as conferring upon the Court, duties which belong to the legislative department of our government ; and this view was of such a strong character that at first the Supreme Court followed that view and declared the law unconstitutional.^ Upon a rehearing, however, the Su- preme Court reversed itself, and while admitting that there was some doubts upon the question, it held that they were not of that character that would justify tlie Court in declaring tlie law unconstitutional.^ In this latter case. Judge Williams very thoroughly discussed the scope of the statute and the method in which a proceeding should be conducted. It is there declared that the proceeding is practically a proceeding for appropriation against the mu- nicipality, and that such is necessary in order to enable the company to make a necessary use of the streets of the corpora- tion. Being a statute ly proceeding, before the action can be 1 §§ 9178-9 G. C, § 1870. Where, under a decree of Probate 2 Zanesville vs. Teie. & Telegraph Court, right to erect poles was ob- Co., 63 O. S. 442. tained siil).jpct to riglits of other s'zanosville vs. Tele. & Telegraph coitii)anic.s to use its poles, another Co., 64 0. S. 67. companv can not do so, etc. Ilausa in action in Probate Court, com- Elec, etc.. vs. Electric Co., 10 Dec. pany must prove its incorporation 709; 26 lUiU. 104. and election of directors. Ccn. See Ohio Light Co. vs. Gertrude, Union Tel. vs. Columbus Grove, 8 ,')9 P.ull. .3.^4. for charge of judge C. C. (N.S.) 81; 28 0. C. C. 1.32; to jury in fixing method of corn- Queen City Tel. Co. vs. Cin., 15 pensation for casement of light C. C. (N.S.) 411; 27 0. C. C. 385; poles. 73 0. S. 64. § 1S76 TELEPHONE FRAljrCHISE 1592 maintained, the plaintiff must show tliat it has complied with all the statutory requirements. The proceedings are not very frequently called into vogue, but a fonn of petition and some suggestions may not be inappropriate in a work of this char- acter. The section of the Kevised Statutes relating thereto is as follows:* § 1876. How right to use public ground acquired. ' ' When lands authorized to be appropriated to the use of such company are subject to the easement of a street, alley, public way, or other public use, within the limits of a city or village, the mode of use shall be such as is agreed upon between the municipal authorities of the city or village and the company. If they cannot agree, or the municipal authorities unreasonably delay to enter into an agreement, in a proceeding instituted for the purpose, the probate court of the county shaK, subject to th^ provisions of section eleven thousand forty-six of the General Code, direct in what mode the telegraph line shall be construct- ed along such street, alley, or public way, so as not to incom- mode the public in the use of it. " [R. S. § 3461 ; 101 v. 289.] ^ § 1876a. Compensation only for damages. "Nothing in the preceding section shall authorize a municipal corporation to demand or receive compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness." [R. S. § 3461.]^* §1877. Petition. Form, etc. The petition must necessarily show that the corporation is authorized to appropriate the property, and that it is necessary for its proper management that it have the use of certain streets, alleys, etc., within the limits of a municipal corpora- tion, and that it has been unable to agree witli the corporation as to tlie method of such use. The following may be used as a form of petition : In the Probate Court of County. Ohio. S. C. T. Co., Pltf., j vs. i. Petition. City of S., Deft. ) The plaintiff says that it is a corporation duly created, organized and existing under the laws of the State of Ohio, and that more than ten per 4 The Probate Court has full and Grant to telephone company sub- complete jurisdiction to determine jeet to abutter's rights. Mantell vs. the terms upon which , a telephone Telephone Co., 11 C. D. 274; 20 company may occupy the streets of O. C. C. 345. a city, etc. Fitzsimmons vs. Cin- Grant to use street for certain cinnati, 47 Bull. 171. time cannot be extended beyond its 5 § 9178 G. C. express terms. State vs. Tel. Co., 5* §9179 G. C. 5 C. D. 311; 11 O. C. C. 55. The Court, however, cannot fix the City cannot stipulate for compen- .rates the telephone is to charge. sation beyond what may be neces- State ex rel. Sheets vs. Toledo, etc., sarv to restore streets. Farmer vs. 72 0. S. 526. Tel". Co., 72 0. S. 526. 1593 PETITION § 1878 cent, of it? capital stock has been subscribed and that fact certified to the Secretary of State of Ohio, as required by law. The plaintiff further says that it is and was organized as aforesaid for the purpose of acquiring a franchise or franchises for, and constructing, acquiring, maintaining and operating in the city of , Ohio, and elsewhere, telephone and signal lines, together with the stations, poles, wires and conduits, fixtures and appliances used in connection therewith, and for carrying on the said business and doing any and all things incident and necessary thereto. The plaintiff further says that the said defendant is a municipal corpora- tion organized and existing under the laws of said State of Ohio, and lo- cated in the county of , in the said State; and is a city of the second grade, third class A. Tne plaintiff further says that it has endeavored to agree with the muui'^ipal authorities of said defendant city \ipon the mode in which the telephun.e ^ines of the complainant shall be constructed along and across the following stT^ts and alleys of said city, to-wit: (here name them), and for that purpose, more than four weeks ago on the day of , the plaintiff p^fiiient^d to the Board of Public Affairs of said city, an ordi- nance upon thfe sahject, a copy of which is hereto attached, and marked "Exhibit A" aju made part hereof; and requested the said board to pass said ordinance or rfu^i:g,^st such reasonable modifications thereof as to the said board should s^ra proper; but the said board has wholly failed either to adopt the said Orc^ivauce, or to suggest any modifications thereof, al- though a reasonable tiue for that purpose has long since expired. On the contrary, said board has notified the plaintiff on the day of ' , 190. ., ill writing by resolution duly passed, that it would not consider said proposed .wdinance nor attempt to agree with the plaintiff upon the mode in which it should use said streets; but there being other parties (some of Avhom are rot organized for telephone purposes) at present requesting said board to ap.ree with them on the same subject, said board has notified all of said pa/ties, including this plaintiff, that on the day of , 190. ., it would consider all ordinances on the sub- ject which might be presented, and that it would pass the one of such ordinances which contained the terms most favorable to the city, and em- braced the largest cash bonus to the city, and that it would reject all others. Wherefore the plaintiff prays the Court to direct in what mode the telephone lines of the plaintiff' shall be constructed along and acro.'^s the following streets and alleys and public ways of said defendant city, accord- ing to the statute in such case made and provided. State of Ohio County, ss. D F S beinc first duly sworn, says he is the treasurer of the phuntitl company and that he believes the facts stated in the foregoing petition are ^ Sworn to before me and subscribed in my presence this day of , 190. . § 1878. Hearing and decree. While the statute does not indicate the mode of procedure and power to issue summons, ete., yet the power conferred ix> hear the matter includes the power to do whatever is necessary to consummate the purpose intended." Wliilc pertaimnj:r some- 6 Zanesville vs. Telephone & Tele. Co., 64 O. S. 83. §1878 TELEPHONE FRANCHISE. 1594 what of the nature of an appropriation proceeding, the parties are not entitled to a trial by jury/ It should be remembered that the property of the adjoining land owners is not tahen in this proceeding, a municipal cor- poration does not OAvn the streets and has no right to place addi- tional burdens thereon. Before the telephone company could proceed to erect its poles, it must in some manner have pro- cured the right so to do from the adjoining property holders. Cut this is a matter with which the municipality has nothing to do. The jurisdiction conferred on the Court is to determine the controversy between tlie disputant corporations, arising from their disagreement or failure to agi'ee, hy an order binding on both, 'directing in what mode the telephone lines shall be con- structed in the streets and alleys, so as not to incommode the public in the use of the same.® The decree or order should specify with reasonable certainty the mode of constmction of the company's lines, so that they will not incommode the public in the use of the streets.® No power to grant right to put wires under ground unless city con- sents. Queen City Tel. Co. vs. Cin., 5 C. C. (X.S.) 411; 17 Cir. D. 3S5; affirming 2 X. P. (X.S.) 349; 15 Low. D. 43; afrirmed 73 0. S. 64. Couit will remove line constructed without consent of owner. Smith vs. Printing Co., 1 C. D. 475; 2 0. C. C. 259. Probate Court cannot make gen- eral regulations as to use of all streets by telephone company. Queen City Tel. Co. vs. Cin., 5 C. C. (N.S.) 411; 27 0. C. C. 385; affirmed 73 0. S. G4. Company must prove incorpora- tion and election of directors. Cen. Union Tel. Co. vs. Columbus Grove, 8 C. C. (X.P.) 81; 28 0. C. C. 132. Probate Court cannot fix price of service. Macklin vs. Tel. Co., 1 C. C. (X.S.) 373; 24 0. C. C. 450; affirmed 70 O. S. 507; Farmer vs. Tel. Co., 72 0. S. 526. ■! Id. 81, 82. 8 7(Z. 83. 9 7(Z. 89. The order can be reviewed on er- ror. But as the Probate Court is vested with a discretion, the order will not be set aside unless the dis- cretion has been abused. The re- viewing Court may modify the order of the Probate Court. Telephone vs. Chagrin Falls, 1 X. P. (X.S ) 534, 14 Dec. (1904) 449. 1595 INTRODUCTORY §1879 CHAPTER C. PARTITION. § 1S79 Introductory. § 1884 Court shall order so much § 1880 Certificate from Probate of proceeds to be paid over Court when proceedings for to him, provided, etc. partition commenced and § 1885 Proceedings in Court of deficiency of assets found. Common Pleas. § 1881 Application. Form. § 1S86 Form of motion and entry § 1882 Hearing and order of Court. ordering money paid, § 1883 Form of certificate. § 1879. Introductory. Partition is tlie division wliicli is made of lands between sev- eral jDersons whieli belong to tbem as co-heirs.^ This division may be made by amicable arrangement between the parties or by an action brought in Court for that purpose. Such proceed- ings generally occur between the heirs of a deceased person, and generally belong to a Court of general jurisdiction, and only a small number of Probate Courts in this State have jurisdiction of such proceedings ; and where they have such jurisdiction, the proceedings are conducted in the same manner as in the Court of Common Pleas. It will therefore not be discussed in this work, but reference made to general works on pleadings, etc.^ The statute ^ has recently been amended as to the time in which an order for partition might be granted, and it has been held that under such section a petition for partition of real estate will not lie within one year from the death of the an- cestor from whom the estate is derived, unless it is averred and 1 Bouv. Die. Parties in iiarlition acquire no See § 911, Title by purchase. new tilh-. ^Icl'..iin vs. I\Icr>ain, 1.") § 1524, Assignment of dower by O. S. IVM. Gdn. ■•?> 12028 G. C. - Kinkead's Code Plead., § 95,3, A trustee in l)aiikruptcy canuDt etc. Form of petition. §957, maintain action. Lindsay va, Whittaker's forms, 542. Kunkle, 82 O. S. 325. § 1879 PARTITION 1596 proved (1) that there is sufficient personal property to pay the debts of such ancestor's estate, (2) that the debts are paid, or (3/ that the debts are secured as provided in sec. 10785, G. C* And it is also held that while the order may not be granted with- in one year, yet a petition may be filed, and after the end of the year an order might be granted.^ The statute was no doubt so amended that a partition could not be had before one year, for tJie reason that the statute gives one year's time for the presentation of claims against the es- tate of a deceased, and that therefore the administrator ought to know within that length of time whether it is necessary to sell the real estate to pay debts. No action that the heir can take will at any time defeat the right of the administrator to bring proceedings to sell the real estate to pay debts; and a person buying in partition proceedings' does so with the risk that such real estate may be subject to the unpaid debts of the deceased owners, unless the statutory limit has expired. In all instances where partition proceedings are brought and an administrator is still acting, such administrator ought to be made a party. A deceased pei'son may, however, by will, pro- vide that no partition shall be made of his estate for a certain number of years after his death. ^ If a partition suit has been brought, and it is necessary to have funds to pay debts of the deceased, the administrator may elect to commence a new proceeding and have the real estate sold, or may file a certificate in the Court of Common Pleas, in which the action is pending, as provided for in the next section.'^ 4 Smith vs. IMontag, 32 Bull. 153; stead of subjecting the property, the 1 Dec. 224. See § 826. rights of a " bona fide buyer o"f one 5 Fryman vs. Fryman, 9 C. C. of the partition notes are paramount 91 ; 6 C. D. 377. to his. Rowecamp vs. Meyer, 10 6//!, re Reynolds, 7 X. P. 626; 5 Rec. 566. Dec. 570. I have been asked, suppose the See Craighead vs. Pike, 4 Rec. heirs should file a suit in partition 199. more than one year after the death As to advancements, see Boyer vs. of the ancestor, and the adminis- Boyer, 7 N. P. 153: 7 Dec. 525. trator not being made a party, 7 An administrator made party to could he then file a suit to sell a partition case and needing a sale real estate, and would the Probate to pay debts may have an order of Court have jurisdiction; and I an- sale on his answer and cross peti- swered in the affirmative. It is tion, and no statute of limitations doubtful if even by making the applies. Lafferty vs. Shinn, 38 O. administrator a party in the par- S. 46. tition suit he can be deprived of If the administrator claims the his right to an order of sale. (See proceeds of the partition sale in- 38 0. S. 46, above), much less 1597 APPLICATION — FORM § 1880 § 1880. Certificate from Probate Court when proceedings 'for partition commenced and deficiency of assets found. "If after the institution of proceedings for partition of the lands of a deceased person, it is found that the assets in the hands of liis executor or administrator are probably insufficient to pay the debts of the estate and expenses of administration, the executor or administrator must make a written statement to the probate court of such assets, indebtedness and expenses, and it forthwith shall ascertain the amount necessary to pay such debts and expenses in addition to the assets, and give a certificate thereof to the executor or administrator." [R. S. § (3173.] ^ § 1881. Application. Form. The statute says that the administrator or executor shall make a written statement to the Probate Court- of said assets and indebtedness and expenses. This means that such a state- ment skall be made to the Court of the total assets and the total liabilities as Avill enable the Court to determine what amount is necessary to pay such indebtedness. Tlie form may be as follows : 1 Probate Court, County, Ohio. Statement of Assets, Debts, etc., to Procure Certificate to File in Partition Proceedings. Now comes A. B., adm.inistrator (or executor) of the estate of C. D., deceased, and respectfully represents to the Court that the assets, indebted- ness and expenses of said estate are respectively as follows: ASSETS. Cash on hand dollars. Promissory notes from which will be probably realized dollars (and here state such other facts that will show the entire amount to be realized from all assets from every source) . if he is not a party. Until the as alwve stated. Weis vs. Gerdes, Court in which partition proceed- 1 Dayton Term Pvcp. 31. ings is brought makes its order, Where an administrator had com- he can oust that Court of its monccd an action to sell the real jurisdiction bv filing his petition est.ite for the purpose of paying to sell real estate. His right is del)ts, and the widow, in order to always sui>erior to the heirs unless prevent the sale of tlio real estate, he waives it or is in some manner gave a bond as provided by stat- estopi)ed. Since the above was ute (§10485 G. C), conditioned written the Sapreme Court has to pay the debts agninst said es- held the same. Stout vs. Stout, tate, and the administrator, then 82 S 358. dismissed his i)ctiti<>n and aftcr- See Myers vs. Myers, 9 C. C. wards the lands wlicre sold on (N.S.) 44!)- 29 0. C C. 390. pirtition V)otw(cn the heirs, said 8 S 10818 G C willow was ciitillcd to have paid to The creditor of a decedent can- her out of the proceeds of such not be made a party to tbe suit in partition sale, the amount of mom-y partition, he must work out his tl.at she advanced to pay the drbts claim through the administrat/.r, of the ^oc^l^^^A Corey v^s. ^Ilayea, and the administrator must proceed 13 C. C. 18j; 7 C. U. -/-. § 1882 PARTITION 1598 DEBTS AND EXPENSES. Expenses of last sickness dollars ; funeral dollars; Avidovv's allowance dollars; accounts due G. H., I. J., etc. (and here give all other matters relating to liabilities against said estate). BALANCE REQUIRED, $ Said administrator therefore respectively asks the Court that a certificate may be granted to him of the amount which will be necessary to pay said indebtedness and expenses in addition to the assets which are in his hands, so that he may present the same to the Court of Common Pleas of county, where a proceeding in partition is pending of the lands of said deceased. (Sign.) Sworn to before me and subscribed in my presence this day of , 190. ..3 § 1882. Hearing and order of Court. The action seems to be purely ex parte, and no notice is re- quired ^" to be given to any one, and the Court is to proceed as soon as convenient to hear the matter set forth in the application and find the amount which will be necessary for the adminis- trator to have in order to liquidate all indebtedness against the estate. The amount which the Court should find to be neces- sary from the nature of the case can never be precisely deter- mined, but sufficient should be allowed to reasonably cover all liabilities of the estate. This order of the Probate Court can- not be attacked in the Court of Common Pleas. When pre- sented in the proceedings in the Court of Common Pleas, the amount therein certified must be allowed the executor. If it is sought to attack the order, this must be done in the Probate Court. The entry granting such certificate may be as follows : Suit in partition docs not pre- not show that the porsoml property vent sale by administrator to pay is insuflicient to pay the debts thereof, debts. Myers vs. Myers, 9 C. C. A proceeding u"der §§ 10818, 10819 (N.S.) 499; 20 O. C. C. 30G. G. C, to procure a certificate of Right of administi-ator is supe- indebtedness to file in a suit in rior. Stout vs. Stout, 82 0. S. partion is one to sell lands to piy 3G3. debts, and Avhcre the claims for the 9 A journril entry, under which a payment of wliich the sale of the certificate of indebtedness is issued land is required include one due by the Probate Court for the pur- the executor, the heirs should have pose of filing the same in a parti- notice and be allowed to defend tion suit in the Common Pleas and against it if sucli claim isi denied, obtaining money to pav debts, as In re Estate of DeSerisv, 8 N. P. authorized by § 10818 G. C, will 694. be set aside where the statement But it cannot be attacked ollat- of the executor does not show all erally, or in the action pending for the assets and indebtedness of his partition, estate, and especially where it does lo In re DeSerisy, 8 N. P. G94. 159D FORM OP CERTIFICATE § 1883 {Title.) This day came A. B. and filed herein, a written statement of the assets and indebtedness and expenses, pertaining to tlie administration of said estate, praying that a certificate might be granted to him of the amount of money which will yet be required to pay all the indebtedness of said estate for him to file in a partition pioceedings pending in the Court of Common Pleas of county, of the lands of said deceased; and the same was submitted to the Court. Whereupon the Court ascertains and finds that the amount of dollars will be necessary to pay the indebtedness of said deceased, and expenses of administration of said estate in addition to the assets in the possession of said administrator. And it is therefore ordered that a certificate of such fact be issued by the Probate Court of this county to said administrator (or executor) for him to file in said partition proceedings pending in said county. § 1883. Form of certificate. State of Ohio, County, ss. In the Probate Court. In the Matter of the Estate of A. B., deceased. I, H. F., sole judge and ex-officio clerk of the Probate Court within and for the county aforesaid, do hereby certify that I have ascertained, from a statement of the assets, indebtedness and expenses of the said estate, made and presented by said administrator to this Court, and from other sources, that the sum of dollars, in addition to said assets will be necessary to pay said indebtedness and expenses. In testimony whereof I have hereunto set my hand and affixed the seal of the said Court at , this day of , A. D. 190 . . . (Seal.) H. F., Probate Judge and ex-officio Clerk.n § 1884. Court shall order so much of proceeds to be paid over to him, provided, etc. "The executor or administrator thereupon shall present such certificate to the court in which the proceedings for partition are, or have been pending, and on his motion that court shall order the amount named in the cer- tificate as necessary, to be paid over to the executor or admin- istrator out of the proceeds of sale of the premises, if thereafter they are sold, or have already been sold. Nothing- herein con- tained shall prohibit an executor or administrator from pro- ceeding to sell land which belonged to such estate, to pay delits, although it has been sold on partition or otherwise, or the proceeds of such sale fully distributed." [R. S. § CI 74.] '- n This certificate filed in the Where the creditor's claim is in Common Pleas Court is not conclu- the nature of a judgment, it need sive to crcdi'/jrs as to the amount not he even y)resented to the admin- required, thus where the adminis- istrator. Ambrose vs. Byrne, Gl O. tratf3r in making his statement S. 14^5. inadvertently overlooked a claim, '-'§10819 C C. which had been presented, it was Tt is not the duty of the Prolmfn yet hold, that the creditor could Court to provide for the ))!iymeiit insist on having the renl estnte < f claims no one is asserting. Co.K sold to pay the clnim which wns vs. John, 32 0. S. 532. inadvertently omitted. In re Cav- agna, 8 N. 'P. 557. § 1885 PARTITION 1600 § 1885. Proceedings in Court of Common Pleas. It will be observed that tke executor or administrator shall at once present said certificate to th© Court in which the pro- ceedings for partition are pending, and on his. motion the amoimt of such certificate must be paid over to him. Of course, if there is any money remaining in the hands of the administrator after he has paid all the debts and expenses, such money must be distributed as real estate among the heirs of the deceased, the same as if it had not been turned over to the administrator. It will also be observed that the above section reserves to the administrator or executor the full right to bring a separate proceeding if he so desires. On the administra- tor's motion, the Court will set apart to him such part of the proceeds as his certificate calls for. § 1886. Form of motion and entry ordering money paid. The State of Ohio County, ss. In the Coui't of Common Pleas. F. B. et al. ) No. Case vs. > B. B. et al. ) Motion for portion of purchase money. Now comes C. D., administrator of the estate (or executor of the will) of A. B., deceased, producing the certificate of the Probate Judge of county, to the effect that the personal estate of said decedent, subject to aaministration, amounts to dollars, and that the valid debts of said decedent, with the expenses of administering his estate, amount to dollars, and that the real estate sold by proceed- ings in this case is liable for the payment of such deficit; and he therefore moves the Court to make an order, directing that out of the first moneys arising from said sale, an amount sufficient to pay the residue of said debts and expenses be paid to him by the sheriff of said county. C. D., Administrator (or Executor) as aforesaid. JOURNAL ENTRY ORDERING MONEY TO BE SO PAID. (Title as next above.) This cause coming on to be heard on motion of C. D.. administrator of the estate of A. B., deceased, and the certificate of the Probate Judge of said (or of ) county, to the effect that the personal estate of said decedent, subject to administration, will be insufficient to pay the debts of said estate and the expenses of its administration, and that the sum of dollars from the proceeds of the sale of the real estate of said decedent, the partition whereof is sought in this cause, may be ordered paid to said administrator. It is therefore ordered that the sheriff pay over to said administrator the said sum of $ out of the proceeds arising from the sale of said land, according to law, and take his receipt therefor.is 13 Giauque's Settlements of Estates, 806, 807. 1601 INTRODUCTORY, DEFINITION, ETC. §1887 CHAPTER CI. ADOPTION AND DESIGNATING HEIR. VAGRANT CHILD. COMMITTING § 1887 Introductory. Definition, etc. § 1901 § 1888_How a child may be adopted. § 1889 Who may adopt. ~ § 1901a § 1889a Court shall fix time of hearing. § lS89b Duties of next friend. § 1901b § 1890 Adoption of child by step- father or stepmother. § 1890a Consents required. § 1902 § 1891 Who may be adopted. § 1892 Application and form. § 1903 § 1S93 How consent of wife ascer- § 1904 tained. § 1905 § 1894 Consents of parents, child or next friend, etc. § 1906 § 1895 The order of the court. § 1896 Hearing. § 1897 Entry of adoption. § 1898 Recording and efl'ect of the § 1907 order. § 1899 Extra-territorial effect. § 1908 § 1900 Rights of inheritance. § 1909 Power to revoke order of adoption. Child must have resided with adopting parent six months. When child develops cer- tain infirmities order may be revoked. Heir at law how desig- nated, etc. Nature of proceedings. Form of designation. Entry designating person as heir. Parent of vagrant or in- corrigible child may be summoned to appear be- fore Probate Court. Proceedings under Section 8031 G. C. Entry, on filing of affidavit. Entry, ordering child com- mitted. § 1887. Introductory, definition, etc. Adoption is defined bj statute in ISTew York ^ " to be the legal act wbereby an adult takes a minor into relation of child, and thereby acquires the right and incurs the responsibility of parent in respect to such minor." This will answer for a general definition under our statute. Such proceedings were not recognized by the common law, but were sanctioned by the civil law as it existed in many of the continental countries of Europe.^ It therefore exists purely by statutory law in our country, and being in derogation of the common law, such statutes arte strictly construed, and in order to constitute a legal adoption, must be strictly followed. In some States the action 1 Laws of 1896, Chapt. 272. § 60. 2 1 Am. & E. Ency. of Jjaw, 2 ed. 726. U887 ADOPTION 1602 of adoption is merely a ministerial act, like the signing- of a deed, etc. In other States it_ is a judicial procedure. The several sections of our General Code comprise both of these methods. The section ^ providing generally for the adoption of a minor requires a judicial act. The other section,* which provides how a person may designate another to be his heir, is merely a ministerial act, and does not require a judgment of the Court to make it eifectual.^ While the statute must be strictly followed in order to make a legal adoption, yet there have been cases in which persons were held to be entitled to inherit as heirs and be treated as diildren when no legal adoption had been made. But this has not been upon the gi'omid that the defective proceedings con- stituted a valid adoption, but upon the ground that there was a contract made by the alleged parents to leave their property to such children, and that the children having performed the con- ditions of the contract, were entitled in equity to have a specific performance.^ reared and educated her in every re- spect as if she was their own child. Yet the Court held^ that this was not a legal adoption and that the facts were not sufficient to support a decree for specific performance. In tlie case of Steele vs. Swartz, a verbal contract was entered into with the mother to adopt and make her infant daughter the heir of the person taking the child; in pur- suance of the agreement the infant two j^ears old, was delivered and the contract faithfully performed, ex- cept that the statutory requirements for the adoption were delayed until the daughter became twenty years old, at which time the formal re- quirements of the statute were com- plied with, yet the Court held that this was neither a legal adoption nor a sufficient part performance to take the case out of the operation of the statute of frauds. In Kendall vs, Kendall. 8 Bull. 1, 3 §§ 8024-5 G. C, § 1888. 4 § 8598 G. C, § 1902. 5 Bird vs. Young, 56 0. S. 210. 6 Vantine vs. Vantine, 15 Atl. Rep. 249; Healey vs. Simpson, 113 Mo. 340; Vandyne vs. Vreeland, 11 N. J. Eq. 370; Godine vs. Kidd, 19 N. Y. Supp. 335. Two very interesting cases upon this question have come before our Supreme Court; in both instances, the Court of last resort reversing the Circuit Court. Swan vs. Sha- han, 48 O. S. 25; Rev. 1 C. C. 216; 1 C. D. 119; Steele vs. Swartz, 55 O. S. 685; Rev. 8 C. C. 154; 4 C. D. 321. In Swan vs. Shahan, the infant was taken wften about two years of age into the family of another party and always thereafter treated as their child, introduced into society as such, given away in marriage as their davighter, entered the infant's name in their Bible as their own, 1603 WHO MAY ADOPT § 1888 § 1888. How child may be adopted. (§ 8024.) Any proper person, or a husband and wife jointly, may petition the probate court of the county in which he or they have a legal settlement, of [or] the county in which the child resides or of the county in which the child had a legal residence when it became a public charge, for leave to adopt a child and for a change of the name of such child. Statements of petition. Such petition for adoption shall specify the name, age, and place of residence of the petitioner and of the child, and the name by which the child shall be known ; whether such child is possessed of any property, and the full description of the property, if any; whether the child has one or both parents living; in case one or both 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. When nam.es of parents may be omitted. Provided that if such child sought to be adopted is, by previous order of a juvenile court, under the legal guardianship and permanent cus- tody of a state board or of an institution or agency certified by the board of state charities for the care of children, or has been legally surrendered to the guardianship of such institution or agency, then the names of parents shall be omitted from such petition, Verification of petition. But the court shall cause such alle- gation and the petition to be verified. [109 v. 177.]' § 1889. Who may adopt. Several jurisdictional facts must appear, entitling a person to file his petition for adoption. In the first place, he must be an inhabitant of this State and must also show that he is an inhabitant of the county in which the proceedings to adopt are it was held that the acts showing an appear that the statutory coiulitiona adoption of the child, as treating it have heen strictly performed, othcr- as the parents' own, acknowledging wise the relation never existed and that he was her child without statu- the right to inherit never was ac- tory adoption, are not sufficient to quired, constitute the child an heir as ^ § 8024 G. C. against other* children. In this A decree of adoption is not in- case, the supposed mother had the valid because it docs not recite nor child baptized as her son and gave the petition allege an assent by the him a name. parents or facts excusing their as- See Ex parte Clark, 2G Bull. 2S1, sent. Taylor vs. Bushnell, 20 O. C. where it was held that no matter A. 407. See Snyder vs. Phuttle- how persuasive may be t!ie equities worth, 37 0. C. C, for contract to of the child's case, or how clear the adopt — how to enforce, intention of all the parties, it must § 1889a ADOPTION 1604 brouglit.® lu the second place, if the party be married, the husband and wife must jointly file the petitions, except possibly where an adoption is made by a step-father of the children of his wife, or vice versa.^ An unmarried person may adopt a minor. In addition, it must be shown that the parties seeking an adoption are able to properly educate the child, having ref- erence to, to the degree and condition of the child's parents.^* Societies and corporations can not adopt children, although in some eases where children are placed in their charge they have full and complete control over them/*^ It has been held that a guardian might adopt.^"* § 1889a. Court shall fix time for hearing. (§8024-1.) Upon the presentation of such petition the same shall be filed with the court and the said 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. It shall be at the option of the court to adjourn the hearing of said petition or the examination of the parties in interest, from time to time, as the nature of the case may require. Appointment of next friend. 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, the court shall make such appointment and shall there- upon assign a day for the hearing of said petition and examina- tion of the parties in interest, not less than ten nor more than thirty days from the time of appointing the next friend. In case there is in the county an institution or agency approved by the board of state charities, such institution or agency may be designated as next friend and consent be given as indicated in section 8025. Or the court may order the board of state chari- ties through an authorized representative to act in such capacity. Report of next friend. Such person, institution, agency or board thus designated shall proceed to verify the allegations of the petition, shall make appropriate inquiry to determine whether the proposed foster parents and their home are suitable for such child, and whether such child is a proper subject for adoption in such home. 8 Inhabitant is synonymous with 9 § 8026 G. C. permanent resident. Wolff's Ap- 9* § 8027 G. C. peal, 22 W. N. C. (Pa.) See §§ 74, 9* § 8029 G. C. 93. 10 § 8031 G. C. 8* Statute now permits applica- lo* Bancroft vs. Bancroft, 53 Vt. tion to be made in county of the 9; Sewell vs. Robert, 115 Mass. residence of the adopters or that 262. of the child. See § 1888 G, C. 1605 ADOPTION BY STEP-FATHER, ETC. § 1889b When next friend not to be appointed. If such child is un- der the legal guardianship of a state board or of any certified institution or agency, no next friend shall be appointed, but such board, institution or agency shall prepare the report re- quired by this section. As soon as practicable, there shall be submitted to the court a full report in writing, with a recom- mendation as to the proposed adoption and any other informa- tion concerning such child or the proposed home as the court may require. Hearing, etc. 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 adjourn- ing the hearing and examination from time to time as the nature of the case may require. The board of state charities shall pre- pare and furnish to the probate court a suitable blank for use by persons designated to make the report required by this sec- tion. [109 V. 178.] § 1889b. Duties of next friend, etc. The next friend, whether it be a person or an institution such as the statute pro- vides, shall verify the allegations of the petition; that is, shall satisfy itself that the allegations are true, and shall by appro- priate inquiry learn whether the persons filing the petition are suitable and proper persons to adopt the child and will give it a proper home. The next friend shall also find out whether the child is a proper subject for adoption. Just what the latter includes is not readily discernible, but it recognizes that the child might be in such condition that it ought not to be adopted. For instance, if it had a good home and good surroundings, which would likely continue, it might not be to its interests to be adopted by any one. It might not be advisable to permit a child of Protestants to be adopted by Catholics, or vice versa, if the blood relatives objected ; or a child of one race adopted by those of another race ; or if it was delicate or diseased, or not strong mentally or physically, or viciously inclined. Vv^hether or not the "next friend" should file a report such as the state board, etc., should file where no "next friend" is appointed, may be questionable, but it would be advisable so to do. The statute provides that the state board of charities should prepare and furnish such a blank upon which to make a report. When this report is made, the "next friend" or board, insti- tution or agency should file its written consent, or refusal to consent. §1890. Adoption by step-father or step-mother. "An in- habitant of this state, the husband of a woman who has a minor child or children by a former husband; or an inhabitant of this state the wife of a man who has a minor child or children l)y a former wife, may petition the probate court of his or her proper county for leave to adopt such minor child or children and, when the application is made by the husband alone, or jointly § 1890a ADOPTION 1606 with liis wife, for a change of the name or names of such child or children. When each have such minor child or children, the application may be made jointly b}^ the husband and wife.'' [R. S. §3137a.]'' Sec. 8027. In any adoption in accordance with section 8026 the provisions of section 8025 shall apply in the manner of con- sent, so far as applicable. [109 v. 179.] The paramount purposes of these sections is to make an adopted child the equal to all intents and purposes of a natural child."*^ This section does not make an adopted child the child of the petitioner so that an action for wrongful death of such child may be maintained, etc.^^*^ § 1890a. Consents required. (§8025.) In any adoption pro- ceedings written consents must be given to such adoption as follows : (a) [Of child.] By the child sought to be adopted if more than thirteen years of age. (b) [Of parent.] By each of the living parents or by the mother of an illegitimate child, except as follows : (c) [Of person awarded custody by juvenile court.] By the parent or person awarded the legal custody and guardianship by a juvenile court because of dependency, or because of the mental, moral or other unfitness of one or both parents ; pro- vided that such juvenile court approves of such consent where- upon the jurisdiction of such court over such child shall cease. (d) [Of divorced parent.] By the parent awarded custody of child by divorce decree, provided the court which granted such decree approves of such consent, and because of such ap- proval the jurisdiction of such court over such child shall thereupon cease. (e) [Of guardian.] By legal guardian of the person of such child, if parents are dead or their residence has been unknown for at least one year, or if the parents have, because of mental, moral or other unfitness, been deprived of legal cus- tody and guardianship of such child by juvenile court ; but if there is no guardian and such child is not the ward of a state board or of a certified institution or agency, a next friend shall be appointed as hereinbefore provided, to give consent. (f ) [Of person having custody, etc.] If the parent or parents having the legal custody give the custody of such child for the full term of its minority to any institution or agency established ii§§802G and 8027 G. C. naKroff vs. Armhein, 94 O. S. Step-daughter is not a daughter 282; 27 0. C. A. 193. within §11738 G. C. Kraft vs. nuBoswell vs. Railway, 22 C. C Wolfe, 3 K P. (N.S.) 105; 19 Dec. (N.S.) 251; 25 C. C. 522. 556. 1607 WHO MAY BE § 1891 under the laws of the state to care for children and under the approval of the board of state charities, or if such institution or agency has otherwise legally acquired the custody and control of such child, [Certified copy of resolution] the president or secretary of such institution or agency shall file a certified copy of the con- sent of the board of trustees, or of the proper officers authorized by such institution or agency to act in matters of adoption ; and if such child is a ward of the board of state charities or other state board the secretary of such board shall file a certified copy of the consent given in accordance with its rules. All such consents to such adoptions shall be acknowledged and witnessed. [109 v. 178.] § 1891. Who may be adopted. Only minors can be adopted,^- and if it is sought to make an adult an heir, it must be done under the statute for designat- ing a person an heir,^^ and where an infant is placed in a home of a public character, the trustees may sanction an adoption.^* § 1892. Application and form. The application or petition should state all the jurisdictional facts. One author says,^^ "Much unnecessary confusion prevails in reference to this topic, owing to the slovenly manner in which these proceedings are many times conducted." The action fix- ing the status of the child often becomes of very great importance, to both the child and adopting parents, in determining questions of inheritance. As the court gathers much of its information from the petition filed in the case, it will be apparent that a full statement of, not only jurisdictional facts should be given, but such others as will enable the court to rightly determine the matter before it. The petition should state, first, the names of the petitioners and whether married or single; second, their place of residence and age; third, the name, age and place of residence of the child, and the name by which it shall be known ; fourth, the property which the child has. and a description of the same; fifth, a statement that petitioners are possessed of sufficient means to properly bring up and educate the child; sixth, whether one or both parents be living; if not both, which; seventh, if living, the names and residence of the parents given ; 12 Steele vs. Swartz, 55 0. S. !■* See when a minor becomes of 685; Rev. 8 C. C. 154. age, § 1321. 13 § 8598 G. C, § 1902. 15 Rice's Trob. Law, .551. § 1892 ADOPTION 1608 if not known this fact should be stated ; eighth, in case the child by judgment of a juvenile court, has been placed under guard- ianship, the names of the parents, the statute provides, may be omitted, but the author thinks they should be given ; also if such child is under such guardianship this fact should be fully stated ; ninth, that said child has resided in the home of the petitioners since , and the application should be veri- fied. If a change of name is desired, this should also be stated. The following may be used as a general form : PETITIOX FOR ADOPTIOX. To the Honorable Probate Judge of County, Ohio. Your petitioners, being husband and wife, hereby state his name is , his age years and his place of residence , ; that her name is , ber age years and her place of residence , , and he [they] hereby file., his [their] petition for the adoption of a child as his [their] own. That the name of the child whom he [they] wish to adopt is and that the name by which it will hereafter be known is That the said child's place of residence is , and that its age is years. That the said child is possessed of the following described property. That these petitioners are possessed of sufficient means to properly maintain and educate said child. That the parernts of said child are living and reside at [or, if one or the other be dead, so state, or, if not known state all facts so far as known in full.] [If the child has been under control of Juvenile Court or has a legal guardian, state fact and give place of residence of party now having control of child.] That said child has resided in the home of the petitioner., since the day of ,19... Your petitioner . . presents herewith the written consent of , the parents of said child, and also that of the child [if more than thirteen years of age]. Your petitioner., prays such pi-oceedings may be had as required by law, and that the court may by its order approve of such adoption, and declare said to be the child of and , your petitioners, and that the name of the child be changed to State of Ohio, County of , ss. : , being first duly sworn says the allegations in the above petition are true as verilv believe. Sworn to and subscribed before me and in mv presence this day of ,19... Notary Public. ORDER FIXING TIME OF HEARIXG AXD APPOIXTMEXT OF NEXT FRIEND, ETC. The statute now requires when the petition is filed, that the court shall fix a day for hearing, not less than ton days nor more than thirty days from the time the petition is filed, and the court may continue the case from time to time, thereafter. At this time the court appoints a next friend to act for the infant, and the time of hearing will be not less 1^^^ CONSENTS OP PARENTS, ETC. § 1893 than ten days nor more than thirty days from the time of said appoint- hnl^^ f I. + •f'' institution in the county approved by the state board of charities It may be designated as the next friend. If the child IS a ready under the legal guardianship of a state board, no next friend shall be appointed; said board shall act as such. JOUENAL ENTRY ON FILING PETITION ETC [Tttle.] On this day came . . and filed their petition in this court for the adoption of , the child of , and the day of ,19..., at ... m. 13 fixed for the time of hearing the same and ;. IS appointed to act for child as next friend, and make the examina- tions required by statute, and report thereon at the time of said hearin"- and it is ordered that give notice to said as to his appoint- ment as next friend, and the time fixed for hearing. [It appearing to the court that said is under the legal guardian- ship of , a state board, etc., no next friend is appointed, but it is ordered that notice hereof be given to said , and the time fixed for hearing the same.] ^ § 1893. How consent of wife ascertained. "When the peti- tion is filed by a husband and wife, the court shall examine each separate and apart from the other and refuse leave for such adoption unless satisfied from the examination that each petitioner of his or her own free will and accord desires it " [R. S. §3138; 109 V. 179.] i« §1894. Consents of parents, child or next friend, etc. The statute must be strictly followed in reference to having the consent of the child, if over 13 years of age, and also the consent of both parents, except First, when the legal custody of the child has been awarded to some other person by the juvenile court; then it seems the consent should be signed by the person to whom the child was awarded and the juvenile judge. Second, when the child was awarded to the custody of one of the parents by decree in divorce, then such parent signs the consent and also a judge of the court which granted the divorce. Third, when there is a legal guardian -of the child, and the parents are dead, or their residence has been unknown for one year, or if the parents have been deprived of the custody of such child by the juvenile court, then the guardian may give such consent. Fourth, if there is no legal guardian and such child is not the ward of a state board or of a certified institution or agency, a "next friend" shall be appointed, and if the parents are dead 16 § 8028 G. C. See note, 8 1888. § 1895 ADOPTION- 1610 or their residence unknown for at least one year, or if the parents have been deprived of the legal custody of such child, etc., then the ''next friend" gives such consent. Fifth, if the parents have surrendered the custody of such child for its full term of minority, to any institution, etc., established by law to care for children, etc., or if such institu- tion, etc., has legally acquired the control of such child, then the consent shall be given by a copy of the consent of the board of trustees or proper ofncials being filed by the president or secretary of the institution. The statute further provides that all consents shall be acknowl- edged and witnessed. This would undoubtedly apply to all consents given by parent, guardian and "next friend," but might net apply where an institution acts by resolution of its governing body and certified copy of resolution is filed, etc. CONSENT OF PARENTS. [Title.] The undersigned represent tliat they are the parents of E. F., a minor child of the age of years. And they hereby consent to the adoption of said child by A. B., and C. B., his -wife, of Countj^ and State of Ohio. They also consent that the name of said child may be changed. '[Signed.] 19 Signed in our presence. State of Ohio, County, ss.: Be it remembered that on the day of , 19 . . . appeared before me a in. and for said county, personally and and acknowledged the signing of the foregoing consent to be their volun- tary act and deed, and for the uses and purposes therein expressed. § 1895. The order of the Coiirt. (§ 8029.) If the court, from the testimony, shall be of the opinion that the facts stated in the petition are true, and that the petitioner or petitionees are 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, and that the best interests of the child vfould be pl-oraoted by such adoption, and that such child is found to be suitable for adoption, and is satisfied that all the provisions relative to adoption have been complied with, then the court shall make a decree reciting the facts at length, and the name by which the child shall hereafter be known. [R. S. §3139; 109 V. 179.]^" 19 Whittaker's Prob. Code. statute are complied with. Kraft 20 §8029 G. C. vs. Wolfe, 2 N. P. (N.S.) 105; 15 Adopted child is not a child of Dec. 556. the petitioner until provisions of the 1611 ITEARIXG § 1896 § 1896. Hearing. Before the court can make the order, it must affirmatively appear that the statutory provisions of sections 8024, G. C, to 8028, G. C., have been complied with, and in addition to this fact, the court must be satisfied of the ability of the petitioners to bring up and educate the child in 2 proper manner, and further that such adoption is a fit and proper thing and for the best interest and welfare of the child. In all cases the courts have held that the welfare of the child is the highest matter of consideration for the court. These matters being somewhat of a pro forma character, the Probate Judge some- times, I fear, does not consider the questions presented in such cases as fully as the rights of the parties demand. The court should be satisfied that the adopting parents are not only financiaUrj ahle to properly take care of the child, but that they are of such a moral character that the interest of the child will be enhanced by such an adoption. The child's future social wel- fare should be considered, and much the same care should be exercised, only in a higher degree, as when the court makes choice of a guardian.-^ § 1897. Entry of adoption. The State of Ohio, County, ss. : County Probate Court. In the matter of the adoption and change of name of It appear- ing to the court, from tiie petition of and , his wife, resi- dents of this county, tiiat tiiey desire to adopt , a minor child, not theirs by birth, and that tiie name of said child may be changed to , saidchild being years of age, on the day of , A. D. 19..., and said petitioners having produced the written consent of to such adoption and change of name: And tiie court having examined , the wife of said petitioner separate and apart from her said husband, the court is satisfied from such examination tliat said of her own free will and accord desires such adoption. And the court being satisfied of the fitness and propriety of sucli adoption, and of the ability of said petitioners to bring up and educate said child ])roperly; now, therefore, the court orders that such adoption bo and is now made; and that from this date tlie said , minor child, to all intents and purposes is tlie child of the said and And it is further ordered that the name of said child be and is now changed from to , as prayed for in said petition. 22 21 § 1330. the parents has been ^nvcn. 20 It has therefore been held tliat Cen. L. .1., 320. the court \ ould not sanction the 22 Whittaker's Prob. Code, adoption of a white boy by a Clii- If it was necessary to appoint a ncse man and wife, although in suitable and discreet person to act needy condition, and the consents of for the child in giving consent, this fact should bo stated in tlie entry. § 1898 ADOPTION 1612 §1898. Recording and effect of order. (§8030.) The peti- tion, decree and proceedings shall be recorded in a book kept for that purpose and properly indexed ; such book shall become part of the records of the probate court and all reports and affidavits shall be properly filed. Natural parents divested of rights, etc. Except when such child is adopted under the provisions of sections 8026 and 8027, upon such decree of adoption the natural parents of the child, if living, shall be divested of all legal rights and 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 such parents ; Eights of adopting parents. And 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 j Eights of child. And the child shall he invested with every legal right, privilege, obligation and relation in respect to edu- cation, 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 ; When inheritance limited. Provided, such child shall not be capable of inheriting property expressly limited to the heirs of the body of the adopting parent or parents; and provided 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 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 cliild or children, then the children by birth and adoption shall, respectively, inherit fi'om and through each other as if all had been children of the same parents born in lawful wedlock. Inheritance from natural parent. Nothing in this act shall be construed as debarring a legally adopted child from inherit- ing property of its natural parents or other kin. [R. S. §3140; 109 V. 179.]-=^ The intent of the statute is to invest the child with all the rights and privileges, the same as a child bom in wedlock and begotten of the blood of the adopter, except as to limitations provided in the statute.-^^ § 1899. Extra-territorial effect. The judgment or decree of the court which allows the adop- tion affects the legal status of both the adopting parents and 23 § 8030 G. C. 23a Kroff vs. Armliein, 94 0. S. See statute as to limitation of 282. inheritance. 1613 RIGHTS OP INHERITANCE § 1900 the childr* aud it is now settled that a child adopted in one State in accordance with the laws of such State, while the par- ties are domiciled there, will be recognized in another State, and such child will be held to be the legal child of the adopt- ing parents in such other State for the purpose of inheriting the property there.-^ § 1900. Rights of inheritance. While the adopted child is the legal heir of the person so adopting him or her, yet as to the inheritance of property both by and from the child, there is some difference between an adopted child and a child by birth. In one case,-*' where an adopted child died intestate and leaving its natural mother and its adopting parents surviving it, it was held that the property of such adopted child passed to the natural mother to the ex- clusion of the adopting parents and their natural children. In another case it was said: "The statute enables the adopted child to inherit from its adopter, but not through him. The statute does not make the adopted child the heir of the ances- tors of its adopter, and the right of the adopted child to in- herit can not be extended beyond where the statute has fixed it." 2^ Where a child was adopted and the adopting mother died without issue, and thereafter such adopting mother's father died, leaving real estate, it was held that the adopted child could not inherit such property. The court said, "that adop- tion of the child did not make her of the blood of her adopting mother 's father. ' ' ^* The acts of adoption give to the adopted heir the legal status of a child of the adopter, born in lawful wedlock ; aud the stat- s'* Paul vs. Davis, 100 Tnd. 422. Does not take away right to in- 25 (.'laighead vs. Pike, 4 Uec. l!)fl; lierit from natural parents. Knecae Keegan vs. Geraghty, 101 111. 26; 1 vs. Hake, 3 0. L. R. GIO; 10 Dec. Am. & Eng. Ency. of Law, 2(1 ed., 470. 733. The fact that an adopted Property of such cliild passes to child has been absent from home its natural mother. Lathrop vs. and missing for eleven years does Young, 25 0. S. 457. not extinguish her title to the A cliild adopted in a foreign state property left her by her foster has inlieritative cajiacily to lands parents. Oglesby vs. Rose, 11 N. in the state. Simpson vs. Simpson, P. 188; 21 Dec. 201. 9 C. C. (X.S.) 1.37; 29 O. C. C. 26 Upson vs. Noble, 35 0. S. G55. 503. 27 Phillips vs. ^IcConica, 5!) 0. S. 1. A widow of a deceased person can See Spangenbergcr vs. Guiney, 3 not inherit from an ado|)ti'd child Dec. 163; 2 N. P. (N.S.) 39, for in- property received by such eliild from heritance from cliild dying without such deceased person. //? rr Jlasfold, issue. Adopted cliild can inherit (I X. P. (\.S.) 172; IH Dee. 3!Ui. from, but not through, adnptin-/ 28 Quigley vs. I^Iitcheli, 41 O. S. parent. Theobold vs. Fugmaii, 64 375. O. S. 473. § 1901 ADOPTION 1614 ute requires him to be regarded as such child in tracing descent to or from him in the cases therein specified. But in cases which do not come within those acts, the operation of the statute of descents is the same as if such acts had not been passed.^'' A grandchild duly adopted by the grandparent becomes his heir, and takes the share of his lands like the other children, but is not entitled to inherit the additional share of its parent.^" § 1901. Power to revoke order of adoption. The statute provides no right of appeal in adoption proceed- ings. No doubt exists, however, but that the order made is a final order from which a proceeding in error might be prose- cuted under the statute relating thereto. As to the power of the court to directly revoke the order, some little difficulty is experienced. There seems to be, however, no good reason, where the order was made under a misapprehension of fact, or where fraud was practiced upon the court, why the court should net entertain jurisdiction and revoke such order. In a case in Massachusetts it was said there would seem to be noth- ing in the nature of a decree of adoption to take away the power of the Probate Court to revoke and annul it on the -ground that it had been procured by fraud practiced upon the court.^^ In one reported ca.se in Ohio,^^ where representation was made to the court that the mother had abandoned the child, and a few days thereafter to revoke the order, the court enter- tained jurisdiction and revoked its former order. It would seem to be the law, however, in Ohio that if a motion is filed to 29 Latlirop vs. Young, 25 0. S. 451, proof that the adoption was irregu- 463; Spangenberger vs. Guiney, 2 lar in some essential particular. N. P. 3LI; 3 Dec. 163. ^Simpson vs. Simpson, 9 C. C. See §4174 R. S., §936, as to ca- (N.S.) 137; 29 0. C. C. 503. pability of bastards as to inherit- It has been held in McClure vs. ance. Williams, 78 So. Kep. 1918 (Ala.), An adoj^ted cliild as next of kin that a court of chancery might, if has the riglit to administer the the best interests of tlie chihl de- estate of its deceased parent. Woer- mandcd it, restore an adopted child ner on Admin. 522. to its natural parents and cancel 30 Smith vs. Carvcn, 30 Bull. 189 the record of the Probate Court (Sup. Ct. unreported). showing its adoption. The order A liusband whose wife before was refused in the case, however, marriage liad adopted a child is en- beause it was not shown that the titled to dower in the wife's prop- best interests of the child demanded crty — the same as if the child was it. In Ohio it has been held that the wife's bv birth. Clark vs. the order could not be collaterally Harlan, 17 Bull. 320. attacked. Taylor vs. Bushnell, 29 Where the record or deed of adop- 0. C. A. 497. tion of a child states that it was 31 Tucker vs. Fisk, 154 Mass. 574; duly and legally done; in order to Brown vs. Brown, 101 Ind. 340. invalidate the adoption, it must ^^ In re Olson, 3 N. P. 304; 3 affirmatively be shown by clear Dec. 668. 1615 HEIRS AT LAW § 1901a no notice was given to the mother and a motion was filed within revoke an order of adoption, it must be done during the same term that the order was made, and for this purpose the Probate Court has three terms in each year.^^ If the order is sought to be set aside after the term at which it is made, then a pro- ceeding must be had as provided by the general statute.^* One court, however, has held that when the Probate Court makes its erder that is exclusive so far as that court is con- cerned.^^ Further, it may be generally said, that as the Pro- bate Court is a court of record, and its orders and decrees im- pute absolute verity, an order of adoption can sot be attacked in any collateral proceeding. § 1901a. Child must have resided with petitioner six months. (§ 8030-1.) No decree of adoption shall be made until such child has resided in the home of the petitioner for at least six months, unless the court for some special reason which shall be entered in the record deems it best to waive this requirement. [109 v. 180.] § 1901b. When child develops certain conditions — order may be revoked. (§ 8030-2.) If, after its adoption and before it becomes fourteen years of age, a child develop.s feeble-minded- ness, epilepsy, insanity, or venereal disease as a result of condi- tions existing prior to adoption, and of which the adopting parent had no knowledge or information, a petition setting forth such conditions may be filed in the court which entered the decree of adoption, and if such conditions are proved to the satisfaction of the court, such adoption may be declared null and void. The court shall thereupon make proper disposlHon of such child by a commitment to an appropriate state institu- tion as provided in the laws of Ohio or refer such child to the juvenile court. [109 v. 180,] §1902. Heir at law, how desi^ated, etc. "A person of sound mind and memory may appear before the probate judge of his county, and in the presence of such judge and two dis- interested persons of his or her acquaintance, file a written declaration, subscribed by hira, which must be attested by such persons, declaring that, as his or her free and voluntary act, he or she did designate and appoint another, naming and stating the place of residence of such per.son specifically, to stand toward him in the relation of an heir-at-law in the event of his 33 § 5. fost.or parents arisincr out of tln'ir 34 §§ llfi.3M164.'i a. C. pontraot nnfl notnal oii.'*toflv. '>nt See Gray vs. Fipld. 10 T5ull. 121, will look cliioflv io the host inter- where it is held that neitlier party ests of the cliiid. and if it ho of has a ripht of revocation on their years of discretion, will cn?isiilt its own behalf, but that on a proper wishes, in determining its future application, however, the court will custody. have a regard for the natural riffhts 35 Jn re Bush, 47 Kan. 2fi4. of the parents, the riijhts of the § 1903 ADOPTION. ' 1616 or her death. If satisfied that such declarant is of sound mind and memory, and free from restraint, the judge thereupon shall enter that fact upon his journal, and make a complete record of such proceedings. Thenceforward the person thus desig- nated will stand in the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock. The rules of inheritance will be the same, between him and the relations by blood of the declarant, as if so born ; and a certified copy of such record will be prima facie evidence of the fact stated therein, and conclusive evidence, unless impeached for actual fraud, or undue influence." [R. S. §4182.]^® § 1903. Nature of proceeding. Tke proceeding is peculiar to this State, there not being, so far as we are aware, any similar statute elsewhere,^^ and it has been held in the only reported case of our State ^* that the act of the Probate Judge is rather of a ministerial character and only quasi judicial, and that the judge acts veiy much in the same capacitj^ as he would in taking the acknowledgment of a deed, etc. ; and that therefore it was not necessa.ry for the person making the designation to appear before the Probate Judge in the judge's court room, but that the judge might go to the residence of the party, and there ascertain the facts re- quired by the statute. That the entry made by the judge, if a judgment at all, is only a judgment in rem, and that, the pro- ceedings bear some resemblance in their character to the pro- ceedings in rem, which fix the status of a person in lunacy or insolvency under our statute, or bankruptcy proceedings under the United States statute ; and that the proceeding is ex parte, no notice being required to be given to any one. Indeed, the character of the act. is such that it is necessarily presumed that the Legislature intended no one should have notice. In order to accomplish what the statute permits, it must be at least sub- stantially complied with — tliat is, the declaration must be made in the presence of the judge and two disinterested per- se § 8598 G. C. of the testator and can not take 37 Bird vs. Young, 56 0. S. 218. advantage of bequests void under 38 Bird vs. Young, Id. % 10514 G. C. Theobald vs. Fug- Authorizes an adopter to desig- man, 64 0. S. 474. Naming per- nate who shall be his heir, but not sons in a will as daughters of otherwise change the course of de- testator will not make them his scent. Richardson vs. Stockyard Co. heirs. In re Williamson, 5 N. P. 8 N. P. (N.S.) 213; 11 Dec. 367. 1, 6 Dec. 505. However, they may One who is not of the blood of the be made such by will. Moon vs. testator who has been designated as Harness, 15 O. C. C. (N.S.) 139; 23 heir, is not of the issue of the body O. C. C. 337; affirmed, 87 0. S. 349. ^^1^^ FORM OP DESIGNATION § 1904 sons, and it must be made in writing, subscribed by the party making the same, and attested by such disinterested persons as witnesses. It must name the person designated as heir and state his place of residence. The duty devolving upon the judge is to satisfy himself that the declarent is of sound mind and memory and free from any restraint Evidence of tliis fact should be the same as would justify the Court in ordering the probate of a will.^'^ § 1904. Form of designation. Enow all Men hy these Presents: That I, J. Y., of the township of Madison, in the county of Fairfield, and State of Ohio, being of sound mind and memory, and free from any restraint, do hereby publish and declare, that as my free and voluntary act, I have designated and appointed and do hereby designate and appo'int J. L. Y., whose place of residence is in Hardin County, in the State of Iowa, to stand toward me in the relation of a son and heir-at-law, in the event of my death. In testimony whereof I have, in the presence of J. A. and T. D., who are disinterested persons of my acquaintance, subscribed my name on this day of , A. D. 190. .. J. Y. Attested by us, who are acquaintances of the said J. Y., and are persons disinterested in the above designated matter. J. B. T. T)Ao § 1905. Entry designating person at heir. In the matter of the designation of J. Y. and J. L. Y. as a son and heir-at-law. This day, being the day of , A. D. 190. . , appeared before me, the undersigned judge of the Probate Court in and for the county of Fairfield, Ohio, J. Y., residing in Madison townshij), in said county, and in my presence and in the presence of J. A. and T. D., who are disinterested persons and acquaintances of the said J. Y., he, the said J. Y., did file a written declaration subscribed by him and attested to by the said J. A. and T. D., declaring that he, as a free and voluntary act. did desig- nate and appoint J. L. Y., of Hardin County, in the State of Iowa, to stand toward him in the relation of a son and lieir-at-law, in the event of his death. And I, the said judge, being satisfied that such declarant, the said J. Y., is of sound mind and memory, and free from any restraint, do hereby order that such facts be entered upon the journal of said Probate Court, and that a complete record of such proceedings be made. E. C. R., Probate Judge." § 1906. Parent of vagrant or incorrigible child may be sum- moned to appear before Probate Court. "Wluui through vagrancy, negligence, or misconduct, tJic parent or parents of 39 § 1106. A person designated heir won Id 40 Bird vs. Young, 56 0. S. 212. be lial)le to inheritance tax. See 41 Bird vs. Young, 56 O. S. 211. Ilaggerty vs. State, .'i.l O. S. 61.S. Merely naming jiersons in a will A person designated niidir tins as daughters will not make them section is not i.ssnc of the Ixxly of heirs, '/n re Williams, 5 N. P. 1; person designating, etc. 'I'lirnlioid 6 Dec. 507. vs. Fugman, 64 0. S. 47:!. § 1907 ADOPTION 1616b any minor child or children are unable to support such child or children, or, if able, neglect or refuse support therefor, or when siicJi parent or parents unlawfully beat, injure, or otherwise habitually ill-treat such cliild or children or cause or allow them to engage in common begging, upon complaint by affidavit of some reputable citizen of the county in behalf of such child or children, setting forth facts bringing the case within this statute, the probate court of the proper county may issue a summons requiring such parent, or parents, to appear and answer such complaint. If, upon the hearing of the matters complained of, the court finds them to be true, and that it is for the best interest of such child or children to be taken from such parent or parents, it may make an order to that effect, and direct the placing of such child or children in any suitable orphan asylum or chil- dren's home or with some other benevolent society, to be taken and cared for and placed in homes found for them by adoption or otherwise by such asylum, home or society, upon the terms and conditions required in case of other children given to such asylum, home or society. The proper officers of such asylum, home or society are authorized to give the necessary consent in placing such children." [R. S. ^ 3140a.] « § 1907. Proceedings under 8031, G. C. The procedings are commenced by the filing of an affidavit which should allege the grounds of the statute, and summons must then be issued, and the case heard as ordinary judicial proceedings are conducted. The parents must be notified. The word "summons" hereby probably does not indicate a summons as provided for in the Code, but is rather used as being sjiiony- mous with notice. The proceedings should be titled "In the Matter of A. B., Child of C. D." The affidavit may be as follows : 42 §8031 G. C. Lucas Co., 8 N. P. (N.S.) 110; 11 iSee §§ S032-3-4-5 G. C, as to Dec. 49. rights of child, when brought before See State vs. Mezgar, 59 Bull. 45; a court of competent jurisdiction. Arfban Asylum vs. Louie, 24 C. C. These proceedings are advisory, (N.S.) 157; 36 C. D. 135; In re the parent being given the right to Baer, 8 N. P. 107; 11 Dec. 47. appear and answer. Stormer vs. 1617 PROCEEDINGS § 1908 vagrancy, negligence and misconduct, in the following manner, to-wit: (here set out facts (is unable or neglects and refuses to support such child) (or allege that said C. "D. has unlawfully beaten, injured and ill-treated said child in the following manner, to-wit:) (or that said C. D. has caused and allowed said A. B. to engage in common begging in the follow- ing places, to-wit : ) . Wherefore said E. F. asks that proceedings may be had in the Probate Court of cour y, in order to determine the fact, whether or not said child should be placed in a sui'table orphan asylum, chiidrens' home, or other benevolent society', as the statute in such case makes and provides. Sworn to before me and subscribed in my presence this day of , 190.. § 1908. Entry, on filing of affidavit. On the filing of the above affidavit, the Court should make an entry of such fact and set the case for hearing, and order the parents to be notified *^ of the charges in said affi-davit con- tained, and the time when the same will be heard. The form of entiy may be as follows : (Title.) This day came E. F. and filed herein an affidavit, alleging (here set out charge made in the affidavit). Wherefore said matter is set for hearing on the day of , at o'clock, and it is ordered that summons be issued for C. D. and I. F., the parents of said child, to appear and answer such omplaint, which summons shall be served upon said parents, at least days before the time of said hearing. § 1909. Entry, ordering child committed. (Title.) This day this matter came on further to be heard and was submitted to the Court, upon the testimony of witnesses, and the affidavit and the return of summons herein. W'hereupon the Court finds that C. D. and I. J., parents of A. B., have been duly and legally notified of the time and hearing as required by law; and the charges ot said affidavit are true, and that said parents of said A. B. are incapable (here set out in the language of the statute the charge v/hich is found to be true) ; and the Court further finds that it will be to the best interest of such child, that it be taken from its parents; and therefore an order is hereby made, directing that said A. B. be placed in a suitable orphan asylum (or childrona' home) in this county, to be taken, and there cared for as authorized by § 3104a R. S. 43 If parent is non-resident, etc., Some sufficient notice, however, service should be made in such man- should be given, ner as the Court might determine. §1910 AID OF EXECUTION 1618 CHAPTER CII. PROCEEDINGS IN AID OF EXECUTION. § 1910 Nature of proceedings. § 1933 § 1911 Examination of debtor after return of execution. § 1912 When and where can be § 1934 brouglit. § 1913 Who can bring. § 1935 § 1914 Application. § 1915 Motion. § 1936 § 1916 Hearing for order of exam- ination. § 1937 § 1917 Order. § 1918 Notice. § 1919 Examination of party. § 1938 § 1920 Examination of debtor be- fore return of execution. § 1939 § 1921 Proceedings under Section 11769 G. C. § 1940 § 1922 When order of arrest may issue, and proceedings § 1941 thereon. § 1922a Examination of debtor and § 1942 bond. § 1923 Proceedings under Section 11770 G. C. § 1943 § 1924 Warrant to arrest. § 1944 § 1925 Proceedings for arrest. § 1945 § 1926 Examination of debtor of judgment debtor, etc. § 1926a When the order may issue, § 1946 notice. § 1927 Proceedings under Section 11772 G. C. § 1947 § 1928 Notice to judgment debtor. § 1929 Existence of fraud not to § 1948 excuse examination. § 1930 Reference by judge. § 1931 Proceedings may be con- § 1949 tinned. § 1932 How attendance of parties § 1950 and witnesses compelled. Examination before referee to be certified. Oath of witness. How disobedience of order punished. Power to enforce by con- tempt proceedings. Debtor may pay execution against creditor. Judge may order property to be applied on exeoa- tion. Order to apply property or money on judgment. Property that may be reached. Property that can not be reached. Order to apply property or money, on judgment. Judge may appoint receiver, and prohibit transfer, etc., of property. Appointment of receiver. Injunction. Liability of Sheriff on offi- cial bond; undertaking by receiver. Proceedings when indebted- ness denied, or another claims the property. Proceedings under Section 11784 G. C. Pleadings to be reduced to writing, and filed with clerk. Dismissal and second ceedings. Appeal and review. pro- § 1910. Nature of proceedings. Neither the statute nor the Courts of our State have defined the nature and character of proceedings in aid of execution. In 1619 ]S"ATUEE OF PROCEEDINGS § 1910 one ease it was said that it is a proceeding simunary in its char- acter, in the nature of a proceeding in rem, designed to ap- propriate the property of a judgment debtor, in the hands of a third person to the payment of a judgment, where the person having possession of the property asserts no claim to it and voluntarily assents to such appropriation/ In an earlier case an able judge of the Court of Common Pleas " discussed the character of the proceeding and comes to the conclusion that the judge in such, a case does not sit as a Court, but merely as a judge, having no authority but what the statute gives. Our statutes were framed as a part of the Civil Code, and remaiu with but veiy little change. As is well known, the Civil Code was taken from the Code of Xew York, and the proceedings in our State are very much similar to the proceedings in that State. In InTcw York the proceeding is classed as a special proceeding, and no doubt is such in our State.^ These proceedings are supplementary to some principal case. Before they can be called into action a judgment must have been obtained. It has been said that their purpose is to furnish a simple and inexpensive substi- tute for the old equity proceedings in discovery and applying the property of a debtor, which cannot otherwise be reached, to the pajniient of his debts. There seem to be four kinds of proceedings, all very much akin to each other, provided by our statute. The first* provides the method of procedure where an execution has been issued and a return made that there are no goods, etc. The second provides "* for an examination after the execution has been issued, but before it is returned. These two sections relate to the examination of the debtor. The third provides that in certain cases tlie judg- 1 White vs. Gates, 42 0. S. 100. matter is very Ihoroujrlily discussed 2 Lawrence, J., in Welch vs. Ry. in 24 Am. & Eng. Ency. of Taw, Co., 1 W. L. M. 87. 600, and will be frequently referred 3 Under the head of supplemen- to in this chapter. Ury proceedings, for which tlio New " § 117G8 C. C, § 1911. York Code is taken as a basis, this ^' § 117«0 H. C, § 1020. § 1911 AID OF EXECUTION 1620 ment debtor may be arrested, etc.^ The fourth provides ^ for an examination of a debtor of the judgment debtor after execu- tion has been levied, etc. In addition to these, there is another section which provides how an interest in real estate may be sub- jected to a judgment,^ But it is generally conceded that if real estate is to be affected, it had better be done by a proceeding in equity. Recently the statutory law has been amended so as to give a justice of the peace jurisdiction in proceedings in aid of execution where the judgment has been rendered in his Court." It is generally held that these various proceedings could be had at the same time," but no doubt if one were carried to termination it would be res judicata as to the property of the judgment debtor at the time the order was granted." Tlie Court, however, ought not to entertain these several proceed- ings at the same time, unless there is manifestly a good cause for so doing. Some question has arisen whether or not the Court ought to keep a record of the proceedings. The prac- tice in some Courts has been to do so, and it seems to be a commendable one. § 191lT~^I!xamiiiation of debtor after return of execution. "When an execution against the property of a judgment debtor, or of one of several debtors in the same judgment, issued to the sheriff of the county where he resides, or if he dees not reside in the state, to the sheriff of the county Avhere the judgment was rendered, or a transcript of a justice's judgment has been filed, is returned unsatisfied, in whole or part, the judgment creditor shall be entitled to an order from a probate judge, or a judge of the common pleas court in the county to which the execution M'as issued, requiring such debtor to appear and answer concerning his property before such judge, or a referee appointed by him, at a time and place within the county to be specified in the order." [R. S. § 5472.] i- G §§ 11770-1 G. C, § 1922. Manning, Dec. Rep. 176; 11 Bull. 7 §S 11772-3 G. C, § 1925. 144. 8 § 11784 G. C, § 1946. Neither Superior nor Supreme 9 § 10436 G. C. Court lias power to heir proceedings 10 This is denied in N. Y. See supplemental to execution. Amling- § 1949. meier vs. Amlingmeier, 8 Dec. Rep. 11 McCullough va Clark, 41 Cal. 713; 9 Bull. 241. 298. Witness not ordered to appear 12 § 117GS G. C. cmnot be attacked for contempt. Witness other than the defendant Ilarman vs. W:nller, 4 Dec. Rep. may be examined. Manning vs. 97 ; 1 Clev. L. Rep. 26. Questions and answers can be used 1621 JURISDICTION § 1912 § 1912. When and where can be brought. Tlie statute relating to examination of debtors after tlie re- turn of an execution/^ and the one before return of execution/* both specifically provide that the action may be maintained be- fore a Probate Judge or a judge of the Court of Common Pleas. The section relating to an examination of a debtor of the judgment debtor ^'^ merely uses the word judge, and there might be some question whether under that section proceedings might be maintained before any judge other than that of the Court in which the judginient was rendered. In several of the succeeding sections, however, the word judge is used alone, and must necessarily be applied to the judge of either the Probate or the Common Pleas Court. The proceedings can only be brought when the statutory requirements are fulfilled. The first esseiitial being that a judgment has been rendered and an execution issued thereon. In such a proceeding the regularity of the judgment cannot be attacked.^'' It has also been held that the judginent must be one that is not dormant^® It is also held tliat a judgment obtained in a United States Court cannot be the basis of proceeding in the State Court." The action must be brought in the county in which the debtor resides, or if he is a non-resident of the State, then in the county where tbe judgment was rendered. It is also essential that the execution has been returned, showing that it has not been fully satisfied. in suit bpt^vccn same parties subse- is Simpson vs. Hook. (> C. C 27 ; quently. Goode vs. Patterson, 40 3 C. D. 333. 0. S. 315. ^^ I^"^ "° proceedings suppi?nien- 13 § 117G8 G. C., § 1911. tary to execution can be taken in a "§ 117G9 G. C., § 1920. State Court on the judgment of a 15 If brought in the Probate 'Court Federal Court, even thougli the it is an independent action, and docketing of the judgment of the should be so titled, but if in the Federal Court in the State Court is Common Pleas it may be a nart of provided for. Davis vs. Bruns, 11 the original action. N. Y. Wkly. Dig. 436; Thompkins 16 §§ 11772-3 G. C, § 1926. vs. Purcell. 12 Hun (N. Y.) 602; 24 17 It might, however, bo showTi to Am. & Eng. Ency. of I^w, Oil be dormant or perhaps absolutely void. ^ 1913 AID OE EXECUTION 1622 § 1913. Who can bring. The judgment creditor is the person specified by statute as the one to bring tlie proceeding. Therefore it has been held that an agent having authority might bring such action, and an assignee, or a receiver, or an attorney who has authority to col- lect a claim."** This no doubt would include an administrator of a deceased person or guardian of an infant. § 1914. Application. The proceedings are started in motion by a formal applica- tion or motion for that purpose. This application should set forth all the jurisdictional facts — that is, it should state that a judgment was rendered, that the judgment is still alive, that an execution was issued, and has been returned as unsatisfied in whole or in part. As the Probate Judge usually acts upon the facts set forth in this application, it should be sworn to, the amount of the judgment should be stated, the time when it was rendered, as well as the date of the execution and its return. It should also state the name of the Court, as well as its location, where the judgment was rendered. § 1915. Motion. In the Probate Court of County, Ohio. Plaintiff.. vs. , Defendant . No Proceedings in Aid of Execution. Motion. And now conies the said , plaintiff, by his attorney, and represents to the Hon , Probate Judge of said county, that the said did on the day of , 190. . , before i , within and for said county, recover a judgment against the said for the sum of dollars. 2 and dollars, cost of suit, and that he caused s an execution to be issued on said judgment dated the day of 190. ., and delivered to the sheriff of said county ; * Wherefore the said . . ; moves the said judge for By , his Attorney. 20 24 Am. & Eng. Ency. of Law, 606. 1623 MOTION HEARING 1916 The State of Ohio, County, ss. , being duly sworn, says that the facts stated in the foregoing motion are true as he verily believes. Sworn to before me and signed in mv presence this day of , 190. . , Probate Judge. 1 " the Court of Common Pleas," or, " a Justice of the Peace." 2 " debt," or, " damages." 3 " to be filed in the office of the Clerk of the Court of Common Pleas of said county, a transcript thereof, and " i § 5472 or { 5475, which execution was on the day of , 190 ... , duly returned and filed in said Clerk's office, by said Sheriff, with the fol- lowing return endorsed thereon," (copy return). § 5473, "that said judg- ment debtor, has property which he unjustly refuses to apply toward the satisfaction of the judgment." § 5474, either or both of the foregoing statements may be made as the case may be; also, " that there is danger of the debtor leaving the State," oi " concealing himself, to avoid exam- ination concerning his property." I 5475, also, "That has property of said judgment debtor, to- wit: (describe it) or, "is indebted to said judgment debtor in the sum of dollars." 5 5472, 5473 or 5475, " an order re- quiring said to appear and answer concerning the same," or " his property," " before said Judge," or " a referee appointed by said Judge, at a time and place within the county specified in the order." § 5474, " a warrant to issue requiring the Sheriff to arrest and bring before said Judge, said for ex- amination." 1916. Hearing for order of examination. When an application has been filed and properly sworn to, the Court should carefully examine the same to see that all the jurisdictional facts are set forth, and should satisfy itself that the object and purpose of the proceeding is within that con- templated by the statute. If it appeai-s to the Court tliat the proceeding is merely begun for the purpose of ascertaining facts that might be used in some other proceeding, then the order should not be allowed. Such proceeding should be entitled as a special proceeding, with tlie name of the judgment creditor or of the owner as plaintiff and the judgment debtor as de- fendant.^^ 21 24 Am. & Eng. Ency. of Law, 621. N. Y. Code Civ. Proc, § 2436. In 3 Rumsey on Prac, p. 412, it is said: "These proceedings are rath- er in aid of an execution, than sup- plementary thereto. They enable the plaintiff to discover the proper- ty of the judgment debtor who is concealing it. Where the property is beyond the reach of an execution. or is, for some reason, not subject to le\'y, it enables the Court or judge at once to appoint a receiver, in order to reach it l)y that remedy. The facts entitling the judgment creditor to this remedy, .'erty of the debtor which ought to be applied to the payment of the plaintiff's claim ; and the extent of the inquiry in each particular case must be left to the good sense of the judge or referee under whose direction it takes place, having in view this general object." ^^ The same rule would apply as to privileged communication, except as provided in a subsequent section.^® Corporations, as well as individuals, are bound to answer. ^^ § 1920. Examination of debtor before return of execution. "After the issue of an execution against property, and on proof by tlie aiSdavit of the judgment creditor, or otherwise, to the satisfaction of tlie court of common pleas, or a judge thereof, or a probate judge, of the county in which the debtor is found, that the judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge, by order, may require the debtor to appear at a time and place, in such county, to answer concerning it. Such pro- ceedings thereupon may be had, for the application of the prop- erty of the debtor toward the satisfaction of the judgment, as herein are prescribed." [R. S. § 5473.] -^ § 1921. Proceedings under § 11769, G. C. Proceedings under the previous section are similar to those under previous sections of the General Code, except that they may be commenced after the issue of an execution and before the execution has been returned unsatisfied for the want of goods, etc. The Court must be satisfied that the debtor has property which he unjustly refuses to apply toward the satis- 2*24 Am. & Eng. Ency. of Law, 28 § 11769 G. C. ^7. Judgment creditor need not make 25 Id. 638. previous demand or show refusal be- 28 §11774 G. C, §1929. fore proceedings to subject. Edgar- 27 City of Newark vs. Funk Bros., ton vs. Hanna, 11 0. S. 323. 15 O. S. 462. 1627 EXAMINATION OF DEBTOR § 1922 faction of the judgmex.t, and it seems that the proceeding can be brought in any county in which the debtor is found. Xo demand is required of the debtor before proceedings may be had.^^ If the application is sworn to, it would be an affidavit upon wliich the Court might rest its action. Forms given in the previous sections may easily be adopted for proceedings under the above section. § 1922. When order of arrest may issue, and proceeding's thereon. "Instead of the order requiring the attendance of the judgment debtor, upon proof 'in writing to his satisfaction, by affidavit of the judgment creditor, or otherwise, that there is danger of the debtor leaving the state, or concealing himself, to avoid such examination, the judge may issue a warrant re- quiring the sheriff to arrest and bring such debtor before him. Such warrant can be issued only by a judge of the court of common pleas, or the probate judge, of a county in which the debtor is found, and the sheriff can execute it only within that county. In executing the warrant the sheriff shall deliver to the debtor a copv thereof and of the testimony on which it issued." [R. S. §5474.] ^° § 1922a. Examination of debtor and bond. ' ' When brought before the judge, such debtor shall be examined on oath, and other witnesses may be examined on either side. In the examina- tion if it appears that there is danger of the debtor leaving the state, or that he has property which he unjustly refuses to apply to the judgment, he may be ordered to enter into a bond, with surety, in such sum as the judge pres(!ribes that he will attend before the judge or referee for examination, from time to time, as dircted. In default of entering into such bond, he may be committed to the jail of a county, by warrant of the judge, as for contempt." [R. S. § 5474.] ■"'* § 1923. Proceedings under § 11770, G. C, The proceedings provided for ])y the previous section uro in- tended not only to be summary in its character, but to prevent a dishonest debtor from taking such action as might defeat the claim of the judgment creditor, and therefore, if the Court is 29Edgartoii & Wilcox vs. Hanna, '«' § 11770 G. C. etc., Co., 11 0. S. 323. •■"" § 11771 G. C. § 1924 AID OF EXECUTION 1628 satisfied that there is danger of the debtor leaving the State or concealing himself to avoid the examination, a warrant of ar- rest may b© issued. This fact may be brought to the attention of the Court by an allegation in the original application or by a separate affidavit. The Court having an'ived at a satisfac- tory conclusion, an order for arrest should be made, which may be in the following forni:^^ § 1924. Warrant to arrest. The state of Ohio, • County, ss. Probate Court. To the Sheriff of said County, Greeting: Whereas, the following order was this day made by me, to-wit: Probate Court, County, Ohio. , 190.. Plaintiff.. vs. , Defendant . . No Proceedings in Aid of Execution. Order. And now came the said by , his attorney, and thereupon his motion for the arrest and examination of concerning his property and intentions, came on to be heard ; and it appear- ing that said did obtain judgment, and that an execution duly issued against the property of said defendant, as set forth in said motion ; and it further appearing upon proof in writing to the satisfaction of the Probate Judge, that there is danger of the said leaving the State or concealing himself, to avoid examination. It is hereby ordered that a warrant issue requiring the sheriff to arres« the said and bring him before ., Probate Judge, at on the day of , 190 . . , at o'clock ...M., to answer under oath, concerning his property and his intentions. And the said is hereby enjoined and restrained from trans- ferring, or in anv way disposing of any of such property, nioney or credits, until further order in the premises. , Probate Judge. You are therefore commanded to take the said if he may be found in your bailiwick, and him safely keep, so that you have his body before me at the time and place mentioned in said order; and have you then and there this writ. A copy of the testimony on which this warrant is issued is hereto attached. In witness whereof, I have hereunto set my hand and affixed the seal of said Cpurt, at this day of , 190... , Probate Judge. •ii It shall be observed that when its were filed. Tlie entry made on the Sheriff serves the order, he must the Journal would be the same as deliver a copy of the same and the that contained in the following testimony upon which it is issued. form of order to arrest. This would usually mean a copy of §§ 11770-1 G. C. the application and whatever affidav- 1629 ARREST § 1925 190 According to the command of the within warrant, I have arrested the within named and have him now before the Hon , Probate Judge, to answer according to law. , Sheriff. § 1925. Proceedings for arrest. When the debtor is brought before the Court, by the sheriff, then the Court might proceed to at once make a final hearing of the matter, or it might proceed to hear the question whether or not the debtor was about to leave the State or was concealing himself. If the latter be found to be true, then the following order may be made : ORDER AFTER ARREST. Probate Court, County, Ohio. , 190.. , Plaintiff.. vs. • , Defendant. . No Proceedings in Aid of Execution. Order. This day came before , Probate Judge, the said in the custody of the sheriff, on the warrant of arrest heretofore issued ; and the said Judge being satisfied that there is i danger that the said will - to avoid examination as judgment debtor in this case 3 It is therefore hereby ordered that the said * from time to time, as directed, attend before ^ for ex- amination ; and that s said be discharged from the custody of the sheriff t And the said is hereby enjoined and restrained from trans- ferring, or in any way disposing of any of his property, money or credits, until further order in the premises. Probate Judge. 1 " No " (if such is the case). the approval of said Judge, that he 2 " Leave the State," or " conceal him- will." self." 5 " Probate Judge," or " Referee.^^ 3 "and," or "that he has property which 6 "such undertaking being given." he unjustly refuses to apply to the 7 "and in default thereof, the said.... judgment herein." shall be committed to the jail 1 " enter into an undertaking in the sum of the county, as for contempt." of dollars, with sureties to § 1926. Examination of debtor of judgment debtor, etc. ; effect of such order. "After tlio return of an execution ajrainst the property of a jiidg-ment dehtor, or of one of several (h-htors in tlie same judginent, and upon proof in writinfr, by affidavit or otherwise, to the satisfaction of the .iudfje, tliat a person w corporation has property of such .iudgmcnt dcl)tor, or is in- debted to him, the judge, by an order, may require such i)orsou or corporation, or any officer or member of the corporation to ■ appear at a specified time and place, in the county wherein such § 1926a AID OF EXECUl'ION 1630 person or corporation is served with the order, and answer con- cerning it. From the time of its sen^ice, property, money, or credits in the hands, or under the control of the person or cor- poration so served, belonging to the judgment debtor, or due from him to such person or corporation, shall be bound, and he or it, as the case may be, thereby made liable to the judgment creditor therefor." [R. S. § 5475.] ^2 § 1926a. When the order may issue, notice. "On the filing of the affidavit of the judgment creditor, his agent or attorney, if the judge is satisfied of the existence of any of the grounds upon which an order of attachment may be issued, as provided by law, the order may issue before the issuance and return of execution. The judge also may require notice of such proceed- ing to be given to any party in the action, in such manner as seems to him proper." [R. S. § 5475.] ^-* § 1927. Proceedings under § 11772, G. C. The proceedings under the previous section are somewhat similar to those provided for in the preceding sections, except that it is sought to examine a debtor of the judgment debtor. Forms previously given may be easily adopted. The statute further provides that from the time that service is made upon the debtor of the judgment debtor, that such debtor will be bound to keep the property. Under this section it has been held tliat he cannot, by payment to the execution debtor, dis- cliarge himself from liability to the judgment creditor.^^ The statute provides that the proceedings may be had gen- erally after the return of an execution as provided in a pre- vious section.^* But, if the Court is satisfied of the existence of the grounds upon which an order of attachment may be is- sued, then the order may be issued, even before the issue and return of execution.^^ 32 § 11772 G. C. the corporation. Ball vs. Manuf. 32* §11773 G. C. Co., 67 O. S. 306. 33 Union Banlc vs. Union Bank, 6 Payment to execution creditor af- O. S. 255. ter service will not discliarge debtor, 34 § 11768 G. C, § 1911. as it is a lis pendens. Union Bank 35 Tlie grounds of attachment will 6 0. S. 255. be found in 8 11879 G. C. Unless exceptions are taken the Ownership is the test as to the action of the court can not be re- right to subject propertv. Kruse versed. Welsh vs. Ry., H O. S. vs. Bader, 1 Dec. 383: 31 Bull. 112. 255. (Stock in a corporation is bound. The judgment creditor acquires a and a lion thereon is acquired from lien from date of service of notice, the time of service of the order on Trust Co. vs. Burkhart, 17 N. P. 401; 26 Dec. 505. 1631 NOTICE TO JUDGMENT DEBTOR §1928 § 1928. Notice to judgment debtor. The statute makes it discretionary whether or not any other party shall be given notice. In this respect following the New York statutes.^® And it has also been held that if tlie judgment debtor is not notified of the proceeding, he has no right to ap- pear by ooimsel in them, and his right to move to vacate the order under such circumstanoes is questionable." It seems, however, that no such proceeding ought to be carried on with- out notice to the judgment debtor, for if he is not notified, yery great injustice might be done.^^ § 1929. Existence of fraud not to excuse examination. ' ' On such examination no person shall be excused from answering any question on the ground that liis examination will tend to convict him of a fraud; but his answer shall not be used as evidence against him in a prosecution for such fraud." [R. S. § 5476.] 39 § 1930. Reference by judge. ' ' The judge may order a refer- ence to a referee agreed upon, or appointed by him, to report the evidence or the facts." [R. S. § 5477. j *" 631. 24 Am. & Eng. Ency. of Law, 37 Corning vs. Tooker, 5 How. Pr. 16; Lingsweiler vs. Lingsv/eiler, 57 N. Y. Super. Ct. 395. 3S In 3 Rumsey's Pr. 414, it is said: "To allow the pi-oceedings to be taken or continued without any notice to the judgment debtor would often open the door to injus- tice and fraud ; and notice should in all cases be given, unless by giving notice there would be a failure of justice, as by giving a dishonest debtor an opportunity of removing his property from the jurisdiction of the Courts of this State. But sometimes it is impossible to give notice, as in cases where he has left the State or conceals himself. In all cases, however, the matter of giving notice is left to the discre- tion of the judge; and whether or not a notice should be given to the judgment debtor should be detei-- mined by the circumstances of each case." 24 Am, & Eng. Ency. of Law, 632. 39 § 11774 G. C. The latter part of the above sec- tion, to-wit: that his answer shall not be used as evidence against him in a prosecution for such frau;!, means, in a criminal action. In a civil action where the identical mat- ter was in issue, in wliich tht^ jiarty was examined in the Probate Court, his testimony might be useil. Coode vs. Patterson, 40 0. 8. 345. And likewise it was held that tes- timony before a referee might be used. Zimmerman vs. Grotenkom- per, 8 Pec. 364. 40 § 11775 G. C. r)oes not apply to <'ivll action based upon discoveries m:ifT OF KECEIVER § 1943 § 1943. Appointment of receiver. Whenever there is any controversy about the o\vnership of the property which has been disclosed, then it is necessary for the Court to ajipoint a receiver to collect the same, who, if pay- ment is not made, can resort, to the ordinary remedies,^® and this applies also to a case where a debtor of a judgment debtor claims the property as his own.*'' If it appears that a third person has a claim on the property, then the only order that can be made is for the appointment of a receiver.^^ In such cases it has been held that a receiver will be appointed wherv^ it is shown that the debtor has fraudulently or suspiciously fraudulently transferred his property to others, who hold and claim to OAvn the same, when there is a strong pos- sibility that if a reoc\ ver were appointed some of tlie property could be recovered aiui money realized therefrom applied on the creditor's judgment."' A receiver appointed in such a case is an officer of the Court, and tlie law relating ti< receivers generally is applicable. If the receiver be a person other thau the sheriff, he must give a bond. § >.944. Injunction. The Court has the power at any time to forbid a transfer, dis- position of, or interference with the property of the judgment debtor not exempt by law. Sucli an injunction is usually made where there is any property found belonging to the judonnent debtor. It may be granted at any time during the proceedings, and takes effect at the time of the seiwice upon the person to be restrained. It continues in force until the proceedings are dis- missed. If the original proceedings are void, the injunction would be void.°^ egEdcrarton & Wilcox vs. Ilanna, "2 Hayes, Green & Co. vs. Moore, 11 0. S. 323. •> ^- I'- --^' ^ "<''^- ^-^• «o White vs. Gate, 42 0. S. 100. See also 24 Am. & Eiifr. Eiicy. ..f 01 Stone vs. Smith, 4 Dec. (V.c.) , Law, G87. 68 Clev. L. Rec. 91. "••' See 24 An,. & Eng. Ency. of Law, f>2r,, § 117-S2 0. C, § 1042. § 1945 AID OF EXECUTION 1638 § 1945. Liability of sheriff on official bond ; undertaking by receiver. "If the sheriff be appointed receiver, he and his sureties shall be liable on his official bond as such receiver. If another pereon be appointed, he must take an oath and give a bond as in other cases." [R. S. §5485.]'*-* § 1946. Proceedings when indebtedness denied, or another claims the property. "If it appears that the judgment debtor has an interest in re'al estate, in the county in which proceed- ings are had, as mortgagor, mortgagee, or otherwise, and his interest can be ascertained as betwe'en himself and the person liolding the legal estate, or the person having a lien on or in- terest in the property, without controversy as to the interest of the person holding such estate, or interest therein, or lien thereon, the receiver may be ordered to s'ell and convey such real estate, or the interest of the debtor therein. The sale shall be conducted as is provided for the sale of real estate upon execution; and the proceedings of sale before the execution of the deed shall be approved by the court in which the- judgment was rendered, or the transcript filed." [R. S. §5486.]^^ § 1947. Proceedings under § 11784, G. C. As a general rule, it will be a better practice where an in- terest in real estate is to be sold, for tbe execution creditor to commence a proceeding in chancery, to subject the property to sale and apply it on his judgment. The following interest in real estate, it is said, may be reached: A dowser right; rents due to a tenant by the curtesy ; the interest of a tenant by the curtesy initiate when the wife's property has been sold in par- tition; an annuity charged by devise on real estate for tlie judg- ment debtor's benefit ; an interest in a contract for the purchase of real estate ; the sui-plus from a sale in partition ; the income of the judgment debtor's real estate during the period allowed by statute for redemption after a sale on execaition.^® The fol- lowing may be used as a form for an order to sell interest in real estate: Order to pay money to a receiver trustee in bankruptcy. Ridges vs. is a final order and may be re- Forbes, 3 C-. €. (N.S.) 525; 23 versed on errar. First Nat'l Bank 0. C. C. 438. vs. Clauss, 2G 0. C. C. 107. 04 § ii783 G. C. See as to compensation of receiver <"'" § 11784 G. C. where property goes into han'ds of a "c 24 Am. & Eng. E*n'cy. of Law, 642. 1639 SECOND PROCEEmNGS § 1948 ORDER TO SELL INTEREST IN REAL ESTATE. Probate Court, County, Ohio. , 190.. , Plaintiff.. V.S. , Defendant . . No Proceedings in Aid of Execution. Order to Sell Interest in Real Estate. It appearing from the examination of before 1 that said has an interest as * in the following described real estate, to-wit : It is ordered that the receiver heretofore appointed in this case proceed to sell and convey s such real estate, in all respects, in the same manner as is provided for the sale of real estate upon execution ; and make return of his proceedings without unnecessary delay. 1 " Probate Judge " or " Referee who has 3 " The interest of said in " (if filed the report of his proceedings." such is the case). 2 " Mortgagor," " mortgagee " or other- wise. § 1948. Pleadings to be reduced to writing, and filed with clerk. "The order requiring a judgment debtor, or anyone indebted to him", to appear and submit to such examination, shall be in writing, signed by the judge who makes it, and be served as a sammons. The judge shall reduce all his orders to Avriting, which, together with a minute of his proceedings, signed by himself, shall be filed with the clerk of the court of the county in which the judgment is rendered, or the transcript of the justice is filed, who shall enter on his execution docket the time of filing it." [R. S. §5487.]'^^ § 1949. Dismissal and second proceedings. The statute nowhere has any provision in reference to a dis- missal of the proceedings, bat as a matter of course, if no prop- erty is found, nothing can be done but dismiss the action, and the defendant not having any property, it would be an idle formality to tax the costs agains^t him ; and thcrcfoin^ it equally follows that the costs should be taxed against the plaintiff. Neither is there any statutory provision in reference to the granting of a second order. But no doubt, if the first order be dismissed by consent of parties, or for some irregularity, without entering into the merits of the controversy, then a 67 § 11785 G. C. the judge to docket the cas<' like in In an early case it was held, ordinary proceedings, and enter his Welsh vs. Ry. Co., 1 W. L. M. 47, journal cnirios and orders, and then that the judge need not keep a comply witli tlio alnrve sect inn by record of his proceedings, but it filing a transcript of such journal seems that the Ix^tter way to comply entries witli tlie clerk of the Court, with the above statute and tlie one etc., as above provided, which will tend to regularity, is for § 1950 AID OF EXECUTION 1640 second order might be issued. But if the matter is entered into, then as to such property no second order can be made, and a future order could only reach property that was not in exist- ence, or, if in existence, not known when the first order was heard.^^ And in E"ew York it is held that two orders for the examiination of the judgment debtor cannot exist and be en- forced at the same time.^^ § 1950. Appeal and review. The statute nowhere grants the right of appeal in proceedings in aid of execution, and therefore no such right exists ; and it has been veiy seriously questioned in our State whether such proceedings can be reviewed on petition in error. In the Com- mon Pleas Coui-t, in a decision heretofore referred to,"° the judge holds that it isi not reviewable, and when this case was before the Supreme Court,"^ the Court made a query as to whether or not the action could be reviewed on eiTor. The Xew York Code provides that an order made in the course of the proceeding may be vacated or modified by the judge who made it, and likemse gives the right of appeal. ISTeither of these rights are provided for in our State, and if there is no right to . review the proceedings in error, then the parties may find them- selves at the mercy of the Court hearing the action. It cer- tainly seems that the order made in such cases is a final order affecting a substantial right to review which a petition in error might be prosecuted in a higher Court.^^ 6f< 24 Am. & Eng. Ency. 622. ' shall enforce their collection from See § I'JIO. svich party or parties as ought to 09(4aylov(I vs. Jones, 7 Hun, 480. pay them. ( R. S. §5489.) TO Welch vs. Ry. Co., 1 W. L. \Vhen forced by attacliment. M. 47. § 11788. When the judgment is not 71 11 S. 569. for the recovery of money or real 72 Compensation of probate judge. projjerty it may be enforced by at- § 11786. "For his services herein re- tachment, by the Court which ren- quired the probate judge shall be dered it, upon motion made, or by allowed the sum of three dollars a rule of the Court upon the defend- in each case, and such fees as are ant; but in either case notice of allowed by law to clerks of the the motion, or a service of a copy Oommon Pleas 'Court for similar of the rule, must be made on the services. (R. S. §5488.) defendant a reasonable time before Costs. § 11787. The judge shall making the order of attachment, allow to clerks, sheriffs, referees. (R. S. § 5490.) receivers, and witnesses, such com- Now held to be a final order, pensation as is allowed for like serv- First Nat'l Bank vs. Clauss, 26 0. ices in other cases, to be taxed as C. C. 107. costs in the case, and by order, 1641 HABEAS COEPUS §1951 CHAPTER cm. HABEAS CORPUS. §1951 Definition, etc. § 19G:3 §1952 Jurisdiction of Probate Court. § 1964 § 1953 Who entitled to writ. § 1954 Who may make application. § 1965 § 1955 Requisites of application therefor. § 1966 § 1956 Form of application. § 1967 § 1957 When the writ will not be allowed. § 1968 § 1958 When the writ must be § 1969 granted. § 1970 § 1959 Entry ordering writ. §1960 Who to issue the writ, and § 1971 when. § 1972 § 1961 How prisoner may be desig- nated. §1973 §1962 Requisites of the writ in cer- tain case. § 1974 § 1975 Form of writ when prisoner not in custody of an officer. Form of writ when defendant is an officer. How and where writ may he served. How executed and returned. What shall be stated in the return of the writ. Form of return, etc. Adjournment of cause. When prisoner shall be dis- charged on habeas corpus. Hearing, etc. Form of entry, discharging person. Form of entry, remanding prisoner. Second application. Appeal and errors. § 1951. Definition, etc. Proceedings in habeas corpus are of a summary character, to determine the question whether a person is nnhawfully re- strained of his liberty. It derives its name from the operative words of the common law Latin writ, " habeas corpus," mean- ing " that you may have the body." It is frequently referred to as the most famous writ in the law, and having been for many centuries employed to remove legal re.straint upon per- sonal liberty, no matter by what power imposed, and it is often called the " great writ of liberty." The privilege of apjx^aling to the Courts for protection under this writ are guaranteed by § 1952 HABEAS COEPUS 1642 the Constitution of both the United States ^ and the Consti- tution of the State of Ohio." The language of both being the same, " that the privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion or invasion, the public safety requiring it." It ia defined as a ^vrit directed to the person detaining another, and commanding him to produce the body of the prisoner at a cer- tain time and place, with the date and cause of his caption, and detention to do, submit it, and receive whatsoever the Court or judge warrant the writ shall consider in that behalf.^ The writ of habeas corpus is in this State not a common law right, but a statutory right ; and as a statutory right it must be strictly construed and strictly confined to the cases for which it is authorized by the statute. While it is the great writ of lib- erty, and will be, as it ought to be, most favorably regarded by the Courts of the State, yet they must construe it and award it in the strict light of the statute.* While the proceeding is es- sentially a civil and not a criminal proceeding,^ it is a special proceeding,® and not a civil action within the meaning of the Code.' § 1952. Jurisdiction of Probate Court. By statute it is provided " that the Probate Court shall have concurrent jurisdiction in allowing and issuing writs of habeas corpus, and determining the validity of the caption and deten- tion of the person brought before tbem on such writs." ® 1 Const. U. S. Art. 9, § 9, Clause a party does not prosecute another, 2. but makes an original application to 2 Bill of rights, § 8. a Court for the enforcement of a 3 Bouv. Law Die. right. The only pleading provided See Blackstone's Com.. § 135 et for is a petition, although the re- seq. turn of the writ is treated as an * In matter of Curd, 11 Bull. 186. answer. The only process is the 187. writ itself, no summons beirtg re- 5 Henderson vs. James, 52 O. S. quired under chapter eight, division 242. second, whereas, " a civil action must 6 Missionary Society vs. Ely, 56 be commenced by filing in the office O. S. 405, 407. of the clerk of the proper Court a 7 In re Barney Miller, 19 C. C. petition, and causing a summons to 544. be issued thereon." To obtain a writ of habeas corpus s § 10493 G. C, § 28. 1643 JUEISDICTION- § 1952 From the reason that Probate Courts are open at all times, proceedings in habeas corpus are perhaps oftener brought in such Courts than in any otlier Courts. It is therefore proper that in a work of tliis character some little attention be devoted to this subject. It being sufficient to say that in a proceeding of this character, the jurisdiction of the Probate Court is as broad as that of any .other State Court. Another section of the Revised Statutes provides as follows: •'The writ of hahean corpus may be granted by the supreme court, the court of appeals, the common pleas court, the probate court, or by a judge of either." [R. S. § 5727.] ^ The question sometimes arises as to the location of the Court in which tlie application should be filed. There is nothing so far as the author is aware, in the statutes indicating that the ac- tion must be brought in a certain county. A Common Pleas Court has recently held that in an action of habeas corpus, where it appears tliat neither the relator, nor the defendant, nor the person whose liberty is restrained, are residents of the county wherein the application is made, that the Court has no jurisdiction to allow or grant the writ; and furtJier adds that such a proceeding is a civil action and must be brought in the county in which the defendant resides.^" In another case it was held " that the Court in which the detention exists is the one having jurisdiction, and further held in this case that if jurisdiction was unjustly obtained, that the proceedings would be dismissed.^^ 9 § 121G2 G. C. remains in forco, intt^rfere with such As a general rule, the Supreme custody. Hoffman vs. lloflinan, l.> Court will refer parties desiring tiie 0. S. 427. aid of the writ of luiheas corpus, to The Su;>reme Court lias no more the inferior Courts of the State, and jurisdiction than the Probate Court, will take cognizance of such cases as each are governed by tiie same only when special cijcumstances ren- rules. Bushneil, Ex jxirtr, 9 O. S. der it necessary to settle some im- 182. portant ouestion. Ex parte Shaw. lo State v.s. Speidel, 1 Daytxin, 17. 7 S. 81 ; Ex parte Shean, 25 0. S. " Ex parte Everets, 2 l>i/. 33. 440. When a person is an inmate '2 In a caso in another State, it of a benevolent or penal institution. was held, that tlie i'robate Court or the petition must be filed in the judge to whom the application county wliere such institution is should be made is not the one n.-ar located. § 12103 G. C. '>«t tl>e residence of the app i.-ant. If Common Pleas Court, in di- but the one nearest tlie »I'l>l'<-;'"<- vorce proceedings, orders custody of Tliompson vs. Oglesl>y. 42 Iowa. .>.!«. children to one of parties. Probate In the case of State vs. Sp...del. Court cannot, while such ca-ee above referred t^, it was held. Miat §1953 HABEAS CORPUS 1644 § 1953. Who entitled to a writ. Upon this question the statutory provision is as follows : "A person unlawfully restrained of his liberty, or a person entitled to the custody of another, of which custody he is unlaw- fully deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation. ' ' ^^ The writ of habeas corpus, however, cannot be used as a sum- mary process to roview or revise errors and irregularities in the sentence of a. Court of competent jurisdiction. Imprisonment under a sentence cannot be unlawful, unless the sentence is an absolute nullity, and if it is clearly unauthorized and void, tlien relief from imprisonment may be obtained by habeas corfjus, but if the sentence is not void absolutely, a petition in error is the pro]5er remedy.^* In order to make a case for habeas corpus there must be act- in divorce proceedings, where a fa- ther acquires the child, that juris- diction in such cases might be ob- tained in the county in Avhich the divorce proceedings were had, as be- ing somewhat in the nature of an auxiliary proceeding to the divorce action. In 9 Ency. of Plead. & Prac. 1015, the rule is laid down, that the ap- plication should be made to the lo- cal Court or judge in the county in which the applicant is restrained. Citing in re White, 33 Neb. 812; in re Doll, 47 Minn. 518; in re Lyon, 19 Tex. App. 120. If the local judge refuses, appli- cation may be made outside. Citing ex parte Ellis, 11 Cal. 223, and cases above cited. From the fact that the Supreme, Circuit, Common Pleas, and the Pro- bate Courts all have jurisdiction, there will be little cause for bring- ing an action in a county other tlian that in which the detention exists. 13 § 12161 G. C. 14 £x parte Shaw, 7 O. S. 81; ex parte Van Hagan, 25 O. S. 426; ex parte McGehan, 22 O. S. 442; ex parte Virginia, 100 U. S. 339; ex parte Siebold, 100 U. S. 371. After a person has been arrested and has waived examination, and been bound over no illegality or ir- regularity in or about his arrest or the proceedings before commitment will avail him on habeas corpus. Newtirry vs. State, 7 C. D. 622; 15 C. C. 208. Where a prisoner has served his time, and is only held for the fine and costs, and the sentence is illegal as to the terms of such part of the imprisonment, as reversal or error can not restore him, habeas corpus lies. Moore in re, 7 C. D. 575; 14 C. C. 237. 1645 WnO MAY MAKE APPLICATION § 1954 ual confinement or present means of enforcing it; mere moral restraint is not enough/^ § 1954. Who may make application. If the party himself is capable and not under such restraint that he is unable to make the application, he should make his own application. However, if by want of physical or mental capacity the party is unable to make the application himself, then it may be made by some one in his behalf. Generally, if a person is unlawfully imprisoned, the Courts will consider that he is in such a position that the application may be filed for him by another. An application may be filed by one to release another from unla-svful restraint^ when by reason of some par- ticular relation between the parties the person making the ap- plication is entitled to the society or custody of the person restrained. Thus a husband might file an application to regain the custody of his wife where she is kept in custody away from him and against her will.^*' And so a parent may file the application for the custody of his infant child. ^^ Likewise a gi'andparent might file such application,^-^ and for the same reason the guardian might file an application to regain the custody of his ward. But it is held that a master could not file an application to secure the custody of an ap- prentice.^^ 15 Wales vs. Whitney, 114 U. S. corpus on behalf of the husband. 5g4_ Cobbett vs. Hudson, 15 Ad. & El., 16 9 Am. & Eng. Ency. of Law, Q. B. 988 ; Matter of Ferrens. 3 Ben. 176, citing ex parte Newton, 2 (U. S.) 445. It may also issue at Smith, 617; Queen vs. Leggatt, 18 the wife's instance, and against the Ad. & El. Q. B. 781 ; ex parte Sandi- husband when she is improperly re- lands, 12 Eng. L. & Eq. 463; S. C, strained by him. Lister's Case, 8 21 L. J. Rep. N. S. Q. B. 342; Rex. Mod. 22. vs Clarkson, 1 Stra. 445; Schouler's "9 Am. & Ency. of Law. 177; Dom. Rel., 3rd ed. 61 ; Rex. vs. Mead, Clark vs. Bayer, 32 0. S. 299 ; Giah- 1 Butt. 542; Sanders vs. Rodway, 13 wilcr vs. Dodez, 4 O. S. 615; SUxte Eng. L. & Eq., 463; S. C 16 Jur. ex rel. Nilcs vs. Niles, 25 Bull. 327. 1005; Rex vs. Gregory, 4 Burr 1991. i« Clark vs. Bayer. 32 O. S. 299 So a wife may move for a habeas i»9 Am. & Eng. Ency. of Law. 177. § 1955 HABEAS CORPUS 1646 §1955. Requisites of application therefor. "Application for the writ shall be by petition, signed and verified either br the party for whose relief it is intended, or by some person for him, and shall specify: "1. That the person in whose behalf the application is made is imprisoned, or restrained of his liberty; "2. The officer, or name of the person by whom he is so confined or restrained. If both are unknown or uncertain, he may be described by an assumed appellation. The person who is served with the writ shall be deemed tJie person intended ; "3. The place where he is so imprisoned or restrained, if kno\\Ti ; "4. A copy of the commitment or eausje of detention of such person shall be exhibited, if it can be procured without impair- ing the efficiency of the remedy; or, if the imprisonment or detention, is without legal authority, such fact must appear.'* [R. S. § 5728.] ^^ § 1956. Form of application. State of Ohio, ex rel, ^ of C Probate Court. vs. ) County, C. D., etc. Petition for Writ of Habeas Corpus. Your petitioner. A. B., respectfully represents that he is unlawfully re- strained of his liberty (imprisoned), by (state the officer or the name of the person by whom) at (state the place where). The pretended cause of the imprisonment is as follows: A copy of the commitment (or cause of detention) is hereto attached. Wherefore your petitioner asks that a writ of habeas corpus may be granted, and that he may be discharged from such unlawful imprisonment. (Verification.) A. B. BY THIRD PERSON. (Title.) Your petitioner respectfully represents that one L. M. (if name is un- known describe him, § 5732 R. S. ) is unlawfully restrained of his liberty ( or imprisoned ) , by at The cause of said imprisonment is as follows A copy of the commitment is hereto attached. Wherefore your petitioner asks that a writ of habeas corpus may be granted, and that said L. M. may be discharged from such unlawful con- finement. A. B. in behalf of L. M. ( Verification. ) 21 20 § 12164 G. C. ' tinguished from controverted cus- 21 In the petition in cases of re- tody, the allegation of unlawful re- straint under R. S. § 5726, as dis- straint of liberty is essential to give 1647 WHEN ALLOWED §1957 BY A PARENT FOR CHILD, ETC. (Title.) Your petitioner respectfully represents that he is the father (mother, or guardian appointed by the Probate Court of county on the day of , a copy of whose letters of appointment are hereto attached, marked "Exhibit A,") and is entitled to the custody of A. B., an infant, years of age. That said A. B. is unlawfully restrained of his liberty by E. F. at (here state place where A. B. is kept in custody) and that the said E. F. unla\vfully and illegally prevents the undersigned from procuring the custody of said A. B. Wherefore your petitioner asks that a writ of habeas corpus may be granted and that the said A. B. may be discharged from such unlawful restraint and may be delivered from the unlawful custody of the said E. F. (Verification.)' G. H.22 § 1957. When the writ will not be allowed. "If it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magis- trate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or, if the jurisdiction appears after the wnt is allowed, the person shall not be discharged by reason of any jurisdiction, and its absence is not curable by amendment, nor waived by appearance and trial. Hence, in habeas corpus for a child, if the relator docs not claim the right of custody, but merely acts on its behalf, an averment that it is illegally restrained and possessed by respondent is fatally defective even after trial, for as a child must be in some one's custody; want of liberty is not necessarily alleged. In re Curd, 11 B. 186. 22 It has been held that a guard- ian must make his letters a part of his petition. Gregg vs. Winn, 2.3 Ind. 373. The first two forms above given are taken from Bates' Pleadings and Prac., and are criticised in Kin- kead's Pleading and Practice 610, for the reason that they do not set up the facts upon which the unlaw- ful restraint is founded. However, in a recent case in State of Ohio vs. Mullaney, 8 N. P. IG.^, the Court, after reviewing the matter very thoroughly, holds that the forms are sufficient, and that in habeas corpus proceedings, it is not necessary in a petition to set out fully the facta and circumstances of the imprison- ment or restraint constituting the giound for the relief asked. If the pleader has any doubts upon this subject, the above forms could very easily be changed, and before the prayer of the same, the facts and circumstances of the im- prisonment might be inserted. Kin- kead on Code Proceedings gives such a form, p. 609. and also gives a form for a petition by a father to regain the custody of a minor son in the United States army. In the United States Court it is required that the facts be alleged, etc. Kohl vs. L<>hlback, 160 U. S. 293; King vs. McLean, 04 Fed. Rep. 325. But under the Ohio statute, it seems to the author it would be sufficient without such allegations. § 1958 HABEAS CORPUS 1648 informality or defect in the process, judgment, or order." [R. S. §5729.J^'^ § 1958. When the writ must be granted. ' ' When a petition therefor is presented, if it appears that the writ ought to issue, a court or judge authorized to grant the writ, must grant it forthwith." [R. S. §5730.] -' While sec. 12165, G. C, provides that if certain things appear then the writ shall not be allowed. As a matter of general prac- tice, tlie general rule is that if the application shows a prima facie case of unlawful detention or imprisonment, then the Court issues tlie writ. Some of our Courts have said that it is the duty of the judge, upon a proper application being filed, to issue the writ and try the rights of the parties upon the issues made by the returu,^^ It would seem to be carrying out the idea of this great writ that it ought not to be left in the discretion of the judge as to the question of its issue. Of course, if the application fails to disclose an unlawful detention, then there would be n,o need for issuing the writ, and it very properly could be refused. But usually the question as to the applicant's discharge rests upon a condition of facts which are best determined from the issue made up by the return to the writ; and it has generally been held that if a judge would refuse to grant the ^\Tit, he might be compelled to do so by mandamus. The safer and better way would be for the judge in all cases to issue the writ § 1959, Entry ordering writ. Should it appear that the Avi'it ought to be issued, the judge should make an entry ordering the same, which may be in the following form: On application of A. B., it is ordered that a writ of habeas corpus to (S. S. of etc.; or describing the person as in the application), commanding him to have the body of the said (C. D. ; or describing the person as in the application, together with the day and cause of his caption and deten- tion), before this Court on the day of instant, at o'clock. . .M, 23 § 121^5 G.C. .States. Disinger, In re, 12 0. g. 24 § 12166 G. C. 250. 25 Ex parte Earley, 1 W. L. M. Children, where a father joins the 264. Shakers and renounces the l)onds of Custody of children. Habeas cor- "natural aflection," his children will pus will not lie to recover posses- not be given into their possession as sion of the minor who is over eigh- against their maternal grandmother, teen years of age, wlio has enlisted State vs. Hand, 1 Dec. Rep. 238; in the military service of the United 5 W. L. J. 301. 1649 FORM OF WRIT § I960 § 1960. Who to issue the writ, and when. "Upon its allow- ance, the writ shall be issued forthwith, by the clerk of the court whereof the person who granted it is a judge, under the seal of such court. In case of emergency, such judge may issue the writ under his own hand, and depute any officer or person to serve it." [R. S. §5731.] ''' § 1961, How prisoner may be designated. "The person to be produced shall be designated by his name, if known and if not known, or uncertain, he may be described in any other way so as to make known who is intended." [R. S. § 5732.] -' § 1962. Requisites of the writ in certain case. "In case of confinement, imprisonment or detention by an officer, the writ shall be directed to him, and command bim to bave the body of such person before the court or judge designated in tbe writ, at a time and place therein specified. " [R. S. § 5733.] -^ § 1963. Form of w^rit when prisoner not in custody of an officer. "In case of confineuicut, imprisonment-, or detention by a person not an officer, the writ shall be in tbe form following: "The State of Ohio, Count^^ ss. : "To the sheriff of our several counties, greeting: "We command you that the body of of , by , of , imprisoned and restrained of has lib?rty, as it is said, you take and have before . .• , a judge of our court, or, in case of his absence or dis- ability, before some otber judge of the saane court, at . ." , forthwith to do and receive what our said judge shall then and there consider concerning him in his behalf; and summon the said then and there to appear before If wife deserts her liusband with- of the Court. Coons, E.v purte. 11 out just cause, she is not entitled C. D. 208; 2.5 0. C. C. 47. to custody of their children. State When custody of child is brought vs. Nisliwltz, 1 Dec. Kep. 370; 8 W. about by habeas corpus i)roceedin','s L. J. 396. t,he Court is authorized to make If the husband has possession of ^uch order os the best interests of the child, although it is of tender the child demand. Barnes. Fn re, years, if well cared for his poss< ?- 11 Dec. Rep. 848; 30 Bull. 1(54. sion will not be distTirbcd. State vs. Court will not change the custody Nishwitz, 1 Dec. Rep. 370; 8 W. L. of the child from one_ parent to an- j 39(5 other except where its neces-ifies In habeas corpus proceedings demand it, or its possessor has been acainst father for custody of guiUv of fraud, force or stratnc:em infant, other things being eqiial, it in obtaining its possession. State will be awarded to the mother. vs. Nishwitz, 1 Dec. Rep. 370; 8 State vs. Niles, 11 Dec. Rep. 240; W. L. J. 390. 25 Bull. 327. T*' *^^ip remedy, where a child is The mother is entitled to tlie committed to prison, is not nde- custodv of children under ten vears quale, the rieht of detention may of ao-e' Vincent vs. Vincent 8 Dec. l>e inquired into by h/ibras ror/ws. 100-^0 N. P. 474. Preseot vs. State. 19 0. S. 1H4, 18!\ A mother's ri-rht to custody of 2« 5 12707 O. C. child cannot be willed away if the 2^ § 12708 O €. child is really in the custody of -« 8 12109 G. C. § 1964 HABEAS CORPUS 1*>50 our said judge, to show the cause of the taking and detention of the said " (Seal) Witness , at , this day of , in the year " [R. S. § 5734.] ^» § 1964. Form of writ when defendant is an officer. States of Ohio, County, ss. Probate Court. To C. D., Sheriff of County, greeting: You are hereby commanded to have the body of A. B., alleged to be restrained by you of his liberty (stating the facts as in the petition) in the jail of your county, before this Court on , the day of 190. ., at o'clock. . .M., and to show the date and the cause of the taking and detention of the said A. B. and have you then and there this writ, with your return of service indorsed thereon. Witness my hand and the seal of said Court, at , this day of , 190. .. ( Seal. ) , Probate Judge. § 1965. How and where writ may be served. ' ' The writ may be served in any county, })y the sheriff of that or any other county, or bv a person deputed hy the court or judge." [R. S. § 5735.] ^" § 1966. How executed and returned. ' ' The officer or person to whom the writ is directed shall convey the person so im- prisoned or detained, and named in the writ, before the judge allowing it cr, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ. He shall make due return of the writ, together with the day and the cause of the caption and detention of such person, according to its command." [R. S. § 5736.] "^ § 1967 What shall be stated in the return of the writ. "Wlien the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose cu.stody the prisoner is found shall state, in writing, to the court or judge before whom the writ is returnable, plainly and unequivocally: "1. Wliether he has, or has not, the party in his custody or power, or under restraint ; "2. If he has the party in his custody or power, or under restraint, he shall set forth, at large, the authority, and the true and whole cause, of such imprisonment and restraint, with a copy of the writ, warrant, or other process, if any, upon wliich the part}^ is detained ; ''3. If he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, he shall state, particularly, to whom, at what time, 29 § 12170 G. C. make return showing that the writ 30 § 12171 G. C. has been properly served on the 31 § 12172 G. C. nflicer delivering accused, whereupon The direction to a sheriff, to the latter officer should produce whom is issued a writ, should be prisoner as directed by the writ not to produce the body, but to Ex parte Chas. Morris, 21 Dec. 104. 1651 RETURN §1968 for what cause and by what authority, such transfer was made." [it. b. § 57o8.] ^- § 1968. Form of return, etc. The statute provides : "The return or statement shall he signed by the person who makes it. It shall also be sworn to by him, unless he is a sworn public officer, and makes the return in his official capacity." [R. S. § 5739.] '^ It is the object and purpose of the statute in habeas corpus proceedings tliat the application shall perform tlie ordinary of- fice of petition, and that the return shall serve the purpose of an answer, and in this way the issues are made up. If the petition does not state facts sufficient to constitute a cause of ac- tion, it might be dismissed on motion or demurrer.^* If the return does state sufficient facts, it might also be disposed of by demurrer. The statute is specific as to what this return shall show. First, it must state whether the party has the per- son for whom the writ is sued out in custody ; second, if lie has the party in his custody, he must allege by what right or author- ity he claims detention of such person; third, if he has had the party in his custody and transferred such custody to another, he must state particularly to whom, at what time, for what cause, and by what authority such, transfer was made. Wliatever the facts may be which may be considered as a defense to the writ should be set forth in the return. The general form for which may be as follows: To the Judge of the Court of (etc.) : I hereby return this writ and respectfully represent and show to the Court that I have the said in my custody and power ; that he has been in such custody since on the day of upon the following authority, fully stated as follows: (Here state the true and whole cause of the detention, with copy of the writ, warrant or other process, if any.) ^ ■^ ' (Signed.) 35 32 § 12174 G. C. heard nnd dotcrminod. (R. S. § 12173. Wlien the writ is issued S 5737.) by a Court in session, if the Court ■'*■''§ 12175 G. ('. has adjourned when the writ is 'e- ^* It is said it should be done by turned, it shall l>e returned before motion. any judge of the same Court. When ■'•'> A return that the defendant ha.s the writ is returned Ix'fore one not had custody or control is equiv- judge, at a time wlien the Court alent tn a denial of the allegation is in session, he may adjourn the of the y)etition. Amnion vs. .John- case into the Court) there to be son, 3 <'. C. 203; 2 C. 1). 14!». § 1969 HABEAS CORPUS 1652 The above form would be sufficient where return is made by a public official and need not be sworn to. However, if the re- turn is made bj a private person, an affidavit must be attached. The following is given as a proper return by a private person where a writ has been granted for a child, etc. : FORM OF RETURN AND ANSWER OF RESPONDENT. (Title.) This respondent, A. L. C, producing the body of T. C. in obedience to the writ of habeas corpus hereinbefore issued., says that he is the father of the said T. C, a minor of the age of ten years, and as such father entitled to the care and custody thereof. (Then given full statement of facts. ) Respondent denies that the said T. C. is unla^^^ully restrained of his liberty, and therefore prays that this Court will order his said child, T. C, to be remanded to his care, custody and control, and that the said writ herein issued may be quashed, and that the petition herein may be dis- missed and the costs of this proceeding adjudged against the petitioner, and for such further relief as is proper. State of Ohio, County, ss. A. B., being first duly sworn, says that he is the respondent in the above return and that the facts therein stated are true. Sworn to before me and in my presence this day of , 190.. 35* §1969. Adjournment of cause. "The court or judge to whom the writ is returned, or the court into which it is ad- journed, for good cause shown, may continue the cause, and, in that event, shall make such order for the safekeeping of the person imprisoned or detained as the nature of the case re- quires." [R. S. §5740.] •"" § 1970. When prisoner shall be discharged on habeas corpus. "When the judge has examined into the cause of caption and detention of the person so brought before him, and is satisfied that he is unlawfully imprisoned or detained, he shall forthwith discharge him from confinement. On such examination, the judge may disregard matters of form or technicalities in any A return to a writ directed to the after this application, will be de- U. S. IMarshal that he holds the term-ined on the facts as existing at party by virtue of a warrant from the hearing and not at the applica- tlie U. S. Commissioner is conclusive tion. Hence the writ will be refused. on a State Court. Ex parte Earley, Ex parte Ilealy, 8 Dec. C92 ; 38 Bull. 3 Gaz. 234; 1 W. L. M. -2G4. 250. Habeas corpus for a person held 3^* Kinkead Code Pleadings, 615. by the poLcc and no warrant for the "JC § 12176 G. C. arrest having been sworn out imtil 1653 HEARING § 1071 mittimus or order of comjuitment by a court or officer, authorized by law to commit." [K S. § 5741.] " § 1971. Hearing, etc. Upon the return, or at such time to which the cause may be continued, the matter at issue is heard in the usual manner that trials before a judge are conducted. The defendant is not en- titled to a jury trial. Tinder the general powers exercised by a Probate Judge, he might refer the matter to a jury to return a verdict upon the facts. The general practice in habeas cor- pus proceedings is for the judge to tiy the issues himself. The question at issue being whether the party is unlawfully re- strained of his liberty, or perhaps, where a parent seeks to re- cover possession of his child, the additional question is tried, determining whether or not the parent is entitled to the custody of such ehild, and furthermore, what is to the best interest of such child.^^ Subsequent sections provide when a person may be committed or let to bail,^** and when he must be committed.*'* And fur- 37 § 12177 G. C. er than that for which he was sur- 38 The sufficiency of an indictment rendered — habeas corpus lies. This can not be questioned by habeas is not reviewing errors within the corpus. Ex parte Bushnell. 9 O. S. sphere of authority. Ex parte Mc- 77, 184. Knight, 48 0. S. 588. The fact that an indictment The constitutionality of a statute charges no crime known to the law which is the sole authority for an is not triable on habeas corpus from imprisonment may be tested by ha- the Circuit Court, for a demurrer to beas corpus. In matter of Kline, 6 the indictment would raise the ques- C. C. 215; 3 C. D. 422. tion, and the decision is reviewable Habeas corpus lies if the order to here. Hatch vs. St. Clair, 2 C. C. commit was for contempt in diso- 163- 1 C. D. 421. beying an order which the Court had Denial of a jury on trial for vio- no jurisdiction to make. In re lating a city ordinance does not give Ceorge, 5 C. C. 207; li C. D. 104. a right to habeas corpus, for the sen- If a city ordinance is wholly void, tence is not void, but voidable. a conviction under it may bo de- Madden vs. Smeltz, 2 C. C. 1G8; 1 flared void, and the prisoner re- C. D. 424. leased on habeas corpus. EsP parte Where the Court had no right to Clamp, 10 T5. 220. try the case — as where it tries an so § 12178 G. C. extradited person for an offense oth- ■>" § 12179 G. C. § 1972 HABEAS CORPUS 1654 ther, the distinction seems to be drawn " as to the manner in which a return shall be considered as evidence between cases in which the defendant is an officer and a private person. Where the defendant is an officer, the return is considered prima facie evidence of the cause of detention, and therefore it would seem that the burden of proof would be on the defendant to show to the contrary. Yet, in anotlier reported case in the Su- preme Court,*' it seems to have been held that the burden of proof was on the petitioner, and that he could not compel a sheriff to introduce his testimony firsts Where a person is re- strained of his liberty by private authority, the return is only considered as a plea of the facts, and the party claiming the cus- tody must prove them.*^ § 1972. Form of entry. Discharging person. (No ) In the Matter of C. D. upon Habeas Corpus. This day S. S., to whom a writ of habeas corpus was directed on the day of upon the application of appeared in open Court, having with him the body of said C. D. together with said writ, and the day and cause of his, the said C. D.'s caption and detention, as by said writ is commanded; and thereupon the proof and allegations of the parties being heard and fully understood,* and it appearing to the Court that the said C. D. is illegally detained under the custody of said S. S. ; therefore it is ordered, that the said C. D. be, and he hereby is discharged out of the custody of the said S. S., and that he go hence without day, and (as to costs, see § 5753 R. S.)** § 1973. Form of entry. Remanding prisoner. (Follow previous form to *, and say:) And it appearing to the Court that the said C. D. is lawfully detained under the custody of the said S. S., therefore it is ordered, that the said C. D., be, and he hereby is returned to the custody of the said S. S. (etc.), to be by him held and detained until discharged by due process of law. (In cases of parents, guardians, etc., no specific directions are given by the Court, thus : ) And it appearing to the Court that said C. D. is not unlawfully detained (or unlawfully restrained of his liberty) under the custody of the said , therefore it is ordered that the said go hence thereof without day, and (as to costs see § 5753 ).*5 41 g 12180 G. C. If it Js shown, however, that the *2 Ex parte Larney, 1 unreported party has been relieved from illegal eases Supreme Ct., Ohio, 651. restrain there is nothing to try. <3 The hearing of an action of The writ must be dismissed. 9 habeas corpus is not defea:ted by the Ency. of Law and Prac, 1067, 1042. fact that the person whose body is ** Yaple's Code practice, 1026. sought to be obtained is not found ♦» Yaple's Code practice, 1027. by the sheriff. Ammon vs. Johnson, 3 C. C. 263; 3 C. D. 149. 1655 SECOND APPLICATION § 1974 § 1974. Second application. It is said that by a great preponderance of authority, the principle of res ad judicata, where not other^vise provided by statute, has no application to habeas covpus cases, and a deci- sion in one case is no bar to the issues and proceeding of a subsequent habeas corpus; and therefore a party refused a dis- charge on one habeas corpus, may proceed by this writ on subse- quent application, until perhaps he has exliausted the entire judiciary power of the State,*'' and such is tlie holding of our Courts.*^ It therefore follows that where the Court refuses to discharge a prisoner, he may either prosecute error or bring a new proceeding.** But it seems that this rule of allowing a second application, although the facts may be the same, does not apply to cases determining the right of tlie custody to children.*^ § 1975. Appeal and error. It is provided by statute that : "The proceedings upon a writ oi habeas corpus must be re- ♦• 9 Ency. of Law and Piac, 1070. think, therefore, upon consideration <7 In re Smith vs. Perry, 9 C. D. of these authorities, that what haV 778; S. C. Leutzler vs. Perry, 18 C. been set forth in tne answers as res C. 826. judicata does not amount to a good It is said " But, however, this may plea in bar, and docs not stand in be, it does not appear that the right the way of our proceeding to act to review the action of tlie judge in upon this application; neither does a case of habeas corpus upon re- it afford us just ground for refusing fusal to issue the writ, or upon is- to act. sue joined after the writ has been *» A recent example of a second issued, is a full, complete and ade- application in Ohio Coiu-ts is that quate remedy in all cases ; for, while of In re Mullaney, 8 N. P. 49, 165. error may be prosecuted to such or- o In such cases if the facts are der in the last instance, there is no the same the former adjudication provision of law for the taking of may be pleaded. If the facts are a bill of exceptions upon a hearing difTon-nt a second apj)lication might before a judge, and therefore a party be granted. People vs. Cooper. 8 might be unable to bring to the at- How. Pr. 288 ; 9 Ency. of Law & tention of the reviewing Court the Prac, 1071. real facts upon which he claimed to be entitled to his discharge. We § ] 975 HABEAS CORPUS 1656 corded by the clerks respectively, and may be re^dewed on error a^ in other cases." [R. S. § 5751.1 ^° Under this statute it has been held that the way in which proceedings shall be reviewed must be by petition in error,^^ and that the order discharging the prisoner is the one that may be reviewed on error. ^" It has, however, been held that a refusal to issue the writ is not reviewable.^^ This no doubt is meant to apply only to ac- tions brought in behalf of a prisoner. If the proceeding was one for the custody of a child, and there is no right to a second application, as stated in a previous section, then undoubtedly the Court would hold that proceedings in error would lie from a refusal to grant a discharge. The right of appeal rests purely on statutory provisions, and there is no statute providing for appeal in habeas corpus pixxjeedings. Therefore the action cannot be appealed.^* 50 § 12187 G. C. the return is evidence, and when 5177a; parte Collier, G 0. S. 55. only a plea; § 121S1, Penalty upon 52 Henderson vs. James, 52 0. S. a clerk rcfudng to issue writ; 242. § 12182, Penalty for disobeying the 53 Zw re Smith vs. Perry, 9 C. D. writ; § 121C'3, Persons discharged 778; Leutzler vs. Perry, 18 C. C. once are not agnin to be impris-oned; 826. § 12184, Person net to be removed 54 Jjx re Miller, 19 C. C. 544; 10 from custody of one ofiicer to an- C. D. 760. other; § 12185, Xo person to be sent Other srctrons cf the General Code out of the State for crime commit- not herein inserted, are §12178, ted; § 12186, Person so transported When person may be committed or may have an action; § 121S7, Ac- let to bail; § 12179, When prisoner tions for penalties, and limitations; must be committed; § 12180, When § 12189, Fees and costs. 1657 CONTEMPT § 1976 CHAPTER CIV. CONTEMPT. § 1976 Jurisdiction of Probate § Court. § § 1977 Kinds of contempt, etc. § § 1978 Proceedings for contempt in presence of judge, etc. § 1979 Contempts not committed in presence of judge. § 1980 Contempt. § 1981 Written charges, etc. § 19S2 Entry appointing attorney to bring action. § 1983 Form of charge. § 1984 Entry ordering summons. ,§ 1985 Form of summons and at- tachment. § 1986 Right of accused to bail. § 19S6a Bail bond to be given to satisfaction of clerk. 1987 § 1988 § 1989 § 1990 §1991 1992 1993 1994 1995 Trial by the Court. Punishment if found guilty. Imprisonment till order obeyed. Form of commitment for contempt. Proceedings when party re- leased on bail fails to ap- pear. Eight of Court who commit- ted prisoner to release him. Judgment final. Appeal and error. When the .provisions of this chapter apply.i § 1976. Jurisdiction of Probate Court. Contempt is defined as being the use of disorderly, con- temptuous or insolent language or behavior in the presence of a legislative or judicial body, tending to disturb its proceedings or impair the respect due to its authority, or a disobedience to the rules or order of sucli a body which interferes with the due administration of justice." The power to punish for contempt is inherent in Courts of general jurisdiction independent of legislations, and has al- ways existed in the Courts of England and in this country.' This principle fixes the power of the Common Pleas Court, irre- spective of legislation, but our Supreme Court has held Uiat 1 See § 1935, In proceedings in aid of execution. 2 3 Am. & Eng. Encv. of Law, 777. 3 Post vs. State, 14 C. C. Ill; 7 C. D. 257. The legislature has not the pnwor to abridge the Court's right. Hale vs. State, 55 O. S. 210. And the power cannrrt be taken away by filing an affidavit of prej- udice. State vs. Shay, 3 N, P. (N.S.) 557; 16 Dec. 448. The inhererit power of Courts is not abridged Iiy tlic stnlntory i)r<)vi- sions in relation thereto. Arbiickle vs. Spricc (';)., 11 V. 1). 72(1; 21 0. C. C. 3^50. The power is both inlicrciit .nnd necessary. Hale vs. ^late, 55 0. S. 210. The statutory remedy in cumula- tive. Collin v^. Ashley, 5 C. D. 6; 11 0. 'C. C. 47. § 1977 CONTEMPT 1658 this power extends to all Courts created by the Constitution, and tlie Legislature has no right to abridge it/ The Probate Court, being a Court created by the Constitu- tion, would therefore have this power as complete as any other Court. But, possibly for fear that Courts of a higher jurisdic- tion might deny this power to the Probate Court, it has been especially conferred by statute as follows : "The probate judge has power to keep order in his court, and punish any contempt of his authority, in like manner as such contempt might be punished in the court of common pleas." [R. S. § 538.]^' § 1977. Kinds of contempt, etc. It will be observed in the definition above given that there are two kinds of contempt. One is where the misbehavior, etc., occurs in the presence of the judge; the other where the party refuses to perfoi-m an order, etc., made by the Court.. These distinctions are recognized by our statutes relating to con- tempts, and w^hile the punishment may be the same, the method of procedure is somewhat different. Under tlie first, the Court deals in a summary manner, no written charges are required, the proceedings merely being an order of the Court, Con- tempts of this kind are those which happen in the presence of or so near the Court as to obstruct the administration of justice. Thus an assault upon an attorney engaged in the proset^ution of a criminal case by a witness, even though it was not made in the actual presence of Court, is a contempt of 'this charae ter,^ So likewise might be the publication of a libelous article in a newspaper.^ So militia performing evolutions with music and firing so near as to suspend its business, and to refuse to 4 Hale vs. State, 55 0. S. 210. 6 Dec. 10; Myers vs. State? 46 0. S. 5 § 10500 G. C. 473. See also §543. See Racine Case, April 24, 1911; See § 25, Power to grant injime- Cox, In re ProceeclSngs, etc.. 56 Bull. tion, etc. 125, for full discussion of what con- 6 Steube vs. State, 3 C. C. 383; stitutes contomjjt of Court, etc., in 2 C. D. 216. reference to publication of matter 7 7n re Press Post, 3 IST. P. 180; reflecting on Court or jury. 1659 PROCEEDINGS § 1978 desist on request, might be summarily punished.^ The statute relating to contempts of this character is as follows : "A court, or judge at chambers, summarily may punish a per- son guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice." [R S. §5639.]' § 1978. Proceedings for contempt in presence of judge, etc. Two methods may bei pursued in proceedings for contempt where the act is don© in the presence of the Court, etc. One is that the Court, by an entry and order, summarily punish the party, and this is a course which is generally pursued where the act is don© in the actual presence of the Court, such as an assault in the court room. The other method pursued is to appoint some one to bring the proceedings, and this is the course which is recommended in all contempt proceedings where the contempt has not come to the observation of the Court per- sonally,^*' although proceedings are not fatally irregular if no written charges are filed. Where no charges are filed, the fol- lowing might serve as an entry for punishing contempt: (Title.) 1-^ E. F., having been guilty of misbehavior in tho presence of the Court, in this Court (here state matter charged), which the Court deems and considers contempt of this Court, it is considered that the said E. F. be and he is hereby assessed and ordered to pay fine in the sum of . dollars and in default of the payment thereof that he stand commits ted to the jail of the county. 12 s State vs. Coulter, State vs. OofT, A witness' refusal to answer ques- Wright, 421, 78. tions is punishable witliout writt^-n 9 § 12136 G. C. cliarges. G. C. §11.510 is iii(h'])('n- 10 Post vs. State, 14 C. C. Ill; 7 dent of § 114i)3 and gives ((.niplrte C. D. 257. power. 11 As to proper title, see §§1081, The witness is not cntilled t Wallace vs. Scoles, 6 O. 428. the Court. "Administration of Jus- i6 Coe vs. Ry. Co . 10 0. S. 372. tiee," "Obstruction of .Tustice" and it § 538 R. S. (§1976). "Dignity of Court" defined. Stnte Attaching property in hands of vs. Post, 4 N. P. (N.S.) 157; 6 Dec. administrator is. Sevmour, In re. 3 200. N. P. (N.S.) 81; 4 Dec. 450; Besu- For object of exercise of pow^er, den vs. Besuden, 3 N. P. (N.S.) see State vs. Goff, Wright, 78. 105; 4 Dec. 144. 13 § 12137 G. C. Probate Court mav enforce ac- 14 Baldwin vs. State, '1 0. S. counting, etc., by. Phillips vs. State, eSl. 5 O. S. 122. 1661 WRITTEN CHAEGES § 1981 show cause why he should not be punished for contempt. If it appears to the judge that he is secreting himself to avoid the process of the court, or is about to leave the county for that pur- pose, the judge may issue an attachment instead of the summons, commanding the otheer, to whom it is directed, forth^vith to bring such pei-son before such judge to answer for contempt. If no sufficient excuse is shown, he shall be punished as provided for contempts in the court of common pleas." [R. S. § 543.]^^ The ahove section of the General Code seems to lay down the doctrine broadly, that whoever neglects or refuses to per- form any order or judgment of the Court other than for the payment of money, is gTiilty of contempt. Under this provi- sion it has been held that if a sheriff, or other officer, under at- tachment proceedings seize property in the hands of an admin- istrator who has charge of them, imder a special order of the Probate Court, he is guilty of conterapt.^^ § 1981. Written charges, etc. While the above section relating to contempts in Probate Court does not indicate that the cliarges must be in writing, yet the law relating to contempts in tlie Court of Common Pleas so states. Said section is as follows: "In cases under the next preceding section, a charge in ^\Tit- ing shall be filed with the clerk, an entry thereof made upon the journal, and an opportunity given to the accused to be heard, by himself or counsel. But this section shall not prevent the court from issuing process to bring the accused party into court, or from holding him in custody, pending such proceedmgs. [R. S. §5641.]" And it would be wise in all cases where the contempt charged docs not happen in the actual presence of the judge, that writ- ten charges be filed. While no pleadings are required, this i« § 1598 G C. formation must be filed eprcifying 19 /n re SeVmour. 3 N. P. 81; 4 the acts constituting the contempt. D^ 450. Post vs. State, 7 C. D. 257: 14 0. C. Sec §1935, In aid of execution. C. Ill; Lowe vs. ^-'tato, 9 0. P. 337; 20 § 12138 G. C. Hunt vs. Stat., 5 C C. (N.SO 021 ; See §1079. , 27 0. C. C. 17; amrmcd, 72 0. S. Where the acts are not done in 043. the presence of the Court, an in- § 1982 CONTEMPT 1662 written charge and answer thereto are subject to the ordinary rules of pleadings. ^^ The statute relating to contempts generally does not provide for the issue of summons or process against the defendant like the statute relating to the Probate Court. These written charges should be styled and brought in the name of the State of Ohio.'^ The general method of procedure being that some one calls the attention of the Court to the alleged contempt, and the Court makes an order appointing some attorney to formulate and prosecute the charges. Forms for the same may be as follows: § 1982. Entry appointing attorney to bring action. State of Ohio ] Probate Court, I County, Ohio. [Entry Appointing Attorney to Bring .John Jones. 1 Action. Information having been brought to the Court of an alleged (here set out the order ot the Court that has been violated, being careful that some one of the violations should come within the provisions of § 5640) (if charges are filed for contempt in presence of Court the matter should be set out). It is therefore ordered that A. B., an attorney of this Court, be and he hereby is appointed and instructed to prepare in writing proper charges of con- tempt of this Court, claimed to have been committed by the said and file the same in this Court on or before the day of § 1983. Form of charge. {Title.) In obedience to the order of this Court, the State of Ohio, by L. M., special- ly appointed by the Court for that purpose, charges and states that on the: day of , A. D. 190 . . , in the presence of the said Pro- bate Court of said county and State of Ohio, A. B.. an attorney of said Court, was guilty of misbehavior and contempt of said Court in this, to-wit: (here set out acts or misbehavior complained of), whereby said A. B. is guilty of contempt in said Court eontraiy to law, and he asks that he may be made to answer hereto and that summons may be issued hereon as provided by law. (Verification.) 24 21 Kinkead's Code Pleadings, 396. writing scurrilous writing? in news- -- State vs. Clemants, G W. L. J. paper, 397. 538. -4 Need not be verified. Steube All power must be exercised in the vs. State, 2 C. D. 216; 3 C. C. 383. name of the State whose authority is See form in this case for assault- contemned, ing an officer. Also an answer is 23 See Kinkead's Pleadings for given, form of charge of contempt for as- An information should be filed and saulting an officer, p. 396 ; and also an attornej' appointed, and the ac- form for charge of contempt for cused should be j>ermitted to file 1^63 SUMMONS . g 1984 Upon the filing of the above charges, the Court should make a jounial entry. In this entry it should be ordered that a sum- mons issue directing the defendant to appear in Court within two days, and if it appear to the judge tliat the defendant is about to leave the county, an attachment may be issued." The journal entry may be as follows : § 1984. Entry ordering summons. (Title.) , having on the day of , filed a written charge against , alleging that he, the said , is guilty of contempt in this, to-wit: (here state charge as in the written charge). It is ordered that summons issue, directing said to apear before this Court on (within two days after ser- vice will be made or forthwith ) to show cause why he should no't be punish- ed for contempt. -0 ENTRY ORDERING ATTACHJMENT. (Title.) , having on the day of filed a writ- ten charge again.st , alleging that he the said . is guilty of contempt; and it being made to appear that the said is secreting himself (or is about to leave the county) to avoid the process of this Court, it is ordered that an attachment issue to the sheriff" of said county commanding him to forthwith bring said before the judge of said Court, to answer for contempt as therein charged. § 1985. Form of summons and attachment. The following may be used as a general form of summons : State of Ohio, County, ss. Probate Court. To the Sheriff of said County, greeting: You are hereby commanded to summon to appear before this Court forthwith (or name day) to answer a charge (or charges) pre- ferred against him by the judge of this Court (or by ) in writing, and filed in the office of this Court, wherein it is alleged that he is guilty of contempt, in this, to-wit: (state charge as in entry), and show cause why he should not be punished for his said contempt. MaJie due return of this writ forthwith upon its execution. Witness my hand, and the seal of said Court, this. .... .day of , 190... ( Seal. ) Probate Judge. And the following as a form of attachment: State of Ohio County, ss. Probate Court To the Sheriff of said County, Gfreeting: You are hereby commanded to take into your custody and bring before the judge of this Court forthwith, to answer a charge pre- an answer. Post vs. State, 7 C. D. service of process or nliou) to Icavo 2.57; 14 O. C. C. 111. the county, tlie eii(ry shoiiM ha 2'' § 1598 (i. C. (§1080). made ordering an attaclimctil. 26 If the party is liiding to avoid § 1986 CONTEMPT 1664 f erred against him by said judge (or by ), in writing, and filed in the office of this Court, wherein it is alleged (state the charges as in the entry), and to answer for failing to obey the summons issued from this Court, and personally served upon him by the sheriff of county, on the day of , 190. ., and show cause why he should not be punished for his said contempt (several contempts). Make due return of this writ forthwitli upon its execution. Witness my hand, and seal of said Court, this day of , A. D. 190... (Seal.) , Probate Judge.zT § 1B86. Right of accused to bail. ' ' In proceedings under the second preceding section, if tiie writ is not returnable forthwith, the court may tix the amount of a bond to be given by tlie ac- cused, with surety to the satisfaction of the sheriff. Upon the return of a writ, when it is not convenient to hear the charge without delay, the court shall fix the amount of a bend to be given, with surety to the satisfaction of the clerk, for the ap- pearance of the accused to answer the charge." [R. S. § 5642.]'^ § 1986a. Bail bond to be given to satisfaction of clerk. On the execution of such bond, with surety to the satisfaction of the sheriff or clerk, the accused shall be released from custody." [R.S. §5643.] -^ § 1987. Trial by the Court. ''Upon the day fixed for the trial the court shall proceed to investigate the charge, and shall hear any answer or testimony which the accused may make or offer." [R. S. §5644.]=*« Previous sections provide that an opportunity must be given to the accused to be heard by himself of counsel, and generally the hearing of charges of contempt are conducted in the same manner as ordinary trials. The person charged, however, does not have the right to a trial by jury.^^ Neither can the trial be had upon affidavits. The party charged has a right to face the witnesses and cross-examine them.^^ 27Gilmore's Prob. Prac, 262. unless the Court should find that 28 § 12139 G. C. accused fraudulently put it out of 29 § 12140 G. C. his power to perform. Efnnger vs. 30 §12141 G. C. State, 5 C. D. 40S; 11 0. C. 3S9. 31 Ammon vs. Johnson, 3 C. C. In such prosecution, the fullest 263 ; 2 C. D. 149. opportunity should be given the ac- 32 Effinger vs. State, 11 C. C. 3S9; cused to show cause why he should 5 C. D. 408. not be punished for contempt, and In such proceedings undpr § 5044 his guilt should not be determined R. S., the Court, before imprisoning before such opportunity is given for failure to perform, should find him. Post vs. State, 7 C. D. 257; the accused capable of performing, 14 C. C. 111. ^^^^ PUNISHMENT § 1988 aJel^r^L wl" n'^f''* '^ ^^^^^^ ^^*^*y- "The court shall then ?lffT."^ ^ r.w.^''^'^'^ ^-^ ^""'^^y «f the contempt charged. If It be adjudged that he is guilty, he may be fined not exceeding ll^^lT^ltlhT^s'^^^^^^^^ -^ --^ thax. ten ciays, or The following may serve as an euitay: {Title.) This day this cause came on to be heard upon the charges preferred against ;•■•:••• V 1 "^1 ' charging him as being guilty of con- tempt (here stete charges stated in original application or entry) and the Court having heard evidence and arguments of counsel, and having fully investigated said charge, finds that the said .... ig guilty of contempt as charged. (If not guilty so state.) It is therefore adjudged . wK :,: P^'y ^ fi°« «f dollars for the costs of this proceeding, taxed at for which execu- tion IS awarded; and that the said be. imprisoned in county jail in. ... .... county for the period of days and that a war- rant issue for said commitment. § 1989. Imprisonment till order obeyed. ' ' When the con- tempt consists in the omission to do an act which the accused yet can perform, he may be imprisoned until ho performs it " [R. S. §5646.]"* § 1990. Form of commitment for contempt. The State of Ohio, County, ss. Court. To the Sheriflf of said County, Greeting: Whereas, in the action of against in cause No in said Court, a charge was duly made against as for contempt of Court, in this, to-wit: And the Court having investigated .said charge determined that said was guilty of the contempt charged and did adjudge Where in a proceeding in contempt mitted in the presence of tlio Court, there was no sworn testimony intro- for such offense the punishment ia duced, but the Court heard the pro- within the sound and rcasomibic dis- fcssional statements of counsel and crction of the Court. Myers vs. acted upon them, sucli statements State, 40 0. S. 4!)(). should appear as evidence and the •"■•' § 12143 G. C. parties are entitled to a bill of ex- The evidence u.'^ually admissible in ccptions. State vs. Davis, 10 C. D. trials is a^ln>i.ssibk> in contempt pro- 203; 18 C. C. 479. ccedings. KfTrngcr vs. State, 5 C. D. ss § 12142 G. C. 40S; 11 0. C. C. 389-. It has been held that the limita- 'I he judge may take notice of facts tion placed upon the punishment coming williin his own knowledge, provided for in § 12142 C. C. docs IVIyers v.s. State, 40 0. S. 473. not apply to an offense that is com- The Court, In-fore imprisonment § 1991 CONTEMPT 1666 a fine of dollars against him, for the use of said county; and the costs taxed to dollars; and did f uither order and sentence him to be imprisoned for the period of days, or until he complies with such requirement, or is otherwise legally discharged. You are, therefore ordered to arrest and commit the body of the said to the jail of the said County of , there to remain for the said period of days, or until he shall perform said judgment, as aforesaid, or he is otherwise legally discharged. Witness my hand and the seal of said Court, at Ohio, this day of" , 190 . . . By Deputy Clerk. The State of Ohio, County, ss. Sheriff's Return. Received this writ , 190. ., at o'clock. . .M., and pursuant to its command sheriff's fees. Service $ Mileage Cop Return Total , SheriflF.ss § 1991. Proceedings when party released on bail fails to appear, "If the part}' be released on bail, and fails to appear upon the day named, the court may issue another order of arrest, or order the bond for his appearanceto be prosecuted, or both. If the bond is prose\3uted, the measure of damages, in the action shall be the extent of loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt was prosecuted, and the costs of the proceeding. Such recovery shall be for the benefit of the party injured." [R. S. § 5647.]^" § 1992. Right of Court who committed prisoner to release him. "When a person is committed to jail for contempt, the court or judge who made the order may discharge him from imprisonment when it appears that the public interest will not suffer thereby." [R. S. § 5648.]" for failure to perform, should first A commitment lor contempt in find that the defendant can perform. refusing to answer a question must Effinger vs. State, 5 C. D. 408; 11 state facts sufficient to show the per- 0. C. C. 389. tinency and relevancy of the ques- ts A mittimus for contempt should tion. 1893. Com. Woodworth Ex contain a finding that the witness is par, 6 Dec. 19; 29 Bull. 315. guilty of contempt. 1803 Com. se § 12144 G. C. Woodworth Ex par, 6 Dec. 19, 29 37 § 12145 G. C. Bull. 315. 1667 JUDGMENT § 1993 JOURNAL ENTKY, DISCHARGING PERSON FROM IMPRISONMENT. (Title.) County, Probate Court. It appearing that the public interest will not suffer by the discharge of , hereinbefore committed to the county jail for contempt, from such imprisonment (or having been hereinbefore com- mitted to the county jail until he should comply with the order of this Court (state the order which accused had refused to obey), and having complied therewith, and theieby purged himself of said contempt), it is ordered, that he be discharged from such confinement. A copy of this entry, or tlie substance thereof, duly certified, will authiorize the sheriff or jailer to discharge his prisoner. §1993. Judgment final. "The judgment and orders of a court or officer made in cases of contempt may be reviewed on error. But proceedings in error therein shall not suspend exe- cution of the order or judgment until the person in contempt files a bond in the court rendering the judgment, or in the court or before the officer making the order, payable to the state, with sureties to the acceptance of the clerk of that court, in an amount fixed by the reviewing court, or a judge thereof, conditioned that if judgment be given against him he will abide and perform the order or judgment." [R. S. § 5649.] ^^ § 1994. Appeal and error. The statute provides no remedy by way of appeal, the only manner in which the decision of the Court can be reviewed is by a proceeding in error, and in such proceedings tlie question can be reviewed whether the Court exercised reasonable discre- tion in awarding punishment,^'^ and it has been held that a supersedeas bond will not be fixed as to amount merely because a petition in error is pending to the sentence. Power to stay execution is discretionary, to be exercised only on good cause shown. If the judgment was clearly right, the Court will de- cline to fix the bond.*" § 1995. When the provisions of this chapter apply. "This chapter is not cumulative to provisions of division three, chap- ter three of title four, nor of chapter six, title two, of this part, 38 g 12146 G. C. Question on review is whether cvi- 39 Myers vs. State, 46 0. S. 473. dcnce sustained the judgment. Iron 40Steube vs. State, 3 C. C. 383; Moulders Union vs. Crernwiild, 4 2c. D. 216. ^'- P- (^^•^■) l''l= ^" '^'■^' '•"^- U995 CONTEMPT 1668 but furnishes a rernedv in eases not thereby provided for." [R. 8. §5650.]^^ " " And the judgment may be re- viewed in the Supreme Court, al- though the sum involved is less than $300. Bremson vs. State, 63 0. S. 347. 41 § 12147 G. C. Chapters referred to in the above section relate to evidence in Courts of record and justices of the peace, method of procuring witnesses, etc.. and a query has been made, whether 55 12136-12146 are applicable to a contempt under the other chapters. Ammon vs. Johnson. 3 C. C. 263: 2 C. D. 149. See §§ 11570-11575 G. C See §§ 10318, 10319 G. C See § 2011, Attendance of wit- nesses. 1669 OWNER OF KILLED ANIMALS, ETC. § 1996 CHAPTER OV. APPEALS FROM ALLOWANCE ON SHEEP CLAIMS AND ORDERS OF STATE FIRE MARSHAL. § 1996 Claims for animals killed § 2005 Limit of amount allowed. by dogs. § 2006 Orders of state fire marshal. § 1997 Owner may appeal to Pro- § 2007 When and how owner may bate Court. have hearinjr. § 1998 Perfecting appeal. § 2008 Notice to state fire marshal. § 1999 Essentials of petition. § 2009 Right of appeal to Probate § 2000 Petition form. Court. § 2001 Journal entry. § 2010 Perfection of appeal. §2002 Number of witnesses al- §2011 .Journal entry approving lowed. bond and fi.xing time of § 2003 Hearing. hearing. § 2004 Entry finding, etc. § 2012 Hearing and finding, etc. § 1996. Claims for animals killed or injured by dogs. The statute now provides that if any horses, sheep, cattle, swine, mules or goats are injured by dogs not harbored by him, the owner may within six months present his claim to the trustees,^ and the trustees shall hear the matter and certify the same to the county commissioners,- and the county commission- ers shall pass upon the claims, which is the final hearing. If any owner is dissatisfied he may appeal to the Probate Court as provided in the next section. It is the duty of the trustees to endorse on each claim the amount allowed, with their findings ; it is upon this that the commissioners make what is considered a final order from which an appeal may be taken. § 1997. Owner of killed or injured animals may appeal to probate court, when. (§5848.) "An owner of horses, shoop, cattle, swine, mules and goats so killed or injured, not being satisfied with a final allowance made by the commissioners, as provided in section fifty-eight hundred and forty-six, vyilhin thirty days thereafter may take an anpeal from such finding to the probate court of the county by filing, as pnrty plaintiff, a petition in such court setting ont the facts in the case as con- tended for by the owner. Proceedings shall be had th('roon as provided by law in civil cases and the county commissioners shall be made party defendant." fl07 v. 539.] 1 § 5840. 2 § .5844. § 1998 APPEALS ON SHEEP CLAIMS, ETC. 1670 § 1998. Perfecting appeal. The appeal is perfected by the owner, within thirty days after the order of the commissioners is made, by filing a petition in the Probate Court of the county in which the order of the com- missioners is made, setting out the facts as contended by the owner. In such a case the party filing the petition shall be designated as plaintiff and the county commissioners, defendant. No notice of appeal need be given nor need any bond be filed; neither is any transcript of the proceedings before the commis- sioners necessary to be filed. The proceeding in the Probate Court is practically a new action. The matter before the Probate Court rests practically upon the facts set out in the petition, and this petition must contain all jurisdictional facts. § 1999. Essentials of petition. The petition must show : First, the name of the parties. Second, that the petitioner was the owner of certain stock as provided in § 5240, G. C. Third, that such stock was injured by dogs not harbored by him. Fourth, that within six months he presented a claim to the trustees. Fifth, that the trustees passed on such claim and transmitted their finding to the county commissioners. Sixth, that they examined such claims. Seventh, that the commissioners at a certain date made a finding thereon, including a copy of such final order. § 2000. Petition— Form. A. B., Plaintiff, ) vs. y Probate Court, County Commissioners of I County, Ohio. County, Ohio, Defendants. ' PETITION. Plaintiff says that on the day of , 19... he was the owner of [here describe animals for which injury is claimed]. That on day of said montli, said were injured [or killed] by dogs not owned or harbored by him. That within six months thereafter he presented to the trustees of the township in which said loss occurred a detailed statement of such loss and injury with his affidavit thereto as provided by law. That on the .• day of , 19... the said trustees heard the testimony thereon, and thereafter, on the day of , 19 ... , 1671 HEARING § 2001 the said trustees made their findings and endorsed the amount allowed thereon, and transmitted their findings and the testimony taken to the commissioners of county, and thereafter, at the next regular mectino- of the said county commissioners, the commissioners examined the same and made the following order in reference thereto [here put in copy of the final order appealed from]. That this plaintiff claims that the order so made by said commissioners is not in this, to-wit: [here set out in what respect it is unjust] and the petitioner appeals therefrom. Wherefore he prays that the court may proceed to hear the same and take such proceedings in reference thereto as by statute provided. State of Ohio, County, ss. : . ._ , being first duly sworn, says he is the plaintiff in the above pro- ceedings, and that the allegations in said petition contained are true as he verily believes. Sworn to and subscribed before me and in my presence this dav of ,19... ■J Notary rublic. § 2001. Journal entry. [Title.] This day came A. B. and filed his petition in this court against the commissioners of County, Ohio, appealing from a decision and final order made by said commissioners on the day of , lit. . . in reference to amount allowed for injury to animals belonging to plaintiff, by dogs. Wherefore it is ordered that said cause be set for hearing on the day of , 19..., at 10 a. m., that being the first day after answer day at which the same can be heard, and it is ordered that sum- mons be issued for the defendants directed to the sheriff of County, returnable according to law. §2002. Number of witnesses allowed. (§5849.) The pro- bate court shall hear such proceedings as in equity and deter- mine the value of the horses, sheep, cattle, swine, mules and goats killed or injured, but not more than tliree witnesses sliall be called by each party. The amount found by such court sliall be final and the judge thereof shall certify it to the county com- mis.sioners when like proceedings shall be had as to payment thereof, as if such amount had been found by the commission- ers in the first instance. If an increased allowance is made by such court, the costs shall be paid equally by the parlies, and if no increase is made, the plaintiff shall pay all the costs. [107 V. 539.] § 2003. Hearing. The proceedings are governed by the law applicable to civil cases generally. It would devolve upon the plaintiff to introduce testimony to support his claims. The court sits as a court of equity, and not more than three witnesses shall be heard for each party, that is the plaintiff' and the defendant. Whih' tlie matter is heard dc novo, it is possible that a presumption iiriscs § 2004 APPEALS ON SHEEP CLAIMS, ETC. 1672 that the order made by the commissioners is just and proper, and the hurden would be on the plaintiff to show that it is not, and that his contentions are true ; while it would be perfectly proper for the defendants to file an answer or any other plead- ings that they may deem proper, if this is not done, the court will consider an issue made the same as if a general denial had been filed, and proceed to try the issue thus made. The deci- sion of the court is final, and the court certifies its findings back to the commissioners. If an increase is made, the plaintiff is required to pay one-half the costs, and the commissioners one- half. If no increase is made the plaintiff must pay all the costs. This latter fact as to costs, together with the fact that the trustees and commissioners are usually a fair tribunal, these proceedings will be rare. § 2004. Entry— Finding. [Title.} This day this cause came on to be heard upon the pleadings in the case and the testimony submitted. Wherefore after due consideration the court finds that the decision made by the county commissioners, defend- ants is [not] just, and the court finds that the said jjlaintiff was injured and suflfered damages for his said in the sum of $ and the same being not more than was allowed by the commissioners, the costs of this action is assessed against the plaintiff [or, if more] one-half is assessed against the plaintiff and one-half against the defendant [the county commissioners], and it is ordered that this finding be certified back to the defendants [the county commissioners], for their further proceed- ings as provided by law. §2005. Limit of amount. (§5850.) No amount shall be so allowed by the county commissioners or probate court for a head of registered sheep or lambs, eligible to registry, in excess of thirty dollars. [R. S., § 4215.] § 2006. Orders of State Fire Marshal. The statute gives to the state fire marshal wide powers as to what may be ordered by him, done to buildings or other prop- erty that he may consider dangerous; when he thinks that the buildings or structures are so situated as to endanger other buildings or property, he may order such buildings to be repaired, torn down or demolished. This power is justified under the general police power existing in the State, and as such would be held constitutional, so long as it was properly exercised. But the exercise must be just and reasonahle.^ Sometimes, public officials, in their zeal to discharge their official duties, disregard 3 See Meaxedon vs. Rendigs, 9 0. App. 61. 1673 OWNER MAY HAVE HEARING § 2007 the proper rights of the private citizen, and he is compelled to invoke the organic law to protect himself. A law that did not provide for a review by a court would be unconstitutional. In a recent case, H. V. Ry, Co. vs. Commission, 92 0. S. 15, involving the right to review the orders made by the public utilities commission, it was said; **In order to give full validity to the proceedings and orders of the utilities commission, it was necessary that some adequate provision for their judicial review should be made ; because if an administrative order results in the taking of property, such as the company claims results in this case, the defendant must not be denied the right to show that as matter of law the order was so arbitrary, unjust or unreasonable as to amount to a deprivation of property in violation of the constitution. Chicago, M. & St. P. Ry. Co. vs. Minnesota, 134 U. S. 418." Although in a previous case. State vs. French, O. S. 201, we find the following, quoted with approval: "And in Lawton vs. Steele, 119 N. Y. 226, 237, Andrews, J., says: 'These authorities sufficiently establish the proposition that the constitutional guaranty does not take away the common law right of abatement of nuisances by summary proceedings, without judicial trial or process.' Again on page 238, he says: 'But as the legislature may declare nuisances, it may also, where the nuisance is physical and tangible, direct its summary abate- ment by executive officers, without the intervention of judicial proceedings, in cases analogous to those where the remedy by summary abatement existed at common law.' " And further along in the same case, we find the further quotation : "To justify the state in thus interposing its authority in behalf of the public, it must appear, first that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment^ of the pur- pose, and not unduly oppressive upon individuals." The statute requires when such order is made, that the per- son affected must be notified (§ 835, G. C), and then provides for a hearing. § 2007. When and how owner may have hearing. (§ 836.) "If the owner, lessee, agent or occupant dooms hiirisclf ng- § 2008 APPEALS ON SHEEP CLAIMS, ETC. 1674 grieved by an order of an officer under the preceding section and desires a hearing he may complain or appeal in writing to the state fire marshal within three days from the service of the order and the state fire marshal shall at once investigate said complaint and he shall fix a time and place not less than five days nor more than ten days thereafter, when and where said complaint will be heard by the state fire marshal. The state fire marshal at said hearing may affirm, modify, revoke or vacate said order, and unless said order is revoked or vacated by the state fire marshal it shall remain in force, and be com- plied with by such owner, lessee, agent or occupant and within the time fixed in said order or within such time as may be fixed by the state fire marshal at said hearing." § 2008. Notice to State Fire Marshal for hearing^. Within three days from the time of service of the order, if the owner wishes a rehearing, he must file a written complaint with the state fire marshal, and the state fire marshal must fix a time and place not less than five nor more than ten days thereafter when the matters complained of will be heard, and the state fire marshal makes such further order, affirming, mod- ifying, revoking or vacating his former order as he deems proper, and from this order an appeal lies to the Probate Court as provided in the next section. § 2009. Right of appeal to probate court. (§ 836-1.) "If a person is aggrieved by the final order of the state fire marshal as made at the hearing provided for in the preceding section, such person may within five days thereafter, appeal to the pro- bate court of the county in which the property is situate, notify- ing the state fire marshal in writing of such appeal within three days thereafter, which notice shall be in writing and delivered personally to the state fire marshal or left at his prin- cipal office in the city of Columbus. The party so appealing shall within two days thereafter, file with the probate court in which said appeal is made a bond in an amount to be fixed by the court but in no case less than one hundred dollars ($100) with at least sufficient sureties, to be approved by the court, conditioned to pay all the costs on the appeal in case the appel- lant fails to sustain the same or the appeal be dismissed for any cause. The probate court shall hear and determine said appeal within ten days from the date of the filing of the same and the state fire marshal shall make a complete transcript of the proceedings had before him and certify the same together with all the original papers filed in his office and transmit them to the probate court at least three days prior to the date of hearing as fixed by the court. The decision of the probate 1675 PERFECTION OF APPEAL § 2010 court shall be final and in case the decision is against the appel- lant or for any cause the appeal be dismissed judgment for costs shall be entered against the appellant." § 2010. Perfection of appeal. In the first place the person desiring to appeal from the order made on the hearing, must within three days from the date of such order notify the state fire marshal in writing of his intention to appeal. This notice must be served personally on the marshal, or left at his principal office in Columbus, Ohio. Second, within two days thereafter, and within five days from the time the order was made, the party appealing must file with the Probate Court of the county in which the property is located a bond in an amount fixed by the court in a penal sum of not less than $100, with sureties approved by the court. When these two conditions are performed, the court has jurisdiction. The party appealing should also file a copy of the notice given to the state fire marshal with proof of service. The court should approve and file the bond and set a day for hearing. § 2011. Journal entry — Approving bond and fixing time of hearing. Probate Court, Clark County, Ohio. In the Matter of A. B.'s Appeal from order of State Fire Marshal. This day came A. B. and filed in this court proof of service of notice of his intention to appeal to this court from an order made by the state fire marshal on the day of , 19..., and also filed in this court his bond for such appeal in the sum of $ , conditioned accord- ing to law, with and as sureties thereon, and on considera- tion thereof the court finds that notice of intention to appeal was served on the state fire marshal as provided by law, and that said bond is con- ditioned according to law and is proper and sufficient, and the same is approved by the court. The court further fixes the day of ....... 19... at 1*0 o'clock a. m., as tlie time for hearing said appeal, and it is ordered that notice of such time of hearing be given to said state fire marshal by sending him by registered letter a copy of this order. § 2012. Hearing, etc. At least three days prior to the time fixed for hearing, the state fire marshal must make a complete tran.script of all the proceedings had before him, and file the same witli all the papers, in the Probate Court. The issue is thus made up, and is, sliall the order of the ■ state fire marshal stand or he set aside. I presume as an at- § 2012 APPEALS ON SHEEP CLAIMS, ETC. 1676 tendant power of the court, it might modify the order. By implication, the rules applicable to the trial of cases to a court of equity should be followed, and the law applicable to the trial of the matter of an abatement of a public nuisance should be observed. The decision of the Probate Court is final. This statute so far as I know has received no judicial construction. Consider- ing the extent of the authority vesting in the legislature in the exercise of the police power, in the abatement of what might be termed public nuisance, the law is within its authority and valid. If the order of the state fire marshal is sustained, or the appeal is dismissed for any cause, the costs are to be assessed against the appellant. If the order of the state fire marshal is not sustained — that is, modified or set aside — the costs would be assessed against him. The following might serve as a form for a final entry: ENTRY AND FINDING. [Title.] This cause came on to be heard pursuant to former order of the court and was submitted upon the evidence and argument of counsel; whereupon, after due consideration the court finds the final order made by the state fire marshal in the above matter, and which was appealed to this court is proper and reasonable, and the same is approved and confirmed and the costs of this proceeding taxed at $ , is assessed against the appellant and judgment therefore is rendered against him for the same. 1677 INHERITANCE TAX CHAPTER CVI. INHERITANCE TAX/ §2013 Origin. §2039 § 2014 Ohio state, historical. § 2015 Constitutionality. § 2040 §2016 Not a tax on property, but right to receive. § 2041 § 2017 Object and purpose. § 201S When law talces effect. § 2042 § 2019 Subsequent increase. §2020 Definition of terms (§5331). §2043 § 2021 Property on which tax levied (§5332). §2044 §2022 Conditions of transfer which create liability for § 2045 tax. '§ 2023 Resident of state. § 2046 § 2024 Non-resident. § 2025 Widows' year's allowance § 2047 (§5332-1). § 2026 When subject to tax in an- other state (§5333). §2048 § 2027 Property in foreign juris- diction. § 2049 § 2028 Deduction for tax paid § 2050 under U. S. law. § 2029 General deductions. § 2051 § 2030 Situs of property. § 2031 Property not subject to tax § 2052 (§5334). §2053 §2032 Exemptions; public char- §2054 ities. § 2033 Institutions within the § 2055 state. § 2034 Exemptions, personal. § 2056 § 2035 Rates of tax on property (§5335). §2057 § 2036 Schedule of rates and ex- emptions. § 2058 § 2037 Taxes when due and pay- able (§5336). §2059 § 2038 Time of payment of tax. § 2000 Personal liability of execu- tor. Personal liability of bene- ficiaries. Tax on legacy retained (§5337). When property is charged with payment of legacy, etc. Tax, to whom paid, dis- count, etc, (§5338). Time limit for payment of tax. Petition to remit interest; form. Notice of motion to remit; form. remitting interest 8 to 5 per cent. Order from form, Wlien to legatee entitled refunder (§5339). Refunder of tax. Powers and duties of Pro- bate Court (§5340). Jurisdiction of Probate Court. Essentials of application. Filing and notice. Application for determina- tion of tax; form. Application, etc., wlicre no administration; form. Application, etc., non-resi- dent; form. Application, etc., small estate: form. AppraisciiH'iit by county auditor (§5341)'. Appraisnl by auditor. Entry; ordoriiig auditor to appraise; form. 1 For United States inheritance tax the internal revenue collector of the district will, on inquiry, fur- nish law and blanks, etc. It only applies to estates over .$50,000.00. INHERITANCE TAX 1678 §2061 Writ to auditor to ap- §2091 raise J form. § 2062 Duties of auditor. § 2092 § 2063 ]\'otice of hearing ibefore § 2093 auditor; form. § 2094 '§2064 FLxing value of real estate. §2095 1§2065 Appraisal of personal prop- erty. § 2096 § 2066 Value of future or limited estate (§5342). §2067 Fixing value of future or § 2097 contingent interest. §2068 Application to superinten- §2098 dent of insurance; form. § 2069 Inheritance taxation table. § 2099 §2070 Computation, etc. §2071 Taxation of estate depen- §2100 dent upon contingencies (§5343). §2101 §2072 \\Tien contingencies exist; higher rate. § 2102 §2073 Estates held in abeyance (§5344). § 2074 When tax has not been § 2103 paid, etc. §2075 Report of auditor; form. § 2076 Findings of Probate Court § 2104 (§5345). §2077 Proceedings of court on re- §2105 port of auditor. §2078 Journal entry; determining §2106 tax after auditor's ap- praisal; form. §2107 §2079 Notice and how served. §2080 Form of notice fixing tax. § 2108 §2081 Form order exempting from tax. § 2109 §2082 \Mio may file exceptions (§5346). §2110 §2083 Filing exceptions. §2084 Form of exceptions. §2111 §2085 Order for hearing excep- § 2111a tions; form. §2086 Notice of hearing excep- §2112 tions; form. §2113 §2087 Entry on hearing; form. §2088 When certified to auditor §2114 (§5347). §2089 Certifving finding to audi- tor. ' §2115 § 2090 ^Motion to modify findings, etc. Appeal from final order (§5348). Appeal; how perfected. Who may prosecute appeal. Tax receipt, etc. (§5348-1). Transfer of securities (§5348-2). Notice of transfer to audi- tor and tax comission; form. Transfer without knowledge (§5348-2a). Transfer of stocks in cor- poration, etc. Application to transfer stock, etc. ; form. Delivery of custody of securities. Application for consent to transfer; form. Application for release when no administration ; form. Collection of tax after eighteen months (§5348-3). Prosecuting attorney to represent county ( § 5348-4 ) . County auditor appoints deputies (§5348-5). Tax commission may desig- nate examiners (§5348-6). Eecords to be made by Pro- bate Judge (§5348-7). Monthly reports to state auditor (§5348-8). Reports by recorder (§5348-8a). * Accounts kept by county treasurer (§5348-9). Fees, etc. (§5348-10). Probate Judges' Fees (§5348-10a). Division of tax (§5348-11). Distribution of tax (§5348-12). ^^^lere tax deemed to origi- nate on property in state (§5348-13). \Miere tax deemed to origi- nate on property not in state (§5348-14). 1679 ORIGIN § 2013 § 2013. Origin. The raising of revenue by tax on inheritance for govern- mental support, is of very ancient origin. It was employed hy the Ptolomies in Egypt, and introduced into Kome by Augustus. It first came into use in England in 1780 and now it exists in almost all civilized nations. The United States adopted this form of taxation, perhaps more as a war measure than anything else, in 1916, In the opinion of the writer, the United States statute should be repealed and this form of taxa- tion left to the states at the very earliest time practicable, and then it should be made uniform in all the States. This form of taxation is now in force in most of the States.- It first became a law in New York in 1885, and is of much more recent date in the other States. The first statutes generally only related to collaterals as distinguished from direct. The more recent, made no distinction, except as to the amount of tax. They vary considerably as to the amount of the exemp- tions allowed. The present Ohio statute seems to be taken largely from the New York statute. § 2014. Ohio statute — Historical. The first law was passed in Ohio in 1893.^ In 1894 the law of 1893 was amended, confining it to the collateral kindred,* and in the same year a separate act was passed imposing a direct inheritance tax.^ The latter was declared unconstitu- tional," on the ground that the exemptions allowed were not uniform. The former was declared valid and constitutional,^ later. The law was later amended by including collateral kindred or persons in 1900,* and so remained until 1919," when 2 Arizona, Arkansas, California, Wyoming. A synopsis of tlu-se Colorado, Connecticut, Delaware, statutes will he found in Clcason Georgia, Idaho, Illinois, Indiana, and Otis on Inheritance Taxation. Iowa, Kansas, Louisiana, Maryland, 3 nO vs. 14. Massachusetts, Michigan, Minne- * 01 vs. 169. sota, Mississippi, Missouri, Mon- 5 91 vs. 16G. tana, Xevada, Xcw Hampshire, New 6 State vs. Ferris, 53 O. S, 314. Jersey, New Mexico, New York, 7 Haggerty vs. State, 55 O. S. North Carolina, North i)akota, 214. Ohio, Oklahoma, Oregon, Pcnnsyl- 8 94 vs. 101. vania, Rhode Island, South Dakota, 9 108 vs. 506. Tennessee, Texas, Utah, Vermont, 10 108 vs. — . Virginia, West Virginia, Wisconsin, § 2015 • INHERITANCE TAX 1680 it was amended, and again in 1920 ^** in its present form. In this law there is no distinction between direct and collateral persons except in the exemptions and the rate of the tax. Much of the law is similar to the present law of New York. § 2015. Constitutionality. In order that all doubts as to the power of the legislature to pass laws of this character be dispelled, the constitutional con- vention of 1912 proposed the following amendment, which was adopted, and became See. 7 of Art. 12 of our State constitution.^^ Inheritance tax laws are not in violation of the fourteenth amendment of the United States constitution.^^ However, a statute that does not provide for a hearing is unconstitutional.^^ "When the legislature adopts the statutory language of another State, it is ordinarily presumed to have in mind the existing decisions of such state defining the extent and purpose of the statute, and to have used the identical phraseology in the sense thus indicated.^^ § 2016. Not a tax on property, but on the Tight to receive it. It is now held in practically all jurisdictions where the mat- ter has been under consideration, that what is known as an inheritance tax, is not a tax on the property but on the right to receive it. The highest court in the land has said : "Thus the tax is not upon the property in the ordinary sense of the term, but upon the right to dispose of it, and it is not 11 § 7. Laws may be passed pro- 12 Humphrey vs. State, 70 0. S. viding for the taxation, of the r;ght 07; Mungon vs. 111. Trust, etc., 170 to receive, or to succeed to, estates, U. S. 2C3. This case is annotated and such taxation may be uniform in 42 Law Ed. 1037. It is not a or it may be so graduated as to taking without due process of law. tax at a higher rate the right to Plummer vs. Coler, 178 U. S. 115; receive, or to succeed to ,estates of Keeney vs. Xew York, 222 U. S. 525. receive, or to succeed to, estates of 13 Ferry vs. Campbell, 110 Iowa, smaller value. Such tax may also 290; Matter of ^IcPherson, 104 N. be levied at different rates upon Y. 306; Keeney vs. New York, 222 collateral and direct inheritances, U. S. 525. The parties affected and a portion of each estate not ex- must have notice, ceeding twenty thousand dollars 14 !}.rann vs. Carter, 74 N. IT. 345; may be exempt from such taxation. People vs. Griffin, 245 111. 532. [Adopted Sept. 3, 1912.] 1681 OBJECT AND PURPOSE • § 2017 until it has yielded its contribution to the state, that it becomes the property of the legatee. "^^ In our own court we have this: "As the majority of the court are of the opinion that it is not a tax on property, but upon the right to receive property, the statute, must as to this point be sustained." ^^ "This court in the Ferris case reached the conclusion that the direct inheritance tax was intended by the legislature to be a tax upon the right or privilege to receive property and not a tax upon the property itself." ^^ §2017. Object and purpose. The object and purpose of these statutes is to raise revenue to be used for public purposes. If used for private purposes, the law is invalid.^® However, the mere fact that the revenue is to be applied to a public purpose, will not valididate a statute otherwise defective.^^ There is no constitutional right to inherit, and therefore the matter as to the rates and amount charged, rests entirely in the legislature, unless it should be so large as to be confiscatory and beyond all reason.^" The descent of property is founded en none other than a right given by statute.-^ Therefore the power that gives may withhold. The right to control the devolution rests in the States. The United States exercises its right to impo.se inheritance taxes under its power to levy excise duties and imports.-* § 2018. When law takes efTect. The law being on the right to receive property, and not on the property, itself, it can not take dxect until after tlie death of the person from whom the property is reeeived.^^ Such laws 15 United States vs. Perkins, 163 U. S. 41. The fact tliai (lie rates TT S fi'^i ""' P'"g''fssive and iiHreiise as the • ^ . ^„ ^ r. oi^ iuiiouiit increases, docs not all'eet 16 State vs. Ferns, 53 O. S. 314. ^j^^, j.^^^ ^^^^^^ ^^ Mann, 70 Wis. iTHaggerty vs. State, 55 0. S. 40!); Posey vs. Com., 90 S. E. (Va.) 621. 771. IS State vs. Luit^ler, 143 M. 285. - I^^T v^^I^o;l%78 U. S. The presximption ia that the tax is ^j levied for a public purpose. State 23 Estate of IJushncU, 2 N. P. vs. Mann, 76 Wis. 479; Union Trust (N.S.)073. ., „ t , n T> f lor t\t;„v, 407 Sec opinion of Atty. Cjcn 1, .July Co. vs. Durfee, 125 Mich. 487 ^ luui M IJull. 307/ an to general 19 Curry vs. Spencer, CI ^. 11. 624. j,,^p]i,,i,tion of hiw. 20 See Knowlton vs. Moore, 178 § 2019 INHERITANCE TAX 1682 do not act retroactively."* When the law is repealed, however, the right to collect the tax ceases at the time such law goes into effect.-^ Neither can the rate be increased after the death of the person from whom the property is received.-*' For the pur- pose of the inheritance tax the property vests in the distributees at the death of decedent.^^ § 2019. Subsequent increase. As the tax attaches at the time of the decedent's death, the value of the property at that time is the basis upon which the tax is assessed. If there is an increase before distribution, this can not be included.-* As a corollary the conversely will follow, that the value of the property upon which the tax is to be cal- culated will not be reduced by reason of losses incurred before distribution.-^ As this rule sometimes may work an injustice, the law tixing the United States inheritance tax allows a deduc- tion for certain losses that may result between the time of decedent's death and distribution. Khode Island has a similar provision. ''The justice and propriety of this is so apparent," says an authority, "that these statutes will doubtless be fol- lowed in other States.""** The Ohio statute makes provision for refunder of a tax where it has been paid in ordinary cases, and debts are proven against the estate which were not paid at the time the tax was paid."^ Also when the actual value of the property or interest can not be fixed by reason of its not vesting at the time of decedent's death, it then becomes due and payable when the party be- comes entitled to possession. In such a case earnings would probably be included.''- In the usual administration of estates this will not work much difference, and generally' the tax will be fixed on the amount the executor or administrator will have 24 Eury vs. State, 72 O. S. 448. 29 :\Iatter of Meyer, 209 N. Y. 3S6. . 25 Friend vs. Levy, 76 0. S. 26. The appraisal fixes tlie value. Mat- See Atty. Genl's op. 1920, p. 219. ter of Penifield, 216 X. Y. 163; 20 State vs. S. D. & T. Co. of Hites' Fstate li9 Cal 392 Baltimore, 103 Atl. 435. ^^'^^^ Instate, ioy Lai. dUZ. 27 See Atty. Genl's opinion July 30 Gleason and Otis on Inhent- 9, 1919, 64 Bull. 307. ance Taxation, 2nd ed. 38. 28 In re Williamson, 153 Pa. 508. 31 See § 2048, § 5339 G. C; § 2066, A penalty can not be added unless g 5342 G. C. authorized by statute. Matter of ,9 o„„ o oaot « cooc n n . The present See Atty. Ccnl's ..j). I!)'2(), p. TM, New York statute is given on pages wlicn property was given in <'on- 732 to 708 of Gleasfm and Otis on tiniplation of (hiath and other Inheritance Taxation. devised, botli for inadecpiate con- sideration Mulijcct to tax. § 2021 INHERITANCE TAX 1684 By exercise of power. 4. Whenever any person or cor- poration shall exercise a power of appointment derived from any disposition of property heretofore or hereafter made, such ap- pointment when made shall be deemed a succession taxable under the provisions of this subdivision of this chapter in the same manner as if the property to which such appointment relates belonged absolutely to the donee of such power, and had been bequeathed or devised by said donee by will ; and whenever any such person or corporation possessing such power of appoint- ment shall omit or fail to exercise the same within the time provided therefor, in whole or in part, a succession taxable under the provisions of this act shall be deemed to take place to the extent of such omission or failure, in the same manner as if the persons, institutions or corporations thereby becoming entitled to the possession or enjoyment of the property to which such power related had succeeded thereto by a will of the donee of the power failing to exercise the same, taking effect at the time of such omission or failure. Survivorship. 5. Yv'henever property is held by two or more persons jointly, so that upon the death of one of them the survivor or survivors have a right to the immediate ownership or possession and enjoyment of the whole property, the accrual of such right by the death of one of them shall be deemed a succession taxable under the provisions of this subdivision of this chapter in the same manner as if the enhanced value of the whole property belonged absolutely to the deceased person, and had been by him bequeathed to the survivor or survivors by will. To executors. 6. "When a decedent appoints one or more executors or trustees, and instead of their lawful allowance makes a bequeath or devise of property to them, which would other- wise be liable to such taxes, or appoints them as residuary legatees, and such bequest, devise or residuary legacy exceeds what would be a reasonable compensation for their services, such excess shall be a succession and liable to such tax, and the pro- bate court having jurisdiction of their accounts shall fix such compensation. Profits on property derived. 7. "When any property shall pass subject to any charge, estate or interest, determinable by the death of any person, or at any period ascertainable only by reference to death, the increase accruing to any person, institu- tion or corporation, on the extinction and determination of such charge, estate or interest, shall be deemed a succession taxable under the provisions pf this subdivision of this chapter, in the same manner as if the person, institution or corporation bene- ficially entitled thereto had then acquired such increase from the person from whom the title to their respective estates or interests is derived. Rate of tax. Such tax shall be upon the excess of the actual market value of such property over and above the exemp- 1685 RESIDENT OP STATE § 2022 tions made and at the rates prescribed in this subdivision of this chapter. [108 v. 563.] ^^ § 2022. Conditions of transfer which create liability for tax. In applying the above statutory provisions it is well to bear in mind that the tax is not on the transfer of property of a living person in the ordinary conduct of business affairs; it only applies when the owner has ceased such conduct. No. 1 applies when the transfer occurs by will or inheritance of a resident.^° No. 2 when the transfer occurs by will or inheritance of a non-resident, owning property in this state.^^ No. 3 when the transfer occurs by deed, grant, sale, etc., of property in this state, by resident or non-resident, without receiving full value, and, provided it is done in contemplation of death or intended to take effect after death of the grantor.^* No. 4 applies when the owner gives to someone else the power to make' the transfer after his death.^'-* No. 5 applies when the property passes by the right of sur- vivorship. *° No, 6 applies when an executor takes under a will more than his statutory allowance. No. 7 applies to the increase of property where it docs not pass on death of the owner, but on the occurrence of some sub- sequent event. §2023. Resident of state. Residence is synonymous with domicile, and although the stat- ute uses the word resident, the residence is determined by apply- ing the law fixing the domicile of a person. Domicile is always a question of fact; while not conclusive, the decedent's own declaration is evidence of high character, and will determine the question, in the absence of more convincing proof to the contrary .^^ However, a mere expression, without some evidence of actual residence, might overcome his declarations."*- The general rules for fixing domicile are given as follows : 35 Somewhat similar provislona 4i Wildcrming, Admr. vs. Millor,- are found in N. Y. inheritance tax, 00 O. S. 28 ; Moore vs. Prickgab.-r, §§ ''•^0 to 226 I'*'* U. S. 503. 3GSee Gloason and Otis, Inherit- *- ^vc Cloason and Oils. Tnhcnt- ance Tax, 2.uJ ed., p. 84. ai.ce, 2nd od. 215, f'"' '••'''^^'•'iVoX 37 Id. Aflectinff gifts, etc., pp. See Atly. (.cnl s op. 1020 p. U2.>, 103-124 '^^ ^'* didiiclion of vnino of dowcr 38 /r/" AfTectinp testamentary when properly given to wife in con- transfers, pp. 130-154. templation of death, holding it 18 3» Jd. Transfer by probate, 173. not to be deducted. *oJd. Joint tenancy, 197. § 2024 INHERITANCE TAX 1686 1. That a person must have a domicile somewhere. 2. That he can have but one. 3. That the domicile of origin is presumed to continue until a new one is acquired, 4. That the burden of proof rests upon the party alleging a change of domicile. 5. That to maintain this burden, both a change of residence and intent to change the domicile must be shown. 6. That a married woman's domicile is that of her husband, unless she lives apart from him and acquires a separate resi- dence.*^ § 2024. Non-resident. The general rule is that the personal property is taxed at the domicile of the decedent,** and therefore as a general rule only real estate situate in this State, of a non-resident, will be subject to the tax. This is undoubtedly true where the personal property is not physically present in this State, When it is physically present in this State, then there may be exceptions to this general rule,*^ It is immaterial where the beneficiary may reside, as the tax is not on the person that receives, but upon the right to receive the property transmitted, and there is no discrimination as to rate, and the method of procedure is prac- tically the same.**^ §2025. Widow's years allowance. §5332-1. The value of any property set off and allowed to a widow and children under the provisions of section ten thousand six hundred and fifty-six of the General Code in excess of three thousand dollars, shall be deemed a succession taxable under the provisions of this sub- division of this chapter. The widow, if any, shall be deemed the successor of such entire succession ; but if there be no widow, each child shall be deemed a successor of his share thereof. [108 V. 1197.] *«=! § 2026. When subject to tax in another state. § 5333. If the succession to any property from a resident of this state is locally subject in another state or country to a tax of _ like character and amount to that hereby levied, and if such tax be actually paid or guaranteed or secured in accordance with law •in such other state or country, such succession shall not be sub- ject to the tax hereby levied; if locally subject in any state or 43 Gleason and Otis, Inheritance, 46a The widow is also entitled to 2nd ed. 213. an exemption of $5000.00 as well as 44 Snyder vs. Bnttman, 100 U. S. the minor child. §2031. 249. See In rr Kllerhorst, 6.5 Bull. 39S, 45 See § 2030, Situs of property. as to non-resident having securities, 46 See § 2020, Definition of terms. liberty bonds in safety boxes in A foreign executer may marshall bank in this state, subject to tax. the assets, etc. See Atty. Gent's op. 1020, p. 939. i 1687 GENERAL DEDUCTIONS § 2027 country to a tax of like character but of less amount than that hereby levied and such tax be actually paid or guaranteed or secured, as aforesaid, such succession shall be taxable under this subdivision of this chapter to the extent of the difference between the taxes actually paid, guaranteed or secured, and the amount for which such succession would otherwise be taxable hereunder. [108 V. 1193.] § 2027. Property in foreign jurisdiction. This statute applies to the case of a transfer when the de- cedent was a resident, but the property is located in another jurisdiction, and is subject to a tax in that jurisdiction. In such cases if the tax in that jurisdiction is equal to or in excess of that in this State, and the same is paid or guaranteed, it is not liable to a tax here. If the tax of such jurisdiction is less than here, and is paid, the same may be deducted from the amount that is due under the laws of this State. § 2028. Deduction for tax paid under United States law. There seems to be no special provision for the deduction of inheritance taxes paid the United States. In New York it is held that they can not be deducted,*^ and in Wisconsin, whose statute is somewhat similar, the same conclusion has been arrived at.*^ However, the general trend of authority seems to be the other way — and this seems to be more in accord with our ideas of justice, and we think, the spirit of our statute.*^ § 2029. General deductions. As a general rule, it may be said that all debts of decedent that are properly chargeable against the property are to be deducted in fixing the amount of the tax to be paid. In general, 47 Matter of Biestand, 178 App. 220 X. E. (111.) 286; In ;t Kocbling Div. 836; 1G6 Supp. 168; Matter of En., 104 Att. (X. J.) 205; People Sherman, 179 App. Div. 497. vs. Northern Trust Co., 12.') N. E. 48 State vs. Week, 172 K W. 732; (Til.) 662; Smith vs. llennepen, 139 State vs. Eberling. Minn. 210; Knight's Estate, 104 48a Atty. Genl's op. 1920, p. 698. Atl. (Penn.) 76.1. See 90 Cen. 49 Hooper vs. Shaw, 176 Mass. Law Journal (1920), 295, 415. \IT' ,?''^T Z%- ^^""^"'^''"'^'n M^ Since the above was written Judge Att. (Conn.) 647; Corbm vs. Bald- ..^ , , ,,, , , , , , , xi win, 92 Conn. 8.34; In re Mackey's "addcn, Cleveland, has held the •Est., 46 Col. 79; People vs. Passfield, same way, 64 Bull. 113. § 2030 INHERITANCE TAX 1688 this would be those that are paid in the ordinary administra- tion of the estate. This would include, in addition to ordinary debts, the costs of administration, attorney fees, burial expenses, cost of a monument, cemetery lot, commission of the executor, taxes due or payable, costs of litigation where incurred to pre- serve the estate.'^^ But the costs of litigation between distribu- tees as to the value of their interest is not subject to deduction.^^ While as a general rule the personal estate is primarily liable for all these matters, yet where the real estate is specifically devised, and there were charges attaching to it, such should not be deducted from the personal estate; such as repairs made after the death of the decedent.'- Where land is devised, subject to a mortgage, and the mort- gage is not paid from the personal estate, of course it should be deducted from the value of the land. When a debt is for- given by will the transfer is taxable.^^ But a debt paid by a bequest is not taxable.^^'^ §2030. Situs of property. When property is subject to a tax in two or more jurisdic- tions, it becomes very important to determine its situs. Of course this can not affect real estate; this is only taxable in the State where located, and the doctrine of equitable conver- sion is not applicable even though the testator directs the sale of foreign real estate, and the payment of money legacies out of the proceeds.^-* So it was also held that money due on land contracts to pay a resident decedent's estate the purchase price of land in a foreign jurisdiction, is not liable to the local tax.-^^ As a general rule the situs of personal property follows the domicile of the owner, but not absolutely, so far as the matter of inheritance taxes are concerned. Tangible personal property, 50 Matter of Gihon, 169 X. Y. are to be taken into consideration 443. Costs of contest of will al- as encumbrances upon the land in lowed. valuing such land for inlieritance 51 In re Line Est., 155 Penn. St. tax purposes, in so far as they may 378; Matter of Thrall, 157 N. Y. 46. atl'eet the actual mari^et vahie of 52 Matter of Kemp, 151 X. Y. the hind itself. To Tax Commission 619; Matter of Baudouine, 39 Supp. of Ohio, Columbus. Atty. Genl's. (N. Y.) 1121. op. 1921. See Atty. Genl's op. 1920, p. 1167, ssa /^ re Will of Hooper, 4 N. P. this applies to non-resident. §2064, (N.S.) 186; 6 Dec. 560. fixing value. , ^* McCiirdy vs. McCurdy, 197 53 Gleason and Otis, Inheritance, ISIass. 248. The only ground upon 2nd ed. 377. which the property can be taxed is Encumbrances for Inheritance Tax that it is within the state. Glea- Purposes. Assessments for road son and Otis, Inheritance, 2nd ed. improvements which are a charge 308. upon the property of a decedent, but 55 Matter of Wolcott, 157 N. Y. not a personal liability of his estate, Supp. 268. 1689 SITUS OF PROPERTY §2030 will generally be held liable to the jurisdiction in which it is located -« and corporate stock in the State in which the com- pany was incorporated." In cases where it is a consolidated company organized in this as well as in other States, the tax applies even though the prin- cipal officer is in another State and the stock is owned by a non-resident.'« As a general rule it is said that the transfer of stock in a foreign corporation is not taxable against a non- resident decedent merely because the certificates are physically within the State.^^ Bank deposits in banks are taxable at the place of deposit.*"' This case holds that mortgages may be taxed in the state where the land is located, and there are instances where it could also be taxed at the domicile of decedent."^ As to the situs of a mortgage, according to a leading authority there are three theories: It may be held to have a situs at the domicile of the owner, or where the land is located, or where the mortgage documents happen to be found. It is possible under these conditions, that a mortgage held by a decedent's estate might pay taxes in three States.**" The situs of bonds unless physically present, even though issued by a local corpo- ration, have been held to be at the domicile of a non-resident."^ Property "transiently" in the State has not its situs in that State.«* 56 See § 2020, § 5331 G. C, Defini- tion of terms. 57McDougal vs. Low, 164 Cal. 107. kShaits in a national bank where the banlc is located. Atty. Genl's op. l'J48, 1921. ^* Attorney Creneral's opinion, September i, 1920, 05 liull. 414. &y Gleason and Otis, Inheritance, 2nd ed. 322. 60 /n re Speers, 4 N. P. 23S; In re Rogers' Estate, 149 Mich. 305. This ease holds that mortgages may be taxed in the state where the land is located. 61 Mann vs. Carter, 74 N. IT. 345. 6- Gleason and Otis, Inheritance, 2nd ed. 313. The case of Matter vs. Fearing, 200 N. Y. 340 is au- thority for fixing the domicile of the owner of the mortgage as the situs, and Kinney vs. Stevens, 207 Mass. 36S, that the location of the land is the proper i)lacc. 63 Walker vs. People. 171 Pac. ,(Colo.) 747, but see Bliss vs. Hliss, '221 Mass. 201, where the contrary Beems to have been held. 64 See People vs. Griffin, 245 111. 532. In this case it was held stocks and bonds of corporations of the state where found of a nun-resident were subject to the tax, but slocks and bonds of foreign curpuratioiis, even lliough in the stale, were not subject to the tax. (Jleason and Otis, Inheritance, 2nd ed. 307 to 344 for further discussion. See § 2020, i; 5331 G. C, for delinition of "W ithin the State." In the recent case of Anderson vs. Durr, 100 O. S. 257, it is held that membership in N. V. stuck ex- change, owned by a resident of Oliio, is sul)jcct to tax in Ohio. Tax on real cuttilc in thia state etc. Inheritance tax can not be assessed in this state on a succes- sion to stock owned by a non-resi- dent decedent in a cDrporation. organized and existing under tlie laws of anotlier state but which does business and owns real estate in Oliio. Atty. Genl'a op. (No. 2433) 1921. §2031 INHERITANCE TAX 1690 § 2031. Property not subject to tax. § 5334. The succession to any property passing to or for the use of the state of Ohio, or to or for the use of a municipal corporation or other polit- ical subdivision thereof for exclusively public purposes, Public institutions. Or public institutions of learning, or to or for the use of an institution for purposes only of public charity, carried on in whole or in substantial part within this state, shall not be subject to the provisions of the preceding sec- tions of this subdivision of this chapter. Successions passing to other persons shall be subject to the provisions of said sections to the extent only of the value of the property transferred above the following exemptions: To wife or child. 1. When the property passes to or for the use of the wife or a child of the decedent who is a minor at the death of the decedent, the exemption shall be five thousand dollars. To father, etc. 2. When the property passes to or for the use of the father, mother, husband, adult child or other lineal descendant of the decedent, or an adopted child, or person recog- nized by the decedent as an adopted child and made a legal heir under the provisions of a statute of this or any other state or country, or the lineal descendants thereof, or a lineal descendant of an adopted child, the exemption shall be three thousand five hundred dollars. For brother, etc. 3. When the property passes to or for the use of a brother, or sister, niece, nephew, the wife or widow of a son, the husband of a daughter of the decedent, or to any child to whom the decedent, for not less than ten years prior to the succession stood in the mutually acknowledged relation of a parent, the exemption shall be five hundred dollars. [108 v. 1193.1 «^ • § 2032. Exemption : Public charities, etc. The first of the enumerated exemptions is where property passes to the State of Ohio. Second, when it passes to any municipal corporation. Third, when it passes to a political sub-division of the State to be used exclusively for public purposes. Fourth, public institutions of learning. Fifth, an institution for purpases only of public charity, car- ried on in whole or substantial part in the State. "Brother" and "sister" includes 65 See §221, N. Y. inheritance half brother and sister. Atty. Gcenl's tax, for exemptions, etc. Also op. 1920, p. 177, 64 Bull. 124. § 2025, § 5331-1 G. C, widows year's allowance. I 1691 EXEMPTION §2032 The first, second and third will present no difficulty in appli- cation; the fourth and fifth, may. In the first place we are confronted by a diversity of opinion as to whether the statute should be liberally construed in favor of the exemption, or strictly against it, the general rule being in favor of a strict construction, but it has been said the trend of recent authorities is for a liberal construction.^^ The language should not be extended beyond the clear import of the words used to make property of a non-resident subject to the tax,^®^ and the latter is the rule the writer thinks will prevail in Ohio. If a strict rule were adopted perhaps a great number of institutions of learning might not come within the term "Public Institutions of Learning," which really ought to be exempt, and perhaps no religious organization would be "an institution for purposes only of public charity."*"^'* The language 66 Gleason and Otis, Inheritance, 2nd Ed. 55; Matter of Rockafeller Foundation, 165 IST. Y. Supp. 154; Parkhurst vs. Burrill, 220 Mass. 196. 66a People vs. Griffin, 245 111. 532. 66b Since tlie text was written I have had placed in my possession an unreported decision of the Court of Appeals of the Fourth District. This was made on a like provision under the collateral inheritance tax, and holds that a bequest to a church is not exempt. Opinion. In the matter of the estate of Jane Poe, Error to the Court of Common Pleas of Ross County, Ohio. Merriman, J.: The sole question presented in this matter is: Are bequests to churches subject to the collateral inheritance tax? Section 5331 G. C, provides for the tax, and § 5332 makes the fol- lowing exemptions: "The provisions of the next pre- ceding section shall not apply to property, or interests in property, transmitted to the State of Ohio under the intestate laws of the state, or embraced in a bequest, devise, transfer or conveyance to, or for the use of the State of Ohio, or to or for the use of a municipal corporation or other political sub- division thereof for exclusively pub- lic purposes, or public institutions of learning, or to or for the use of an institution in this state for pur- pose only of public charity or other exclusively public purposes. The property, or interests in property so transmitted or embraced in such devise, bequest, transfer or convey- ance, shall be exempt from all in- heritance and other taxes while used exclusively for any of such pur- poses." Exemptions from taxation are not favored; the general rule being, that exemptions will never be presumed or implied. There must be some express grant of immunity. There- fore, the statute must be strictly construed. §2032 INHERITANCE TAX 1691a first appears in the act of 1900. Before that' there were no specific exemptions, and it is difficult to say just what the legislature had in mind should be included in the language used. No doubt the Universalist Cliurch does mucli cliarity work; but its dispensation of charity is a mere incident to its real mission, wliich is teaching and preaching the Christian religion. In Watteison v. EalUday, 77 0. S. 178, it is said: " * * * the Catholic Church is not an institution of purely public charity. It teaches and practices charity; but that is not its whole mission in the world. Its character is defined by the tliird and fourth findings made by the Circuit Court. There it is said: 'The Eoman Catholic Church is an institution which has for its chief and primary object and purpose the teaching and extending of its recognized form of religious belief and worship into all parts of the world, and was founded to continue the work of Christ on earth, and to teach, govern, sanctify and save all men.' " 'Charity is included in its teach- ings, purpo?.es and practices, as sub- ordinate to its spiritual teaching and purpose, but is an essential part of its general scheme of church work * * * .' "So it seems that, instead of * * * being an 'institution of purely public charity,' it is a religious in- stitution primarily, and its charity is subordinate to its spiritual teachings * * * ." While the Universalist Church differs from the Catholic in its creed and general management, yet the object for which it was founded is the same — the teaching of the Christian religion. It can not be said, therefore, that the Universalist Church is an in- stitution for the purpose only of charity; neither can it be said to be an institution for exclusively pub- lic purposes, though undoubtedly the general public would be welcome, yet the church was formed for the purpose of advancing certain re- ligious ideas and the property of tlie church is used largely for the benefit of its members. In giving the legislature power to exempt from taxation (-Art. 12, § 2), the makers of the constitution expressly referred to "houses used exclusively for public worship" in contradiction to "institutions of purely public charity and public property used exclusively for any public purpose." The legislature, in exacting tlie exemption law, also used the words "houses used ex- clusively for public worship" in contradiction to "houses or halls used exclusively for public pur- poses." It would thus seem that the makers of the constitution, as well as the legislature, intended to distinguish between churcli property and property used for exclusively public purposes. It is our opinion that the Universalist Church is not an insti- tution "for the purpose only of public charity or other exclusively public purpose," and that the be- quest thereto is subject to the col- lateral inheritance tax. A bequest to the Bishop of a Catholic diocese to educate candi- dates for priesthood, and a bequest for masses for repose of testator's soul are subject to tax. Atty. Genl's op. 1920, p. 388. 1691b EXEMPTIONS § 2032 While more than twenty years have elapsed we have no Supreme Court reported decision giving direct construction to these words. Relying largely on what might properly be implied in the holdings of the Supreme Court of our State,®^ the inferior courts have followed the rule fixed by statute, exempting property generally from taxation. The inheritance tax statutes in some States prescribe that this rule shall be followed,*'^ In the Humphreys case,"" the testator, a resident of Cincinnati, made the following bequests : 1. ''To the American Bible Society the sum of Five Thousand Dollars." 2. "To the American Tract Society the sum of Five Thousand Dollars." 3. "To the American Sunday School Union the sum of Two Thousand Dollars." 4. "To the Board of Foreign Missions of the Presbyterian Church in the United States the sum of Ten Thousand Dollars." 5. "To the Board of Home Missions of the Presbyterian Church in the United States the sum of Ten Thousand Dollars." 5. "To the Board of Church Erection Funds of the Presby- terian Church in the United States the sum of Five Thousand Dollars." 7. "To the Presbyterian Committee of Missions for Freedmen in the United States the sum of Five Thousand Dollars." 8. "To the Woman's Foreign Missionary Society of the Pres- byterian Church of the United States the sum of Five Thousand Dollars." 9. "To the Woman's Home Missionary Society of the Pres- byterian Church of the United States the sum of Five Thousand Dollars." 10. "To the Widow's Home on Walnut Hills, Cincinnati, Ohio, One Thousand Dollars." 11. "To the Ohio Hospital for Women and Children, One Thousand Dollars." «7 Humphreys vs. State, 70 O. S. ation of care to be furnished to 13. 67, the invalid gislcr of A. during tho cs Massachusetts, Rhode Island rcmaindi r of her life. IlrUl.w (ax- and California. "hie succession 71, Atty. d'cnl's A. bequeaths to a sanitorium com- op. 1921. "j)any $1,000 per annum in consider- § 2032 INHERITANCE TAX 1692 12. "To the Sunday School of the Fifth Presbyterian Church in Cincinnati, Ohio, the sum of Three Hundred Dollars to pur- chase books for its Sunday School Library." 13. "I give and devise my oil paintings and engravings to , should they desire to have them, and if they do not desire to have them, to the "Women's Christian Home of Cincinnati, and the Young Men's Christian Associa- tion of Cincinnati, share and share alike." 14." All the rest and residue to the Board of Foreign Missions ; to the "Woman's Foreign Missionary Society, and the Board of Home Missions, all of the Presbyterian Church of the United States to be divided between the aforesaid Societies and Boards, share and share alike." The Probate Court held that all these bequests were exempt. The case was appealed to the Common Pleas Court, and the question that was raised, there, was not that the bequests did not come within the terms "public institutions of learning* or to or for the use of an institution for purposes only of public charity," but that the devisee institutions were not "carried on in whole or in substantial part within the State," Judge Hollis- ter of the Common Pleas, saying : ''^ "It is conceded by counsel for the state that these bequests are for the purpose of purely public charities, but it is claimed that none of the Boards of the Presbyterian Church, named in Mrs. Brown's will, are institutions in this state, within the mean- ing of the law." Further along, **The Presbyterian Church is undoubtedly an 'institution' as the word is usually understood." After naming a number of authorities, the judge concludes : "From these cases and from the language of the statute strictly construed, the deduction may be fairly made that the object of the law .is to exempt from taxation charitable bequests and devises, when made to permanent organizations in this state. '0 In re Estate of Brown, 13 Dec. 169. 1693 EXEMPTIONS § 2032 corporate or otherwise, capable of holding property, and also to exempt charitable bequests or devises when the property so devised or bequeathed is actually located in this state and used here permanently for the charitable purpose for which it was given. ' ' In the opinion in the ease of Gerke vs. Purcell, 25 0. S. 229, where it was decided that property held by Archbishop Purcell for the uses of the parochial schools in Cincinnati, of the Catholic Church, was exempt from taxation as a purely public charity, it is said: "A college consisting of a private corporation and having a private foundation, is devoted to a public use, yet the use is none the less public because tuition is charged."'^ The Brown case was taken to the Circuit Court.'^ Here it is said: ''The bequests are to institutions organized for purely public charities, but in our opinion are not institutions in the state of Ohio." The case next appears in the Supreme Court.^^ It is not clear from the case as reported whether all the bequests mentioned in the will were taken up or not, but the records show that all the bequests were not included.^* But it is clear that the question made in the Supreme Court was not that the bequests were to an institution of purely public charity or other exclusive public purpose, but that they were not institutions in the State of Ohio, and it can be fairly implied that if the institutions receiving the bequests had been within the State, the legacies would have been exempt. .71 Gerke vs. Purcell, 25 0. S. 241. licritance tax is not payable upon 72 Humphreys vs. State, 1 C. C. the legacies to the following legatees, (N.S.) 1; 24 C. C. 238. viz.: "American Bible Society; 73 Humphreys vs. State, 70 0. S. American Tract Society; American 67. Presbyterian Church; Board of 74 The records of the Common Home IMissions of the Presbyterian Pleas Court of Hamilton County, Church; Board of Church Erection Xo. 122847, sliow tlie prosecuting Funds of tho Presbyterian Chnreh; attorney gives notice from so much The Woman's Homo Missionary of such order as finds that an in- Society of said riiurch." §2032 INHERITANCE TAX 1694 We may then fairly come to the conclusion that as a general rule where the courts have not otherwise decided that if legacies are to institutions within this State, which are exempt from taxation under the general law, or our constitution, they will be exempt under the inheritance lawsJ^ The constitution provides that "Burying grounds, public school houses, houses used exclu- sively for public worship, institutions used exclusively for char- itable purposes, public property used exclusively for any public purpose * * * may by general laws be exempted."^" In other States the following have been held as exempt: Y. M. C. A.;" W. C. T. U.;^« New York Metropolitan Museum ; ^^^ an art gallery ; ^^ a library ; ^° a university ; ^'^ a drinking fountain for horses ; ^- hospitals ; ^^ found a home for the aged ; ^^ public ot!icers as trustees for charitable purposes ; *** a Masonic lodge ; ^° a village in trust for indigent women ; *^ 7 5 Our statutes exempt: Burial lots and grounds, § 5350, § 10093 G. C; Fire engines, § 10101 G. C.; Fraternal benefit societies, § 5365-1 G. C; G. A. R. posts, § 5364 G. C.; Historic buildings, §5363 G. C; Indiana meeting of Friends, § 5365 G. C.; Law library assns., § 3055 G. C. ; Masons, Odd Fellows, Knights of Pythias, §5364 G. C; Memorial assns., §3410-7 G. C; Municipal university, §7915-1 G.. C; Monu- ment sites of distinguished persons, §5361 G. C; Ohio university lands, §§7433-7435 G. C; Pre-historic earthworks, §5363 G. C; Religious benevolent associations, § 5364 G. C.; Secret benevolent associations, § 5364 G. C. ; Soldiers and sailors township memorial assns., §.3410-7 G. C,; Vault companies' property, § 10192 G. C.; Womens homes, §5364 G. C; Armory buildings, §5354 G. C.; Grave yards, §5350 G. C; Public colleges, § 5349 G. C; Churches, § 5349 G. C.; Monumental buildings, § 5359 G. C. The fact that U. S. bonds are exempt from taxation will not ex- empt them from an inheritance tax. Plummer vs. Coler, 178 U. S. 117; 44 L. Ed. 1001. A bequest to trustees for purpose of founding an industrial school open to all, exempt. Atty. Genl's op. 1920, p. 1233. So is a bequest to a public hospital. Id., p. 3S3. So also may a bequest to trustees for establishing a children's home. Id., p. 1048. Also a bequest to a re- ligious order for relief of the poor. Id., p. 388. 76 Art. XII, § 2. This provision is broader than that m the consti- tution of 1851. "Matter of Moses, 123 N. Y. Supp. 443; Little vs. Newburyport, 210 Mass. 414. 78 Matter of Field, 130 N. Y. Supp. 195. 78a Matter of Mergantine, 195 N. Y. 572. 79 Matter of Arnot, 203 N. Y. 627; 145 N. Y. App. Div. 708. 80 Essex vs. Broolcs, 164 Mass. 79. 81 Alfred Universi ' vs. Hancock, 69 N. J. Eq. 470. 82 Matter of Graves, 242 111. 212. 83 Matter of Higgins, 106 Supp. (N. Y.) 465. 84 Matter of Graves, 171 N". Y. 40. 85 In re Spangler, 148 la. 333. 80 Morrow vs. Smith, 145 la. 514. 87 Matter of Albright, 156 N. Y. Supp. 821. 1695 INSTITUTION IN THE STATE § 2033 Methodist church ; *^ Congregational and Baptist churches ; ®* first Universalist Society ; "'^ American Baptist Foreign Mission- ary Society ; **' a bishop ; "- property of the United States ; ^^ bequest to priest for masses to be said is not exempt.^* § 2033. Institution in the state. What will constitute an institution in the State was the ques- tion directly involved in the Humphrey's case.""' In this case none of the bequests were to bodies incorporated in this State ; some were chartered under the laws of the State of New York and others under the laws of Pennsylvania. If the institution is incorporated, then the home of that institution is the State of its incorporation, and even if it is an auxiliary sociely in this State, or if it must account to a principal incorporated in an- other State, it is not an institution in this State, even though the work is done in this State. If the institution is unincorporated, then the place where it has its principal place of business would determine whether it is an institution in this State or not. If it has its principal place of business in this State, or if all the bequest is to be used for the benefit of the people of this State, then it would be con- sidered an inheritance in this State and be exempt."^ "It is the policy of society to encourage benevolence and charity ; but it is not the. proper function of a state to go out- side of its own limits and devote its resources to support the cause of religion, education or missions for the benefit of man- kind at large. "^^ In the Humphreys-Brown case it appeared that "the bequests excepted to were to several of the Boards of tlie Presbyterian Church ; that these Boards are incorporated under the supervision and control of the General As.srmbly of tliat church. The General Assembly is a representative body coni- 88 Carter vs. Whitcomb, 74 N. II. G7. Tlie statute of the inheritance 482. tax is a little broailor than the col- 89 Carter vs. Eaton, 75 X. IT. .'560. lateral inlieritancc tax in that tlie 90 First University Society vs. institution will be exempt "if a Ecdsford, 185 Mass. 185. substantial part is c.irried on in 91 Matter of Lyon, 121 N. Y. (his state." Supp. 1004. "G .'^ee In re Bivina, 1.3 Dec. 172. 92 Matter of Palmer, 5:? N. Y. 97 Quoted from IMatter of Estate Supp. 847. of Prime, 13(1 N. \. 347 in llum. 93 38 Eull. 281. §5351 G. C. jjlireys vs. .^tate, 70 0. S. 82. Pee 94 38 Pull. 281. 8 1^» Situs of property. 95 Humphreys vs. Ptate, 70 O. 8. § 2034 INHERITANCE TAX 1696 posed of delegates from Presbyterian churches in all parts of the United States, and meets annually. Generally speaking, the moneys disbursed by the Boards in carrying out the charitable work of the church is spent partly in Ohio, but the major part is used elsewhere. For instance, the Board of Foreign Missions of the Presbyterian Church maintains two Homes for educa- tion in Ohio, of the children of foreign missionaries ; the Board of Church Erection Fund has erected churches in the state at a cost of $240,000; the Board of Home Missions assists in sus- taining the preaching of the gospel in churches and congrega- tions in Ohio. The membership of that church in this state is about 1/11 of the entire membership in the United States and contributes largely to the funds of the church. "^^ §2034. Exemption, personal. The first personal exemption is that to a wife, or a minor child of the decedent ; wife here means widow, and is the person who was legally married to decedent at the time of his death.®^* There is more difficulty as to what may be included in the word child; it is decided that it does not include stepchildren.^'' From the fact that the next exemption uses both the word child and adopted child, throws some doubt on whether the word cJiild here includes an adopted child. But there is no good reason why a person who occupies the position of an adopted child should be entitled to the exemption under the second clause, and if a minor, excluded from the first ; and I am there- fore of the opinion that a minor adopted child is entitled to - the exemption. Unless an illegitimate child would, under our law, be entitled to inherit from the decedent, such child would not be entitled to the exemption. The statute specifically exempts the widow's year's allowance to the extent of $3,000. This is in addition to the exemption here allowed.^ The second exemption is father, mother, husband, adult child, adopted child, or a person recognized as an adopted child and made a legal heir under the pro\dsions of a statute, in this State or any other country. This latter clause evidently refers to instances where a person is declared heir under Sec. 8598, G. C. (§1902), and similar statutes. It would probably not include recognition as child in any other manner. As a general rule it may be said that adoption must always be pursuant to 98 Humphreys vs. State, 1 C. C. Value of the right to remain in (N.S.) 2; 24 C. C. 238. mansion house not deducted. Id., p. !>8a The Atty. Genl. has held that 1044. Dower and curtesy deducted. if a wife takes under the will, she Id., p. 961. waives her dower right and is not ^^ In re Hooper, 4 N. P. 186; 6 entitled to a deduction of its value Dec. 560. from what she receives under the i § 5332-1 G. C, § 2025. will. Atty. Genl's op. 1920, p. 834. 1697 RATES OF TAX ON PROPERTY § 2035 some statute, and in tli6 absence therefrom, a so-called adopted child is a stranger.- Except as it might come under the 3rd paragraph of Sec. 5334, G. C. (§2031). It has been held that children of an illegitimate daughter are not lineal descendants.^ Whether this rule would be followed if they were capable of . inheriting from their mother, I think is questionable. The third provision is when it passes to a brother, sister, niece, the wife or widow of a son.^ But a divorced wife is not a wife.^ Brother and sister would probably include those of the half blood, the husband of a daughter of decedent, not so in the absence of statutes,*' or to any child to whom the decedent, for not less than ten years prior to the succession, stood in the mutually acknowledged relation of parent. This language seems to have been taken from the New York law.'^ The fact that the decedent had thought enough of the parties to make them bene- ficiaries, would not be without weight in such cases. § 2035. Rates of tax on property. § 5335. The rate?? at which such tax is levied are as follows: 1. On successions passing to any person mentioned in the first and second sub-paragraphs of the preceding section: (a) One per centum on the excess of the value of the prop- erty over the exemptions up to and including the sum of twenty- five thousand dollars. (b) Two per centum on the next seventy-five thousand dollars, or any part thereof; (c) Three per centum on the next one hundred thousand dol- lars, or any part thereof; (d) Four per centum on the amount representing the balance of the value of each individual succession. 2. On successions passing to any person mentioned in the third sub-paragraph of the preceding section, (a) Five per centum on the excess of the value of the prop- erty over the exemptions up to and including twenty-five thou- sand dollars; (b) Six per centum on the next seventy-five thousand dollars, or any part thereof; 2 See Commonwealth vs. Nan- relation exists for more than ten crede, 32 Pa. St. 289. yoar — they come within (his provi- 3 Matter of Beach, 154 N. Y. 252. sion. Atty. (k-nl'H op. 1!V20, p. 1155. 4 It has been held that a widow 7 See (ileason ami (Mia, Jiiherit- of an adopted son is a widow of a anco, 2nd od. 227, and it is said son. Matter of Duryea, 112 N. these statutes have ocea.sionc>d niudi Supp. (N. Y.) 611. iitifjation. These avithors pivc the 5 Matter of Merritt, 140 Supp. following cases, and excerpts tliere- (N. Y.) 13. from on tlie matter. Matter of Hol- Matter of Edman, 128 Fed. 815. ton, 210 N. Y. (518; Matter of «a Where a boy and girl were tak- I^itler, 12 (N. Y.) Supp. 201; en into the home of their aunt and Matter of Nichol, :W Supp. (X. Y.) remain with her and her husband 538; Matter of Capron, 10 Supp. during their entire childhood— re- (N. Y.) 23; Matter of Wheel.'r, 22 ceiving care and education, and re- Supp. (N. Y.) 1075; Matter of turn service and obedience, if the Moulton, 33 Supp. (N. Y.) 578. §2036 INHERITANCE TAX 1698 (c) Seven per centum on the next one hundred thousand dol- lars, or any part thereof; (d) Eight per centum on the amount representing the balance of the value of each individual succession. 3. On all successions passing to persons other than those here- inbefore mentioned, or to institutions or corporations: (a) Seven per centum on the value of the property up to and including the sum of twenty-five thousand dollars; (b) Eight per centum on the next seventy-five thousand dol- lars, or any part thereof; (c) Nine per centum on the next one hundred thousand dol- lars, or any part thereof; (d) Ten per centum on the amount representing the balance of the value of each individual succession. [108 v. 565.]^ § 2036. Schedule of rates and exemptions under the Ohio Inheritance Tax Law. Issued by the Tax Commission of Ohio SUCCESSORS Exemption On $25,C0J or part thereof over the exemption On next $75,OGO or part thereof On next $100,0:0 or part thereof On the balance 1st Class: To wiie or minor child. $5,000 1% 2% 3% 4% 2nd Class: To father, mother, husl^and, adult child, adopted child or person recognized as an adopted child and made a legal heir under the provisions of a statute of this or any other state or country, or the lineal descendants thereof, or a lineal descendant of an adopted child. $3,S0C 1% 2% 3% 4% 3rd Class: To brother, sister, niece, nephew, wife or widow of a son, husband of a daughter of the decedent, or any child to whom the decedent, for not less than ten years prior to the succession stood in the mutual acknowledged relation relation of a parent. $500 5% 6% 7% 8% 4th Class: To all persons, institutions, or corporations not named in the 1st, 2nd and 3rd classes above. 7% 8% 9% 10% 8 See § 221a, N. Y. inheritance tax for rates fixed in the state. Glcason and Otis on Inheritance taxation, 2nd ed. 738. 1699 TAX WHEK DUE AXD PAYABLE ^2037 The following is an illustration of tlie amount of tax due upon a succession, the total value of which is $250,000, as to each class of successors: CLASS Exemp- tion "^n $25,000 rr parf thereof ov"r the exemption On next $75,0!_0 or part therkof On next $100,0C0or part thereof On the balance Total tax Rate Amount of tax Rate Amount of tax Rate Amount of tax Am't of balanc Rate Amount of tax 1st Class "5,000 1% ?"250 2% $1,500 2% '^3,000 $45,000 47c'«;i.9] . I§ 2046 INHERITANCE TAX 1704 §2046. Notice of motion on application to remit interest. ITitle.] Please take notice that on all the papers and proceedings herein, and the verified petition of , hereto annexed and bearing date the day of , 19..., application will be made to the Probate Judge of the county of at Probate Court to be held at on the day of , 19 . . . , at o'clock, for an order remitting the interest upon the tax heretofore assessed upon the estate of the above named decedent, by order of said Probate Judge made and entered the day of , 19..., from eight per cent, to five per cent, per annum, to be computed from the accrual of said tax until the circumstances pre- venting the earlier payment of said tax were removed, and for such other and further relief as to the court may seem just. Dated the day of , 19 . . . Attorney for Petitioner. To Hon , Tax Commission. § 2047. Order remitting interest from eight to five per cent. [Title] On reading and filing the verified petition of , wherein it ap- pears that payment of the succession tax upon the estate of the above named decedent, as determined, has been unavoidably delayed, by reason of And due notice of this application and motion having been given to tax commission: Now, on motion of , Esq., attorney for the petitioner herein, appearing [in opposition thereto or consenting thereto], it is Ordered, That interest at the rate of eight per cent, upon the tax heretofore assessed herein, be remitted to five per cent, per annum, to be computed from the accrual thereof until the day of , 19 ... , after Avhich date interest at the rate of eight per cent, is to be charged until said tax is paid, as provided by the statute. Probate Court. § 2048. When legatee entitled to refunder. § 5339. If any dei3ts shall be proven against the general estate of a decedent after the payment of any legacy or distributive share thereof, from which any such tax has been deducted or upon which it has been paid by the person entitled to such legacy or dis- tributive share, and such person is required by order of the probate court having jurisdiction, on notice of the tax commis- sion of Ohio, to refund the amount of such debts, or any part thereof, an equitable proportion of the tax shall be repaid to him by the executor, administrator or trustee, if the tax has not been paid to the county treasurer; or if such tax has been paid to the county treasurer, be shall, on the warrant of the county auditor, refund out of the funds in his hands or custody to the credit of inheritance taxes, such equitable proportion of the tax, without interest, and be credited therewith in his accounts. Anplication to refund. Tf after the payment of anv tax, in pursuance of an order fixing such tax, made by the probate court having jurisdiction, such order be modified or reversed on due 1705 REFUNDEB OP TAX § 2049 notice to the tax commission of Ohio, the said commission shall, unless further proceedings on appeal or in error are pending or contemplated by order direct the county auditor to refund such amount in the same manner; but no such application for such refunder shall be made after one year from such reversal or modification, by the highest court to which error may be prosecuted. The fees theretofore allowed upon such over-pay- ment shall be adjusted in accordance with such refunder. Court may add then. Where it shall be shown to the satis- faction of the probate court that deductions for debts were erroneously allowed, such probate court may enter an order assessing the taxes upon the amount wrongfully or erroneously deducted. [108 v. 567.]-* §2049. Refunder of tax, etc. While the law is very careful to provide that the succession of all property should bear, and a tax thereon be paid, yet it also provides where the same has been paid, when in justice it ought not, for its refunder. That is the purpose of the preceding section. The order to make such refunder rests in the sound discretion of the Probate Court having jurisdiction. The forms used to remit interest under the preceding sections, might be changed to be used when a refunder is asked. The order made by the court in such cases is probably not appealable. This is true where the former order was a final order. However, it would seem if the former order was of a temporary nature as provided in sections Nos. 5342, G. C. (§2066), 5343, G. C. (§ 2077) and 5344, G. C. (§ 2073), it would be appealable. § 2050. Powers and duties of probate court. § 5340. The probate court of any county of the state having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent, on the succession to whose property a tax is levied by this subdivision of this chapter, or to appoint a trustee of such estate, or any part thereof, or to give ancillary letters thereon, shall have jurisdiction to hear and determine the ques- tions arising under the provisions of this subdivision of tliis chapter, and to do any act in relation thereto authorized by law to be done by a probate court in other matters or proceedings coming wkhin its jurisdiction; Jurisdiction. And if two or more probate courts shall bo entitled to exercise such jurisdiction, the court first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other probate court. Such jurisdiction shall exist not only with respect to successions in which the jurisdiction of 24 See § 225 N. Y. inheritance tax. § 2051 INHERITANCE TAX 1706 such court would otherwise be invoked, but shall extend to all cases covered by this act, to the end that succession inter vivos, taxable under the provisions of this subdivision of this chapter, may be reached thereby. fl08 v. 567.]-^ § 2051. Jurisdiction of probate court. The previous section makes the Probate Court the forum in which all matters pertaining to the inheritance tax are to be determined, and which particular court is to exercise jurisdic- tion is to be determined in the same manner as in the settle- ment of estates of deceased persons. This matter has been dis- cussed in previous sections of this work.^*' This matter may come before the court in the due adminis- tration of an estate, in which its jurisdiction has already been invoked by the appointment of an executor or administrator, and then it may be brought there when there has been no such appointment by an interested party, or the tax commission. If the matters appearing in the due administration of an estate are such that the court knows that there is an inheritance tax to be paid, the court ought not to permit any estate to be settled without proceedings to fix such tax and have its payment made. Some States have put all matters relating to an inheritance tax in the jurisdiction of a tax commission, but the method provided by our State is preferable. It properly belongs to the jurisdiction of the Probate Court. It will usually be brought to the court's attention by an application of the executor or administrator to fix the tax ; or it may be brought by an heir or beneficiary, where the same is a charge on the transferment of property he is to receive, and then it may be, by the tax com- mission as representing the public. It seems from the wording of subsequent sections that if the application be made by the executor or administrator, the court may either proceed and fix the tax without further appraisement, or have the auditor to appraise the property. If the application be made by an interested party or the tax commission, it must direct the auditor to fix the value. But even in such eases if the prop- 25 See § 228 N. Y. inheritance tax. Some Probate Courts now require 26 Chapter 2, § 19-33. The Pro- that in all cases, before a final ac- hate Court of the county in which count is accepted that the question the general office of a company in of inheritance tax be determined this state is located, or of any although it is evident there will be county in which the company has none, and county auditors will not property in this state, has jurisdic- transfer real estate of a decedent tion to determine the tax. Atty. imless this is done. Genl's. opinion Sept. 7, 1920, 65 Bull. 414. 1'''07 ESSENTIALS OF APPLICATION • § 2052 erty passing is in money form, or if the court can fix a proper and satisfactory value, it is questionable whether a formal appraisement by the auditor is required. By reason of the fact that a discount is allowed if paid before one year from decedent's death, and a penalty added thereafter, the tax should be fixed and paid at the earliest time possible. § 2052. Essentials of application. There wall not be much difference in the essentials required whether filed by an executor, an heir, legatee or the tax com- mission. In all cases it should show sufficient facts to enable the court to grant the relief desired. First it should allege facts sufficient to give the court jurisdiction. This would in- volve a showing that the party filing the application had capacity so to do, and the deceased either died a resident of the county in which the application is made, or had some prop- erty in such county. It should give, if an administrator or executor has been appointed, the name of the court, date of appointment; if a will has been probated, the name, date and court probating it. If this appears to have been done in another court a copy of the will should be attached. Next in importance is to give the names, ages, relationship and address of all the persons who will receive any part of the estate. Then a schedule or description of all the property the de- cedent owned. If any property is specifically devised this should be stated. If it is desired to have an appraisal by tlio auditor it might not be essential to put a value on it, but this might even in such cases be done, and always if the court is to fix the value. Such description of the real estate should be given, that will show the township or municipality of its location. If there are any mortgages or charges on the property, especially if specifically devised, these should be given. Then a statement of all the personal property should be given. If there has been an inventory filed, it may be taken from that. If a widow's allowance has been made this should be statcid. If there is any property in a foreign jurisdiction, the fact should be stated. All the debts should be given. This would include costs of administration and funeral expanses. The name and amount of all specific bequests should be given. 1 See § 2064. Fixing vahie of See § 2007. Fixing viiluo of lim- real es.talc. 't<''J e«lato. See § 2005. Fixing value of per- See § 2070. Notice fixing tax. eonal property. § 2053 • INHERITANCE TAX 1708 § 2053. Filing and notice. The above application is not an application to appraise the property, but to fix the tax, etc., and therefore the services of the auditor are not required, and it seems that the court may proceed to fix the value of the property and the various taxes without further notice. The notice that in such cases is required is the one that is to be given after the tax has been fixed, etc. However, if the questions involved are intricate or doubtful, notice should be given to the persons interested and the tax com- mission, and this notice might be given by mail, or the parties could enter their appearance. There is no statutory requirement that the application be sworn to, but as this will be treated as evidence by the court, it should be. If the court thinks wise or if there be doubtful ques- tions, a day should be set for hearing, and interested parties notified. The facts will be so diverse that it will be impossible to give a form, that will be more than in a general way, applicable. Just when the application should be filed will depend on the size and the condition of the estate. Where the estate is small, and there may be some question whether there is any inheritance tax, it will no doubt be deferred until near the time when a first account is filed. When large it would best be attended to as soon as the same can be done. Where there is a general appraise- ment of the estate this may be done soon thereafter. The value to be fixed is the actual value at the time of decedent 's death ; a discount is allowed if paid before one year, and a penalty added thereafter. The form of notice, if one is given before the court passes on the value, is the same as that where an auditor makes the appraisal.^ § 2054. Form — Application for determination of inheritance tax. In the Probate Court of County, Ohio. No In the matter of the estate of , deceased. The undersigned, as of the estate of , deceased, hereby prays the court for an order of determination as to what inheritance tax, if any, is due upon the successions to such estate imder the inheritance tax law of Oliio and in support of this application, being duly sworn, deposes and says: 1. That the said decedent died a resident of county on the day of , 19..., intestate — leaving a last will and testament, a copy of which is herewith submitted, which was duly admitted to probate 1 See § 2063. 1709 DETERMINATION OF INHERITANCE TAX § 2054 and record by the Probate Court of county, on the day of , I!)... and that letters — of administration — testamentary — were duly issued by the said Probate Court on the day of , 19. . ., to this deponent, whose post oifice address is 2. That as such — administrator — executor — deponent is personally familiar with the affairs of said estate, the property constituting the assets thereof and their fair market value, and with the debts, expenses and charges properly and legally allowable as deductions therefrom. 3. That schedule A-1* sets forth each and every parcel of real estate in the state of Ohio of which decedent died seized, or in which ..he had any right, title or interest, and the book and page of the record of the conveyance thereof. It also sets forth the fair value of such real estate together with a statement of the mortgages and other incumbrances thereon at the date of death, giving the amount and date of each incumbrance and the book and page of record thereon. Schedule A-2 sets forth all of the moneys left by the decedent at the time of h.. death, whether in h.. immediate possession, standing to h.. credit or in which ..he had any right, title or interest, in banks or other institutions, whether individually or in trust for or jointly with any person, giving also separately the accrued interest thereon. Schedule A-3 sets forth all other personal chattels of whatsoever kind or nature, left by tlie decedent, together with the fair market value thereon. It also contains a statement of all bonds and mortgages held by decedent and of all claims due and owing decedent at the time of death, and of all promissory notes or other instruments in writing for the payment of money of which ..he died possessed, with interest thereon [except i^uch as are included in the statement of the decedent's interest in a co-partnership or business set forth in Schedule A-5], giving the face values and estimated fair market values thereof. Said schedule also contains a statement of any and all moneys payable to the estate from life insurance policies carried by decedent. Schedule A-4 sets forth all the corporate stocks, bonds and accrued interest thereon to the date of decedent's death, or other invested securities owned by the decedent at the time of death, witli the market value thereof at such time, and in the case of unlisted corporate securities giving the state of incorporation of the company issuing the same, its capitalization, the value and nature of its assets, its liabilities, and any other facts which may be pertinent affecting the value of said securities, also the amount of any dividends declared on such stocks but unpaid at date of death. 'Schedule A-5 sets forth the interest of decedent at the time of death in any co-partnership or business, the nature and location of such business and any other facts pertaining thereto as may be pertinent to a fair and just appraisal of decedent's interest therein and the good will tliereof. iSciiedule A-6 sets fortli in itemized form, together with the fair market value thereof, any otlier property owned or left by decedent at the time of death and not included in tlie preceding sciiedules, together with all property wheresoever situated of which decedent made any grant, bargain, sale or gift in contemplation of death or intended to take effwt in possession or enjovment at or after the death of decedent. 4. That schedule IM sets fortli the fnneral expenses togetlier with the expenses of administration and coiinsel fees paid or estimated. Schedule B-2 sets forth the valid debts due and owing by decedent at the time of death and allowed as just and fair l)y this deponent, togetlier with a separate list of such claims as have been contested or rejected [except such as enter into the computation of decedent's interest in any co-partnership or business as set forth in Schedule A-f)]. Schedule n-2 also sets forth all items claimed by deponent as jiroper deductions herein, and not included in the prior schedules. .5. Schedule C* contains a statement of the names of all persons beneficially interested in this estate at the time of decedent's death, the nature of their respective interests, their relationship, if any. to tho decedent together with the ages at the time of decedent's death of all §2054 INHERITANCE TAX 1710 iniiiors, annuitants and beneficiaries for life under decedent's will, if any. It also contains a statement showing -which of the beneficiaries nanied in such will, if any, died prior to decedent, the dates of their death, their survivors, and the relationship of each such survivor to decedent. 6. That deponent has made due and diligent search for property of every kind, nature and description left by tlie decedent, and has been able' to discover only that set forth in Scliedule A, and that no informa- tion of any other property of the decedent has come to h . . knowledge, and that ..he verily believes tliat decedent left no property except as therein set forth. Tliat all sums claimed as deductions in Schedule B are lawful, just and fair, that to the best of deponent's knowledge, in- formation and belief the decedent made no gift, grant or convej-ance of any property, real or personal, in contemplation of death, or to take effect at or after death, except as is specifically set forth in the appropriate schedule. Deponent further says that wherever in any of said schedules the word "none" has been written or wherever such schedule has been left blank, such word or omission is to be taken as equivalent to an affirmative allegation by deponent that the decedent left no property of the kind to which the schedule relates. Sworn to before me and in mv presence subscribed this day of ,19... * iSchedules A and C must be filed in triplicate, one copy to be attached hereto, the other copies to be given to the auditor along with the order to appraise. Schedule A A-l. Real property. Estimated Market Value Value as Appraised in This Proceeding Schedule A A-2. Cash on hand and on deposit. Amount Value as Appraised in This Proceeding Schedule A A-3. Personal chattels — notes and moi^tgages, etc. Estimated ^Market Value Value as Appraised in This Proceeding 1711 DETERMINATION OF INHERITANCE TAX §2054 Schedule A A-4. StocJcs and honds. Estimated Market Value Value as Appraised in This Proceedinj' Schedule A A-5. Interest of decedent in amj co-partnership. Estimated Market Value Value as Appraised in This Proceeding Schedule A 'A-%. Property left ly decedent not included in the foregoing sul-schcdules hut including property transferred by the decedent in contemplation of death or to take effect at death. Estimated Market Value Value as Appraised in This Proceeding Schedule B B-1. Funeral expenses, costs of administration and attorney fees. Claimed Allowed Schedule B B-2. Dehts of decedent. Also deductions claimed and not included in the pnceding sub-schedule. Claimed Allowed Schedule C Beneficiaries, their interests, relationship to 'flfceased, do. § 2055 INHERITANCE TAX 1712 SCHEDULE "A." In the Probate Court of County, Ohio. In the matter of the estate of , deceased. The undersigned b»ing all of the heirs at law of ...... deceased, hereby i'oin in the prayer of the petition for determination is to inheritance tax lerein. § 2055. Form — Application to fix inheritance tax (no administration). In the Probate Court of County, Ohio. In the matter of the estate of doc€«a«oerty which the deceaynient of tlie inheritance tax due the State of Ohio on the successions hereinljcfore described. Your petitioner further, for himself and on behalf of all the legatees and persons interested, hereby expressly waives all notices which otherwise would by law be required to be given and consents that said court may determine tlie inheritance tax on said successions forthwith on the presenta- tion and filing of tliis petition, it being understood, however, that there shall l»e a just and fair ajipraisal. and tliat said tax shall be determined at the lowest lawful rate applicable thereto under the laws of the State of Ohio. Dated , 19. . . , Petitioner. P. O. Address State of , County of ,83. the above named petitioner, being duly sworn, on oath says that the foregoing ])etition by him sub.scribed, is true to liis own knowledge except as to those matters therein stated on information and belief, and as to those matters Ix- l)elieves it to l>e true. Subscribed and sworn tu before me this day of , 10. . . Notary rublic. County of , State of § 2057. Form — Application to fix inheritance tax — Small estate. state of Ohio, Probate Court, Clark County. Case No , Docket , Page In the matter of the inheritance tax on the succession to property. Estate of late of Clark County, Ohio, deceased. To the Probate Court of Clark County, Ohio. Your petitioner respectfully represents: That he is of the estate of who died on the day of , 19..., being at the time a resident of and domiciled at That at the time of his decease said decedent was possessed of certain property which is under the jurisdiction of the State of Ohio for inherit- ance tax purposes. That a dt^serii^t ion of all propertv subject to determina- tion of tax, together with the estimated actual market value, of the same at the time of decedent's death, at which value your petitioner consents that the same be appraised, if necessary, is as follows, to-wit: 1715 APPRAISEMENT BY COUNTY AUDITOR §2058 Property (a) (b) DESCRIPTION Location Estimated Value Tota.l That decedent was possessed of no other property of any kind, real, personal or mixed, or any interest in other property at the time of his deatli, which was situate in or wiiich may be construed as an interest in such property in tlio J^tato of Oliio. Tliat said property passes by will [or, under the intestate laws] in the proportions and amounts and to the persons and corporations designated, with tiie relationship of the persons as follows: NAME (c) RESIDENCE Age Proper tion Relationship Amourt in Ohio Property 1 ) That the total of decedent's estate is the sum of $ That the amount of debts, exclusive of mortgages on real estate, is the sum of $ WHEREFORE, your petitioner prays that summary proceedings be had for the purpose of adjustment, determination and payment of the inherit- ance tax due the State of Ohio on the successions hereinbefore described, or that this estate be certified as exempt if so found and determined. Dated , 19 . . . , Petitioner. State of Ohio, County of Clark, ss. , the above named petitioner, being duly sworn, on oath says that the foregoing petition by him subscribed, is true to his own knowledge except as to tiiose matters therein stated on information and belief, and as to those matters he believes it to be true. Subscribed and sworn to before mfe this day of , 19 . (a) (b) (c) NOTE: If property consists of real estate or tangible personal prop- erty give name of municipality or township in which it is situated. If property consists of securities or other assets in the possession or in control or custody, in whole or in part, of any corporation, bank, trust company or other institution, person or persons in Ohio, give location of such corporation, bank, trust company or other institution, person or pcTSons. NOTE: In case of mortsaged real estate give value of equity only. NOTE: Indicate life estates, terms of years, giving age of life bene- ficiary at the date of decedent's demise. § 2058. Appraisement by county auditor. § 5341. The county auditor shall be the inheritance tax appraiser for his county. The probate court, unon its own motion may, or upon the application of any interested person, including the tax com- mission of Ohio, shall by order direct the county auditor to fix the actual market value of any property the succession to which is subject to the tax levied by this subdivision of this chapter. § 2059 INHERITANCE TAX 1716 Auditor to give notice. Such auditor shall forthwith give notice by mail to all persons known to him to have a claim or interest in the property to be appraised, including the tax commission of Ohio, and to such persons as the probate court may by order direct, of the time and place when he will ap- praise such property. Appraised at market value. He sha'l at such time and place appraise the same at its actual market value as of the date of the accrual of the tax, except as hereinafter provided, and subject to the rules hereinafter prescibed. May subpoena witnesses. Such county auditor for such purpase is hereby authorized to issue subpoenas and to compel the attendance of witnesses and the production of books and papers before him, and to examine such witnesses under oath concerning such property, the value thereof, and the nature and circumstances of the succession. Disobedience of such sub- poena, or refusal to testify on such examination shall be pun- ished as a contempt of the probate court. Report of finding. The county auditor shall report his findings in writing, together with the depositions of the wit- nesses examined, and such other facts in relation thereto as the probate court may order. Such report shall be made in duplicate; one copy thereof shall be filed with the probate court, and the other with the tax commission of Ohio. Fees of sheriff, etc. The fees of the sheriff or other officer, serving such subpoenas, and the actual and necessary traveling and other expenses incurred by the county auditor in making the appraisement shall be certified by the county auditor on such report. If the probate judge finds such fees and expenses to be correct, he shall allow such fees, and so much of such expenses as he may find to have been reasonable, having regard to the amount of the state's share of the taxes, and certify the amount so allowed for each on the order fixing the taxes. Entire estate to be appraised. For the purpose of this and succeeding sections of this subdivision of this chapter relating to the assessment of the tax, the entire estate of a decedent, though passing to several persons, institutions or corporations, shall be the subject of inquiry in a single proceeding. [108 v. 568.]" § 2059. Appraisal of property by auditor. The court may of its own motion, direct the auditor in any case to make an appraisal. But in most cases the court will be able to fix the value just as well as the auditor, and unless especially asked for, the court might well proceed and fix the value and not refer the same to the auditor. Whether the court 2T § 230 N. Y. inheritance tax. 1717 AUDITOR TO MAKE APPRAISAL § 2060 could refuse to so refer, if requested, is doubtful. In New York the court appoints an appraiser; our statute practically per- mits the same thing, merely designating who should be the appraiser. The New York statute now designates the county treasurer to act where there is no salaried appraiser. When the matter is so referred to the auditor the court makes an order to that effect. §2060. Form— Journal entry directing auditor to make appraisal. In the Probate Court of County, Ohio. In the matter of the settlement of the estate of , deceased. DETERMINATION OF INHERITANCE TAX. This day of , 19 . . ., the matter of the determination of what inheritance tax, if any, is due in connection with the settlement of the estate of , deceased, came on to be heard. And thereupon the court [on its own motion] [on the motion of 1 directed the auditor of county to proceed according to law to fix the actual market value of each share of said estate the succession to which is subject to inheritance tax under tlie laws of Ohio. It is further ordered that a writ of appraisal be issued forthwith to said auditor. Such writ shall contain a list of names of the persons entitled to succession to said estate or any part thereof, and a brief description of the property to which each is entitled to succeed. Of his proceedings under such writ the said auditor is directed to make due return to this court without unnecessary delay. § 2061. Form — Writ to auditor to appraise. In the Probate Court of County, Ohio, ^o In the matter of the estate of , deceased. ORDER TO APPRAISE. To the Honorable County Auditor nnd Tidieritance Tax Appraiser for County, Ohio : Pursuant to an order of the Probate Court of county, made and entered on the day of , 19..., and under the provisions of Section 5341 et seq. of the General Code you are hereby directed to fix the actual market value, as of the date of death, of tlie property of the above named , who died on tlie day of , 19..., and who.se place of residence was in county. Diiplifatc itemized statements of the jiroperty to be appraised, markyd Schedule A,* and a list of the names and addresses of all persons known to the court to liavo a claim or interest in such property, marked Scliedule (', are herewith handed you for your use in making your report hereon. Notice of the time and place of your api)raisal must be jriven as pre- scribed by law to the tax commission of Oiiio and to tbe persons named in Schedule C* and also to the following: When completed you will report your findings in writing together with +1)6 depositions of the witnesses examined and a statement of the fees of § 2062 INHERITANCE TAX 1718 the oHicer who may serve any subpoenas issued by you and of your own necessary traveling and other expenses. Sucli report shall be in duplicate; one copy thereof shall be filed with this court, and the other with the tax commission of Ohio. Witness my hand and the seal of said Probate Court at , Ohio, this day of , 19 . . . , Probate Judge. [seal] * Two copies of Schedule A and a copy of Schedule C, as contained in the application should be given to the auditor along with this order. § 2032. Duties of auditor. The auditor should proceed to obey the orders of the court. He has power to subpoena witnesses, and compel them to dis- close what they know concerning the property and its value. Disobedience is a contempt of the Probate Court. When the auditor has fulfilled the commands of the court, he must make his report in duplicate; one copy he gives to the Probate Court, the other to the tax commission. Ordinarily this report will be a mere finding of facts, but the court may order the testimony of witnesses to be taken in writing and filed with the report. The report should show the costs and expenses of making the appraisement. This report must show that it includes all the property of the decedent and value at the time of his death. It must also show the township or municipality in which the tax originates. Under the former New York statute the appraiser found not only the value of the property, but the assessments as well. The present New York statute is similar to ours.-^ In that State it is held that his powers and duties are of a quasi judicial character, and call for the exercise of sound judgment, discretion and knowledge of legal principles.-^ That his functions are somewhat similar to those of a jury called by the court in an equity case to aid its conscience. The whole matter rests with the surrogate and continues with him until final determination after appeal.^'' His duties do not include the writing of legal opinions.^^ He can not determine ques- tions of residence.^- He can administer oaths and subpoena witnesses, but he can not issue a commission to take testimony 28 § 230 N, Y. tax law. 31 IMatter of Von Bermuth, 171 29 People vs. Glynn, 106 N. Y. N. Y. Sunp. 704. Supp. 956. " 32:^!■at!er of Giant, 144 K Y. 30 Msitier of Thompson, 68 K Y Supp. 567. Supp. 063. ]^719 HEARING BEFORE AUDITOR § 2063 in a foreign jurisdiction."^ In such cases an expert's opinion would probably be the best evidence. The good will of a going concern is an asset but very difficult of ascertaining its value.^* Unless of definite and satisfactory value, and probable large amount, it will generally not be taken into consideration. The value of partnership interests will generally be fixed in the same method that individual property is. The value of all property is to be fixed as of the date of death of decedent. Where life insurance is payable to the estate it is subject to tax; where not so payable, it is not."^ It is said it is the only form in which property can pass from one who seeks to make provision for the object of his bounty at his death, without inheritance taxes at his death.'^ § 2063. Notice of hearing before auditor. [Title. To , you will please take notice tliat pursuant to an order from Probate Judge of County, Ohio, made and entered on tlie day of , 10 . . . I will on the day of , 19 . . . , at o'clock at the auditor's office in said county, proceed to appraise the property of , deceased, at its fair market value at the time of decedent's death, for the purpose of fixing the inheritance tax that may be due and payable thereon. Such of you as are minors or unsound mind or other disability will make the same known, that the court may act as provided in sections 11249 to 11253 of the General Code. , Auditor. WAIVER. We the undersigned, beneficiaries of the estate of , do hereby acknowledge service of the above notice. RETURN. State of Ohio, County, ss. I , the auditor of Clark County, Ohio, being first duly sworn say that on the day of , 19. , . I mailed a copy of the aliove notice to , addressed ; to , addressed ; to , addressed , Auditor. Sworn to and subscribed before me and in mv presence this day of , 19.. . 33 Matter of Grant, 151 X. Y. 35 Gleason and Otis, Inheritance Supp. 1119. See Glrason and Otis, tax, 2nd ed. 162-165-173. Inheritance taxation, 2nd cd. 449. 3o Under the U. S. inheritance tax 34 See illustrations in Glca;-:on and all above $40,000 is subject to tax. Otis, Inheritance tax, 2nd ed. 358- "374. § 2064 INHERITANCE TAX 1720 § 2064. Fixing value of real estate. The assessed value of property for taxation, while not con- trolling,-' is a matter for consideration in fixing the value of real estate. If it is not clearly wrong the auditor or the court as the case might be, would be justified in following it. But it is said the best evidence is the price obtained for hotia fide sales of property in the vicinity within a short time prior to decedent's death.^^ The price realized at a forced sale is no fair test of the market value,^^ Yet is is a matter to be con- sidered where property is put up for public sale, freely adver- tised and sold for the highest bid among several bidders, this could be deemed to its value. The rental value is an important element to consider in fixing real estate values. While it is held that undivided interest is the full portion of the whole,** yet it is fair to assume that some deduction should be made because it is undivided. It is held in New York that where real estate is specifically devised, subject to mortgage indebtedness, such indebtedness should be deducted.*^ Real estate should never be appraised at a fancy or speculative price. The value of all property is its actual value at time of decedent's death. Estate of dower and tenancy by courtesy are not subject to taxation.*^ § 2065. Appraisal of personal property. Perhaps the best rule to be applied in fixing the value of ordinary personal property is that which it will bring at public sale. When it is in the form of notes and accounts, that which can be collected thereon, lees cost of sale and collection. In the matter of stocks actually dealt with on the market, the average price a reasonable period before and after death of the decedent is the best measure of value.*^ When the stocks are not actually on the market, more difficulty is experienced. In such cases its intrinsic value must be ascertained by a determina- tion of the value of the corporation that has issued it.*^ sTMcGee vs. State, 105 Iowa 9; would probably follow that a be- Wainer vs. Corbin, 91 Conn. 532. quest in lieu of dower or curtesy 38 Matter of Arnold, 99 N. Y. would be exempt to the extent of (Supp.) 740. In this case it was the value of the dower or curtesy held it was error for the appraising interest. oflBcer to fix a higher price. If wife takes under will waives 39 Matter of Patmo, 169 N. Y. dmver right. Op. Atty. Genl. 1920, Supp. 765. p. 834. 40 Wingert vs. State, 129 Md. 28. See note 63, § 2029 encumbrances. 41 Matter of Murphy, 50 N, Y. 43 Gleason and Otis, Inheritance Supp. 1110; Matter of Sutton, 38 taxation, 2nd ed. 343. N. Y. Supp. 227. 44 IMatter of Jones, 172 N. Y. 575 See note 2029. See illustration from N. Y. cases in 42 Gleason and Otis. Inheritance tax, 2nd ed. 185. From this it 1721 FUTURE OR LIMITED ESTATE DETERMINED § 2066 Great difficulty may be experienced in fixing a value to things that liave no general market value, such as heirlooms, pictures, etc. Also where some portion is within the State and some without, thus when a non-resident died owning stock worth $50,000 in a consolidated corporation, organized under the laws of Ohio and other States, in such case the attorney general held such stock is subject to tax and should be appraised as such proportion of its market value as is determined by the propor- tion of the entire property of the company located in Ohio, due allowance being made for the location of particular property in this and other States.*^ § 2066. Value of future or limited estate determined. § 5342. The value of a future or limited estate, income, interest or annuity for any life or lives in being, or of any dower interest or other estate or interest upon which any estate or interest the succession to which is taxable under this chapter is limited, shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance in ascer- taining the value of annuities for the determination of liabilities of life insurance companies, except that the rate of interest shall be five per centum per annum. Superintendent of insurance shall determine. The super- intendent of insurance shall, without a fee, on the application of any probate court or of any county auditor, determine the value of any such estate, income, interest or annuity, upon the facts contained in any such application, and other facts to him submitted by such court or auditor and certify the same in duplicate to such court or auditor, and his certificate thereof shall be conclusive evidence that the method of computation therein i^ correct. Whole estate to be valued. In estimating the value of any estate or interest in property, to the beneficial enjoyment or possession whereof there are persons or corporations presently entitled, no allowance shall be made on account of any contingent encumbrance thereon, nor on account of any contingency upon the happening of which the estate, or some part thereof, or interest therein, may be abridged, defeated or diminished; but in the event of such encumbrance taking effect as an actual burden upon the intere-st of the beneficiary, or in the event of the abridgement, defeat, or diminution of such estate, or interest therein, as aforesaid, Refunder. A refunder shall be made in the manner pro- vided by section 5339 of the General Code, to the person properly entitled thereto of a proportionate amount of such tax on account of the encumbrance when taking effect, or so much as will -reduce the same to the amount which would have been assessed Gloason and Otis, Inheritance tax., 45 Atty. Genl's. op., Sept. 7, 1020. 2nd ed. 338-351. 05 Bull. 414. § 2067 INHERITANCE TAX 1722 on account of the actual duration or extent of the estate enjoyed. [108 V. 1195.] « § 20C7. Fixing value of future or contingent interests. Section 2066 (§ 5342, G. C), section 2071 (§ 5343, G. C), and section 2073 (§5344, G. C), provide for the fixing of future vested or contingent interests. Two things should be borne in mind: first, the value is to be fixed as of the time of decedent's death; second, it is payable within a year of decedent's death, no matter when the party entitled gets possession. This no doubt will work a hardship in some instances.^'^ These interests are to be fixed by the rule, method and standard of mortality and value, employed by the superintendent of insurance of Ohio. The table he follows is that of the American experience at the rate of 5%. For all practical purposes there is not much difference between the various tables. Unless the statute so states — and ours does not — estates of dower and courtesy are not subject to taxation.**''' If there is a contingent incumbrance no allowance shall be made for this. When the incumbrance becomes a reality, the person paying the tax, roay, by making a proper application, have a just pro- portion refunded. Of course if the incumbrance is such that its value can be determined, it should be deducted. § 2068. Application to superintendent of insurance. ["Title.] ,19... Dear Sir: — In pursuance of section 5342 General Code, you are hereby requested to determine and ascertain the value of the following estate, annuities and interests: Legacy or Value or Name Age Estate Amount $ To superintendent of insurance department. Respectfully, , Probate Judge." 46 See §§231 and 230, N. Y. in- ing his, the son's, natural life. The heritance tax. trustee is clothed also with power 4ca If widow took under will it to invade the principal in the event would not be deducted. Atty. that it becomes necessary to do so Genl's op. 1920, p. 834. Right to for the support of the beneficiary, remain in mansion house not to be At the son's death his funeral ex- deducted. Id., § 1044. ' penses are to be paid out of the 4' See §2037 G. C, Tax; when to fund. The residue is then to be be paid. distributed to the heirs at law of (No. 1997.) the beneficiary, if he should leave R. died testate. By his will he any legitimate issue, but if no such placed all his property in the Iwnds issue is left then it is to pass to of a trustee with authority to pay the next of kin of the testator. the entire income thereon to the son Held: of the testator, or to c-xpend the in- (1) Tho beneficial interest of the come for the benefit of such son dur- 1723 INHERITANCE Tx^XATION TABLE §2069 §2069. Inheritance taxation table. AMERICAN EXPERIENCE TABLE— DISCOUNTED AT FIVE PER CENT. COMPOUND INTEREST. Expectation Present Expectation Present Age of Life Value of $1 Age of Life Value of $1 in Years per Annum in Years per Annum '11.45 $12,813 43 22.35 $12,133 1 47.94 14.922 49 21.63 11.901 2 50.16 15.731 50 20.91 11.662 3 50.91 10.125 51 20.20 11.416 4 51.23 16..346 52 19.49 11.164 5 51.13 16.472 53 18.79 10.905 G 50.83 16.535 54 13.00 10.640 7 50.41 16.561 55 17.40 10.370 8 40.90 16.560 53 16.72 10.095 9 40.33 16.540 57 16.05 9.8145 10 43.72 16.505 58 15.39 9.5299 11 48.09 16.461 50 14.74 9.2413 12 47.45 16.415 GO 14.10 8.9493 13 40.80 16.366 Gl 13.47 8.6545 11 40.16 16.316 62 12.86 8.3574 15 45.51 16.263 63 12.26 8.0588 1 10 44. P5 16.207 64 11.67 7.7590 17 44.19 16.149 65 11.10 7.4588 13 43.53 16.088 G6 10.54 7.1592 10 42.87 16.024 67 10.00 6.8607 20 42.20 15.957 G3 9.47 6.5642 21 41.53 15.886 69 8.97 6.2705 22 40.85 15.813 70 8.48 5.9801 23 40.17 15.736 71 8.00 5.6942 21 30.49 15.655 72 7.55 5.4129 25 38.81 15.570 73 7.11 5.13.59 23 33.12 15.482 74 6.68 4.8628 27 37.43 15.3S9 / > 6.27 4.5926 23 36.73 15.292 76 5.88 4.3248 £0 36.03 15.191 77 5.49 4.0586 30 35.33 15.084 78 5.11 3.7939 CI 34.63 14.973 79 4.75 3.5311 33.92 14.857 80 4.39 3.2702 33 33.21 14.735 81 4.05 3.0135 31 32.50 14.603 82 3.71 2.7606 35 31.78 14.475 83 3.39 2.5105 30 31.07 14.336 84 3.08 2.2607 37 30,35 14.191 85 2^77 2.0008 S3 20.63 14.039 86 2.47 1.7606 SO 23.(^0 13.881 87 2.18 1.5175 40 23.13 13.716 83 ..'..... 1.91 1.2861 41 27.45 13.544 CO 1.66 1.0670 42 26.72 13.365 90 1.42 0.85453 43 25.99 13.179 91 1.10 0.64497 44 25.27 12.985 02 .98 0.44851 45 24.54 12.783 93 .80 0.28761 40 23.81 12.574 94 .64 0.13605 47 23.08 12.357 C5 .50 son is to be appraised as a life estate. (2) The cliarge on account of .funeral expensed is to be valued by setting aside a roasonal)le sum for that purpose at its present worth. (3) The contingent remainder is to bo immediately taxed in the seven per cent, class by virtue of § 5343 of the General Code. Atty. Genl's op. 1920, p. 660. § 2070 INHERITANCE TAX 1724 § 2070. Computation. Almost all the inheritance laws of the various States permit the matter of the computation of inheritance tax to be referred to a State official who is an expert along that line, and no doubt, practically in all cases where the matter is any way complicated, such reference will be made. But there will be a good many instances in ordinary practice where the matter is merely a life estate, or dower, or annunity, etc., and a reference to the state official will hardly be deemed necessary. The Ohio State superintendent uses the American Experience Table. As this table is not given in the tables elsewhere given in this volume, we have deemed it wise to insert it here. The same method can be used as that described in See. 2136 et sequor at the end of the work.*^ § 2071. Taxation of estates dependent on contingencies. § 5343. When, upon any succession, the rights, interests, or estates of the successors are dependent upon contingencies or condition.s whereby they may be wholly or in part created, de- feated, extended or abridged, Tax at highest rate. A tax shall be imposed upon such successions at the highest rate which, on the happening of any such contingencies or conditions, would be possible under the provisions of this subdivision of this chapter, Due at once. And such taxes shall be due and payable forthwith out of the property pas.sing, and the probate court shall enter a temporary order determining the amount of such taxes in accordance with this section; Refunder. But on the happening of any contingency whereby the said property, or any part thereof, passes so that such ultimate succession would be exempt from taxation under the provisions of this subdivision of this chapter, or taxable at a rate less than that so imposed and paid, the successor shall be entitled to a refunder of the diiference between the amount so paid and the amount payable on the ultimate succession under the provisions of this chapter, without interest; Executor to apply for. And the executor or trustee shall immediately upon the happening of such contingencies or condi- tions apply to the probate court of the proper county, upon a verified petition setting forth all the facts, and giving at least ten days' notice by mail to all interested parties, for an order modifying the temporary order of said probate court so as to provide for a final as.sessment and determination of the taxes in accordance with such ultimate succession. Such refunder shall be made in the manner provided by section 5339 of the General Code. [108 V. 569.]*^ 48 See Gleason and Otis on Inherit- single heir. Atty. Genl's op. 1920, ance tax, 2nd ed., 298, etc. p. 970. When there is a devise to A. for Assessment of inheritance tax life and at his death to the heirs of upon a devise of % life estate to a his body, the contingent remainder widow with power to consume the should be valued on the hypothesis principal, remainder to children, that it will become vested in a requires the valuation of the life 1725 WHEN CONTINGENCIES EXIST § 2072 § 2072. When contingencies exist, tax to be at higher rate. The provisions of the previous section may seem to work an injustice, in the collection of moneys that may never become due or payable, and was not found in the earlier statutory pro- visions of States, relating to the inheritance tax. But the State has assumed that the person receiving the property, should run the risk of the contingencies, and allow to such person the right to come into court, when the contingency has occurred, and have a refunder of the amount he has paid. Similar provisions have been declared constitutional.^" In a very interesting case — Matter of Parker, 226 N. Y. 261 — this question is considered, and the court holds the statute should be followed to the letter.^^ When the contingency happens the executor or trustee shall immediately apply to the Probate Court, by a verified petition setting up all the facts, and give notice by mail to all interested parties, to have a final assessment made. If there were no executor or trustee I have no doubt a party in interest could make the application. It would seem that the order could be appealed from as a final order. § 2073. Estates held in abeyance or expectancy. § 5344. Estates in expectancy which are contingent or defeasible, and in which proceedings for the determination of the taxes have not been taken, or have been held in abeyance, shall be appraised at their full undiminished value, when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estates for the purpose of this subdivision of this chapter, upon which such estates in expectancy may have been limited. Estate for life. An estate for life or for years which can be divested by the act or omission of the legatee, or devisee, shall be appraised and taxed as if there were no possibility of any such divesting. [108 v. 570.] ''- § 2074. When tax not paid on estate held in abeyance. If for any reason proceedings have not been taken — an estate in expectancy, etc. — such estate shall be appraised at its full estate in the ordinary way without sessments and adjustments. Op. any additionals on account of her Atty. Genl. 1920, 65 Bull. 431. power to invade the principal, and -^a See § 2,30, N. Y. inheritance tax. the valuation of the remainders as so Matter of Brez., 172 N. Y. GOO; ordinary vested remainder ignoring Matter of Vanderbilt, 172 N. Y. 69; the power of consumption of the People vs. Loueston, 284 111. 119. principal by the widow. If any ^i gee Gleason and Otis, Inherit- ^ncroachment on the principal is ance tax, 2nd ed. 271, where the de- effoctod the remaindennen will be cision is quoted and matter fully entitled to a refunder on final as- described. f>2 See § 230, N. Y. inheritance tax. §. 2075 INHERITANCE TAX 1726 value at the time the person entitled thereto is entitled to come into possession, without any diminution from the preceding es- tate. This does not apply, however, to estates in remainder, that vested prior to the passage of the law. The time always dates from the decedent's death. This is held to be true even though the remainder be defeasable.^^ This would seem to allow for increased or diminished valuation between the death of the decedent and the time the person is entitled to possession. § 2075. Form— Report of auditor. In the Probate Court of County, Ohio. No. Ill the matter of tho estate of , deceased. DUPLICATE REPOET OF THE INHERITANCE TAX APPRAISER. To Honorable , Probate Judge County, Ohio, and to the Honorable Tax Commission of Ohio: Said having died on the day of , 19..., I, the undersigned county auditor and inlieritanee tax appraiser, who was by an order of the Probate Court of County, duly made and entered on the day of , 19..., directed to fix the actual market value of all tlie property of said decedent the succession to which is sub- ject to tax levied under the provisions of the Inheritance Tax (Law of Ohio, do respectfully report: First. That I received such order on the day of , 19..., and on the day of , 19 ... , I gave notice by mail, postage prepaid, to all persons, known to me to have a claim or interest in the property to be appraised, inchuling the tax commission of Ohio, and to such other persons as said Probate Court did by' its order direct, of the time and place at whicli I would appraise said property, a true copy of which notice is hereto attached. That the names of those to whom I mailed such notice, properly addressed, are as follows: The Tax Commission of Ohio, Columbus, Ohio: Second. At the time and place in said notice stated, namely, on the day of , 19... Fand at other and subsequent times and divers places to which these proceedings were regularlv adjoiirned], I appraised at its actual market value as of the date of death all the prop- erty, real and personal, of which tiie said decedent died seized, or which was in any way subject to tlie payment of said inheritance tax, and which was itemized in the statement, marked Schedule A, which accompanied the order to appraise. The value of each item has been inserted bv me opposite the same where it appears on such schedule which is herewith returned as part of this report. 63 Gleason and Otis, Inheritance tax, 2nd ed. 266. 1727 PROBATE COURT SHALL FIND ACTUAL VALUE § 2076 EEC APITULATION , Third. Total value of decedent's personal estate was $ Total value of decedent's real estate was $ Total $ Fourth. I further report that the following interested persons appeared before me in this proceeding: Fifth. I do further report that in this proceeding on my own motion I issued subpoenas to the sheriff of said county for the following named persons as witnesses herein: That at the request of I issued subpoenas for the following named persons: That the original subpoena so issued with the returns of said sheriff' thereon showing his fees for service are hereto attached and filed here- with, that I incurred actual and necessary traveling and other expenses as follows: Witness and mileage paid by me $ Traveling expenses Other expenses Sheriff's fees as follows Sixth. I further report that attached hereto are all the depositions taken by me in this proceeding, to-wit: Deposition of , marked Exhibit Deposition of , marked Exhibit Deposition of , marked E^xhibit Deposition of , marked Exhibit Seventh. I do further report: All of which is respectfully submitted at this day of ,19..- County Auditor and Inheritance Tax Appraiser. § 2076. Probate court shall find actual value. § 5345. From the report of appraisal and other evidence relating to any- such estate before the probate court, such court shall forthwith upon the filing of such report, by order entered upon the journal thereof, find and determine, a.s of course, the actual market value of all estates, the amount of taxes to which the succession or successions thereto are liabh', the successors and legal repre- sentatives lifible therefor; and the townships or municipal corpo- rations in which the same originated. §2077 INHERITANCE TAX 1728 May find where no application. Provided, however, that in case no application for appraisement is made the probate court may make and enter such findings and determinations without sucli appraisement. Notice to be given. Thereupon the judge of such court shall immediately give notice of such order to all persons known to be interested therein, and shall immediately forward a copy thereof to the tax commission of Ohio, together with copies of all orders entered by him in relation to or affecting in any way the taxes on such estate, including orders of exemption. When it appears, a minor, etc., is interested. If it shall appear at any stage of the proceedings that any of such persons known to be interested in the estate is an infant or of unsound mind, the probate court may if the interest of such person is presently involved and is adverse to that of any of the other persons interested therein, exercise the powers provided for in sections 11249 and 11253, inclusive, of the General Code. [108 V. 570.]^^ § 2077. Proceedings of court on filing report of auditor, etc. On filing of the report of the auditor when appraisal is had, or on the petition of an interested person where no appraisal by the auditor is asked for, the court makes a finding of the value of the property and the amount of the tax that is due thereon, and the portion that is chargeable to the succession of the various portions of property, and that is charged to the parties interested. Where an appraisal by the auditor is had, the court accepts the value as found by the auditor. When there is no appraisal by the auditor, the court finds the value from such evidence as it may have before it, and the finding will be very much similar to that heretofore given.^^ When this is done, notice must be given to all persons known to be interested therein, and a copy of this finding must be immediately sent to the tax commission. If it appears that a person under disability has an interest, then a guardian ad liteniy should be appointed, and such guardian should file a general denial, etc.''"' This matter of notice is a very important thing. It has been held that a statute that did not provide for notice was uncon- 54 .See §231, N. Y. inheritance 55 § 2053. tax; § 11249 G. C, provides how the 56 See § 1384, § 845, § 1584, § 845, defense of an insane person shall § 1417. be made and § 11253 G. C., how an infant. 1729 DETERMINING TAX AFTER APPRAISAL § 2078 stitutional.^^ Likewise that if notice is not given the pro- ceedings are invalid.^* That no previous notice has been given, provided the one here provided for is given, will not invalidate the proceedings. Parties upon whom notice has once been served, will be held to have notice of all subsequent proceedings.^** In the absence of proof to the contrary, it will be presumed that the proper notice has been given.*^° And if in fact no notice has been given the matter may be opened up."^ If it is impossible to give notice then it can be excused.*^- If the proceedings showed that a certain person was interested, and no notice was given, I would be inclined to believe that on motion of an interested party the entire proceedings would be set aside. The court however might require before so doing, that the interested party first show that he is injuriously affected by the order made. If it does not appear that the court knew that the party had an interest, the proceedings will certainly not be set aside, unless a showing be made that the party is injuriously affected by the order. The court however should exercise great vigilance in finding out all parties that have an interest and then seeing that they have notice. §2078. Journal entry — Determining tax after auditor's appraisal. In the Probate Court of County, Ohio. In the matter of the settlement of the estate of , deceased. DETERMINATION OF INHERITANCE TAX. This day of , 19 ... , the return on the writ of appraisal heretofore issued herein having been made by the auditor of county, upon consideration of said return and the other evidence, the court does hereby find and determine that the gross value of said estate is dollars, the debts and costs of administration are dollars, and the net actual market value thereof is dollars, and that the persons entitled to succeed thereto, their ages when material, their relationship, if any, to the decedent, the value of the succession to 57Keeney vs. N. Y., 222 V. S. 60 Matter of Miller, 110 N. Y. 525; Matter of MePherson, 104 N. 216. Y. 306; Ferry vs. Campbell, 110 Gi Matter of Daly, 69 N. Y. Supp. Iowa 290. 494. In this case the party was 58 Union Trust Co. vs. Durfee, notified of the appraisement, but 125 Mich. 487; Matter of Wolfe, the court did not notify him of the 137 N. Y. 306; Hostetter vs. State, order made by it fixing the value, 26 0. C. C. 702. etc. 59 Hanberg vs. Morgan, 263 111. 62 People vs. Kellog, 268 III. 489. 616. §2079 INHERITANCE TAX 1730 which each is entitled, the exemption allowed to each, the balance of each succession subject to tax, the amount of tax to which each succession is liable, the person by whom such tax should be paid, and the township or municipality in which such tax originates are as follows: ° i "? > a E «2 Il5 < o >. ° .J o c 1 Township or Municipality in which Property Located i-! 1 ^ 1 U 1 '■; 1 1 ! 1 1 — 1 1 1 1 i 1 1 1 I 1 1 i The court further finds that the fees of the sheriff or other officer, for serving subpoenas, and the actual and necessary traveling and other ex- penses incurred by tlie county auditor in making the said appraisal, as certified by such auditor are as follows: J sheriff, fees on subpoenas, $ , auditor, actual and necessary traveling and other expenses, $ The court further finds that said fees and expenses are correct and should be, and they are hereby, allowed. It is further ordered that such fees, together with the court cost on this proceeding taxed at $ be certified to the county auditor at the time and in the manner required by law, to be paid and credited in the manner provided by law. . .It is further ordered that notice of this adjudication and determination be given to all persons known to be interested therein and that a copy of this entry, together with copies of all other entries in relation to or in any way affecting the inheritance taxes on the successions of said estate and the exemptions allowed be forwarded forthwith to the tax commission of Ohio. The State of Ohio, County, ss. T , judge and ex-officio clerk of the Probate Court of said county, do liereby certify that the foregoing is a true copy of the journal entry containing the finding and order of the court as to the liability to in- heritance tax of the estate of , deceased, or any of the successions therein, made and entered on the day of , 19 . . . Witness my hand and the seal of said court this day of , 19... , Judge. § 2079. Contents of notice and how served. The statute does not say what this notice shall contain nor how it should be served. It ought to show sufficient to apprize the interested party of the manner and extent to which the order may affect him. The statute provides that the notice given by the auditor of appraisement may be by mail, and I am inclined to think that would be sufficient in this case. It could be made in any manner the court might direct. If there are a number of persons whose address is unknown, it could 1731 WHO MAY FILE EXCEPTIONS § 2080 be made by publication. There is a general statute that pro- vides that when any notice is required by law and the manner of giving it is not directed by statute, it may be in such manner as the court may direct/'"' § 2080. Form of notice fixing of tax. NOTICE OF ASSESSMENT OF TAX [8 5345 G. C], [Title.] To : You are hereby notified that 1 have, by order made and entered the day of , 19..., assessed and fixed the cash value of such interest, estate, legacy or property, as you are entitled to receive from the estate of the above named decedent, and the amount of tax to wliich the same is liable under the laws in reference to the taxable transfers of property as follows : Estate, Interest or Property Transferred Cash Value Tax Assessed Thereon You will further take notice that if you wish to file exceptions you must do so within sixty days from the day this order of assessment was made by filing such exceptions in writing in this court. Probate Judge. §2081. Form order exempting estate from inheritance tax. [Title.] This day this matter came on to be heard in application of , to fix the inlieritance tax on the property of , deceased, and the same was submitted to the court upon the evidence, and on dne consideration thereof, the court finds that the transfer of the property of said decedent is exempt from tax under the law relating to taxable transfers, and there is no tax due thereon. 64 § 2082. Who may file exceptions. § 5346. The tax com- mission of Ohio, or any person dissatisfied with the appraisement and determination of taxes, may file exceptions thereto in writing with the probate court within sixty days from the entry of the order, -stating the grounds upon which .such exceptions are taken. Court to fix time of hearing. The probate court sliall there- upon by order fix a time not less than ten days thereafter for 63 § 37, §11205 Cx. C. If made entry, together with a copy of all by mail it should be by registered entries in relation to or in any way letter. afTocting tlie inlieritance tax of said 64 This may be added: "It is estate be certified to the tax com- further ordered that a copy of this mission of Ohio. § 2083 INHERITANCE TAX 1732 the hearing of such exceptions, and shall give such notice thereof as it may deem necessary; provided, Notice. That a copj^ of such notice and of such exceptions shall be forthwith mailed to the tax commission and the county auditor. Finding. Upon the hearing of such exceptions, said court may make such order as to it may seem just and proper in the premises. No costs shall be allowed by the probate court on such exceptions. [108 v. 570.]**^ § 2083. Filing- exceptions, etc. When the order is made under the above section a dissatisfied person has two remedie.s. He may have the matter re-heard before the Probate Court or he may appeal to the Court of Common Pleas. As the finding of the Probate Court may have been made without a full understanding of the matter it may be advisable to have the matter re-heard by the Probate Court, and then if relief is not granted, appeal to the Court of Common Pleas. These exceptions may be filed any time w'ithin sixty days from the date of the order. If no exceptions are filed within that time, nor appeal made, or proceedings in error com- menced, the order is final, and could then only be set aside in the manner that findings of court are generally attacked or set aside. These exceptions must state the grounds upon which they are taken. When they are filed the court must fix a time not less than ten days thereafter, and must mail a copy of such notice and exceptions to the tax commission and the county auditor, and give such other notice as it may deem necessary. This probably would be all persons who might be affected by the matters raised in the exceptions. . It is not clear just what should be included in this hearing on exceptions. If the entire matter may be gone into — and it should be if it is necessary to do justice — the order might be such that the rights of others than the exceptors would be affected. In New York it is done under what is termed an appeal. Although the surrogate has made a finding, there may be an appeal to him from such finding, and then there is an appeal from this second hearing to the higher court. § 2084. Form of exceptions. [Title] "The undersigned, a party interested in and order made by the Probate Court on the day of , 19. . ., fixing the value and assessing 65iSee §232, N. Y, inheritance tax. 1733 WHEN CERTIFIED TO AUDITOR § 2085 the inlieiitance tax in respect to transfers of the property of , deceased, hereby excepts to the same upon the following grounds: First. Tlie value fixed on tlie real estate located in Bath Township; this value is not its actual cash value, but mucli more than the same. Second. That the tax assessed against the undersigned is erroneous in that the same is exempted under the law. Third. That an error was made in fixing the value of life estate of the undersigned in the above mentioned property. Fourth. [Here set out any other ground claimed.] Wherefore, the undersigned asks that the court fix a time when the same may be heard, and such other and further relief as he may under the statute be entitled to. § 2085. Journal order for hearing on exceptions. [Title.] On this day came and filed herein his exceptions to the order of the court made herein on the day of , 19 ... , finding the value of certain property therein designated and fixing the inheritance tax on the transfers made on certain property of decedent. It is therefore ordered that tlie day of , li). . ., at 10 o'clock a. m. be fixed as the time for hearing the matters excepted to, and that notice thereof be given to A. B., executor of said estate, and C. D., widow of said decedent, and the tax commission of Ohio, and the auditor of this county, by mailing to each a copy of this notice and a copy of the exceptions filed. § 2086. Notice of hearing of exceptions. [Title.] You are hereby notified that on the day of , 19. . ., A. B. filed in this court certain exceptions, a copy of which is hereto attached, to a finding made by the court, and assessments fixed in the matter of the inheritance tax on transfers of certain property of decedent. The court has fixed the ...... day of , 19. . ., at 10 a. m. for the hear- ing of the same. ' , Probate Judge. § 2087. Form of entry on hearing. [Title.] This day this matter came on to be heard on the exceptions filed herein by A. B. to the finding of the value and fixing the assessment and in- heritance tax on the transfer of certain property of said decedent, and the court finds that the same should be changed and modified as follows: [here state specifically the finding, etc.] § 2088. When certified to auditor. § 5347. At the expira- tion of such period of sixty days if no exceptions be filed, or at any time within such period, on the application of all parties, including the tax commission of Ohio, the probate judge shall' make and certify to the county auditor a copy of the order provided for in section 5345 of the General Code. If such exceptions are filed within .such period the probate judpre shall, within five days after the entry of the final order, make and certify such copy of the original finding and determination, to- § 2089 INHERITANCE TAX 17C-4 gether with any modifications thereof ordered upon the hearing of sueli exceptions. Duties of auditor. The county auditor shall thereupon, on a form to be prescribed for him by the auditor of state, make a charge based upon such order and certify a duplicate thereof to the county treasurer, who shall collect the taxes so charged. 1 108 V. 571. ]«« § 2089. Certifying- findinQ^ to auditor. If no exceptions are filed within sixty days, or if exceptions are filed within five days after a finding is made on such ex- ceptions, the probate judge makes and certifies a copy of his original finding, and where this has been modified by any sub- sequent order, as copy of the same showing modifications, to the auditor, who in turn certifies it to the treasurer for collection. § 20S0. Motion to modify finding, ets. If it should appear even after time for appeal on filing ex- ceptions, that there has been a manifest error in the finding, it seems that on the discovery of such error the court should have power to correct the former finding to conform to the truth and justice. In New York the surrogate on motion has generally made such correction. The corrections allowed, however, have been those that related to fact, and not questions of law. Thus wlien there was a mistake in a statement that stock worth $14,193 was appraised at $47,310."^ So where a debt was overlooked,^® where notes were thought to be good but proved worthless."'' So where the mistake was obvious,^" as that of a mathematical calculation."^ This has been done where there was a failure of jurisdiction such as the giving of an improper notice "- or payment under an unconstitutional tax," even after the time for appeal had expired.'^* However esSee §231, N. Y. inheritance 70 Matter of Cameron, 89 N. Y. tax. Supp. 077. 67 Matter of Boyle, 156 X. Y. 7i ^.latter of Scott, 20S X. Y. 602. Supp. 173. 72Matier of Bacliouse, 96 N. Y. 68 Matter of Campbell, 50 miscel. Supp. 463. N. Y. 485. 73'Morton vs. Selby Co., 118 U. S. 69 Matter of Sherar, 54 N. Y. 425. Supp. 930. 74 Matter of Silliman, SO N. Y. Supp. 336. 1735 ^VPPEAL FROM FINAL ORDER § 2091 mere overvaluation will not be considered on such motion/^ or, that since, they have sold for a larger sum/® or, if the person making the motion is guilty of " or if there is bad faith/^ In Ohio this finding of the Probate Court however would probably be treated like any other final order by it made and would be subject to correction in a like manner J® § 2091. Appeal from final order. § 5348. An appeal may be taken by any party, including the tax commission of Ohio, from the final order of the probate court under section 5346 of the General Code in the manner provided by law for appeals from orders of the probate court in other cases. An appeal by the tax commission of Ohio may be perfected in the manner provided by section 11209 of the General Code. [108 v. 571.] §2092. Appeal; how perfected, etc. The method of appeal is the same as applies generally from orders of the Probate Court, and as this has been discussed in other places in this work, it will not be further considered here.^** But it is not clear what is the final order from which an appeal may be prosecuted. The preceding section provides that the final order made under §5346, G. C. (§2082), is the one that may be appealed from, and if this be literally followed, there is no appeal from an order made on the finding made on ex- ceptions that may be filed, although the order made in such cases is referred to as a final order. And it may be necessary for one who is dissatisfied with the original finding to determine within the twenty-day limit relating to appeals, whether he will appeal or raise his questions by way of exceptions, and then if he wishes to go further, to prose- cute error. If he wishes to pursue the latter course, it is important that he state all the grounds in his exceptions, upon which he may desire the opinion of the higher court, should he not be satisfied with the decision of the Probate Court on his exceptions. 75 Matter of Johnson, 75 N. Y. 79 See §5339 G. C, §2048, pro- Supp. 1046. vidcs tliat deductions may be al- 76 flatter of Bruce, 59 N. Y. lowed and refunder made in certain Snpp. 1083. cases and where erroneous deduc- 77 Matter of Townscnd, 215 N. Y. tions were made. 442. so See § 39. 78 Gleason and Otis, Inlicritance taxation, 2nd cd. 515. § 2093 INHERITANCE TAX 1736 It may be that the order made on the exceptions is such that it is considered as a part of the original order, and an appeal might be perfected therefrom. But if it is, I apprehend it would only carry an appeal on the questions and grounds stated in the exceptions, and not all those contained in the original finding. There is no doubt but that proceedings in error may be prosecuted to the original order as well as to the one made on the exceptions. § 2093. Who may prosecute appeal. The statute says any party, including the tax commission may appeal. Of course it must be a party having some interest. There has been some question whether the executor had such interest that he could appeal, where his interest was nothing more than to execute the trust. The general opinion, however, seems to be that he has such interest and can appeal.^^ Especially might this be true under the broad language of our statute: "The true rule, propably is," say Gleason and Otis, "that an executor can appeal only so far as he protects himself from his personal liability ; and beyond that, the expense of litigation should be borne by those duly interested. ' ' ^^ § 2094. Tax receipts, etc. § 5348-1. Upon the payment to the county treasurer of any tax due under this subdivision of this chapter, such treasurer shall issue a receipt therefor in triplicate. One copy thereof he shall deliver to the person pay- ing such taxes ; and the original and one copy thereof he shall immediately send to the auditor of state who shall certify the original and immediately transmit it to the judge of the court fixing the tax. An executor, administrator or trustee shall not be entitled to credits in his accounts, nor be discharged from liability for such taxes, nor shall the estate under his control be distributed, unless such certified receipt shall have been filed with the court. Any person shall, upon the payment of teo cents to the county treasurer issuing such receipt, be entitled to a duplicate thereof, to be signed and certified in thy same manner as the. original. [108 v. 571] § 2095. Transfer of securities, etc. § 5348-2. No corpora- tion organized or existing under the laws of this state, shall transfer on its books or issue a new certificate for any share or shares of its capital stock belonging to or standing in the name 81 Matter of Cornell, 73 X. Y. S2 Reason and Otis, Inheritance Supp. 167; Matter of Dalsimer, taxation, 2nd ed. 503. 153 N. Y. Supp. 58. 1737 NOTICE OP TRANSFER § 2096 of a decedent oi' in trust for a decedent, or belonging to or standing in the joint names of a decedent and one or more persons, without the written consent of the tax commission of Ohio. Delivery of securities, deposits, etc. No safe deposit com- pany, trust company, corporation, bank or other institution, person or persons, having in possession or in control or custody, in whole or in part, securities, deposits, as.sets or property belong- ing to or standing in the name of a decedent, or belonging to or standing in the joint names of a decedent and one or more persons, including the shares of the capital stock of, or other interest in, such safe deposit company, trust company, corpora- tion, bank or other institution, shall deliver or transfer the same to any person whatsoever whether in a representative capacity or not, or to the survivor or survivors when held in the joint names of a decedent and one or more persons, without retaining a sufficient portion or amount thereof to pay any taxes or interest which would thereafter be assessed thereon under this subdivision of this chapter, Notice to tax commission. And unless notice of the time and place of such delivery or transfer be served upon the tax commission of Ohio and the county auditor at least ten days prior to such delivery or transfer; Consent of tax commission. But the tax commission of Ohio may consent in writing to such delivery or transfer, and such consent shall relieve said safe deposit company, trust com- pany, corporation, bank or other institution, person or persons, from the obligation to give such notice or to retain such portion. County auditor may examine. The tax commission or the county auditor, personally or by representatives, may examine such securities, deposits or other assets at the time of such delivery or otherwise. Failure to comply. Failure to comply with the provisions of this section shall render such safe deposit company, trust company, corporation, bank or other institution, person or per- sons, liable for the amount of the taxes and interest due under this subdivision of this chapter on the succession of such secur- ities, deposits, assets or property. Such liability may be enforced by action brought by the county treasurer in the name of the state in any court of competent jurisdiction. [108 v. 572.] ^ § 2096. Notice of transfer to auditor and tax commission. [Under the provisions of section 5348-2 G. C. as approved June 5, 1919.] Ohio, , 19... To the Tax Commission of Ohio; to the Auditor of County, Ohio. Notice is hereby piven that the undersigned has in possession or in control or custody in wliole or in jiart, aocurities, deposits, assets or prop- erty belonging to or standing in the name of , deceased, and the 1 See Atty. Genl's op. 1920, p. 199 to partnerships and joint interests, and 203 for application of section § 2097 INHERITANCE TAX 1738 same will be transferred at , to , on the day of , 19 ... , at o'clock m. Respectfully, NOTE: This notice is required to be served before a bank, safe deposit company, trust company or otlier institution may turn over the contents of a safe deposit box to any person whatsoever, whether in a representative capacity or not. Such service must be made at least ten days prior to tlie date of such delivery or transfer on the auditor and tax commission. § 2097. Transfer without knowledge. § 5348-2a. In any action brought under tlie preceding section it shall be a suffi- cient defense that the transfer of shares of capital stock, or delivery or transfer of securities, deposits, assets or property, was made in good faith, without knowledge of the death of the decedent and without knowledge of circumstances sufficient to place the defendant on inquiry. [108 v. 1197.] § 2098. Transfer of stocks of corporation. The object and purpose of the above section is to give the taxing authorities knowledge of the holdings of stock that a deceased person may have in corporations, and to prevent the same from being transferred, and defeat the inheritance tax. The State tax commission does not fix the tax, but if the tax is not paid it possesses the power to set the machinery in motion to collect the tax. In a great many States the tax commission or like bodies have the power to fix and collect such taxes. But in this State, the power to fix all inheritance tax is vested in the Probate Court; no such stock can be transferred without the written consent of the tax commission; if it is transferred withont such consent, the corporation is liable to pay the tax that may be due thereon. It applies to a corporation organized or existing under the laws of Ohio. I hardly know what is meant to be included by the word "existing," unless it might be to include a corporation that was organized in .«ome other State and had its principal office and place of business in this state, and was in fact a local corporation. The second matter is that the stock belongs to or is standing in the name of the decedent, or in trust for him or is .iointly in his name and some other person. It may be doubted whether a transfer of such stock would be valid, unless the written con- sent of the tax commission was first obtained, or unless it was done without knowledge of the death of decedent and without 1739 CUSTODY OF SECURlTiKS, ETC. § 2099 knowledge of circumstances sufficient to put the corporation, bank, etc., on inquiry. § 20S9. Application to transfer shares of stock. , Ohio, , 19... To the Tax Commission of Ohio: Application is hereby made for the consent of your commission to trans- fer upon the books of the companies the following shares of stock of corporations organized under the laws of Ohio. No. of Sharrs Cora. p,d. Name of Company Par Value Actual Market Value • from deceased, to Deceased was a resident of the city [township] of , county of , state of Ohio, and his estate is in process of settlement in the Probate Court of county, Ohio. The Ohio inheritance tax on the succession to the above shares of stock has been paid. The name and address of the executor — adminis- trator — ^of the estate is The State of Ohio, County, ss. , the above named applicant, being duly sworn says that the statements contained in the foregoing application are true. S-vvorn to and subscribed before me this day of , 19 . . . , Notary Public. * If the transfers are to be made to more than one person, then after describing those shares which go to one person, write "From Henry Smith, deceased, to Mary Smith," and draw a heavy line under. Then go on with the next person, and so on. § 2100. Delivery of custody of securities, deposits, etc. The second matter provided by section 5348-2 G. C. relates to where intangible property is held in custody for a decedent. In such cases the bank, person or institution holding the same may deliver the same, provided sufficient is retained to pay the tax that may be due thereon, when the amount is not large, and the bank, institution or person holding the same can be satisfied that it is not subject to an inheritance tax ; or where it is delivered over to an administrator or executor, it should be delivered without any written consent of the tax commission. I do not think it is the purpose of the statute to require the written consent of the tax commission in every instance ; but § 2101 INHERITANCE TAX 1740 it gives the party holding the property a way in which it may deliver the property and not be liable for any tax. The prop- erty intended to be included is of an intangible nature, such as notes, securities, mortgages, stocks, deposits, etc. The tax commission or county auditor may examine such securities at the time of delivery. §2101. Application for consent to transfer assets in posses- , sion or control. , Ohio, , 19... To the Tax Commission of Ohio: Application is hereby made in accordance with section 5348-2 of the General Code for the written consent of your coramission to deliver or transfer certain securities, deposits, assets or property of , deceased, now in posses.sion or control or custody in whole or in part of The description and value of such securities, etc., are as follows: [give full description of securities or assets. In case of stocks, bonds, certiilcates of deposit, or choses in action, give dates, rate of interest, accrued interest, par, book and market value. State the character of deposits, whether savings, checking or commercial, and give accrued interest, if any. Give number of safe deposit or storage and value or character of contents if known. If notes or choses in action, give date and name of maker or debtor, rate of interest and amount accrued. In case of other personal property describe fully and give value.] DESCRIPTION ' VALUE Such delivery or transfer is proposed to be made to the following: Decedent was a resident of city [township] of , county of , state of , and his estate is in process of settlement in the court of county, state of The Ohio inheritance tax on tlie succession to the above described property has been paid. P. 0. Ad:lress The State of , County, ss. , the above named applicant, being duly sworn says that the statements contained in the foregoing application are true. Sworn to and subscribed before me this day of , 19... , Notary Public. § 2102. Application for release of assets when no administration. [Do not use this form when decedent left real estate.] The State of Ohio, County, ss. , being first duly sworn, says that , late of the of , County, Ohio, died on the day of , 10..., leaving h.. widow.., and the following persons h.. only heirs 1741 COLLECTION OF TAX § 2103 at law who are entitled to share in the distribution of h . , estate and whose names, ages, relationship to the deceased and addresses are as follows : Name Age Relationship Address ■ The only property of which deceased was the owner, or in which ..he had any estate at the time of h . , death, and its value, is as follows : The following is a description of all the property which the dccctlent in h . . lifetime conveyed, distributed or gave away in contemplation of death or with intent to have such conveyance, distribution or gift take effect in possession or enjoyment at or after the death of decedent, and the value of such property, together with the name or relationship of each person to whom such conveyance, distribution or gift was made, to-wit: It is not intended to have any administration on the estate of said decedent. Affiant asks for the written consent of the tax commission of Ohio to the payment or transfer by to of said item., above men- tioned, to-wit: Furtlu'r deponent saith not. Sworn to before me and in mv' presence subscribed tliis day of ,19... Notary Public County, Ohio. § 2103. Collection of tax after eighteen months. § 5348-8. If, after the expiration of eighteen montlis from the accrual of any tax under this subdivision of this chapter, such tax shall remain unpaid, the auditor of state shall notify the prosecuting attorney of the proper county, in writing, of such failure or neglect. After delay of six months. If the determination of the tax has been delayed for more than one year after the accrual thereof such notice mi\y be issued at any time after six months from the date of the order determining such tax. Duty of prosecuting attorney. Such prosecuting attorney shall thereupon apply to the probate judge in the name of the county auditor on behalf of the state for a transcript of the § 2104 INHERITANCE TAX 1742 order fixing the tax. Such transcript shall be filed in the office of the clerk of the common pleas court of the county, and the same proceedings shall be had with respect thereto as are pro- vided by section 11659 of the General Code with respect to tran- scripts of judgments rendered by justices cf the peace and mayors, except that the prosecuting attorney shall not be required to pay the costs thereof accniing at the time of filing the same. Lien, etc. Thereupon the same effect shall be given to such transcripts for all purposes as is given to such transcripts of judgments of justices of the peace or mayors filed in like manner. Property subject to. Provided, however, that nothing in this section shall be construed to affect the date of the lien of such taxes on the property passing, nor to divest such lien before the payment of such tax in the event of failure to sue out exe- cution within the period prescribed by section 11663 of the Gen- eral Code. [108 V. 572.] § 2104. Prosecuting attorney represents county. § 5384-4. The prosecuting attorney shall represent the county auditor of his county in his capacity as inheritance tax appraiser when called upon by him for that purpose. He shall also represent the interests of the state in any and all procceedings under this subdivision of this chapter. The attorney general shall, when requested by the tax commission in writing, appear for the state in any such proceeding. [108 v. 573.] § 2105. County auditor appoints deputies. § 5348-5. The county auditor may, and when directed by the tax commission of Ohio, shall appoint such number of deputies as the tax com- mission of Ohio may prescribe for him, who shall be qualified to assist him in the performance of his duties as inheritance tax appraiser under the provisions of this subdivision of this chapter. [108 v. 573.] § 2106. Tax commission may designate examiners. § 5348-6. The tax commission of Ohio may designate such of its examiners, experts, accountants and other assistants as it may deem neces- sary for the purpose of aiding in the administration of the pro- visions of this subdivision of this chapter; and such provisions shall be deemed and held to be a law which the tax commission is required to administer for the purposes of sections 1465-9, and 1465-12 to 1465-30, inclusive, section 1465-32, and section 1465-34 of the General Code. It shall be the duty of the tax commission of Ohi'O' in the administration of this subdivision of this chapter to see that the proceedings provided for herein shall be instituted and carried to determination in all cases in Avhicli a tax is due hereunder. [108 v. 573.] § 2107. Eecord made by probate judge. § 5348-7. In con- nection with the estates of decedents on the succession to which any inheritance tax is found to be due, each probate judge shall keep a docket, the form whereof shall be prescribed by the aud- itor of state, which shall be a public record, and in which such probate judge shall enter the name of every such decedent upon whose estate an application to him has been made for an issue of 1743 REPORTS TO STATE AUDITOR § 2108 letters of administration, or letters testamentary, or ancillary- let ters, the date and place of death of said decedent, the estimat- ed value of his real and pe-rsonal property, the names, places of residence and relationship to him of his heirs at law, the names and places of residence of the legatees or devisees in any will of any such decedent, the amount of each legacy, and the estimated value of any real property devised therein, and to whom devised. Such entry shall be made from the data contained in the papers filed on any such application, or in any proceeding relating to the estate of the decedent. The probate judge shall also enter in such docket the amount of the personal property of any such decedent, as shown by the inventory thereof when made and filed in his office, and the returns made by the county auditor under the subdivision of this chapter, and the value of annuities, life estates, terms of years and other property of said decedent, or given by him in his will or otherwise, as fixed by the probate court, and the taxes assessed thereon, and the township or munic- ipal corporation in which the same originated, and the amounts of any receipts for payment of any taxes on the estate of such decedent under this subdivision of this chapter, filed with him. The auditor of state shall also prescribe forms for the reports to be made by each probate judge and county auditor, which shall correspond with the entries to be made in such docket. [108 v, 1195.] § 2108. Monthly reports to state auditor. §5348-8. Each probate judge shall make a report monthly to the auditor of state, upon a form prescribed by such auditor. Such report shall contain all the matters required to be entered on the docket provided for in the foregoing section and shall be filed at such date in each month as may be required by the auditor of state. The reports made in the months of February and August of each year shall be filed by each probate judge at the same time that the county auditor of his county makes his semi-annual set- tlement. [108 V. 1196.] § 2109. Reports by recorder. § 5348-8a. On the first day of January and first day of July annually the county recorder of each county in the state shall make report to the tax com- mission of Ohio, on a form prescribed by such commission, con- taining a statement of any deed or other conveyance of property filed in his office during the preceding six months, which appears to have been made in contemplation of death, or intended to take effect in possession or enjoyment after the death of the grantor or vendor, with tlie name and place of residence of such grantor or vendor, the name and place of residence of the grantee or vendee, and a description of the property transferred. [108 v. 1197.] § 2110. Accounts kept by county treasurer. § 5348-9. The county treasurer shall keep an account showing the amount of all taxes and interest by him received under the provisions of this subdivision of this chapter. On the twenty-fifth day of February and the twentieth day of August of each year he shall settle § 2111 INHERITANCE TAX 1744 with the county auditor for all such taxes and interest so received at the time of making such settlement, not included in any pre- ceding settlement, showing for what- estate, and by whom and when paid. At each such settlement the auditor shall allow to the treasurer and himself on the moneys so collected and ac- counted for by him, their respective fees, at the percentages allowed by law. The correctness thereof, together with a state- ment of the fees allowed at such settlement and the fees and expenses allowed to the probate judge and other officers under this subdivision of this chapter shall be certified by the county auditor. [108 v. 574.] § 2111. Fees, etc. § 5348-10. Such fees as are allow^ed by law to the probate judge for services performed under the pro- visions of this subdivision of this chapter, shall be fixed in each case and certified by him on the order fixing the taxes, together with the fees'of the sheriff or other officers and the expenses of the county auditor. The county auditor shall pay such fees and ex- penses out of the state's share of the undivided inheritance taxes in the county treasury and draw his warrants on the treasurer in favor of the fee funds or officers personally entitled thereto, payable from such taxes, as the case may require. [108 v. 1196.] § 2111a. Probate judge's fees. § 5348-lOa. For services performed by him under the provisions of this chapter each probate judge shall be allowed a fee of five dollars in each inheritance tax proceeding in his court in which tax is assessed and collected and a fee of three dollars in each such proceeding in which no tax is found, which fees shall be allowed and paid to such judges as the other costs in such proceedings are paid but are to be retained by them personally as compensation for the p'erformance by them of the additional duties imposed on them by this chapter. Provided always, however, that the amount paid to any probate judge under this section shall in no case exceed the sum of three thousand dollars in any one year. [109 V. 531.] § 2112. Division of tax. § 5348-11. Fifty per centum of the gross amount of any taxes levied and paid under the provisions of this subdivision of this chapter shall be for the use of the municipal corporation or township in which the tax originates, and shall be credited, one-half to the sinking fund, if any, of such municipal corporation or township, and the residue to the general revenue fund thereof ; the remainder of such taxes, after •deducting the fees and costs charged against the proceeds there- of under this subdivision of this chapter, shall be for the use of the state, and shall be paid into the state treasury to the credit of the general revenue fund therein. [108 v. 575.] § 2113. Distribution of tax. § 5348-12. At each semi- annual settlement provided for under this subdivision of this chapter, the county auditor shall certify to the auditor of any other county in which may be located in whole or in part, any municipal corporation or town.ship, to which any part of the taxes collected under this subdivision of this chapter, and not 1745 DISTRIBUTION OF TAX § 2114 previously accounted for, is due, a statement of the amount of such taxes due to each municipal corporation or township in such county entitled to share in the distribution thereof. Amount due township, etc. The amount respectively due upon such settlement to each such municipal corporation or township, and to each municipality or township in the county in which the taxes are collected shall be paid upon the warrant of the county auditor to the treasurer or other proper officer of such municipal corporation or township. Amount of refunder. The amount of any refunder charge- able against any such municipal corporation or township at the time of making such settlement, shall be adjusted in determining the amount due to such municipal corporation or township at such settlement ; provided, however, that if the municipal corpo- ration or township against which such refunder is chargeable is not entitled to share in the fund to be distributed at such settlement, the county auditor shall draw his warrant for the amount thereof in favor of the county treasurer payable from any undivided general taxes in the possession of such treasurer, unless such municipal corporation or township is located in another county, in which event the county auditor shall issue a certificate for such amount to the auditor of the proper county, who shall draw a like warrant therefor payable from any un- divided general taxes in the possession of the treasurer of such county ; and in either case at the next semi-annual settlement of such undivided general taxes, the amount 'of such warrant shall be deducted from the distribution of taxes of such municipal cor- poration or township and charged against the proceeds of levies for the general revenue fund of such municipal corporation or township. [108 v. 575.] § 2114. Where tax deemed to originate on property in this state. § 5348-13. When the property passing is real estate or tangible personal property within this state the tax on the succes- sion thereto shall be deemed to have originated in the municipal corporation or township in which such property is physically located. In case of real estate located in more than one munic- ipal corporation or township the tax on the succession thereto, or to any interest therein, shall be apportioned between the mu- nicipal corporation or townships in which it is located in the proportions in which the tract is assessed for general property taxaton in such townships or municipal corporations respectively. [108 V. 576.] § 2115. Where tax deemed to originate on property not within state. § 5348-14. The tax on the succession to in- tangible property or tangible personal property not within this state from a resident of this state shall be deemed to have origi- nated in the municipal corporation or township in which the decedent resided. The municipal corporation or township in which the tax on the succession to the intangible property of a non-resident ac- cruing under the provisions of tliis subdivision of this chapter, shall be deemed to have originated, shall be determined as follows : § 2115a INHERITANCE TAX 1746 Stock of corporation. 1. In the case of shares of stock in a corporation organized or existing under the laws of this state, such taxes shall be deemed to have originated in the municipal corporation or township in which such corporation has its prin- cipal place of business in this state. . Bonds, notes, . etc. 2. In case of bonds, notes, or other securities or assets, in the possession or in the control or custody of a corporation, institution or person in this state, such taxes shall be deemed to have originated in the municipal corporation or township in which such corporation, institution or person had the same in possession, control or custody at the time of the succession. Moneys en deposit. 3, In case of moneys on deposit W'ith any corporation, bank, or other institution, person or per- sons, such tax shall be deemed to have originated in the munici- pal corporation or township in which such corporation, bank or other institution had its principal place of business, or in which such person or persons resided at the time of such suc- cession. [108 V. 576]^^ § 2115a. Sale of Property under Section G. C. 5332. In giv- ing a construction to Paragraph 4 of Sec. 5332 G. C, the Attor- ney General has paraphrased the same as follows: "Whenever the owTier of property bj' deed or will grants, be- queaths or devises it to another person for a limited period, and empowers such other person to appoint the ultimate successors to it, or whenever the original owner by will leaves the property to such person as may be selected by some designated person, the taxable succession for the purposes of the act shall be that which occurs when the selection is made by the person so empowered, rather than that which occurs when the estate passes out of the original owner ; and if the person so empowered fails to exercise the power, so that the estates descend or are distributed accord- ing to law, yet such descent or distribution shall be regarded as taking place through the agency or will of the person who failed to exercise the power, so that the taxable succession shall be deemed to have taken place at the time such person should have exercised such power; and in order to bring about such result the succession shall be considered in the same light for the pur- pose of a tax as if the person, who exercised the power or failed to exercise it, as the case may be, had died on the date of such failure to exercise, leaving a will by which the estates ultimately vesting had been immediately created. This shall be the result whether the instrument of the original donor creating the orig- inal power was efifective for that purpose before or after the taking effect of this act. ' '®* 83 See Atty. Genl's op., Sept. 7, state, and it is the duty of the 1920, where it is a consolidated corporation to have a general office corporation and the property be- in this state. 65 Bull. 414. lon § 257f) O. C. t ■ . , •"' § 2580 G. C. 01 private properly. 59 § 4074 G. C. § 2126 MISCELLANEOUS 1760 returned as summons in other civil suits. While the word sum- mons is used, from the nature of the proceedings, its form should be very much similar to that of the citation given in the last section. The finding of the Court under the above statute will merely suspend the oflSoer until the next session of the grand jury, and if the grand jury fails to find and present an indictment, or if upon trial of the indictment it is found that the officer is not guilty, he shall be restored to his office.®^ Upon this hearing before the Probate Court, the auditor is not entitled to a jury trial, and if the Court finds him guilty as charged in the affidavit, or that there is a strong probability of the truth of the affidavit, then the Court should make a finding, which may be as follows; ( Title. ) This day this matter came on to be heard upon an affidavit filed in this Court that , auditor of county, has failed r ";^1 neglected, and still fails and neglects, to deliver to the county treasurer a true copy or duplicate of the book containing the tax list required to be made by him for the year, which he is required by law to do; and there- upon this cause was further heard, the said , auditor being present and having answered to said charge, and the Court having heard the evidence and arguments of coimsel, does find that there are reasonable ground for such complaint. (Or if there are not reasonable ground, so state.) It is ordered that a certified copy of this entry be sent to the county commissioners as provided by law.62 § 2126. Amercement. It is provided by law that " sheriffs, deputy sheriffs, coroners and constables shall, when required by the Probate Judge, at- tend his Court and shall serve and return all process directed to them by the judge." ^^ The subsequent section ^* further provides, " If a sheriff, coroner or constable neglects or refuses to serve and return a process issued by a Probate Judge, and to him directed and delivered, or neglects or refuses to pay over any moneys by him 61 § 2581 G. C. public good, the county commis- 62 There seems to be no provision sioners should pny the costs, for the payment of costs, but as 63 § 1596 G. C. prosecution is somewhat in the char- 6* § 1596 G. C. acter of a public one and for the 1761 ATTENDANCE OP WITNESS " § 2127 collected to the Probate Judge, or any other person, when so directed by such Probate Judge, he shall be subject to a tine and amercement as in the next section provided." The next section provides in detail the method of procedure that shall be followed. A summons shall be issued, which must be served within two days, and it must specify the causes, etc., and if the party is found guilty, the judge may fine him not ex- ceeding one hundred dollars. If the cause for the amercement is his refusal to pay over money paid over to him, he shall be amerced the full amount, with the penalty of ten per cent., and the court may enforce such a judgment in the same manner as a contempt.''^ A number of Ohio decisions have held that amercement pro- ceedings are strictly construed, and that the party is not en- titled to a jury trial. '^'^ This proceeding is usually brought into requisition where a sheritf fails and neglects to turn over money, etc., and as the party interested can get the same relief by suit on the bond, it is not a very common proceeding in the Common Pleas Court, even much less in the Probate Court, where executions are but seldomly issued. It will therefore not be within the province of this work to go into the matter in detail, but reference will be given to standard works where forms and suggestions may be found.^' § 2127. Attendance of witness. Judges of the Probate Court are under the same obligation to issue subpoenas for witnesses as are clerks of Courts of Com- mon Pleas,'""* and a failure to obey a subpoena, or a refusal to be sworn, may be punished as a contempt,''''' and if a witness fails to attend he may be attached.'" The usual practice, when it is shown that a witness has been properly served, is to make a rule against such witness to show cause why he has failed to obey the order of the subpoena. As the practice in the Probate Court in such cases is similar to that in the Court of Common Pleas, reference will merely be given to other standard works containing forms, suggestions, etc.'^ 65 § 1597 G. C. often work manifest injustice, and 66 Langdon vs. Summers, 10 O. S. convert its wholesome provisions, in 78. the hands of crafty and unscrupu- In another case it was said: lous parties, into mere snares for "The statute was, no doubt, intended the unsuspectinfi. though honest and to enforce and secure tlie proper faithful officer. ConlS1 G. C. 110* § 8680 G. C. § 2135 MISCELLANEOUS 1772 On the day set for the hearing, the Judge should require that proof of service of notice be filed in his court and should ascertain that service has been made, as required by sta+utc,' and then he should hear evidence as to the fact of the loss or destruction of the certificate of stock, and after being satis- fied that the allegations of the petition are true, and that the stock ought to be re-issued, should make his order, which may be in the following form: (Title.) Entry. This day this cause came on to be lieard and was submitted to the oourt upon the testimony of witnesses and exhibits in the ease. Where- upon, after due consideration, the court finds that the allegations of the petition are true, and that notice of the filing and hearing thereof has been given, as provided by statute; that the plaintiflF is the owTier of stock Number (here describe the same as alleged in the petition) and that said certificate of stock is destroyed (or lost, as the case may be). (If it was held by a pledgee, make the entry to conform to the facts) . It is therefore ordered, that the defendant, The Springfield Building and Loan Association, shall issue and deliver a new certificate of stock, to said plaintifl", for the original amount and of the same amount and description as the same was, at the time of its destruction, and upon said defendant's compliance thereof, it shall not be liable to any other holder of such original certificate, until it shall have full notice thereof, but upon the production of the original certificate to such corporation by the owner or pledgee, such re-issued certificate shall be cancelled and surrendered and that the cost of this application be taxed against the plaintiflf. 1773 INTRODUCTORY § 2136 CHAPTER CVIII. DOWER, ANNUITY, AND PRESENT VALUE TABLES. § 2136. Introductory. § 2141. Calculation of contingent § 2137. Mortality tables. dower. § 2138. Calculation for consummate § 2142. Contingent dower table. dower, and life annuity. § 2143. Expectation of life table. § 2139. Dower and life annuity table § 2144. Table for ascertaining pres- based upon tbe Carlisle ent value of certain annuity. table. § 2145. Table for ascertaining pres- § 2140. Dower and life annuity table ent value of a sum certain based upon American table. due and payable at end of a stated number of years. § 2136. Introductory. It has long been a settled practice in this State, in ascertain- ing the present value of dower in real estate or of an annuity, payable either at a stated annual period or at some future date, to use tables based upon the expectation of life. In one Ohio case ^ it was said : " Where lands are sold by an administrator for the payment of debts, and a widow who is entitled to dower therein consents to such sale, free from her right to dower, it is the familiar practice to order the sale to be made and to make compensation to the widow out of the proceeds of such sale. * * * * In such a case, the exact value of the widow's dower cannot be kno^vn with absolute certainty. It will depend largely upon the length of her life, which can not be foreseen by the Court. Yet its present value can be approximately ascer- tained. Tables have been constructed, based on wide and long observation, from which, the age of the widow being known, the probable duration of her life, and the present value of her dower right may be ascertained with reasonable certainty." 1 Black vs. Kuhlman, 30 O. S. See § 20G!) for American Experi- 199, ence table. § 2137 DOWER AND ANNUITY TABLES 1774 These tables have also been used for fixing a measure of dam- ages in an action brought for the wrongful death of an indi- vidual." It will be the purpose of this chapter to give several tables Avhich M'ill aid in ascertaining the present value of con- summate dower, contingent dower, as well as the present value of life, and certain annuities.^ § 2137. Mortality tables". In the ascertainment of the present values of dower, etc., tables are used based upon the expectation of life. These are called mortality tables. The Carlisle, based upon, statistics kept in Carlisle, England, is the one which has been most fre- quently used in the various Courts of the United States.* Another table that was formerly somewhat used was known as the ^Northampton, and based on statistics, in the town of Northampton, England. This table shows a higher rate of mortality and is not now very frequently used. Another Eng>- lish table is known as the Farr table, and was prepared by Dr. Farr of England, and was based upon the census return of England and Wales. The combined experience, or actuaries, or seventeen offices' experience table of mortality was prepared by a committee of eminent actuaries on data afforded by the combined experience of seventeen of the principal life insur- ance offices in England and Scotland. 2 Wasner vs. Rawlins, 64 O. S. ary annuity is one that does not be- 585; reported in full, 46 Bull. 147. gin till after a certain period or 3 An annuity is defined to be a number of years, or till the decease periodical payment of money, of a person, or some future event, amounting to a fixed sum in each An annuity in possession is one year, the moneys paid being either which has already begun. Cent. a gift or in consideration of a gross Die. sum received. When the payment See § 692, Legacies in nature of is continued for a certain period incomes and annuities. annually, as 10, 20, or 100 years. See § 945 as to dower assigned it is called a certain annuity. to two different persons, tables When it continues for an uncertain showing chance of survivorship period a contingent annuity. When may be used. the period is determined by the du- 4 See Citation of Cases, Giauque ration of one or more lines, a life & McCIure's Present value tables, annuiti/. A deferred or reversion- 186. 1775 VARIOUS TABLES §2137 Tlie American experience table of mortality was constructed from statistics based chiefly on the experience of the Mutual Life Insurance Company of New York to ascertain the laws of mortality as applicable to healthy lives in this comitry. The Thirty Offices' experience table of mortality is based on the experience of thirty of the leading life insurance companies of the United States.^ Some of tliese various tables have been designated by statute to be used in different States. So far as jal'culation of dower or annuity is concerned, no statute provi- sion exists in this State. The Legislature has provided,*' in reference to life insurance companies, that the combined ex- perience table, or actuaries table of mortality, shall be used, and the same table is referred to in the collateral inheritance tax.' The Supreme Court of our State, however, has on two different occasions approved calculations made upon the basis of the Oar- lisle table. ^ 5 For more extended description, see Gianquo & ]McCliire Present Value Tables, 185 ct srq. 6 § 3C31-20 R. S., repealed. 7 § 5343 G. C. 8 Black vs. Kuhlman, 30 0. S. 199. Wasner vs. Rawlins, 64 O. S. 585; 46 iiull. 147. Kinkead in his recent work on probate law and practice says, that the American experience table of mortality is the legal basis of valu- ation in Ohio. From the author's investigation he fails to find, either by legislative act or judicial deci- sion an adoption of the American experience table. As above stated in the text, the Legislature has on several occasions adopted the Ac- tuaries or Combined experience ta- bles; and the Courts have given sanction to the use of the Carlisle table. By noticing the expectancy of life as given subsequently in a table herein, it will be observed that the American table is higher ' than either the Combined or the Carlisle table, until sixty years of age, after which time the Carlisle table is higher than either of the others. Generally, however, the Carlisle table is nearer the Com- bined experience table than the American table, and therefore in computing annuities under the col- lateral inheritance tax the table based thereon, would be nearer cor- rect than if based upon the Amer- ican table of mortality. Mr. Kinkead gives a table for the calculation of dower based up- on the American table of mortality, which by his kind consent is in- serted herein. However, from the fact that the Carlisle table has been sanctioned by the Supreme Court and by long and continued use by the bar of Ohio, as well as recog- nized writers upon the Ohio law (Giauque & McClure's Present Val- ue Tables, p. 2), the author has come to the conclusion that until otherwise determined by an act of the Legislature, the Carlisle table § 2138 DOWER AND ANNUITY TABLES 1776 §2138. Calculation of consummate dower, and life annuity. The statute in giving a widow power to waive the assignment of dower by metes and bounds, provides that she may have such sum of money in lieu of such dower out of the proceeds as the Court deems a just and reasonable value of such dower inter- est.® In order to aid the Court, in determining what is the rea- sonable value of dower, or life annuity, the Carlisle table of mortality is usually used. Of course, this table is based upon tlie general expectation of life of a person in ordinary good health. If a person entitled to dower or life annuity was afflicted in such a manner that she could not live veiy long, such matter should be taken into consideration. The table does not furnish an arbitrary rule, although it is usually followed. A table for contingent right of dower is given in the next section. The widow or widower being entitled to the same dower, the method of calculation vdll be the same for each. The value of a widow's dower is foimded by computing the interest for one year at six, or five, per cent., or whatever rate is desired,^" on one-third the value of the entire property, and multiplying the amount by the amount set opposite the widow's age. If the widow is aged 40, and the entire estate is sold for $15,000, the value of her dower will be the interest on one- third of that sum for one year, $300, multiplied by 12.002 (the amount opposite the widow's age), or $3,660.60. If the is entitled to preference. Another order, however, that the practitioner reason suggests itself for giving the and the Courts may have the ben- Carlisle table the preference, and efit of tables founded upon the Car- that is, that the Carlisle table is lisle and American tables both are based upon the lives of unselected inserted. persons. While the other tables are » § 12018 G. C. based upon selected lives, and it is lo Six per cent, is used because reasonably safe to assume that the that is the legal rate in Ohio, § 8315 rate of mortality would be lower q q^ but in calculating dower, the among selected lives than unselect- Court is not bound to follow this ed lives, and it is hardly fair to j-^te. Although generally used, it base an expectation of life for or- ^^^^ ^^^ too high, as real estate does dinary purposes upon a table ^^t usually yield as high a rate founded upon the lives of persona p^j. ^^^^ ^^ j^^tes, etc., to which who were able to pass an examina- g gggg q (^ particularly applies. tion and secure life insurance. In 1777 CARLISLE TABLE §2139 widow is entitled to a. life estate, interest would be calculated on the $15,000 for one year, etc.^^ If there is an annuity of $300 per year, and the person entitled to same is 40 years of age, its present value, calculated at six per cent., would be $300 ^ 12.002 = $3,660.60. If tlie annuity was $300 per year to run 30 years, it would be $300 X 13.7648 = $4,129.44." § 2139. Dower and life annuity table based upon Carlisle table. Age. 3 per cent. ■ 4 per cent. 5 per cent. 6 per cent. i7 percent. 10 23.512 19.58339 16.6689 14.4486 12.717 11 23.327 19.45857 16.5813 14 . 3845 12.669 12 23.143 19.33493 16.4946 14.3215 12.621 13 22.957 19.20937 16.4064 14.2570 12.572 14 22.769 19.08182 16.3165 14.1912 12.522 15 22.582 18.95534 16.2275 14.1262 12.473 16 22.404 18.83636 16.1450 14.0671 12.429 17 22.232 18.72111 10.0667 14.0118 12.389 18 22.058 18.60656 15.9875 13.9559 12 . 348 19 21.879 18.48649 15.9046 13.8970 12.305 20 21.694 18.36170 15.8177 13.8349 12.259 21 21.504 18.23196 15.7267 13.7692 12.210 22 21.304 18.09386 15.6285 13.6974 12.156 23 21.098 17.95016 15.5256 13.6215 12.098 24 20.885 17.80058 15.4175 13.5413 12.037 25 20.665 17.64486 15.3040 13.4563 11.972 26 20.442 17.48586 15.1876 13.3688 11.904 27 20.212 17.32023 15.0653 13.2761 11.832 28 19.981 17.15412 14.9424 13.1828 11.759 29 19.761 16.99683 14.8272 13.0964 11.693 30 19 556 16.85215 14.7231 13.0200 11.636 31 19.348 16.70511 14.6171 12.9420 11.578 32 19.134 16.55246 14.5062 12.8600 11.516 33 18.910 16.39072 14.3874 12.7711 11.448 34 18.675 16.21943 14.2601 12.6748 11.374 35 18.433 16.04123 14.1267 12.5731 11.295 36 18.183 15.85577 13.9868 12.4656 11.211 37 17.928 15.66586 13.8427 12.3545 11.124 38 17.669 15.47129 13.6944 12.2394 11.033 39 17.405 15.27184 13.5415 12.1203 10.939 40 17.143 15.07363 13.3894 12.0019 10.845 41 16 . 890 14.88314 13.2441 11.8897 10.757 11 For table of 31/2 per cent.. 4V2, 8, 9, and 10 per cent., see Giauque A McClure's Present Value Tables, page 10. 12 See § 2023, This is a certain an- nuity. U139 DOWER AND ANNUITY TABLES 1778 Age. 3 per cent. 4 per cent. 5 per cent. 6 per cent. 7 per cent. 42 16.640 14.69466 13.1006 11.7791 10.671 43 16.389 14.50529 12.9562 11.6679 10.585 44 16.130 14.30874 12.8053 11.5510 10.494 45 15.863 14.10460 12.6475 11.4280 10.397 46 15.585 ■ 13.88928 12.4795 11.29.57 10.292 47 15.294 13.66208 12.3006 11.1536 10.178 48 14.986 13.41914 12.1070 10.9980 10.052 49 14.654 13.15312 11.8920 10.8226 9.908 50 14.303 12.86902 11.6598 10.6311 9.749 51 13.932 12.56581 11.4093 10.4223 9.573 52 13.558 12.25793 11.1535 10.2078 9.392 53 13.180 11.94503 10.8920 9.98726 9.205 54 12.798 11.02673 10.6243 9.76025 9.011 55 12.408 11.29961 10.3472 9.52367 8 . 807 56 12.014 10.96607 10.0628 9.27933 8.595 57 11.614 10.62559 9.77061 9.02659 8.375 58 11.218 10.28047 9.47810 8.77240 8.153 59 10.841 9.96331 9.19889 8.52942 7.940 60 10.491 9.66333 8.93987 8.30426 7.743 61 10.180 9.39809 8.71212 8.10751 7.572 62 9.875 9.13676 8.48722 7.91291 7.403 63 9.567 8.87150 8.25790 7.71365 7.229 64 9.246 8.59330 8.01565 7.50165 7.042 65 8.917 8.30719 7.76502 7.28110 6.847 66 8.578 8.00966 7.50262 7.04866 6.641 67 8.238 7.69980 7.22743 6.80323 6.421 68 7.869 7.37970 6.94131 6.54640 6.189 69 7.499 7.04881 6.64341 6.27721 5.945 70 7.123 6.70936 6.33583 5.99748 5.690 71 6.737 6.35773 6.01491 5.70353 5.420 72 6.373 6.02548 5.71057 5.42378 5.162 73 6.044 5 . 72465 5.43447 5.16953 4.927 74 5.752 5.45812 5.18972 4.94403 4.719 75 5.512 5.23901 4.98924 4.76004 4.549 76 5.277 5.02399 4.79197 4.57852 4.382 77 5 . 059 4.82473 4.60914 4.410.i3 4.227 78 4.838 4.62166 4.42210 4.23765 4.067 79 4.592 4.39345 4.21019 4.04041 3.883 80 4.365 4.18289 4.01445 3.85807 3.713 81 4.119 3.95309 3.79936 3.65632 3.523 82 3.898 3.74634 3.60561 3.47444 3.352 83 3.672 3 . 5.3409 3.40573 3.28588 3.174 84 3.454 3.32856 3.21145 3.10195 2.999 85 3.229 3.11515 3 . 00854 2.90873 2.815 86 3 . 033 2.92831 2.83036 2.73855 2.652 87 2.873 2.77.593 2.68472 2.59916 2.519 88 2.776 2.68337 2.59660 2.51514 2.439 89 2.605 2.57704 2.49465 2.41725 2.344 1779 AMERICAN TABLE 2140 Affe, 4 per cent. 5 per cent. 6 per cent. |7i5ercent. 90 2.499 2.41621 2.33879 2.26601 2.198 91 2.481 2.39835 2.32108 2.24838 2.180 92 2.577 2.49199 2.41199 2.33660 2.266 93 2.687 2.59955 2.51749 2.43999 2.367 94 2.736 2.64976 2.56854 2.49163 2.419 95 2.757 2.67433 2.59595 2.52151 2.451 96 2.704 2.62779 2.55532 2.48626 2.420 97 2.559 2.49204 2.42839 2.36750 2.309 98 2.388 2.33222 2.27833 2.22656 2.177 99 2.131 2.08700 2.04468 2.00383 1.964 100 1 . 683 1.652S2 1.62400 1.59608 1.569 101 1.228 1.21005 1.19240 1.17523 1.159 102 0.771 0.76183 0.75283 0.74404 0.735 103 0.324 0.32051 0.31746 0.31447 0.312 § 2140. Dower and life annuity table based upon American table, The following table is founded upon the American table of mortality. The method of calculation to ascertain dower, etc., is similar to that given under the Carlisle table. The Amer- ican table of mortality gives a longer expectation of life than the Carlisle table, and therefore a higher present value to an annuity or dower interest: Age. 3 per cent. 3^2 percent. 4 per cent. 4% per cent. 6 per cent. 10 24.343 22 . 225 20.414 18.855 15.293 11 24.225 22.134 20 . 343 18.800 15.265 12 24.102 22.039 20.269 18.741 15.236 13 23.976 21.941 20.192 18.681 15.204 14 23.846 21.839 20.112 18.617 15.171 15 23.712 21.733 20.028 18.551 15.137 16 23.573 21.624 19.942 18.482 15.100 17 23.430 21.511 19.851 18.409 15.062 18 23 . 282 21.303 19.757 18.334 15.021 19 23.129 21.271 19.600 18.255 14.978 20 22.971 21.144 19.558 18.173 14.932 21 22.808 21.013 19.452 18.086 14.885 22 22.640 20.878 19 . 342 17.907 14.834 23 22.467 20.737 19.228 17.903 14.781 24 22.289 20.592 19.109 17.805 14.725 25 22.104 20. 4i^ 18.985 17.704 14.666 26 21.914 20.286 18.857 17.597 14.604 ^2140 DOWER AND ANNUITY TABLES 1780 Age. 3 per cent. 3 Mi per cent. 4 per cent. 4% per cent. 6 per cent. 27 21.718 20.124 18.723 17.486 14.538 28 21.516 19.957 18.585 17.370 14.469 29 21.308 19.784 18.440 17.250 14.396 30 21.093 19.605 18.291 17.124 14.320 31 20.872 19.420 18.135 16.993 14.239 32 20.643 19.229 17.973 16.856 14.154 33 20.408 19.030 17.806 16.713 14.064 34 20.166 18.826 17.632 16.565 13.969 35 19.917 18.614 17.451 16.410 13.870 36 19.661 18.395 17.263 16.249 13.765 37 19.397 18.169 17.069 16.081 13.655 38 19.125 17.935 16.868 15.907 13.540 39 18.846 17.695 16.659 15.725 13.418 40 18.560 17.446 16.443 15.537 13.291 41 18.265 17.190 16.220 15.341 13.157 42 17.963 16.926 15.988 15.138 13.017 43 17.653 16.654 15.749 14.927 12.870 44 17.335 16.374 15.502 14.709 12.716 45 17.009 16.087 15.248 14.483 12.555 46 16.676 15.791 14.985 14.248 12.38. 47 16.335 15.488 14.714 14 . 006 12.211 48 15.987 15.177 14.436 13.757 12.028 49 15.632 14.859 14.151 13.500 11.838 50 15.271 14.535 13.858 13.236 11.640 51 14 . 904 14.204 13.559 12.965 11.436 52 14.533 13.868 13.255 12.688 11.226 53 14.157 13.526 12.944 12.405 11.009 54 13.776 13.180 12.628 12.116 10.786 55 13.393 12.830 12.307 11.822 10.556 56 13.006 12.475 11.982 11.523 10.321 57 12.617 12.118 11.653 11.219 10.081 58 12.227 11.758 11.321 10.912 9.836 59 11.835 11.396 10.985 10.601 9.586 60 11.443 11.032 10.648 10.288 9.332 61 11.051 10.668 10.. 309 9.972 9.074 62 10.660 10.304 9.969 9 . 654 8.813 63 10.272 9.941 9.630 9.336 8.549 64 9.885 9.579 9.290 9.017 8.283 65 9.502 9.219 8.952 8.699 8.016 66 9.123 8.863 8.616 8.381 7.747 67 8.749 8.510 8.282 8.066 7.479 68 8.381 8.161 7.952 7.754 7.212 69 8.020 7.819 7.627 7.445 6.945 70 7.665 7.482 7.307 7.140 6.681 71 7.319 7.152 6.993 6.840 6.420 72 6.981 6.830 6.685 6.546 6.163 73 6.651 6.514 6.383 6.257 5.908 74 6.328 6.205 6.086 5.972 5.656 1781 CONTINGENT DOWER §2141 Age. 3 per cent. 3% per cent. 4 per cent. 4% per cent. 6 per cent. 75 6.011 5.900 5.794 5.691 5.406 76 5.699 5.600 5.505 5.413 5.157 77 5.391 5.304 5.219 5.138 4.908 78 5.088 5.011 4.936 4.864 4.660 79 4.790 4.722 4.656 4.593 4.413 80 4.496 4.437 4.380 4.324 4.167 81 4.208 4.158 4.108 4.060 3.924 82 3.928 3.884 3.842 3.801 3.683 83 3.652 3.615 3.580 3.545 3.445 84' 3.379 3.348 3.318 3.289 3.205 85 3.107 3.082 3.057 3.033 2.964 86 2.839 2.819 2.799 2.780 2.724 87 2.579 2.563 2.548 2.C32 2.488 88 2.334 2 . 322 2.310 2.298 2.263 89 2.103 2 . 094 2.085 2.076 2.050 90 1.880 1.874 1.867 1.861 1.842 91 1.662 1.658 1 . 654 1.649 1.637 92 1.459 1.457 1.454 1.451 1.443 93 . 1.294 1 . 292 1.291 1.289 1.285 94 1.139 1.138 1.137 1.137 1.135 95 1.000 1.000 1.000 1.000 1.000 § 2141. Calculation of contingent dower. Our Supreme Court lias declared tkat the contingent right of a wife during her husband's life to be endowed of his real estate at his death is property having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife re- spectively.^^ It will therefore be very proper to insert a table upon which the calculation is usually to be made. This table is prepared, I have no doubt, upon the assumption that both parties are in a state of reasonable good health. If eitlier one was an invalid whose chance of life was very materially less- ened, that matter should be taken into account. Following this table for determining the contingent dower right is a table giving the general expectation of life. This might be of some aid where parties for some physical reason were not possessed 13 Mandel vs. McCave, 46 0. S. 407; Unger vs. Liter, 32 O. S. 210; Moerlein Brewing Co. vs. Weatmeier, 4 C. C. 296, 2 C. D. 668. § 2141 DOWER AND ANNUITY TABLES . 1782 of the ordinary expectation of life. The following table is a table prepared by Mr. Bowditch, and is found in 2nd Scribuer on Dower, sec. 820, and Gianque & McClure's Present Value Tables, sec. 182. Some years ai*e omitted, but enough are given to enable a reasonable safe calculation to be made. In using tlie table, the age of the wife will be found at the side, and the husband at the top, where they meet, will be the present value of the dower right in an estate worth one hundred dollars. Thus, if the age of the husband is 50, and that of the wife 32, the present value of the dower on one hundred dollars is $6.70. So that if the estate be worth $10,000, the present value of tlie dower right would be $670.^* 14 The Bowditch table has been used, but if a greater degree of ac- referred to with approval by our curacy is desired, Giauque & Mc- Supreme Court. Black vs. Kuhl- Clure's present value tables from man, 30 O. S. 200. This table is page 21 to 138 should be consulted, based upon the Carlisle table, and where calculation is given, based interest at 6 per cent. It will be upon the Carlisle table, and giving observed that only alternate years various rates of per cent, as well are used from the ages of sixteen as each j^ear of life of husband or to ninety. The table was prepared wife. by J. Ingersoll Bowditch, a self-ed- Table maj'^ be used for ascertain- ucated New England mariner and ing value of alimony, etc. mathematician. For all general Tate vs. Tate, 19 C C. 532, 10 C. purposes the above table could be D. 321. 1783 CONTINGENT DOWKR § 2142 § 2142. Contingent dower table. AGE OF HUSBAND. 22 1 26 30 32 34 36 38 40 42 44 16 3.68 4.10 4.58 4.85 5.14 5.43 5.73 6.06 6.42 6.81 18 3.57 3.99 4.51 4.70 5.03 5.29 5.65 5.99 6.35 6.73 20 3.45 3.88 4.38 4.64 4.92 5.15 5.49 5.86 6.22 6.60 22 3.33 3.77 4.25 4.46 4.74 5.00 5.33 5.69 6.03 6.43 24 3 . 23 3 . 6.1 4.11 4.32 4.57 4.85 5.17 5.52 5.85 6.18 26 3.12 3 . 53 3.97 4.18 4.42 4.70 5.01 5.35 5.66 5.98 28 3.01 3.41 3.83 4.03 4.26 4.54 4.84 5.17 5.47 5.78 30 2.90 3.28 3.69 3.88 4.10 4.38 4.66 4.99 5.28 5.58 32 2.79 3.15 3.55 3.73 3.94 4.21 4.48 4.80 5.09 5.38 34 2.68 3.02 3.40 3.57 3.78 4.03 4.30 4.60 4.88 5.17 36 2.56 2.89 3.25 3.41 3.61 3.85 4.11 4.40 4.06 4.94 38 2.44 2.76 3.10 3.25 3.44 3.67 3.92 4.19 4.44 4.70 40 2.32 2.62 2.95 3.09 3.27 3.49 3.72 3.98 4.22 4.46 42 2.20 2.48 2.79 2.93 3.10 3.30 3.52 3.76 3.99 4.22 44 2.07 2.34 2.63 2.76 2.92 3.11 3.32 3.54 .^.75 3.98 46 1.94 2.21 2.47 2.59 2.73 2.92 3.12 3.32 3.50 3.71 48 1.85 2.10 2.31 2.42 2.54 2.76 2.91 3.10 3.25 3.44 50 1.71 1.92 2.15 2.24 2.35 2.56 2.71 2.87 3.00 3.17 52 1.54 1.74 1.95 2.06 2.18 2.31 2.45 2.60 2.76 2.90 54 1.40 1.58 1.77 1.87 1.97 2.08 2.21 2.34 2.48 2.63 56 1.30 1.44 1.61 1.70 1.79 :.89 1.99 2.10 2.22 2.35 58 1.17 1.32 1.48 1..56 1.64 1.72 1.81 1.90 2.00 2.11 60 1.03 1.17 1.32 1.40 1.48 1.56 1.65 1.74 1.84 1.95 62 0.91 1.03 1.16 1.23 1.30 1.37 1.45 1.54 1 . 63 1.73 64 0.82 0.92 1.03 1.09 1.16 1.23 1.30 1.37 1.44 1.51 66 0.74 0.82 0.92 0.97 1.02 1.08 1.13 1.19 1 . 25 1.31 68 0.65 0.73 0.82 0.86 0.91 0.96 1.01 1.06 1.10 1.15 70 0.54 0.62 0.70 0.74 0.78 0.83 0.87 0.92 0.97 1.02 72 0.44 0.50 0.57 0.61 0.65 0.69 0.73 0.77 0.81 0.85 74 0.38 0.43 0.49 0.52 0.55 0.58 0.61 0.64 0.68 0.71 76 0.35 0.38 0.42 0.45 0.48 0.51 0.53 0.56 0.58 0.60 78 0.30 0.34 0.38 0.40 0.43 0.45 0.47 0.49 0.50 0.52 80 0.24 0.28 0.32 0.34 0.30 0.38 0.41 0.43 0.44 0.4b 82 0.20 0.22 0.25 0.27 0.29 0.32 0.34 0.36 0.38 0.40 84 0..17 0.18 0.21 0.23 0.24 0.25 0.27 0.29 1 0.30 0.32 86 0.14 0.16 0.18 0.19 0.20 0.21 0.22 0.23 0.25 0.26 88 0.13 0.15 0.17 0.18 0.19 0.20 0.21 0.21 0.22 0.22 90 0.11 0.13 0.15 0.16 0-.17 0.18 0.19 0.20 0.21 0.21 ^2142 DOWER AND ANNUITY TABLES 1784 AGE OF HUSBAND. 46 48 50 52 54 56 58 60 62 64 16 7.25 7.74 8.42 9.18 9 . 93 10.69 11.62 12.48 13.20 13.86 18 7.08 7.57 8.21 8.96 9.71 10.51 11.40 12.24 12.96 13.63 20 6.90 7.38 8.00 8.74 9.49 10.30 11.18 12.03 12.72 13.40 22 6.72 7.19 7.79 8 . 52 9.27 10.09 10.95 11.80 12.48 13.17 24 6.54 6.99 7.58 8.30 9.05 9.86 10.71 11.. 56 12.23 12.94 26 6.36 6.79 7.37 8.08 8.83 9.62 10.47 11.30 11.97 12.69 28 6.17 6.59 7.15 7.85 8.60 9.37 10.22 11.03 11.70 12.42 30 5.96 6.38 6.93 7.61 8.35 9.11 9.96 10.75 11.42 12.13 32 5.74 6.16 6.70 7.36 8.08 8.84 9.69 10.46 11.13 11.82 34 5.51 5.92 6.45 7.10 7.80 8.56 9.40 10.15 10.82 11.50 36 5.26 5.66 6.18 6.83 7.51 8.26 9.08 9.82 10.49 11.16 38 5.00 5.39 5.90 6.53 7.21 7.95 8.75 9.48 10.13 10.80 40 4.74 5.11 5.61 6.22 6.89 7.62 8.41 9.13 9.76 10.42 42 4.48 4.83 5.31 5.90 6.56 7.27 8.04 8.76 9.37 10.02 44 4.22 4.55 4.99 5.57 6.21 6.91 7.65 8.37 8.96 9.60 46 3.96 4.26 4.67 5.22 5.84 6.53 7.25 7.95 8.52 9.15 48 3.71 3.97 4.35 4.85 5.45 6.10 6.84 7.49 8.041 8.66 50 3.49 3.75 4.03 4.48 5.05 5.64 6.17 7.01 7.52 8.12 52 3.18 3.46 3.78 4.12 4.63 5.22 5.56 6.22 6.97 7.54 54 2.81 3.05 3.37 3.77 4.21 4.78 5.18 5.72 6.30 6.92 56 2.50 2.72 3 . 00 3 . 36 3.80 4.30 4.81 5.33 5.85 6.37 58 2.24 2.39 2 . 59 2.87 3.27 3.79 4.30 4.96 5.40 6.00 60 2" 07 2.20 2.35 2.57 2.89 3.31 3.83 4.41 4.95 5.47 62 1.85 1.99 2.17 2.38 2.64 2.97 3.36 3.82 '4.33 4.87 64 1.61 1.75 1.93 2.15 2.41 2.70 3.03 3.39 3.78 4.22 66 1.37 1.47 1.63 1.85 2.12 2.43 2.74 3.06 3.39 3.74 68 1.20 1.25 1.36 1.54 1.79 2.09 2.44 2.77 3.07 3.38 70 1.07 1.12 1.17 1.27 1.43 1.67 1.98 2.36 2.70 3.01 72 0.90 0.96 1.03 1.11 1.22 1.36 1.57 1.85 2.17 2.50 74 0.75 0.86 0.89 0.93 1.08 1.20 1.35 1.54 1.77 2.03 76 0.63 0.67 0.73 0.82 0.94 1.09 1.25 1.42 1.59 1.76 78 0.53 0.55 0.60 0.68 0.79 0.94 1.12 1.29 1.45 1.60 80 0.47 0.48 0.50 0.55 0.64 0.77 0.94 1.10 1.26 1.41 82 0.41 0.43 0.45 0.47 0.52 0.60 0.71 0.84 1.00 1.16 84 0.34 0.37 0.40 0.42 0.45 0.50 0.58 0.68 0.79 0.90 86 0.27 0.29 0.32 0.36 0.40 0.45 0.51 0.58 0.66 0.74 88 0.23 0.24 0.26 0.30 0.35 0.41 0.48 . 55 0.62| 0.69 90 0.22 0.22 0.23 0.25 0.29 0.35 0.42 0.51 0.601 0.68 1785 CONTINGENT DOWER §2142 AGE OF HUSBAND. 66 68 70 72 74 76 80 84 16 14.67 15.63 16.62 17.74 18.53 19.27 20.78 22.10 18 14.45 15.39 16.41 17.51 18.31 19.03 20.48 21.86 20 14.22 15.15 16.18 17.26 18.08 18.78 20.18 21.62 22 13.98 14.90 15.93 16.99 17.85 18.56 19.87 21.34 24 13.73 14.63 15.66 16.74 17.60 18.25 19.57 21.05 26 13.46 14.35 15.37 16.46 17.34 17.96 19.26 20.77 28 13.18 14.05 15.06 16.15 17.06 17.66 18.96 20.47 30 12.88 13.74 14.74 15.82 16.75 17.34 18.65 20.14 32 12.57 13.42 14.41 15.48 16.40 17.00 18.32 19.78 34 12.25 13.09 14.07 15.12 16.01 16.65 17.96 19 . 39 36 11.92 12.75 13.71 14.74 15.62 16.28 17.57 19.00 38 11.57 12.39 13.33 14.34 15.22 15.89 17.15 18.59 40 11.19 12.00 12.93 13.93 14.80 15.47 16.72 18.16 42 10.78 11.58 12.50 13.52 14.47 15.03 16.26 17.70 44 10.34 11.13 12.04 13.08 13.92 14.56 15.76 17.22 46 9.87 10.65 11.54 12.59 13.52 14.06 15.22 16.70 48 9.37 10.15 11.00 12 . 03 12.72 13.50 14.65 16.10 50 8.83 9.61 10.43 11.39 11.90 12.87 14.05 15.41 52 8.24 9.02 9.82 10.68 11.27 12.16 13.32 14.63 54 7.59 8.37 9.18 9.97 10.72 11.37 12.81 13.77 56 6.89 7.68 8.48 9.26 9.62 10.50 12.01 13.12 58 6.46 6.89 7.77 8.56 8.64 9.37 10.90 12.06 60 5.98 6.48 6.98 7.85 8.08 8.69 9.99 11.23 62 5.43 6.00 6.57 7.15 7.72 8.28 9.36 10.37 64 4.71 5.25 5.84 0.47 7.14 7.76 8.84 9.70 66 4.12 4.55 5.04 5.60 6.22 6.88 8.05 9.02 68 3.69 4.02 4.39 4.82 5.32 4.89 7.08 8.08 70 3.32 3.65 3.94 4.27 4.65 5.09 6.15 7.12 72 2.84 3.18 3.53 3.88 4.24 4.61 5.38 6.23 74 2.33 2.67 3.05 3.43 3.77 4.11 4.80 5.49 76 1.94 2.16 2.43 2.76 3.15 ■ 3.60 4.35 5.03 78 1.75 1.90 2.08 2.31 2.51 2.98 3.78 4.46 80 1.56 1.71 1.87 2.06 2.28 2.54 3.20 3.85 82 1.33 1 . 50 1.68 1.87 2.07 2.29 2.75 3.28 84 1.03 1.18 1 . 36 1.57 1.81 2.04 2 . 45 2.80 86 0.83 0.94 1.08 1.25 1.44 1.66 2.09 2.48 88 0.76 0.83 0.92 1.04 1.20 1.39 1.79 2.17 90 0.75 0.81 0.87 0.96 1.08 1.23 1.57 1.92 § 2143 DOWER AND ANNUITY TABLES 1786 § 2143. Expectation of life table. Table of expectancy of life, as shown by the following tables of mortality.i** Thi rty Farr \o. .3 -35 ^ 3 c S ^ z C Ufh ;es' 1- x;ierience o Ma les Females Males Females •£ 2 o WSlO'-^ ■" '^ X s 1 44.68 47.55 49 . 82 50. 7G 51.25 51.17 46.65 48.83 49.61 49.81 49.71 49 . 39 47.31 49.40 50.20 50.43 50.33 50.00 32.74 2 37 79 3 39 . 55 4 40 58 5 40 84 6 41.07 7 50 . 80 48.92 49.53 41.03 8 50 24 48 37 48 98 40 79 9 49.57 48.82 48 . CO 47.74 47.05 48.35 47.67 40 36 10 48 72 49 99 48 05 39.78 11 48.04 47.68 48 08 49 32 47 21 46.31 46 . 95 39.14 12 47.27 47.01 47 44 48 04 46 40 45.54 46.20 38.49 13 46.51 46.33 46 82 47 95 46 64 44.76 45 . 44 37.83 14 45.75 45.64 46 16 47 26 44 91 43.97 44.66 37.17 15 45.00 44.96 45 50 46 Ol 44 19 43.18 43.90 36.51 16 44.27 44.27 44 85 45 88 43 48 42.40 43.14 35.85 17 43.57 43.58 44 19 45 18 42 79 41.00 42.40 35.20 18 42 . 87 42.88 43 53 44 48 42 12 40.90 41.67 34.58 19 42.17 42.19 42 87 43 78 41 46 40.17 40.97 33 . 99 20 41.46 41.49 42 20 43 07 40 82 39.48 40.29 33.43 21 40.75 40.79 41 53 42 36 40 19 38.80 39.63 32.90 22 40.04 40.09 40 85 41 65 39 56 38.13 38.98 32.39 23 39.31 39.39 40 17 40 93 38 96 37.46 38 . 33 31.88 24 38.59 38.63 39 49 40 21 38 38 36.79 37.68 31.36 25 37.86 37.93 38 81 39 49 37 80 36.12 37.04 30.85 26 37.14 37.27 38 11 38 77 37 23 35.44 36.39 30.33 27 36.41 36.56 37 43 38 04 36 06 34.77 35.75 29.82 28 35.69 35 . 86 36 73 37 31 36 08 34.10 35 . 10 29.30 29 35.00 35.15 36 03 36 58 35 49 33.43 34.46 28.79 30 34.34 34.43 35 33 35 85 34 89 32.76 33.81 28.27 31 33.68 33.72 34 62 35 12 34 29 32.09 33.17 27.76 32 33.03 33.01 33 92 34 38 33 69 31.42 32 . 53 27.24 33 32.36 32.30 33 21 33 65 33 06 30.74 31.88 26.72 34 31.68 31.58 32 50 32 91 82 42 30.07 31.23 26.20 35 31.00 30 . 87 31 78 32 17 31 78 29.40 30.59 25.68 36 30.32 30 . 15 3! 07 31 43 31 13 28.73 29.94 25.16 37 29.64 29.44 30 35 30 70 30 47 28.06 29.29 24.64 38 28.96 28.72 29 62 29 96 29 81 27.39 28.64 24.12 1** This table is taken from Giau- qiie & McClurc's Present Value Ta- bles, etc. In actions for damages for wrongful death, "etc.," Courts do not permit life annuity tables to be given in evidence to determine the probable present value of decedent's earnin.TS, but tables of expectancy of life niav be introduced in evidence and considered in estimating the amount of damages recoverable in such suits. Wasmcr vs. Rawlin, 40 Bull. 147; 64 0. S. 5S5. See 55 Gen. Law J. 101 (1902), for cases on this subject. See cases cited in Giauque &, IMcClure's tables, pages 8, 184, 185, 186, 187, 190. 1787 EXPECTATION OF LIFE §2143 o Thi rty Farr No. 3 u 3.1 Offices' E xperience . c tA s ? £ t 'u ^ •= 2 eI Males Females Males Females t, a. < U Uv-.OiJ ? Thirty Offices' Experience Farr No. 3 1^ < Males Females Males Females . c •B2 u a 93 3.48 1.47 .80 1.64 1.59 2.41 2.55 1.37 94 3.53 1.28 .64 1.49 46 2.29 2.42 1.05 95 3.53 1.12 .50 1.34 34 2.17 2.29 .75 96 3.46 .99 1.18 23 2.06 2.17 .50 97 3.28 .89 1.03 09 1.95 2.06 98 3.07 .75 .83 93 1.85 1.96 99 2.77 .50 .50 50 1.76 1.86 100 2.28 1.68 1.76 101 1.79 102 1.30 103 .83 104 .50 § 2144. Table for ascertaining present value of certain annuity. The following table is for the purpose of showing the present value of a certain sum, payable annually for a stated period of years, which comes within the definition of a certain annuity. Thus, if by A.'s will, B. is given the sum of $500 annually for a period of 30 years, this would be an annuity certain. If the annuity was given for the life of B., it would be a life annuity; and if the present value of a life annuity was desired, the table for the ascertainment of dower might be used. There is a dif- ference between the present value of an annuity which ceases upon a certain person's death and one which terminates in a certain number of years. Thus, if a person of the age of 35 years has granted to him an annuity for 31 years, the present value of $1.00 at six per cent. Avould be $13.93. If the same person had given to them an annuity for life, such person would have an expectation of life of 31 years by the Carlisle table, yet the present value of $1.00 for the life annuity would be $12.57." 15 See Giauque & McClure's Pres- ent Value Tables, 4, where this mat- ter is explained. Here it is said " Many persons, with but an im- perfect knowledge of the subject, erroneously suppose that, the value of a vested dower or curtesy is found by calculating the value of an annuity certain for a number of years equal to the expectation of life of the widow or widower. This, however, is by no means the case, as is well known to actuaries and those who have more carefully in- 1789 PRESENT VALUE CERTAIN ANNUITY § 2144 The following table might also be used to ascertain the amount of damages to be properly awarded for death or per- manent injury. Where by death of such party the family was deprived of a known and fixed amount of earnings for a definite number of years. The table, however, for that purpose would not be absolutely reliable. Allowance would neeed be made for sickness and other contingencies that might deprive the per- son of his ability to continue in such services.^® Rule for Finding Present Value. — Multiply the number of dollars per year of such annuity or sum by the amount found in both the column of the adopted rate per cent, and to the right of the number of years, in the " Years " column, which indi- cates the time the annuity has to run. For instance : If a person (or his heirs, etc., in case of his death) is to receive an annuity certain, or other net income, etc., of $500 per year for 33 years, its present value, at six per cent., would be found by multiplying 14.2302, found in the '^ 6 per cent." column, oppo- site " 33 " in the " Years " column, by 500, which would be $7,115.10. Three hundred dollars per year for 15 years would be, at four per cent., 300 X 11.1184 = $3,335.52." vestigated the methods of eomput- ment to the extremity of human ing life annuities. Indeed, the life, which, according to the Car- tiMmber of years given as the expec- lisle Table^ is 104 years; the sum nation is not used in computing a of all these present values is the life annuity at all. For example, present value of the annuity." suppose the value of a widow's is In such cases the mortality ta- dower to be $100 and her age 30. bles are admissible to show the ex- fo find the present value of her pectation of life. Wasner v. Raw- Jower, first the present value of lins, 46 Bull, 147, reported in $100 due one year hence is found full, 64 0. S. 585, without report, and multiplied by the chance of the See 8 Am. & Eng. Ency. of Law, widow's living one year; then the 2nd ed., 947, 940, and cases cited present value of $100, due in two in Giauque & McClure's Present years, is found and multiplied by Value Tables, 184 et .leq. the chance of her living two years; i7 See Giauque & McClure's Pres- %nd finding in th« same manner the ent Value Tables, 190, for same ta- present value of each year's pay- ble. §2144 DOWER AKD ANNUITY TABLES 179C Yrs. I 2 per ct 2.y-2 per ct 3 per ct 1 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 .9804 1.9416 2.8839 3.8077 4.71.35 5.6014 6.4720 7 . 3255 8.1622 8.9S26 9.7868 10.5753 11.3484 12.1062 12.8493 13.5777 14.2919 14.9920 15.6785 16.3514 17.0112 17.0580 18.2922 18.9139 19.5235 20.1210 20.7069 21.2813 21.8444 22.3965 22.9377 23.4683 23.9886 24.4986 24.9986 25.4888 25.9695 26 . 4406 26 . 9026 27.3555 27.7995 28.2348 28.6616 29.0800 29.4902 29.8923 30.2866 30.6731 .9756 1.9274 2.8560 3.7020 4.6458 5. 5081 6.3494 7.1701 7.9709 8.7521 9.5142 10.2578 10.9832 11.6909 12.3814 13.0550 13.7122 14.3534 14.9789 15.5892 16.1845 16.7654 17.3321 17.8850 18.4244 18.9506 19.4640 19.4649 20.4536 20.9303 21.3954 21.8492 22.2919 22.7238 23.1452 23.5563 23.9573 24.3486 24.7303 25.1028 25.4661 25.8206 26 . 1064 26.5038 26.8330 27.1.542 27.4675 27.7732 .9709 1.9135 2.8286 3.7171 4.5797 5.4172 6.2303 7.0197 7.7801 8.5302 9.2526 9.9540 10.6350 11.2961 11.9379 12.5611 13.1601 13. 7535 14.3238 14.8775 15.4150 15.9369 16.4436 16.9355 17.4131 17.8768 18.3270 18.7641 19.1885 19.6004 20.0004 20.3888 20.7658 21.1318 21.4872 21.8323 22.1672 22.4925 22.8082 23.1148 23.4124 23.7014 23.9819 24 . 2543 24.5187 I 24.7754 I 25.0247 I 25.2667 3i^perct .9602 1.8997 2.8016 3.6731 4.5151 5.3286 6.1145 6.8740 7.6077 8.3166 9.0016 9.6633 10.3027 10.9205 11.5174 12.0941 12.6513 13.1897 13.7098 14.2124 14.6980 15.1671 15.6204 16.0584 16.4815 16.8904 17.2854 17.6670 18.0358 18.3920 18.7363 19.0689 19.3902 19.7007 20.0007 20.2905 20.5705 20.8411 21.1025 21.3551 21.5991 21.8349 22.0627 22.2828 22.4954 22.7009 22.8994 23.0912 4 per ct .9615 1.8861 2.7751 3.6299 4.4518 5.2421 6.0021 6.7327 7.4353 8.1109 8.7605 9.3851 9.9850 10.5631 11.1184 11.6523 12.1657 12.6593 13.1339 13.5903 14.0292 14.4511 14.8568 15.2470 15.6221 15.9828 16.3296 16.6631 16.9837 17.2920 17.5885 17.8736 18.1476 18.4112 18.6646 18.9083 19.1426 19.3679 19.5845 19.7928 19.9931 20.1856 20.3708 20.5488 20.7200 20.8847 21 . 0429 21.1951 4% perct .9569 1.8727 2.7490 3.5875 4.3900 5.1579 5.8927 6.5959 7.2688 7.9127 8.5289 9.1186 9.6829 10.2228 10.7395 11.2340 11.7072 12.1600 12.5933 13.0079 13.4047 13.7844 14.1478 14.4955 14.8282 15.1466 15.4513 15.7429 16.0219 16.2889 16.5444 16.7889 17 . 0229 17.2468 17.4610 17.6660 17.8622 18.0500 18.2297 18.4016 18.5661 18.7235 18.8742 19.0184 19.1563 19.2884 19.4147 19.5356 1791 PRESENT VALUE CERTAIN ANNUITY §2144 Yrs. 2 per ct 21^ per ct 3 per ct 3^2 per ct 4 per ct 4 1/^ per ct 49 31.0521 28.0714 25.5017 23.2766 21.3415 19.6513 50 31.4236 28.3623 25.7298 23.4556 21.4822 19.7620 51 31.7878 28.6462 25.9512 23.6286 21.6175 19.8679 52 32.1450 28.9231 26.1662 23.7958 21.7476 19.9693 53 32.4950 29.1932 26.3750 23.9573 21.8727 20.0663 54 32.8383 29.4568 26.5777 24.1133 21.9930 20.1592 65 33.1748 29.7140 26.7744 24.2641 22.1086 20.2480 56 33.5047 29.9649 26.9655 24.4097 22.2198 20.3330 57 33.8281 30.2096 27.1509 24 . 5504 22.3267 20.4144 58 34.1452 30.4484 27.3310 24.6864 22.4296 20.4922 59 34.4561 30.6814 27.5058 24.8178 22.5284 20.5007 60 34.7609 30.9087 27.6756 24.9447 22.6235 20.6380 61 35.0597 31.1304 27.8404 25.0674 22.7149 20.7062 62 35.3526 31.3467 28.0003 25.1859 22.8028 20.7715 63 35.6398 31.5578 28.1557 25.3004 22.8873 20.8340 64 35.9214 31.7637 28.3065 25.4110 22.9685 20.8938 65 36.1975 31.9646 28.4529 25.5178 23.0467 20.9510 66 36.4681 32.1606 28.5950 25.6211 23.1218 21.0057 67 36.7334 32.3518 28.7330 25.7209 23.1940 21.0581 68 36.9936 32.5383 28.8670 25.8173 23.2635 21.1082 69 37.2486 32.7203 28.9971 25.9104 23.3303 21.1562 70 37.4986 32.8979 29.1234 26.0004 23.3945 21.2021 71 37.7437 33.0711 29.2460 26.0873 23.4563 21.2460 72 37.9841 33.2401 29.3651 26.1713 23.5156 21.2881 73 38.2197 33.4050 29.4807 26.2525 23.5727 21.3283 74 38.4507 33 . 5658 29 . 5929 26.3309 23.6276 21.3008 75 38.6771 33.7227 29.7018 26.4067 23.6804 21.4036 76 38.8991 33.8758 29.8076 26.4799 23.7312 21.4389 77 39.1168 34.0252 29.9103 26.5506 23.7800 21.4726 78 39 . 3302 34.1709 30.0100 26.6190 23.8269 21 .5049 79 39 . 5394 34.3131 30.1068 26.6850 23.8720 21.5358 80 39.7445 34.4518 30.2008 26.7488 23.9154 21.5653 Yrs. 1 5 per ct. 6 per ct. 1 7 per ct. 8 per ct. 9 per ct. 10 per ct. 1 .9524 .9434 .9346 .9259 .9174 .9091 2 1 . 8594 1 . 8334 1.8080 1.7833 1.7591 1 . 7355 3 2.7232 2.0730 2.0243 2.5771 2.5313 2 . 4869 4 3 . 5400 3.4051 3.3872 3.3121 3.2397 3.1099 5 4.3295 4.2124 4.1002 3.9927 3.8897 3 . 7908 6 5.0757 4.9173 4 . 7665 4.6229 4.4859 4.3553 7 5.7864 5.5824 5 . 3893 5.2064 5 . 0330 4 . 8084 8 6.4032 6.2098 5.9713 5.7460 5.5348 5.3340 9 7.1078 6.8017 6.5152 6 . 2409 5.9952 5.7590 10 7.7217 7 . 3001 7.0236 6.7101 6.4177 6.1446 11 8 . 3064 7 . 8869 7.4987 7.1390 6 . 8052 6.4951 12 8 . 8633 8 . 3838 7 . 9427 7.5361 7.1607 6.8137 §2144 DOWER AND ANNUITY TABLES 1792 Yrs. 5 per ct. 6 per ct. 7 per ct. 8 per ct. 9 per ct. 10 per ct. 13 9.3936 8.8527 8.3577 7.9038 1 7.4869 7 . 1034 14 9.8986 9.2950 8.7455 8 . 2442 7 . 7862 7.3667 15 10.3797 9.7122 9.1079 8.5595 8.0607 7.6061 16 10.8378 10.1059 9.4466 8.8514 8.3126 7.8237 17 11.2741 10.4773 9.7632 9.1216 8 . 5436 8.0216 18 11.6896 10.8276 10.0591 9.3719 8.7556 8.2014 19 12.0853 11.1581 10.3356 9.6036 8.9501 8 . 3649 20 12.4622 11.4699 10.5940 9.8181 9.1285 8.5136 21 12.8212 11.7641 10.8355 10.0168 9.2922 8.6487 22 13.1630 12.0416 11.0612 10.2007 9.4424 8.7715 23 13.4886 12.3034 11.2722 10.3711 9.5802 8.8832 24 13.7986 12.5504 11.4693 10.5288 9.7066 8.9847 25 14.0939 12.7834 11.6536 10.6748 9.8226 9.0770 26 14.3752 13.0032 11.8258 10.8100 9.9290 • 9.1609 27 14.6430 13.2105 11.9867 10.9352 10.0266 9.2372 28 14.8981 13.4062 12.1371 11.0511 10.1161 9 . 3066 29 15.1411 13.5907 12.2777 11.1584 10.1983 9.3696 30 15.3725 13.7648 12.4090 11.2578 10.2737 9 . 4269 31 15.5928 13.9291 12.5318 11.3498 10.3428 9.4790 32 15.8027 14.0840 12.6466 11.4350 10.4062 9 . 5264 33 16.0025 14.2302 12.7538 11.5139 10.4644 9.5694 34 16.1929 14.. 3681 12.8540 11.5869 10.5178 9.6086 35 16.3742 14.4982 12.9477 11.6546 10.5668 9 . 6442 36 16.5469 14.6210 13.0352 11.7172 10.6118 9.6765 37 16.7113 14.7368 13.1170 11.7752 10.6530 9.7059 38 16.8679 14.8460 13.1935 11.8289 10.6908 9.7327 39 17.0170 14.9491 13.2649 11.8786 10.7255 9.7570 40 H.1591 15.0463 13.3317 11.9246 10.7574 9.7791 41 17.2944 15.1380 13.3941 11.9672 10.7866 9.7991 42 17.4232 15.2245 13.4524 12.0067 10.8134 9.8174 43 17.5459 15.3062 13 . 5070 12 . 0432 10.8380 9.8340 44 17.6628 15.3832 13.5.579 12.0771 10.8605 9.8491 45 17.7741 15.4558 13.6055 12.1084 10.8812 9.8628 46 17.8801 15.5244 13.6500 12.1374 10.9002 9 . 8753 47 17.9810 15.5890 13.6916 12.1643 10.9176 9.8866 48 18.0772 15.6500 13.7305 12.1891 10.9336 9.8969 49 18.1687 15.7076 13.7668 12.2122 10.9482 9.9063 50 18.2559 15.7619 13.8007 12.2335 10.9617 9.9148 51 18.3390 15.8131 13.8325 12.2532 10.9740 9 . 9226 52 18.4181 15.8614 13.8621 12.2715 10.9853 9.9296 53 18.4934 15.9070 13.8898 12.2884 10.9957 9 . !>360 54 18.5651 15.9500 13.9157 12.3041 11.0053 9.9418 55 18.6335 15.9905 13.9399 12.3186 11.0140 9.9471 56 18.6985 16.0288 13.9626 12.3320 11.0220 9.9519 57 18.8607 16.0649 13.9837 12.3445 11.0294 9 . 9563 58 18.8195 16.0990 14.0035 12.3560 11.0361 9.9603 59 18.8758 16.1311 14.0219 12.3667 11.0423 9 . P639 60 18.9293 16.1614 14.0392 12.3766 11.0480 9.9672 1793 PRESENT VALUE OF STATED SUM, ETC. §2145 Yrs. 5 per ct. 6 per ct. 7 per ct. 8 per ct. 9 per ct. 10 per ct. "61" 18.9803 16.1900 14.0553 12.3857 11.0532 9.9701 62 19.0288 16.2170 14.0704 12.3942 11.0580 9.9729 63 19.0751 16.2425 14.0845 12.4020 11.0624 9.9753 64 19.1191 16.2665 14.0976 12.4093 1 1 . 0664 9.9776 65 19.1611 10.2891 14.1099 12.4160 11.0701 9.9796 66 19.2010 16.3105 14.1214 12.4222 11.0735 9.9815 67 19.2391 16.3307 14.1322 12.4280 11.0766 9.9831 68 19.2753 16.3497 14 . 1422 12.4333 11.0794 9.9S47 69 19.3098 16.3676 14.1516 12.4382 11.0820 9.9861 70 19.3427 16.3845 14.1604 12.4428 11.0844 9.9873 71 19.3740 10.4005 14.1686 12.4471 11.0866 9.9885 72 19.4038 16.4156 14.1763 12.4510 11.0887 9.9895 73 19.4322 16.4298 14.1834 12.4546 11.0905 9.9905 74 19.4592 16.4432 14.1901 12.4580 1 1 . 0922 9.9914 75 19.4850 16.4558 14.1964 12.4611 11.0938 9.9921 76 19.5095 16.4678 14.2022 12.4640 11.0952 9.9929 77 19.5329 16.4790 14.2077 12.4666 11.0965 9.9935 78 19.5551 16.4897 14.2128 12.4691 11.0977 9.9941 79 19.5763 16.4997 14.2175 12.4714 11.0988 9 . 9946 80 19.1965 16.5091 14.2220 12.4735 11.0998 9.9951 § 2145. Table for ascertaining present value of a sum certain due and payable at end of a stated number of years. In the administration of estates, especially in the termination of a trust, it becomes important to ascertain the present value of an amount payable at the end of a certain number of years. Thus A. may by will or deed provide that B. ten years after his death shall be paid a certain sum of money. If no limitations are placed upon this provision, B. and other interested parties consenting, this trust may be tenninated and B. paid his legacy at once. If the sum so devised to A. was $5,000, and we de- sired to find the present value, by looking at the table under the six per cent, column we would find the present value of one dollar to be .5584, and $5,000 would be 5,000 times .5584, which would give 2.792 as its present value. The interest by this table is based upon calculation at a compound rate, and is taken from a calculation made by the Mutual Life Insurance Company of New York.^* 18 If it is desired to find the present value of the use of a cer- tain sum during the life of another, the table for ascertaining dower is the one to be used. Thus if B., being thirty-five years of age, had ^ 2145 DOWER AND AXXT'lTY TABLES 1794 Yrs. 1 3perct. .3 1/2 per ct. 4 per ct. 41/2 perct. 5 per ct. 1 6 per ct. 1 .9709 " .9692 .9651 .9569 .9524 .9434 2 . 9426 .9335 .9246 .9157 .9070 .8900 3 .9151 .9019 .8890 .8763 .8638 .8396 4 .8885 .8714 .8548 .8386 .8227 .7921 5 .8626 .8420 .8219 .8025 .7835 .7473 6 .8375 .8135 .7903 .7679 .7462 .7050 7 .8131 .7860 .7599 .7348 .7107 .6651 8 .7894 .7594 .7307 . 7032 .6768 .6274 9 .7664 .7337 . 7026 .6729 .6446 .5919 10 .7441 .7089 .6756 .6439 .6139 .5584 11 .7224 .6849 .6496 .6162 .5847 .5268 12 .7014 .6618 .6246 .5897 .5568 .4970 13 .6810 .6394 .6006 . 5643 .5303 .4688 14 .6611 .6178 .5775 .5400 .5051 .4423 15 .6419 . 5969 . 5553 .5167 .4810 .4173 16 .6232 .5767 .5339 .4945 .4581 .3936 17 .6050 .5572 .5134 .4732 .4363 .3714 18 .5874 .5384 .4936 .4528 .4155 .3503 19 .5703 .5202 .4746 .4333 .3957 . 3305 20 .5537 .5026 .4564 .4146 .3769 .3118 21 .5375 .4856 .4388 . 3968 .3589 .2942 22 .5219 .4692 .4220 .3797 .3419 .2775 23 .5067 .4533 .4057 .3634 .3256 .2618 24 .4919 .4380 . 3901 .3477 .3101 .2470 25 .4776 .4231 .3751 .3327 .2953 .2330 26 .4637 .4088 .3607 .3184 .2812 .2198 27 .4502 .3950 .3468 .3047 .2678 .2074 28 .4371 .3817 .3335 .2916 .2551 .1956 29 .4243 . 3687 .3206 .2790 .2429 .1846 30 .4120 . 3563 . 3083 .2670 .2314 .1741 31 .4000 .3442 .2965 2555 .2204 .1643 32 .3883 .3326 .2851 .2445 .2099 .1550 33 .3770 .3213 .2741 . 2340 .1999 .1462 34 .3660 .3105 .2636 .2239 .1904 .1379 35 .3554 . 3000 .2534 .2143 .1813 .1301 36 .3450 .2898 .2437 .2050 .1727 .1227 37 .3350 .2800 .2343 .1962 .1644 .1158 38 .3252 .2706 .2253 .1878 .1566 .1092 39 .3158 .2614 .2166 .1797 .1491 .1031 40 . 3066 . 2526 .2083 .1719 .1420 1 .0972 the use or was entitled to the in- come of five thousand dollars dur- ing his life, the present value would be found by calculating the inter- est on five thousand dollars for one year at six per cent, (if that rate is the one to be used), which would be three hundred dollars, and then multiply three hundred dollars by (Carlisle table) 12.5731, the amount in the six per cent, column opposite thirty-five years, we would have $3,671.93 as its present value. If present value of an annuity cer- tain is desired the table in the previous section is the one to be used. 1795 PRESENT VALUE OF STATED SUM, ETC. ^2145 Yrs. Sperct. 3V i per ct. 4 1 per ct. 41/2 per ct. 5 per ct. 6 per ct. 41 .2976 2440 2003 .1645 .1353 .0917 42 .2800 2358 1926 .1574 .1288 .0865 43 .2805 2278 1852 .1507 .1227 .0816 44 .2724 2-201 1780 .1442 .1169 .0770 45 .2644 2127 1712 .1380 .ni3 .0727 46 .2567 2055 1646 .1320 .1060 .0685 47 .2493 1985 1583 .1263 .1009 .0647 48 .2420 1918 1522 .1209 .0961 .0610 49 .2350 1853 1463 .1157 .0916 .0575 50 .2281 1791 1 1407 .1107 .087-2 .0543 JUVENILE COURT 1796 CHAPTER CIX. JUVENILE COURT. § 2147 Nature of court. § 2181 § 2148 Historical. § 2182 § 2149 Object and purpose. §2150 Judjie of court. §218.3 § 2151 What courts have jurisdic- tion (§1639). §2184 § 2152 Designation of judge. §2153 Juvenile Court defined §2185 (§1639-1). §2154 Seal of court— what court §2186 (§1640). §2187 § 2155 Appearance docket and § 2188 journal (§1641). §2189 § 2156 Jurisdiction of subject mat- ter (§ 1642). §2190 § 2157 Jurisdiction, comments. § 2191 § 2158 Continuing jurisdiction. § 2159 When jurisdiction termi- § 2192 nates (§ 1643). ., §2193 § 2160 Delinquent child defined (§1644). §2194 § 2161 Wlio is delinquent child. § 2162 Dependent child defined § 2195 (§ 1645). §2163 Who is dependent child. §2196 § 2164 Proper parental care de- fined (§1646). §2197 § 2165 What is not proper parental § 2198 care. § 2199 § 2166 Who mav file complaint (§1647).' §2200 § 2167 Procedure. Filing com- plaint, etc. §2201 § 2168 Form complaint, child. § 2169 Citation, Warrants, etc. § 2202 (§1648). § 2202a § 2170 Citation or Warrant. § 2202b § 2171 Journal entry, entry for hearing, etc. § 2203 § 2172 Form citation to child and custodian. § 2204 § 2173 Form notice to parents. § 2174 Service of citation, etc., § 2205 personally. § 2175 Sennce of notice by publi- § 2206 cation. §2176 Form of affidavit for. §2207 § 2177 Journal entry, order for § 2208 publication. §2178 Form of notice for publi- §2209 cation and for sending by § 2210 mail, when parent, etc., are out of state or resi- §2211 dence unknown. § 2179 Form Warrant to arrest § 2212 minors. § 2180 Form complaint delinquency. Warrants to arrest, etc. Journal entry order for warrant to arrest. Form warrant to arrest on complaint. Provisions to avoid incar- ceration. Special juvenile court room (§1649). Hearing (§1650). Trial of juvenile. Trial of adult. Jury trial; costs, etc. (§^1651). Right to jury trial. Commitment of child (§1652). Commitment of minors, etc. Examination of physicians (§ 16.52-1). Commitment to institution or suitable person. Commitment of dependent or neglected child (§ 16.53). Journal entry — placing child, etc. .Journal entry. Age limitations. Penalty for abuse or aiding delinquency (§1654). Commitment for causing de- linquency. .Journal entry — plea of guilty. .Journal entry — judgment. Entry — verdict. Entry — judgment. Trial by ■ jury. Failure or neglect, etc. (§ 1655). Form complaint. Abandon- ment. Commitment for non-sup- port. Journal entry — non-support, etc. Form bond to support. Sentenced to jail or work- house. .lournal entry — workhouse. Provisions in case of work- house sentence (§ 1656). Commitment to county jail, etc. (§ 1657). Citation, etc., on hearing (§ 1658). 1797 NATURE OF 2147 § 2213 Journal entry for arrest. § 2233 § 2214 Form warrant to arrest. § 2215 Transfer of ease to .Juvenile § 2234 Court (§1659). § 2216 Child arrested on warrant § 2235 from .Justice of the Peace or Police Court, etc. § 2217 Writs to whom issued § 2236 (§1660). § 2218 Expense— how paid ( § 1661 ) . § 2237 § 2219 Probation officer — appoint- ment (§1662). §2238 § 2220 Appointment — probation offi- cer. § 2239 § 2221 Form appointment — proba- tion officer. § 2240 §2222 Form oaths. §2241 § 2223 Duties and powers of proba- tion officer (§ 1663). §2242 § 2224 Prosecuting attorneys, duty (§1664). §2243 §2225 Bail (§ 1665). § 2226 Suspension of sentence § 2244 (§1666). §2227 Forfeit of bond (§ 1667). §2245 §2228 Error proceedings (§1668). §2246 § 2229 Appeal and error. § 2247 § 2230 Findings, not lawful evi- dence (§1669). §2248 §2231 Detention home (§1670). §2232 Expense of home (§1671). §2249 When child's commitment is temporary (§ 1672). Commitment temporary or permanent. Agreement with incorpo- rated institution for care of child (§ 1673). Agents of institution (§1674). Judge to require report (§1675). Association in other states (§1677). Penalty for violation, etc. (§1678). Religious belief (§1679). How construed as to indus- trial schools (§ 16S0). When child charged with felony (§1681). Binding over to Court of Common Pleas. Journal entry — binding to coirrt. Form recognizance. Fees and costs, how paid. Chapter liberally construed (§1683). Jurisdiction additional (§1683-1). Misdemeanors against chil- dren. § 2147. Nature of. The Juvenile Court as it exists in Ohio can hardly be said to be a separate and independent court but rather a mere adjunct of the court of which the judge designated to be judge of the Juvenile Court, is a member. The jurisdiction of the Juvenile Court is not that however which belongs to the court of which the judge is a member, but that which is conferred on the Juvenile Court. All the writs are issued in the name of the court of which the judge of the Juvenile Court is a judge. Thus if he is selected from the Common Pleas Court, they would be issued in the name of this court ; if from the Probate Court, in the name of that court. It would be well, however, in all such cases, to have added in addition the words "Juvenile Court Division." The records are kept separately and all matters are concluded the same as if the court wa.s absolutely a separate and inde- pendent court. "The provisions of this humane law," says the Illinois court, "are not new in principle; the novelty is in • the procedure only. The State has always retained the ultimate § 2148 JUVENILE COUET 1798 control of minors. The right and duty of the parent primarily to care for and bring up the child, is not exclusive or final. In case the child is abandoned or neglected, or what is worse, its home is unfit for the child, the State has the right and it is its duty to take the child from the parents in order that it may have the chance to grow up into a law abiding citizen. With- out the enabling statutes, this right in England and in this country, is invested in Courts of Chancery."^ Construing our statute it has been said it "is not penal, delinquency not being a crime, but is an administrative police regulation of a corrective character."' While our statute punishes the person contrib- uting to the child's misfortune and thus to such person becomes penal in its nature, yet the ultimate object is the welfare of the child. § 2148. Historical. It is generally recognized that the first Juvenile Court in this country was organized in Chicago, Illinois, in 1899. The act providing for this court bears some similarity as to organization of the court, to that of Ohio, in that it provided that the judge to preside therein should be taken from another court and should be designated as the Juvenile Court.^ There were, how- ever, previous to this time in some of the States, courts some- what similar in character. Thus Massachusetts in 1883 passed a law providing for children's courts for separate hearing of children's eases. New York followed in 1892. providing in its penal code that children's cases should be heard separate and apart from adults. In far away Australia, South Adelaide, December 20, 1895, a juvenile or children's court was established. While the idea therefore was not a new one, which the Chicago law established, the satisfactory workings of that court under the able judge who was designated to preside in the court, gave great impetus to the movement for such courts. Judge Lindsey's work in Denver, Colorado, did very much to awaken the people to the beneficial infiuence that might be expected from courts of this character. At this time such a court exists in a great majority of the states of our commonr wealth, and in the leading foreign nations of the world. In Ohio the first law was passed in 1902 (95 v. 785), and applied alone to Cuyahoga County, and conferred jurisdiction i In re Brown, 117 111. App. 335. ^ In re Januszewski, 196 Fed. 123; 10 0. L. R. 151. 1799 OBJECT AND PURPOSE § 2149 on the Insolvency Court, and for convenience, provided it might be the ** Juvenile Court," This act was amended in lSO-4 (97 v. 561), providing that Courts of Common Pleas, Probate Courts, Insolvency Courts and Superior Courts might have concurrent jurisdiction, and should designate one of their number as judge, etc. This act was again amended in 1908 (99 v, 192) ; in 1913 (103 V. 864) ; in 1914 (104 v. 176) ; in 1919 (108 v. 260) and in 1920 (108 V. 1130). §2149. Object and purpose. The object and purpose of the Juvenile Court in being a separate body from the ordinary criminal court is to keep youth- ful offenders away from the environments of such courts and the criminals who congregate there. Its object and purpose is correctional and educational. It is not punishment except as the same may follow attendant to the betterment of the minor offenders. The child is not regarded as a prisoner, but merely one retained until, the great father, the State, through the court may determine what should be done for his best welfare. The statute is intended to be educational and charitable ; thereby the State reaches out and takes hold of those who are bereft of that parental care to which they are by nature entitled.* "In a general way," says a Kansas court, "it may be said that the statutes instead of attempting to punish juvenile offenders for misconduct, criminal or otherwise, try to remove them from the path of temptation, and by preventive and corrective means seek to direct them in tlie paths of rectitude. It is an assertion on the part of the State of the right to exercise its power as parens patria for the welfare of such of its minor citizens as are deprived of proper parental control and oversight and are disposed to go wrong. "^ In another jurisdiction it was said, "such laws are most salutary, and are in no sense criminal and not intended as punishment, but are calculated to save the child from becoming a criminal. The whole and only object of such laws is to pro- vide the child with an environment such as will save him to the State and society as a useful and law abiding citizen and 3 § .3388 111. Stats. ^ In re Turner, 94 Kans. 115; 145 i L'x parte Small, IIG Tac. 118. Pac 87U. § 2150 JUVENILE COURT 1800 give him the educational requirements necessary to attain that end. To effect this purpose some restraint is essentiah ' ' ^ "The purpose of this statute is to extend a protecting hand to unfortunate boys and girls who by reason of their own conduct, evil tendencies or improper environments, have proven that the best interests of society, the welfare of the State and their own good, demand that the guardianship of the State be substituted for the natural parents. To accomplish that purpose the statute should be given a broad and liberal construction, but it should not be held to extend to cases where there is merely a difference of opinion as to the best course to pursue in rearing a child. There should be evidence of neglect, aban- donment, incapacity, or cruelty on the part of the parent, or that the child is being exposed to immorality or vice."' * * I wish to call your attention to one thing, which seems to me to be a grand feature of this juvenile law. It is a wonderful law, gentlemen of the jury. It contemplates wonderful results, and I am glad to say that it has accomplished good. The ordi- nary way of the world is that, when a man falls, or when a woman falls, to let them go, and if anything, give them a little push down to hell, a little kick to the infernal regions. The juvenile law says: No. It says that the boy or girl, no matter how delinquent, is worth saving ; has a soul of commercial value, beyond all estimation; because we are told: 'What shall it profit a man if he shall gain the whole world, and lose his own souir "So that this juvenile law comes to every fallen or delinquent juvenile, and to every bad boy and girl, and says: 'You are worth saving; you are worth the protection of the law, and are worth saving; no matter whether you are already guilty, and stained with guilt through and through ; if any man or woman still further offends and further contributes to your delinquency, and still further drags you down towards perdition, he, or she, shall be held amenable to the law.' "Now, that is the theory of the juvenile law."^ § 2150. Judge of the court. In order to best administer the Juvenile Coart the judge should possess some very high moral and social characteristics. Someone in speaking of the qualifiation necessary for ideal 6 Mill vs. Brown, 31 Utah 473; s j. Brister in State vs. Hawkins, 86 Pac. 609. 51 Bull. 166. 7 Lindsay vs. Lindsay, 257 111. 328; 45 L.' R. A. 908, 1801 WHAT COURTS HAVING POWER § 2151 Juvenile Court work, said ''that the judge should have the magnetism of Moses ; the patience of Job ; the firmness of Abra- ham; the wisdom of Solomon and the unselfishness and love of our Lord and Master." In addition it might be said he should be of high moral character and very exemplary habits. The infant mind is very much impressed by what its bright eyes see, and its sharp ears hear, and the judge may rest assured these eyes and ears are always open, looking for what they may see and listening for what they may hear. If the child learns that the judge preaches and teaches that which he does not practice, his influence is gone, and with that particular child he has lost the mission the law placed in his hands. §2151. What courts having powers and jurisdiction. § 1639. Courts of common pleas, probate courts, and insolvency courts and superior courts, where established shall have and exercise, concurrently, the powers and jurisdiction conferred in this chapter. The judges of such courts in each county, at such times as they determine, shall designate one of their number to transact the business arising under such jurisdiction. When the term of the judge so designated expires, or his office termi- nates, another designation shall be made in like manner. Procedure in absence of judge. In case of the temporary absence or disability of the judge so designated another designa- tion shall be made in like manner to cover the period of such absence or disability. Definitions. The words, juvenile court when used in the statutes of Ohio shall be understood as meaning the court in which the judge so designated may be sitting while exercising such jurisdiction, and the words "judge of the juvenile court" or "juvenile judge" as meaning such judge while exercising such jurisdiction. Jurisdiction in Hamilton county. The foregoing provisions shall not apply to Hamilton county, in which county the powers and jurisdiction conferred in this chapter shall be exercised by the court of common pleas, and in 1914 and every sixth year thereafter, one of the common pleas judges to be elected at said times shall be elected as a judge of the court of common pleas, division of domestic relations. To him shall be assigned all juvenile court work arising under this chapter, and all divorce and alimony cases, and whenever said judge of the court of common pleas, division of domestic relations, shall be sick, absent or unable to perform his duties, the presiding judge of the common pleas court shall assign another common pleas judge to perform his duties during his illness, absence or indisposition. [99 v. 192, § 1; 103 v. 864 (868) j 104 v. 176; 108 v. 1130.] § 2152 JUVENILE COURT 1802 §2152. Designation of judge. The designation of the judge determines the court that shall have jurisdiction in juvenile cases. If he be from the Common Pleas, then that court has jurisdiction; if from the Probate Court, then that court has jurisdiction. This law permitting, or rather requiring the judges of the various courts to select one of their number to act as juvenile judge, is within the power of the legislature and does not conflict with the constitution of our State.^ "The act in question authorizes the judges of the several courts of equal original jurisdiction to designate the one that shall hear and dispose of the business in which each is given equal original authority. Jurisdiction consists of the power to hear and determine. The source of this power resides in the legislature. In this act it is conferred upon the several courts named by that authority, and the mere selection of one to dis- pose of the business by the several judges is not conferring jurisdiction. For, without such designation, either of the courts named could entertain jurisdiction of the matter specified in the act ; whilst if the autliority was conferred upon the judges, neither of said courts could exercise the power to hear and determine unless authorized by the judges before hand. "The court first acquiring jurisdiction would hold it until the action was finally dispo.sed of. "The constitutionality of the act was challenged in the case of Giltman vs. State, before this court in Clark County. We were then of the opinion that the act did not contravene any of the provisions of that instrument. A re-examination of the act does not convince us that our opinion in the Giltman case was wrong; and it is, therefore, adhered to here."^° When there is a vacancy in the position of judge of the Juvenile Court, then it is the duty of the judges of the Courts of Common Pleas, Probate Court and (where established) the Insolvency Court and Superior Court, to meet and select one of their number to act as judge of the Juvenile Court. In doing so they may fix the length of time he should serve ; not to exceed the time for which he is elected. If no time is fixed I assume he will serve until the expiration of his term. In a number of counties there is one common pleas judge and one probate judge. If they could not agree on which one should act, some difficulty 9 Travis vs. State, 31 C. C. 4n2 : lO See Mill vs. Brown, 31 Utah 12 C. C. (N.S.) 374; affirmed no op. 47.3: 88 Pac. fiOfl : ^Slarlowe vs. Com., 82 O. S. — . 142 Ky. 106; 133 S. W. 1137. 1803 "juvenile court" DEFINED §2153 miglit be experienced in the matter of who should act as such judge/^ If the person designated as judge of the Juvenile Court is temporarily absent or suffering disability, another judge within the selected class is to be designated to act during such absence or disability. Whenever a designation is made an entry should be put upon the records of the Juvenile Court showing such fact. In all the counties of Ohio as I am now informed, in but five the judge of the Probate Court acts as juvenile judge/^ In three other counties the Common Pleas Court and Probate Court are combined, and there as a matter of course the judge of such courts would also be judge of the Juvenile Court, and while he might act as juvenile judge under either his common pleas or probate jurisdiction, I think it preferable that he act under his common pleas jurisdiction. In order to determine this matter it would be advisable to place an entry on the records of the Juvenile Court, settling it beyond question.^^ §2153. "Juvenile Court" defined. (§1639-1.) §2. The term "juvenile court" as used in this act [G. C. §§ 1648, 1672, and 3093] shall be construed as applying to such courts as are created by section 1639 and all other courts now or hereafter created to administer the provisions of law relating to dependent, delinquent and neglected children. [108 v. Pt. I 260 (262), §2.]- § 2154. Seal. § 1640. The seal of the court, the judge of which is designated to transact such business, shall be attached to aU writs and processes. [99 v. 192, § 2.]^^ § 2155. Appearance docket and journal. § 1641. The clerk of the court of the judge exercising the jurisdiction shall keep an appearance docket and a journal, in the former of which shall be entered the style of the case and a minute of each 11 It might be well to have some i* § 3093 refers to county ehil- legislation on this matter, permit- dren's homes, and makes that ap- ting the Chief Justice of the Su- ply to the provisions of § 1072. preme Court to determine the ques- is This means that when a judge tion in such cases. of the Court of Common Plras is 12 These five are Hamilton, designated to act as Juvenile Judge, Preble, Drake, Warren, Clark and then the writs are issuod under the now Montgomery. name of that court. If a judge of 13 These three" counties are Adams, the Probate Court, then under that Henry and Wyandotte. name. § 2156 JUVENILE COURT 1804 proceeding and in the latter of which shall be entered all orders, judgments and findings of the court. [99 v. 192, § 3.]^^ § 2156. Jurisdiction statute. § 16'42. Such courts of com- mon pleas, probate courts, insolvency courts and superior courts within the provisions of this chapter shall have jurisdiction over and with respect to delinquent, neglected and dependent minors, under the age of eighteen years, not inmates of a state institution, or any institution incorporated under the laws of the state for the care and correction of delinquent, neglected and dependent children, and their parents, guardians, or any person, persons, corporation or agent of a corporation, re- sponsible for, or guilty of causing, encouraging, aiding, abet- ting or contributing toward the delinquency, neglect or de- pendency of such minor, and such courts shall have jurisdic- tion to hear and determine any charge or prosecution against any person, persons, corporations, or their agents, for the com- mission of any misdemeanor involving the care, protection, edu- cation or comfort of any such minor under the age of eighteen years. [99 v. 192, § 4; 103 v. 864 (868).]" §2157. Jurisdiction of court. This section gives equal and concurrent jurisdiction to the Courts of Common Pleas, Insolvency, Superior and Probate, in the matters coming within the province of the Juvenile Court; and therefore the court first exercising the jurisdiction would have jurisdiction to the exclusion of all others; and the judges of the various courts having designated the judge to act as such juvenile judge, the judges of such other courts would not have jurisdiction in matters conferred on the judge of the Juvenile Court, and it has therefore been held that the Juvenile Court has exclusive jurisdiction over minors who are under eighteen years of age, not inmates of a state institution, etc., and charged with some misdemeanor.^* The court has no jurisdiction other than that conferred by statute, and the jurisdiction conferred is, first, over minors under eighteen years of age who are either delinquent, neglected or dependent, who are not inmates of some institution, etc. ; second, over the person who causes such delinquency. This 16 Under the above section it is 17 See § 1683-1 for additional intended that the records of the jurisdiction conferred, § 2248, Juvenile Court are to be kept sepa- is State vs. Forest Joiner, 20 N. rate from the records of the court P. (N.S.) 313. of which the designated judge has The statute now wives to the been selected. It does not seem to .Juvenile Court .jurisdiction in cases provide for a final record, but it of truancy. § 7774 G. C. [109 V. — ]. seems such should be made. 1805 CONTINUING JURISDICTION § 2158 latter class includes parents, guardians or any person, persons, or corporation, or agent of corporation responsible for, or guilty of causing, encouraging, aiding, abetting or contributing to the. neglect, delinquency or dependency of such minor. What con- stitutes a dependent or delinquent child is defined by future sections.^^ It has been held that Probate Courts or Juvenile Courts are courts of record, and their jurisdiction being attached, it is exclusive, and can not be assailed by any other court in an independent proceeding.-" In addition to the offenses heretofore mentioned, a subsequent section '^ gives jurisdiction of all misdemeanors against minors and offenses therein prescribed.^^ § 2158. Continuing jurisdiction. "When the court once comes into custody of a child under eighteen years of age then for the discipline and protection of that person, it remains a ward of the court until it is twenty-one years old; the exception is when the child is placed in the per- manent care of the Ohio Board of Administration, etc., with permission and power to place the child in a home with probabil- ity of adoption; then the jurisdiction ceases at the time of commitment If the child is once under the jurisdiction of the Juvenile Court, then no other court can acquire jurisdiction,-^ and if the child is under the jurisdiction of some other court the Juvenile Court can acquire no jurisdiction.-* Thus when in a divorce proceedings the child was awarded to the mother, afterwards proceedings was brought in the Juve- nile Court on the ground that the child did not have proper care, etc., and was adjudged by the Juvenile Court to be such 19 Dependent, § 1645, G. C. §2162. S 12674 G. C. Selling poisons, etc. Delinquent, § 1644, G. C. § 2160. § 12787 G. C. Failure to report Proper parental care, § 1646, G. C. with diseased eyes. § 13031 G. C. § 2164. Keeping liouse of ill fame. § 13035 20 Cliildren's Home vs. Felter, 90 G. C. iSelling obscene literature. O. S. 110. § 1303S G. C. Delivering immoral 21 § 1683 G. C, §2248. literature. 22 § 928 G. C. No ofTense seems 23 Cliildren's Home vs. Felter, 90 to be charged in this section. § 6344 O. S. 110. G. C. Articles pawned belonging 24 Orphan Asylum vs. Soule, 36 to minor. §6345 G. C. Minor em- O. 0. C. 135; 5 App. 70; 36 C. C. ployed as pawnbroker. § 6373 G. C. (N.S.) 138. Second hand dealer with minor. § 2159 JUVENILE COUKT 1806 and ordered committed, etc., it was held that the Juvenile Court had no jurisdiction, and sustained an action in habeas corpus.'^ In the other case the child was adjudged a delinquent child by a Juvenile Court, and it was held no other court could review the action on writ of habeas corpus."*^ In the light of the two decisions referred to, the latter part of the following section as to writ of habeas corpus, does not seem to be of much effect. It therefore appears that if a divorce proceeding was afterwards had between the parents, the court in such action could not make an order as to the custody of the child that could interfere with the orders or continuing power of the Juvenile Court. § 2159. When jurisdiction terminates. § 1643. "When a child under the age of eighteen years eome.s into the custody of the court under the provisions of this chapter, such child shall continue for all necessary purposes of discipline and pro- tection, a ward of the court, until he or she attain the age of twenty-one years. The power of the court over such child shall continue until the child attains such age. Exception. Provided, in case such child is committed to the permanent care and guardianship of the Ohio board of admin- istration, or the board of state charities, or of an institution or association, certified by the board of state charities, with per- mission and power to place such child in a foster home, with the probability of adoption, such jurisdiction shall cease at the time of commitment. When writ of habeas corpus may issue. No court shall issue a writ of habeas corpus against any parties holding a child by reason of a commitment of the juvenile court before such parties have been heard by the court to which applica- tion has been made for such writ and their rights to hold such child have been finally determined by the proper court. [108 V. 260.] § 2160. Delinquent child defined. § 1644. "DELINQUENT CHILD DEFINED." For the purpose of this chapter, the words "Delinquent child" includes any child under eighteen 25 Orphan Asylum vs. Soule, It is in the power of that court supra. if it deem it desirable to restore 26 Children's Home vs. Felter, 00 the child to its parents. But tliere O. 'S. 110. The presumption is that is no authority for any other court the Juvenile Court when it com- to interfere in an independent pro- mitted the child to the home, was ceeding, with the custody of tlie actiiicf with reference to the best child thus entrusted by law to the interest and welfare of the child, jurisdiction of tlie Juvenile Court. 1807 WHO. IS A DELINQUENT CHILD §2161 years of age who violates a law of this state, or a city or village ordinance, or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons ; or who is growing up in idleness or crime; or who knowingly visits or enters a house of ill repute; or who knowingly patronizes or visits a policy shop or place where any gambling device or gambling scheme is, or shall be, operated or conducted ; or who patronizes or visits a saloon or dram shop where intoxicating liquors are sold ; or who patronizes or visits a public pool or billiard room or bucket shop ; or who wanders about the streets in the night time; or who wanders about railroad yards or tracks, or jumps or catches on to a moving train, traction or street car, or enters a car or engine without lawful authority, or who uses vile, obscene, vulgar, profane or indecent language; or who is guilty of immoral conduct ; or who uses cigarettes, cigarette wrapper or substitute for either, or cigars, or tobacco ; or who visits or frequents any theater, gallery, penny arcade or moving picture show where lewd, vulgar or indecent pictures, exhibitions or performances are displayed, exhibited or given, or who is an habitual truant ; or who uses any injurious or narcotic drug. A child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person, and be proceeded against in the manner hereinafter provided. [106 v. 458.] § 2161. Who is a delinquent cliild. A child is delinquent when it is under eighteen years of age, and when 1. It violates a State law or city ordinance. 2. It is incorrigible. 3. It knowingly associates with thieves or immoral persons. 4. It is growing up in idleness or crime. 5. It knowingly visits or enters a house of ill repute. 6. It knowingly patronizes or visits a policy shop. 7. It knowingly patronizes or visits a gambling place. 8. It patronizes or visits a saloon. 9. It patronizes or visits a pool room, bucket shop, etc. 10. It wanders about the streets in the night time. 11. It wanders about railroad yards or tracks. 12. It jumps or catches on moving trains or street cars. 13. It enters a car or engine without authority. 14. It uses vile, obscene, vulgar or profane language, 15. It is guilty of immoral conduct. 16. It uses cigarettes or cignrs or tobacco. 17. It visits or frequents a show of lewd or vulgar exhibitions. § 2162 JUVENILE COURT . " 1808 18. It is an habitual truant. 19. It uses an injurious drug. This category seems to be wide enough to cover any possible case where the child might be had or become bad. §2162. Dependent child defined. §1645. "DEPENDENT CHILD" Defined. For the purpose of this chapter, the words "dependent child" shall mean any child under eighteen years of age who is dependent upon the public for support ; or who is destitute, homeless or abandoned ; or who has not proper parental care or guardianship ; or who begs or receives alms ; or who is given away or disposed of in any employment, service, exhibition, occupation or vocation contrary to any law of this state; who is found living in a house of ill fame, or with any vicious or disreputable persons or whose home, by reason of neglect, cruelty or depravity on the part of its parent; step- parent, guardian or other person in whose care it may be, is an unfit place for such child ; or who is prevented from receiving proper education because of the conduct or neglect of its parent, step-parent, guardian or other person in whose care it may be ; or whose environment is such as to warrant the state, in the interest of the child, in assuming its guardianship. [106 v. 458 (459).] § 2163. Who is a dependant child. A dependent child is one who is under eighteen years of age, and when 1. Dependent on the public for support. 2. Destitute, homeless or abandoned. 3. Has not proper parental care or guardianship. 4. Who begs or receives alms. 5. Is engaged in an occupation forbidden by law. 6. Is living in a house of ill fame. 7. Is living with vicious or disreputable persons. 8. Its home is an unfit place for it to live, etc. 9. Is prevented from receiving a proper education, etc. 10. Its environment is such that the State may take charge of it.i § 2164. "Proper parental care" defined. § 1646. A child within the provisions of this chapter whose parents, step par- ents or guardian permits it to use or become addicted to the use of tobacco, or intoxicating liquors as a beverage and not for medicinal purposes, or any injurious or narcotic drug, or whose parents or guardian rears, keeps or permits it in or about a saloon or place where intoxicating liquors are sold, or a gambling 1 This would include truancy from school. § 7774 G. C. [109 v. — 1. 1809 PROCEDURE — FILING COMPLAINT , § 2165 house or place where gambling is practiced or carried on, or a house of ill fame, or ill repute, shall be deemed to be without proper parental care or guardianship. Child defined. The word "child" or "children" may mean one or more children and includes males and females. Parent defined. The w^ord "parent" may mean one or both parents or step parents when consistent with the intent of this chapter. Minor defined. The word "minor" means child. [99 v. 193, §6;103 V. 864 (870).] § 2165. What is not proper parental care. A child has not proper parental care when its parents, step- parents or guardian permits it 1. To use or become addicted to the use of tobacco or intox- icating liquors. 2. To use or become addicted to the use of an injurious drug. 3. To be about a place where intoxicating liquors are sold. 4. To be about a place where gambling is practiced. 5. To be about a house of ill fame or ill repute. § 2166. Who may file complaint. § 1^47. Any person hav- ing knowledge of a minor under the age of eighteen years who appears to be either a delinquent, neglected or dependent child, may file with such juvenile court a complaint, sworn to, which may be upon information and belief, and for that purpose such complaint shall be sufficiently definite by using the word delin- quent, or dependent, as the facts may be. [103 v. 864 (870).] § 2167. Procedure — Filing complaint, etc. While the Juvenile Court is not considered as a criminal court and the minor charged with a violation of the laws within the jurisdiction of that court, not a criminal, yet the procedure is much nearer allied to that of a criminal court than a civil court. Originally the delinquent was not entitled to a jury trial, and the law was held constitutional.-'' And it was also held the law was not invalid because a trial might be had on affidavit, and not on an indictment.-^ The complaint must be drawn with sufficient certainty that it will show who the person 27 In re .Tanuszewski, 1 •!■"••• , Judge of the Probate Court. By , Deputy Clerk. * Besides naming the custodian, state who are the parents, or guardian, etc. § 2169. Citation, warrant, contempt. § 1648. Upon filing of the complaint, a citation shall issue, requiring such minor to appear, and the parents or guardian or. other person, if any, having custody or control of the child, or with whom it may be, to appear with the minor at a time and place to be stated in the citation; Warrant. Or the judge may in the first instance, issue a warrant for the arrest of such minor or for any person named in the complaint and charged therein with having abused or abandoned, or charged therein with neglect of or being respon- sible for or having encouraged, aided or abetted the delinquency or dependency of such child, or having acted in a way tending to cause delinquency in such child. Parent, step parent subpoenaed. A parent, step parent, guardian or other person not cited may be subpoenaed to appear and testify at the hearing. Contempt. Any one cited or subpoenaed to appear who fails to do so, may be punished as in other cases in the com- mon pleas court for contempt of court. Residence unknown. Whenever it shall appear from affi- davit that a parent or guardian or other person having the custody of such child resides or has gone out of the state or that his or her place of residence is unknown so that such cita- tion can not be served on him or her, the clerk shall cause such citation to be publi.shed once in a newspaper of general circu- lation throughout the county, and published in the county, if there be one so published. Publication. The citation shall state the nature of the com- plaint, and the time and place of the hearing, which shall be held at least two weeks later than the date of the publication; and a copy of such citation shall be sent by mail to the last known address of such parent, guardian or other person having custody of such child, unless said affidavit, shows that a rea- sonable effort has been made without success to ascertain such address. The certificate of the clerk that such publication has been made or such citation mailed shall be sufficient evidence thereof. Until the time for the hearing arrives, the court shall make such temporary disposition of such child as it may deem b'^st. When said period of two weeks from the time of publica- tion shall have elapsed, said court shall have full jurisdiction to deal with such child as provided by this chapter. 1815 CITATION OR WARRANT § 2170 Fugitive. When a person charged with violating a pro- vision of this chapter shall have fled from justice in this state, such judge shall have all the powers of a magistrate under the laws of this state relating to fugitives from justice. [103 v. 864 (870).] §2170. Citation or warrant. On the complaint being filed the court may issue either a citation or a warrant. If the matter sought to be brought before the court is that which affects the child, and not that of- whether or not someone is guilty of causing the child's delin- quency; and it is not necessary to acquire immediate control or possession of the child, it would be proper, and the law so intends a citation should issue. In case' where it is sought to bring some one before the court for contributing to the delin- quency of the child, a warrant of arrest is proper. The statute probably intends that ordinarily it is better to leave the child in its present surroundings until an investigation can be made than to take immediate charge, and besides the word citation has a less criminal significance to the ordinary mind than arrest or warrant. It is in the discretion of the judge, which shall issue. If a citation, it is for the minor to appear, and the parents, guardian or other person having the custody or control of the minor. Any person not cited may be subpoenaed. The citation must state the nature of the complaint ; that is, the matter of delinquency with which the child is charged in the complaint filed under §1647 (§2166), and the time and place of hearing. If service is made on the parent by publi- cation, the time fixed for hearing must be at least two weeks after the date of publication ; otherwise it may be fixed at such time as the court shall designate. It should be long enough ahead, to give the minor and parents reasonable opportunity to prepare whatever defense they may have, as well as to per- mit the probation officer, under §1663 (§2223), to make his investigations, etc. "When the citation is issued it is directed to the probation officer who is to serve the same. § 2171. Journal entry, entry for hearing, etc. State of Oliio vs [Alleged delinquent, neprlected or dependent cbild] This day camo , and filed herein a complaint alleging that is ai child, and that said child is in the control of Wherefore it is by the court ordered that said case be set for hearing on the day of , 10 at o'clock, ... m., and it is ordered tliat a2 directed to3 of this county, bo § 2172 JUVENILE COURT 1816 issued for said child and the person having the custody of the same to •bring said child with him and appear in this court at the time set for hearing thereof. This writ to be returned on the day of and subpoenas be issued for 1 "Delinquent" or "dependent." 2 "Citation" or "warrant." 3 "Sheriff" or "probation officer." §2172. Form — Citation to child and custodian. [Title.] To Probation OfHcer of said County : you are commanded to cite a minor to appear, and the person having custody or control of said minor, or with w^hom the same may be, to personally be and appear with said minor.., before the judge of the Probate Court on the day of , A. D. 19 . . . , at o'clock, . . . m., at the court house in said county, in a certain case in said court, in the matter of said child; and this they shall in no wise omit under penalty of the law. A person so cited, and failing to appear, may be punished as in other cases for contempt of court. Said probation officer Avill take notice that it is his duty to proceed to inquire and make full examination and investigation into the facts and circumstances surrounding tlie alleged delinquency, etc., or dependency of said child in reference to his exact age, habits, school record, etc., and be present in court to represent the interests of the said child, when the case is heard, etc., and said officer shall make due return of this citation on the day of , Ifl . . . . In testimony whereof, I have hereunto set my hand and affixed the seal of said court this day of , 19 . . . , Judge of the Probate Court, By , Deputy Clerk. § 2173. Notice to parent, etc. [Title.] To residing at : As the of the above named child you are hereby notified that proceedings have been instituted in the Probate Court of said county in behalf of said child, under the laws concerning delinquent, neglected or dependent children, and that said case will be heard by the judge of said court on the day of , 19 ... , at o'clock . . . m., at the court house in said county, when and where you are requested, to be present. The nature of said case as charged is Parents, guardians, or if there be neither, then any relative of such child, are expected to be present with it in open court. Serious con- sequences may be avoided by a compliance with this notice. Any excuse for failure to appear should be communicated to the judge before the date set for hearing. § 2174. Service of citation, etc., personally. The statute contemplates that the service be made person- ally upon the minor and also upon the parent or other person in charge. It is only when the parent or other person in charge 1817 SERVICE BY PUBLICATION § 2175 of such minor resides or has gone out of the State, or his place of residence is unknown, that personal service is excused. The question whether or not a statute authorizing the court to assume control of a minor without notice to the parent or person in charge, would be constitutional, is a mooted one, but not material in this State where notice is required. If no notice has been given under an assumed state of facts which did not exist, the court on motion of the parent must open up the ease and give the parent a right to be heard.^^ § 2175. Service by publication. If no personal service can be made on the parent or person having the infant in charge, because he resides or has gone out of the State, or his residence is unknown, an affidavit of the fact should be made by the probation officer or other person having knowledge, and then the clerk must have such citation 32 Where an order has been made and entered by a juvenile court, finding that certain children are neglected and abandoned by their mother, and committing their cus- tody to an institution named in the sections of the General Code relat- ing to juvenile courts, upon an affidavit filed in that court charging in substance that the minor chil- dren named therein are dependent and neglected children, that their mother has deserted and abandoned them and is an unfit person to have the care and custody of them, and that the residence of the mother is unknown, a petition filed in that court by the mother, after such order has been entered, asking the court to open up and vacate the same, averring in substance that the affidavit was false, that affiant knew at the time he filed such affi- davit or with reasonable diligence could have discovered her residence, that she had no notice of such pro- ceeding, that she had not abandoned and deserted her minor children, that the affidavit and the proceed- ings had thereunder and the evi- dence offered in support thereof was false and a fraud upon the court and in fraud of petitioner's rights, that the order was irregu- larly obtained, and that the peti- tioner, the mother, had no notice of such proceedings whatever and by unavoidable casualty and misfor- tune and without any fault or want of diligence on her part was pre- vented from appearing in court and defending her parental rights and vindicating herself against the charges made in the affidavit, anl from having an opportunity to be heard in the proceedings, states facts sufficient, either as a petition or motion, to invoke the jurisdiction of the court to hear and determine the truth of these averments. It is the duty of the court making such order, and in which the peti- tion is filed, to hear the same upon evidence, and to make such order and judgment in the premises as to it seems just and proper. State vs. Bristline, 06 0. S. 582. § 2176 JUVENILE COURT 1818 published in a newspaper of general circulation in the county, once J and the time of hearing must be at least two weeks later than such publication. If the address of the parent is known, a copy of the complaint must also be sent to him by mail. The statute does not so say but it would be advisable to send it by registered mail. §2176. Form— Affidavit for publication. ITitle.] State of Ohio, Clark County, ss. being first duly sworn says that he has made diligent inquiry and effort to ascertain the residence of , the parent [or, guardian or other person having the custody of] , minors, charged in the above entitled case as being delinquents, and that the residence of said is at [or, is unknown] not within the State of Ohio, and that citation can not be served on him personally. Sworn to and subscribed before me and in my presence this day of ,19... , Notary Public. § 2177. Journal entry for publication. [Title.] On this day came , and filed his affidavit herein; that , parent of , resides at [or, is unknown, etc.] and citation can not be served on him personally; wherefore it is ordered that the clerk shall cause such citation to be published once in a newspaper of general circulation in the county; that said citation shall state tlie nature of the complaint and the time and place of hearing, which time of hearing is here fixed at at a. m., on the day of , 19..., at least two weeks after the date of said publication. It is also ordered that tlie clerk mail a copy of such citation by registered letter to the last known residence of § 2178. Notice for publication and for sending by mail, when affidavit shows parent, etc., out of ctate, or residence unknown, etc. CITATION TO CHILD AND CUSTODIAN. The State of Ohio, County. Probate Court. In the matter of , a minor. Said minor is hereby cited to appear, and the of said minor, and any other person having custodv or control of said minor, or with whom the same may be, to personally be and appear with said minor.., before the judge of the Probate Court on the day of , A. D. 19 ... , at o'clock . . . m.. at the court house in said county, in a certain case in said court, in the matter of said child; and this they shall in no wise omit under penalty of the law. A person so cited, and failing to appear may be punished as in other cases for con- tempt of court. , 1819 FORMS ^ 2179 The nature of the complaint in the case is as follows: In testimony whereof, I have hereunto set my hand and affixed the seal of said court this day of , 19 . , . ) Judge and Ex-officio Clerk of the Probate Court. PBOOF OF NOTICE BY PUBLICATION. The State of Ohio, County. On this day of , 19..., personally came before me the undersigned authority who being first duly sworn, deposes and says that the foregoing notice was published in the a newspaper printed in and of general circulation in County, Ohio, for consecutive weeks; the first publication being on the day of , 19. . ., and that he has personal knowledge of such publication being made, as herein alleged. Sworn to before me, and signed in my presence, this day of > 1 J . . . , Probate Judge. By Deputy Clerk. §2179. Form — Warrant to arrest minors. The 'State of Ohio, County. Probate Court. To of said county : A complaint has been filed in this court, duly verified as provided by statute, that the following named children are under eighteen years of age, residing as follows: and that said children are* children, within the provisions of the laws to regulate the treatment and control of delinquent, neglected and dependent children. Said case has been set for hearing on the day of , 19. . ., at o'clock ... m. You are therefore commanded to take said children and have them at the appointed time above specified before this court. The probation ofiicer will take notice that it is his duty to proceed to inquire and make full examination and investigation into the facts and circumstances surrounding the alleged delinquency or dependency of said children in reference to their exact age, habits and school record, and be present in court to represent the interests of said children. Said officer will make due return of this writ on the day of , 19 . . . , Judge of the Probate Court. By , Deputy Clerk. • "Delinquent" or "dependent." § 2180. Complaint charging- contributing to delinquency, etc., of children. The State of Ohio, County. Probate Court [Juvenile Division]. Before the Probate Court of said county, personally came residing at , wlio being first duly sworn, says that he has knowledge of certain minors under the age of eighteen years, to-wit: § 2181 JUVENILE COURT 1820 ^vho are not inmates of a state institution, or any institution incorporated under the laws of the state for the care and correction of delinquent, neglected and dependent children; that said minors are in the custody or control of * and that said minors appear to be children in this, that [here describe the matter charged constituting the delinquency, etc.] And that one , residing at has said child at the county of in the State of Ohio. Sworn to before me and signed in mv presence this day of 19... * Besides naming the custodian, who are the parents, or guardian, etc. § 2181. Warrant to arrest, etc. The juvenile law of our State has two kinds of offenders to deal with ; one is the child who is delinquent, and the other is the person who is responsible for the delinquency, the object of both, however, being the welfare of the child. The court may, on complaint being filed, order arrest of the child, but this should rarely be done; however when it is an adult who is charged with causing the delinquency of the child, then it will generally be found advisable to order a warrant for arrest. "When an adult is charged with a violation of the provisions of the juvenile law, the matter is, characteristically, more of a criminal nature, than when it is a child who is charged. The object then, to such adult person, is not reformatory, cor- rectional and educational, but punitive. A subsequent section provides such warrant may be issued when it appears on hear- ing that a person is guilty of some offense. §1658 (§2212). The order ought to set out definitely the offense charged. § 2182. Journal entry — Order for v^arrant to arrest. [Title] [Name of person to be arrested.] v.„, -...o ^«.3^ ^„...^ ^... .V,. ...„ring at complaint 1 the"^ hearing it appearing that , residing This day this case came on for hearing at complaint herein filed; and upon the"^ hearing it appearing that , residing at has probably ["Aided" "induced" "caused" "encouraged" or "contributed to'"] the delinquency of minors. Therefore it is ordered tliat a warrant issue to of this county to arrest the said and bring h.. before the judge of this court forthwith. 1821 HEARING § 2183 §2183. Form — Warrant to arrest, on complaint. The State of Ohio, County. Probate Court [Juvenile Division]. To the of said County : A complaint has been filed in this court, duly verified as provided by statute, in the matter of a delinquent, neglected or dependent chikl, that one residing at has the said child; and thereupon the judge made an order upon the journal of the court, that a warrant issue for the arrest of said ; These are therefore to command you to take the said if . . he be found in your county, or, if . . he has fled, that you pursue after h . . into any other county in the state, and take and safely keep the said so that you liave h . . body forthwith before said court, to answer the said order, and be further dealt with according to law. Given under my hand and the seal of said court, this day of ,19..- , Judge of the Probate Court. By , Deputy Clerk. §2184. Provision to avoid incarceration. § 1648-1. In any ease where a child under the age of eighteen years is arrested with or without a warrant, in order to avoid the incarceration of such ' child, if practicable, the officer so arresting, unless otherwise ordered by the court, shall accept the written promise of the parent, guardian or other person with whom such child resides, or any other reputable person, to be responsible for the presence of said child in the proper court at the time and place when such child is to appear, and at any other time to which the hearing in the case may be continued or adjourned by the court. Nothing herein contained shall be construed to prevent the admitting of such child to bail, in accordance with the general provisions of the crimes act. [103 v. 864 (871). f=^ § 2185. Special room for juvenile court. § 1649. The county commissioners shall provide a special room not used for the trial of criminal cases, when avoidable, for the hearing of juvenile cases. [99 v. 194, § 9.]3* § 2186. Hearing. § 1G50. On the day named in the cita- tion or upon [he return of the warrant of arrest, or as soon thereafter as may be, the judge shall proceed, in a summary 33 This means that unless the ing the child away from all sur- child he charged with a crime under roundings of matters pertaining to the criminal laws, it is not to be crime, when possible it would be placed in jail until time of hear- wise if this room were in the de- ing, or even in a house of detention, tention home. This would not only unless there is no one who will keep tlio child away from courts, answer for its presence who is a etc., but would put the judge in . proper person so to do. closer touch with the matters in the 34 This is for the purpose of keep- home. § 2187 JUVENILE COURT 1822 manner to hear and dispose of the ease, and the person arrested or cited to appear may be punished in the manner hereinafter provided. [99 v. 194, § 10] §2187. Trial of juvenile. The trial of the juvenile should be conducted in as informal a way as is proper in the hearing of judicial matters. It would differ in this respect from the trial of an adult even in Juvenile Court. Only in rare instances should an oath be ad- ministered to the child; the judge should as much as possible put himself on a common plane with the child. The practice of the judge sitting high above the child on a bench, and look- ing down upon him as a culprit has been severely condemned. Even the room in which the hearing is had, it is said, should not appear as a place where punishment is doled out, but more like a living room in a private home, and the proceedings con- ducted like a father with his child. The prosecuting attorney should not be called in such cases. The officials are the judge and the probation officer. The judge represents the great commonwealth of Ohio : the probation officer, the child. The office and province of both is to do that which is to the best interests of the child. The probation officeer is not a prosecution official, neither is the court. The probation officer, will make his report, and must be present at the hearing. The judge will make such inquiries of the witnesses, parents and others as he may think necessary to place before his mind the true condition as to the matters charged, and what disposition should be made of the child. If the child has no home, of necessity the court must provide one, or if the home is an improper one some other place must be provided. When a child has a home, rarely for a first offense should he be taken there- from ; only as a last resort should he be sent to a reformatory. Here is where a difficult matter comes up to the judge. Some- times then, from the things provided that he may do, there is little discretion. But whatever is done must be that which in the mind of the judge will do the child the most good. The interest of parents and others is only secondary to that of the child. The law seems to provide that the question as to the child's delinquency may, on demand before trial, made on behalf of the child, be deter- mined by a jury. But such is not the general procedure intended 1823 JURY TRIAL ; COSTS § 2188 by the juvenile law as to juvenile offenders. It has little to commend it as to such offenders. § 2188. Trial of adult. The trial of an adult person contributing to the delinquency of a minor or for the support of a minor, etc., under the juve- nile law, need not be conducted in any different manner from that when a person is on trial for commitment of any crime. If the adult so desires he may, if he makes such demand before the time of hearing, have the fact of whether or not he is guilty of the matter charged, submitted to a jury. In such cases he has a right to, and should be represented by counsel, and the prosecution should be represented by the prosecuting attorney. If found guilty the judge fixes the sentence within the limits provided by law.^^ §2189. Jury trial; costs. §1651. Any person charged with violating any of the provisions of this chapter or being responsible for or with causing, aiding or contributing to the delinquency, dependency or neglect of a child, or with acting in a way tending to cause delinquency in a child, arrested or cited to appear before such court, at any time before hearing, may demand a trial by jury, or the judge upon his own motion may call a jury. Drawing jury. The statutes relating to the drawing and impaneling of jurors in criminal cases in the court of common pleas, other than in capital cases, shall apply to such jury trial. Compensation. The compensation of jurors and costs of the clerk and sheriff shall be taxed and paid as in criminal cases in the court of common pleas. [99 v. 194, §11; 103 v. 864 (871).]"" 36 35 As to law see charges of court. jury and see §§ 11447 G. C. to 11468 State vs. Smith, 34 C. C. 661; 14 G. C. as to trial by jury, general C. C. (X.S.) 257. Contributing to provisions. See §§ 13642 to 13679 delinquency by going to house of ill- Patterson's Wilson's Criminal Code, fame with minor. State vs. Haw- criminal provisions and see pages kins, 56 Bull. 166. By having sex- 1437 to 1499 same volume as "to ual intercourse with minor. State criminal evidence; also §13533 as vs. Tollinger, 66 Bull. 141; §2167. to forms of commitments. If no Same offense. See Patterson's Wil- demand is made, and the record son's Cr. Code, §§ 13642-136S7. shows none, the defendant will be 36 §§11427 G. C. to 11446 G. C. deemed to have waived it. Billig. relate to drawing and impaneling a heimer vs. State, 32 O. S. 435. § 2190 JUVENILE COUKT 1824 § 2190. Right to jury trial. The previous section as it originally stood only provided that the right to jury trial should be given to the person who was charged with being responsible for or causing, aiding or con- tributing to the delinquency of the child. The statute as it now is, seems to be broad enough to include cases where the child itself is on trial. Of course to have the right it must be demanded ; if not demanded it will be conclusively presumed to have been waived, and the waiver need not be in writing.^^ Even if the law did not give to the minor a right to a jury trial, the law would not be unconstitutional, and this would be true even though the charge in the affidavit was a felony .^^ § 2191. Commitment continued. § 1652. In ease of a de- linquent child the judge may continue the hearing from time to time and may commit the child to the care or custody of a probation officer, and may allow such child to remain at its own home, subject to the visitation of the probation officer or other- wise, as the court may direct, and subject to be returned to the judge for further or other proceedings whenever such action may appear to be necessary ; or the judge may cause the child to be placed in a suitable family home, subject to the friendly supervision of a probation officer, and the further order of the judge, or he may authorize the child to be boarded in some suit- able family home in case provision be made by voluntary con- tribution or otherwise for the payment of the board of such child, until suitable provision be made for it in a home without such payment ; or the judge may commit such child, if a boy, to a training school for boys, or, if a girl, to an industrial school for girls, or commit the child to any institution within the county that may care for delinquent children, or be provided by a city or county suitable for the care of such children. Limitation. In no case shall a child, committed to such in- stitutions, be confined under such commitment after attaining the age of twenty-one years ; or the judge may commit the child to the care and custody of an association that will receive it, embracing in its objects, the care of neglected or dependent chil- dren, if duly approved by the board of state charities, as pro- vided by law. Where it appears at the hearing of a male delinquent child, that he is 16 years of age, or over, and has committed a felony, the juvenile court may commit such child 37 Walton vs. State, 3 App. 97; vs. Com., 142 Kv. 106; 133 S. W. 19 C. C. (NjS.) 452. 1137: IMill vs. Browu, 31 Utah 473; 38 In re Janiiszpwski, 19(5 Fed. 88 Pae, 809. 123; 10 O. L. R. 151. See Marlowe 1825 COMMITMENT § 2192 to the Ohio state reformatory. [99 v. 194, §12; 103 v. 864 (871.)]'' § 2192. Commitment of minor delinquent. There are three classes of persons that the court has juris- diction over to commit to institutions, etc. The first is the de- linquent child, second the dependent child and third the person, if he be a minor under eighteen years of age, who has caused, aided or contributed to the delinquency or dependency of the child. The previous section refers to the first and third of these, and means the order the court may make when the matter comes up for hearing. The first commitment is of a probationary char- acter by continuing the case and committing the child to the care and custody of the probation ofiicer, etc. The second is of like character by causing the child to be placed in a suitable family home, etc. The third, if a boy, he is to be committed to a training school for boys; if a girl, to an industrial school. These would seem to mean to include the penal institutions of the boys industrial school and the girls industrial school. The fourth to any institution within the county that may care for such children. In all cases the institution must be one certified by the Ohio Board of State Charities, as proper.**' If the child is sixteen years of age and not over twenty-one, and has com- mitted a felony, it may be sent to the Ohio State Reformatory.*^ § 2193. Examination by competent physician. § 1652-1. Any child coming within the provision of this chapter may be subjected to a physical and mental examination by a competent physician or physicians, to be appointed by the Juvenile Court. "Whenever any such child is committed to any institution by virtue of the provision of this chapter, a record of such exami- nation or examinations shall be sent with the commitment to such institution. The Juvenile Court shall tax as part of the costs, a reasonable fee for such examination. [109 v. 523.] §2194. Commitment to institution or suitable person. § 1653. When a minor under the age of eighteen years, or any ward of the court under this chapter, is found to be dependent 39 See § 1672 G. C, § 2233, as Reformatory is not intended exclu- temporary and permanent custody. sively as a place of confinement of •SS G. C. Guardians, etc., account, 1367 inventory, 1367 statement of ward's estate, 1323 as to value of mortgage to secure bond, 1323 private sale, 882 publication, service by, 840 Orphan asylum, to send vagi-ant child to, 1906 Sale, before confirmation of. private, 882 Schedule of debts, of assignee, etc., to, 1594 INDEX 1877 (References are to sections.) AFFIRMATION — Of commissioners' proceedings in county road appeals, 1791 AGE — When wardship ceases, 1354 When ward may choose guardian, 1327 When ward may make will, 1020 When ward may marry without guardian's consent, 1997 When ward may marry, 1997 Lease to determine when ward arrives at, 1445 To be stated in petition for sale of ward's lands, 1410 Within which ward may be bound to apprenticeship, 1370 Child cannot act as executor until it becomes of, 93 AGENT — Employment of, 660 AGREEMENT — To arbitrate, 594 et seq. To distribute in kind, 750 et seq. In dower, 958 ALDERMAN — Proceedings against, guilty of misfeasance or malfeasance, etc., 2006 ALIEN — See Naturalization. May hold land, etc., 935 Heirs of, may inherit lands, 935 Will of, effect of record of, 1130 ALIENATION — Restraint of, 1204 ALLOWANCE — Appeal from Probate Court as to, 39 Claim against estate of by executor, etc., 557, 609 See Claims of Executor. by Probate Court of claim due executor, 631, 641 due after two years, not conclusive, when, 580 See Presentation of Claims. prima facie evidence only of validity of allowance of in suit OB bond, 277 refusal to indorse a rejection, 609 does not preclude right to contest, when, 277 against insolvent debtor's estate, 1632 to be indorsed by assignee, etc., 1628 of compensation to assignee, etc., 1642 See Assignment. Guardian to receive none for his services, when, 1367 See Guardian. Time to collect assets, how obtained, 445, 446 when not allowed, 448, 448« Widow and children to for year's support, 324 See Widow's Allowance. record of, to for year's support, 324 of what to consist, 324, 325 to be stated in schedule separate from inventory, 324 may be increased or diminished by Court, 333 a preferred claim, 647 not barred by election to take under will. 1221 on sale of real estate by executor, etc., 816 ALTERATION — Effect of, of will by deed, etc., 1059 See Revocation of Wills, 1878 INDEX . (References are to seclicns.) ALTERATION — Continued. when operates as revocation, 1059, 1000 Of State or county road, appeal from order, 1785 township road, 180") Allowed, making new parties in proceedings by creditors against heirs, etc., of deceased debtors, 592 AMERCEMENT — Of officer, refusing to serve or return process, 2010 or pay over money, 2010 proceedings against, 2010 AMICABLE PARTITION — See Partition. ANCESTOR, 908 ANCESTRAL PROPERTY, 90S See Descent. ANCILLARY ADMINISTRATION — Application for, 173 form of, 174, 175 Definition, 165 Difi'erence between principal and, 167 Estate situate in different States, 185 Form of application for letters, 179 Form of bond, 180 Form of letters, 181 Not favored, 165 Notice required, 176 Order for appointment, 178 Payment of debts and distribution, 184 Personal estate distributed according to law, domicile, 185 Powers and duties, 183 Real estate distributed according to law where property situate, 185 When appointed, 168 Where appointed, 171 Who appointed, 172 Within what time appointment made, 172 ANCILIARY^ GUARDIANS — See Guardian. ANIMALS— Appeal for injured, 1996 et seq., G. C. ANNUITY— For estimating value of Avidow's dower, 21ZZ What is. 374, 2136 Certain, 2136 In possession. 2136 Interest on, 6!>4 (Legacy in nature of, fi!)2 Tables, 2015, 2024. When mav be assigned. 1253 ANNUAL CROPS, 368 See Emblements. ANSWER— Of guardian a'l litem, 845 Of widow waiving assignment of dower by metes and bounds, etc., S46 Of wife of assignor waiving assignment of dower. 1602 Of defendant in action for sale of land, 846 ANSWER AND CROSS-PETITION— Of creditor in suit to set aside fraudulent convevance, 1580 ANTENUPTIAL CONTRACTS— As to widow's alluwance, 327 As to dower, 947 INDEX 1879 (References are to secttone. ) APPEAI^— Generally: Amendments allowed on, 42 Animals, injured by dogs, 1996^ Appointment ox guardians, 1173 bow effects, 151i5 Bond, when must be given, 44 to whom payable, 46 when filed, 45 amount of penalty, 47 form of, 47 Contempt, 1994 Claim not due, 583 Claim of executor, 642 Ditch appeals : See Ditch Appeals, 1850 Exceptions to inventory, 317 Foreign T\il], 1123 From order of [.robate of will, 1153 Error may be })rosecuted at same time, 40 From Probate Court on lunacy takes up whole case, 39 Guardian's sale of real estate, 1431 Guardian's accounting. 1495 Guardian must be appointed before. i;?^2 Guardian of lunatic, 1515 Hearing on, dismisses error. 52 JlahroF; royijiis. li'To In distribution of personalty, 785 In real estate proceedings, 906 In aid of execution, 1950 Lies from a final order, 40 Notice of, 45 must be in ^ATiting, 45 Only exists when allowed by statute, 40 Party not in interest must give bond, 44 Presvimption is that trustee take up in that capacity, 45 Proceedings certified back, 51 Probate of wills, 1116 Questions to be considered, 42 Removal and resignation, 232 Removal of assignee, 1575 Road appeals: .See Road Appeals, 1784 Removal of assignee, 1575 Second not allowed, 42 Sheep claim appeals, 2115 iSuspends execution of judgment during pendency of, 40 Spoliated will, 1153 To exception of account, 736 Transcript, 49 party interested must file, 50 Trial on,*^42 What may be appealed. 40 Who may prosecute appeal, 41 Widow's allowance, 340 Appropriation of property by cities and villages: Appeal of Common Pleas, 1777 Bond, 1778 when not required, 1779 Married woman's liability, 1779 Notice of appeal, 1778 Original papers may be used, 1781 Transcript, etc., probate judge to furnish, 1780 1880 INDEX (References are to sections.) APPEAL — Continued. Assignment for creditors: Account, from order settling of assignee, 39 Appeal to Common Pleas, 39 Bond, 43 when not required, 43 Original papers may be used, 49 Proceedings in Common Pleas, etc., 51 Real contracts, completion of, 39 Sale of property for paym^ent of debts, 39 Transcript, when to be filed, 49 Trial in Common Pleas, 51 Executor and administrator: Account, from order settling, 39 Allowance to widow, from order increasing or diminishing, 39 embezzling assets, 39 Bond. 43. 641, 1004 when not required, 43. 1779 Distribution, proceedings to enforce, 785 Insolvency, 1010 appeal to Circuit Court, 785 Insolvency, from decision of commissioners, disallowing claim, 1004 bond,' 1004 failure to appeal, how remedied, 1008 when petition to be presented, 1008 Inventory, on hearing exceptions to, 312 Of claim of executor, etc., against estate, 641 Proceedings in Common Pleas, 51 Proceedings against persons suspected of having embezzled assets, etc., 39 Real contracts, for completion of. 39 Record of will destroyed, contest of, 1157 Sale of real estate, for payment of debts, 39 Transcript, when to be filed, 49 Will, from refusal to admit to probate, 1116 how appeal perfected and proceedings in Common Pleas, 1117 in proceedings to contest supplied record of, 1157 Guardians and trustees: Account, from order settling. 1493, 39 Appointment of guardians or trustees for lunatics, etc., 39 Bond, 43 when not required, 43, 177f*, 1787 Distribution, enforcement of order of. 785 Proceedings in Common Pleas, etc., 51 Real contracts to complete, 39 Sale of real estate for payment of debts, 39 Transcript, when to be filed, 49 Trustees' accounts, 1297 Bank deposits: To recover unclaimed, 9869 G. C. Ditch : See Ditch Appeal. Sheep : See Sheep Appeal. Fire marshal: See Fire Marshal Appeal. Road: See Road Appeals. Ditch appeal: Action to enjoin, lS74f Actual benefit may be shown, 1874b Answer need not be filed, 1861, 1863 Assessment, action to enjoin, 1874f action to recover, 1824d INDEX j81 (References. iue to sections.) APPEAL — Continued. Assessment appealed from, 1852 Auditor to file transcript, 1861 Bond, 1850 Construction and appeal, 1850 Construction not stopped, wlien, 1874a County commissioners, jurisdiction, etc., 1850 Compensation appealed from, 1852 Court shall separate issues, 1868 trial by, 1868 Damages, appeal from, 1852 Defendant, who is, 1859 Dismissal, appeal from, 1850 Docketed, how, 1857 Equity to be done, 1874d Error, not suspended judgment when, 1874 when not enjoined for, 1874f proceedings in, 1873 governed by rule in civil cases, 1873 who made parties, 1873 who deemed parties, 1873 Evidence in action to recover assessment, 1874d Filing transcript, 1862 Finding for improvement, 1852 Final order, what deemed, 1851 Avhat is, 1852 Forms, notice of appeal, 1855 Historical, 1850 Injunction, when granted, 1874f when not, 1874g Issue, how made up, 1863 Joinder of interested party, 1861 Judgment, when not suspended, 1874 motion for, 1870 transcript after, 1872 Jurisdiction, Probate Court, 1850 Common Pleas, 1850 Jury, trial bv, 1866 verdict of, 1867, 1868 Location, A'iew of, 1861 Manifest error before injunction, 1874d Motion for new trial, 1870 New trial, 1871 motion for, 1871 Notice of appeal, 1855 when owner has none, 1874e put on journal. 1853 Owner may recover, when, 1874b wlien no notice, 1874c Plaintiff, who is, 1859 Pleadings not required, 1861 Perfection of appeal, 1857 Persons who may appeal, 1854 Proceedings in error, 1874 Proceedings, when stayed, lS74a Questions for appeal : amount of gssessment. 1852 compensation, land taken, 1852 damage sustained, 1852 dismissal of j)etition, 1852 finding for improvement, 1852 Statement of matter of appeal, 1861 form of, 1862 filed in court, 1859 Stay of proceedings, etc., 1874a 1882 INDEX (References are to sections.) APPEAL — Continued. Tax, when owner may recover, lS74b evidence in action, 1874d Taxation of costs, 1870 Trial by court, 1865 by jury, 1866 governed by rule in civil cases, 1864 procedure of, 1864 Time of filing appeal, 1857 Transcript, auditor to file, 1861 after judgment, 1872 View of location, 1S67 Verdict by jurv, 1868 by court, 1865 matters pertaining to, 1869 Wliat deemed final order, 1851 Wlien owner may recover assessment, 1874b When petition dismissed, 1857 Who may appeal, 1853 Appeal to Circuit Court: Proeeedinfrs to enforce distribution, 785 APPEAL BOND— See Appeal, 43. A])propriation of property by municipal corporation, 1778 who mav appeal without, 1770 Ditch, county, 1833 Road, countv. 1787 state. 1787 who mav appeal without, 1787 APPEAIIANCE,*843 See Sale of Real Estate. APPLICATION — See Forms. Appropriation of property by private corporations, 1679 municipal, 1750 A^ssignnient for creditors, appointment of additional trustees, 1561 to continiie assignor's business, 1602 examination of assignor as to honesty of assignment, etc., 1585 Executor's and administrator's, for appointment, 114 for sale of desperate claims, 456 Guardian of insane ward, for authority to make long lease. 1527 of foreign, for authority to sell real estate, 1481 Habeas corpus, writ of, 1955 Partnership, by surviving partner to appoint appraisers, etc., 417. Proceedings in aid of execution, after return, 1911 before return, 1920 APPOINTMENT — Of attorney for party under disability in condemnation proceedings, 1694 Of executor or administrator, notice of, 544 affidavit as evidence, 546 gives jurisdiction, 543 failure to give, hpw remedied, 548 proof of publication, 547 liability for failure to give, 550 object and purpose, 543 form of J 545 Of assignee or trustee of insolvent estate, notice of, 1557 Of guardian. See Guardian, INDEX 1888 (References are to sections.) APPORTIONMENT — See Annuities. See Rents. APPRAISEMENT — See Inventoky. Assignment for creditors, 1594 See Assignments. return of, 1594 real estate not to be sold for less than two-thirds of, 1602 when personal property may be sold at less than two-thirds of, 1602 real estate, without State, none required of, 1594 Decedent's personal property, 281 See Appkajseks. will may direct none to be made, 470 Court may notwithstanding require, 470 when to be made, 281 may include real estate by order of Court, 299 Decedent's real estate, when included in inventory, 299 See Sale of Real Estate. when appraisement of to be made, 299, 856, 825 how appraisement made when land in two or more countries, 857 of dower, 857 when no dower is assigned, 856 return of, 863 when Court may set aside and order new, 880 Guardian's sale of ward's lands, 1418, 1425 See GxTAEDiANS. lease of, 1438, 1528 Partner, on application of surviving, 417 to be filed but not recorded, 417 APPRAISERS — See In\t;ntory. Assignment for creditors, appointment, 1594 when justice may appoint, 1594 duties of, 1594 return of inventory and appraisement, 1594 Decedent's personal estate, appointment, oath and duties, 290 appointed how, 284 justice may appoint when property is out of county, 284 or in case of sickness or negligence, 285 form of appointment of, by justice, 286 in whose presence to act, 292 must sign inventory, 300 set down each item separately, 292 fees, 301 Decedent's real estate, appointment, 857 See Sale of Real Estate. qualifications. 857 oath and duties, 857, 863 duty in assignment of dower, 857 how appointed to fill vacancies, 801 when land is in more than one county, 857 certificate of appointment, 861 return of, in writing, 863 can not purchase, 889 compensation, 872 Fees of, 301, 872 1884 INDEX (References are to sections.) APPRAISERS — Continued. Guardians and trustees, appointment of for sale of ward's land, 1418 See GuARDiAxs. qualifications, 141S oath, 1421 tor lease of ward's land, 1438, 1528 duties of, 1438, 1528 Partner, on application of surviving, 417 Partnership assets, 418, 420 APPREXTTCE — Wards may be bound out on approval of Probate Court, 1370 APPROPETATION PROCEEDINGS — Two distinct parties cannot join as plaintiffs, 1686 APPROPRIATION OF PROPERTY — Greneral provisions: Attaches to every kind of property, 1662 Additional servitudes, 1670 telephone poles in sidewalks are, 1670 poles for electric light are, 1670 pipes for natviral gas are, 1670 railroad in highway is, 1670 poles for electric railway are not, 1670 sewers in street is not, 1670 electric railway in city is not. 1670 interurban on highway is, 1670 when change of grade may be, 1670 Benefits, 1672 general definition, 1672 cannot be considered, 1672 special, 1672 definition, 1672 what con.stitutes, 1672 instances, 1672 Compensation, 1671 meaning of, 1671 in constitutional sense includes both compensation and damages, 1671 should be adequate to cover all loss sustained, 1671 Constitutional provisions. 1664 reason for two sections, 1664 County road, 1786-1806 Definition of power, 1663 Distinction between and taxation. 1662 Evidence, 1673 general rules apply, 1673 burden of proof rests on land owner to prove value, 1673 witness may give opinion. 1673 form of question, 1673 sales of similar property, 1673 taxes returns, 1673 expert not necessary, 1673 is the view, 1710 Guardian cannot dedicate ward's real estate, 1398 How grant to exercise construed, 1666 examples of. 1666 must strictly come within granted power, 1666 Original jurisdiction of Probate Court, 1662 Power rests upon what, 1663 Pleadings not required, 1679 INDEX 1885 (References are to sections.) APPROPRIATION OF PROPERTY — Continued. Taking without right, 1669 choice of remedies, 1669 what is, 1669 whatever abridges, destroys or curtails use of property is, 1669 construction of tile ditch is, 1669 running sewage in natural water course is, 1669 What and how much may be taken, 1668 every kind of property may, 1668 rules for, where property already appropriated, 166S only so long as the public uses it, 1668 an easement or fee simple may be, 1668 not more than the law provides, 1668 land under water may be, 1668 owner of the fee retains trees, shrubs, etc., 1668 also right of spring, 1668 Who may exercise power, 1665 • legislature determines necessity, 1665 Court determines amount of compensation, 1665 an individual or corporation may, 1665 When may be exercised, 1667 only for a public use, 1667 is a question for the Courts, 1667 difficulty of defining public use, 1667 examples of what are, 1667 By cities and villages: Appeal to Common Pleas, 1777 proceedings same as in Probate Court, 1777 but corporation not required to give notice of application, 1777 corporation can not appeal, 1782 by guardian, executor, etc., 1779 by married woman, 1779 Application to Court, 1750 essentials of, 1751 form of, 1752 precipea for witnesses, 1752 filing, 1753 notice form of, 1755 when to be heard, 1756 Bond to pay damages by any person interested, 1772 for appeal, 1778 when not required, 1779 when execution of order suspended on error, 1776 Building partly on land taken, 1763 Compensation, how assessed, 1763 when building partly on land to be taken, 1763 Concurrence of two-thirds of council necessary for condemnation, 1749 Costs. 1770 effect of filing written offer to confess judgment for stated amount, etc., 1770 Distribution of funds, 1769 Empaneling jury, 1761 • Entry on preliminary questions, etc., 1759 Error, review of proceedings on, 1773 when execution of order may be suspended, 1776 when right to take effect not affected by review, 1778 Forms, 1750, 1754, 17.58 Guardian ad litem for infants, 1756 1886 mDEX (References are to sections.) APPROPRIATION OF FUOFBRTY — Continued. Inquiry to be had at time fixed, 1759 Court to fix time for, 1758 Jurisdiction of Common Pleas and Probate Courts, 1750 Jurisdictional questions, 1757 Jui-ors, how drawn, 17 GO sworn to make whole inquiry, etc., 1765 but may render verdict as to part, 1765 view of premises by, 1762 Maps, plats, etc., may be required of corporation, 1761 Married woman's liability on appeal, 1779 Mortgagee, when entitled to notice, 1754, 1755 New trial, motion for, 1773, 1774 Notice of application, service of, 1754 Notice of intention to, 1778 Notice of resolution declaring intention to appropriate, when and hoW served, 1749 of appeal, 1778 • , Open and close, 1763 Owner, doubt as to, effect, 1771 Original papers may be used in Common Pleas, 1781 Ordering jury, 1759 Payment of deposit, 1767 adverse claimants required to interplead, 17GV no delay from doubt of ownership, 1771 must pay in six months, 1783 Possession, time and manner of delivery, 1769 no delay from doubt of ownership, 1771 must take in six months, 1783 when petition in error filed, 1776 Purposes for which appropriations may be made. 1749 Resolution of council declaring condemnation necf ss.nry. 1749 notice of, when and how given, 1749 Statute must be strictly followed, 1748 Trial, 1764 Transcript to be furnished on appeal, 1780 when to be filed, 1780 Verdict, 1763 when structure partly on land sought to be taken. 1763 confirmation of, 1775 election of owner to remove or accept value, 1763 effect of failure to make election, 1T63 form of, 1766 return of, 1766 may be returned as to part, 1765 View of premises. 1762 By private corporation: Abandonment by corporation, 1725 when presumed, 1725 judgment against corporation, 1725 what is. 1726 when action may }>(- brouuht for costs and expenses, 11061 G. C. Amendments, may be ollowed, 1684 Appropriations can only be made, when, 1676 Attorney appointed for absent parties, etc., 1694 fees in such casps, 1604 fees in case of abandonment. 1725 Common pleas has jurisdiction, when, 1682, 1733 INDEX 1887 (References are to sections.) APPROPRIATION OF PROPERTY — Continued. Compensation, how assessed when structure partly on land Bought to be taken, 1715 Conflicting claims not to be passed upon, 1728 but to be adjudicated in Common Pleas, 1729 such proceedings a civil action, 1730 to be determined by Court or jury, how, 1730 Costs and fees, how taxed, etc., 1746 when costs may be apportioned, 1746 on new trial granted, 1718 of more than three witnesses on same point, 1713 on abandonment, 1725 in proceedings to condemn unfinished road-bed railroad, 1732 judgment for expenses against corporation, 1725 Cost bill expense of view to be taxed in, 1708 Director's individual liability on judgment against corporation, 1725 Distribution of proceeds, 1727 entry where there are no conflicting claims, 1727 Error when may be prosecuted, 1721 Evidence, none to be given before jury viewing premises, 1708 witnesses may be examined after return of jury, 1713 burden of proof on corporation, 1695 Fees, 1746 Interurban railway included, 1675 Insane person, appropriation of property of, 1677 application by guardian for authority to convey, 1677 Jurisdiction, exclusive, of Probate Court, 27 of Common Pleas, when, 1682, 1733 Jurisdictional questions to be first determined. 1695 Jury, how drawn, 1701 fees not taxed against plaintiff, 1701 impaneling, 1703 challenges, how vacancies filled. 1704. 1705 entry for, 1702 entry empaneling, 1709 entry appointing attorney, 1709 oath of, 1706 order to draw, 1702 order -to empanel, 1702 qualifications when tried in Common Pleas, 1722 view of premises by, writ for, 1707 is it evidence, 1710 verdict of, 1716 who to be present, 1708 return of sheriff, 1708 expense of view to be taxed in cost bill. 1708 no evidence to be given. 1708 must strictly comply with statute, 1674 Minor, appropriation of property of, 1678 entry ordering conveyance, 1678 deed, form of, 1678 guardian may file application for authority to convey, 1677 form of,^ 1678 notice of application, 1677 entry ordering, 1678 form of, 1678 New parties, may be made, 1684 New tri.il. 1718,"^ 1717 conducted according to provisions governing first, 1718 1888 INDEX (References are to sections.) APPROPRIATION OF PROPERTY — Continued. proceedings on, 1718 Probate Judge to retain amount of verdict if new trial granted. 1718 verdict, how paid after second trial, 1718 costs of second trial, how and by whom to be paid, 1718 Nature of proceedings, 1683 Notice by land owner or school officers when corppration takes land without condemnation proceedings, 1735 Petition for appropriation, 1679 filing of, 1689 essentials of, 1686 form of, 1688 in what Court to be filed, 1679 where land is located, 1680 entry on filing, 1689 in what county, 1681 may include all parcels in county sought to be taken, 1679 must contain what, 1679 by land owner, etc., when land taken without condemnation pro- ceedings, 1735 by party claiming interest in property or money arising there- from, 1729 Petition in error, either party may file, 1720 but corporation may enter on property sought to be appropriated, how, 1720 proceedings in Common Pleas, 1722 in judgment reversed, how trial conducted, 1722 when had in Common Pleas, 1722 Parties, 1687 all interested should be, 1687 Possession, when and how corporation may have, 1723 entry when deposit made, 1724 judge to enter on record an order of possession when money is paid, 1723 and may issue process to put corporation in possession, when, 1723 when land taken without condemnation proceedings, 1735 Preliminary questions, when to be heard, 1696 existence of corporation, how shown, 1697 • right to make appropriation, how shown, 1698 inability to agree, what is, 1699 necessity for appropriation, who to determine, 1700 finding on, 1701 Reversal of condemnation, Common Pleas to retain cause for trial, etc.. 1722 School lands, how appropriated, 1747 money arising therefrom, how disposed of, 1747 proceedings when taken without condemnation, 1735 Separate trial, who entitled to, 1711, 1712 Service by publication may be issued, when, 1692 Sheriff, judge to deliver copies of petition, etc., to, 1708 Structure partly on land sought to be appropriated, how compen- sation assessed, 1715 owner may elect to retain structure or accept value fixed. 1715 when election not made in time specified retention presumed, 1715 when owner elects to take value structure belongs to corporation. 1715 Summons, its command and service, 1690 INDEX 1889 (References are to sections.) APPROPRIATION OF FROFERTY — Continued. every interested party should have, 1691 must be made as law provides, 1691 served and returned as in civil action, 1690 strict construction of law applied, 1691 record of proceeding must show, 1691 when no service made, new writ may issue, 1690 service by publication, 1692 affidavit for, 1693 when corporation takes land without condemnation proceedings 1742 Time of trial, adjournment, etc., 1685 Trial, how conducted, 1711 may be adjourned and continued, 1685 owner of separate parcel, etc., entitled to separate trial, 1711 shall hold affirmative on trial, 1711 on reversal of judgment in Common Pleas, 1722 Unfinished road bed of railroad may be condemned, 1731 answer of defendant company, 1731 service by publication, 1731 judgment and costs, 1732 in what Courts such proceedings may be begun, 1733 case may be taken out of its order, 1733 proceedings in error may be begun directly in Supreme Court, 1733 provisions as to viewers not to apply, 1733 sworn statement of president of intention to complete road, 1733 twenty-five per cent, of cost of completion to be expended within a year, 1733 . Verdict and confirmation, 1719 form of verdict, 1716 confirmation of verdict, 1719 When appropriations can be made, 1676 When Probate Court cannot, 1728 When Probate Judge interested, 1682 proceedings to be commenced in Common Pleas, 1682 special term of, 1682 and to be conducted according to provisions of this ohapter, 1682 When corporation takes land without condemning it, 1735 notice by land owner of school officer to corporation, 1735 petition on failure of corporation to act, 1735 summons in such case, 1742 judgment and execution, 1742 when injunction may issue against corporation, 1744 \^Tien provisions of chapter do not apply, 1675 Witnesses, examination of before jury after its return to Court, 1713 costs of calling more than three on same point, 1713 When land owner may compel, 1734 demand of description of property, 1739 motion for injunction, 1745 notice to corporation, 1738 procedure, 1743 petition essential of, 1740 form of, 1741 summons, 1742 When corporation may be enjoined, 1744 Where action brought, 1737 Who may bring action, 1736 1890 INDEX (References are to sections.! APPROVAL, — See Coxfibmation. See Partition. See DowKR. Of bonds by Probate Court, 238 Of assignee. See Assignments. Of Court, on sale of desperate claims, etc.. by assignee. 1611 ARBITRATION — Agicement to refer, 598 form, 598 Award has no judicial force, 595 Claims in favor of estate, 455 Claims against estate, 594-606 Confirmation of award, 606 Duties of justices of peace, 598 Duties of Probate Judge, 600 Doubtful claims against estate may be referred, 594 procedure when claim is less than one hundred dollars, 597 when it exceeds one hundred dollars, 599 proceedings, powers and compensation of referees. 602 report of referees, 602 proceedings of Court on, 602 Filing of award, 605 Guardian may submit, 1382 Hearing, 603* Insolvent estates, reference of disallowed claims, 969 costs awarded, 972 judgment on award, 973 Notice and oath to referees, 601 Order of reference, 600 Referee's power, etc., 602 Witnesses how procured, 604 When mav, 595 ARREST — See Arrests. See CiTSTODY of Will. Proceedings in aid of execution, 1911 ASSENT — To distribution of notes, bonds, etc.. in kind of decedent's estat*. 751 ASSESSMENT — Administrator should pay on stocks when, 522 Notice is served on executor, 506 See AppKiVL. See Taxation. ASSETS — See Claims, etc.; Debts, etc. See Administrator and Executor. Arbitration, 455 when may, 455 Administrator de bonis non entitled to possession of. 157 liable foi new, 623 Administration, what not deemed for purpose of. 3-20 Appraised and sold though will forbids it. 470 Advancements, kind, -365 Chattel mortgage, when, 365 Oil, when; straw, when, 368. Cannot be retained by executor, etc., in payment vi his own debt, 631 •Collection of, 440-449 affidavit necessary, 446 administrator's duty, etc., 440 duty to brins suit, 441 diligence required, 442 n^ligence in, 443 INDEX 1891 (References are to sections.) ASSETS — Continued. statute of limitations, 444 extensions of time, 445-448 when further time can not be allowed, 448 when further time will be allowed, 448a Concealed or embezzled, 394-415 nature of proceedings, 394 object of, 394 like bill of discovery, 394 Court having jurisdiction, 397 complaint, 398 form, 400 parties, 399 ordering citation, 401 commitment to jail, 403 examination of accused, 407 trial, 409, 4l0 verdict, 411 judgment, 412 Compounding claim, 450, 455 who may, 450 authority to, 451 application for, 452 hearing, 453 order to compromise, 454 Care and management, 506, 532 preservation of property, 506 notes given by administrator, 507 employment of attorney, 508 when allowed, 509 fees allowed, 510 taxation of, 511 custody of funds, 512 failure of bank, 513 investment of funds, 514 when to be made, 515 insurance, 517 carrying on business, 518 carrying out contracts of deceased, 519 contracts not binding, 520 mortgages, 521 stocks, 522 completion, contract for sale of land, 523 nature of proceeding, 524 parties, 525 petition, 526 notice, etc., 527 form of deed, 531 Discovered after return of inventory, proceedings. 311 Debt of executor or administrator, 3!i0 Debt of heir is, 3H3 Definition, 303 Distribiition of notes, bonds, etc., in kind, 751 of insolvent estate, 1011, 988, 989 Dividends, 978, 1289, 374, 692 Emblements to be, in hands of executor, etc., 369 Foreign executor, etc., duty of as to, 188 wasting may be required to indemnify distributees, 193 Gain and loss, 1290 Insolvent estate, distribution among creditors of, 1011 1892 INDEX (References are to sections.) ASSETS — Continued. Inventory of decedent. 281, 303 to include all, 298 when further assets come to executor's hands, 980 disposition of surplus, 988, 989 of residue after paying contingent claim against, 984 Life insurance is, 380 Marshaled in conformity to will, 832 when devised property taken to pay debts, 1209 Mortgaged premises considered as, 386 New assets after return of first inventory, 311, 616 Not to be retained by executor, etc., in payment of his claim, 631 Non-resident's administration of, 170 Order of payment, 647 Partnership, 416, 439 Partnership real estate, 438 Principal and income, 1288 • Preferred debts exhausted in payment of, 671 Property specifically bequeathed, 474 Real estate, when considered personal, 438 Received after two years go to creditors, 615 Retention of to pay claini not due, 577 Surplus to be paid into Court, on non-resident decedent, 170 Sale of desperate claims, 456, 468 disposition of, 456 jurisdiction of Court, 457 application for, 458 notice for, 459, 460 proof of notice, 461. 462 public sale of, 463. 467 private sale. 466, 467 effect of order of sale, 468 Sale of personal property, 469. 505 See Sale of Personal Property. Time to collect, 440 may be extended, 445, 446 when can not be extended, 448, 448a What are. 365, 393 fixture. 365 wood. 366 manure. 367 emblements, 368 rent of farm land, 371 rents generally, 372 —-leases, 373 annuities, 374 dividends, 374 copywrights, 375 patents. 375 pension money, 376 trust property, 377 money on deposit, 378 fire insurance money, 379 life insurance money, 380 mutual benefit insurance, 381 goodwill of business, 382 property conveyed to defraud creditors, 383 proceeds of real estate. 384 choses in action, 385 debt of executor. 390 debt from heir or legatee, 392 not possessed by deceased. 393 INDEX 1893 (References are to sections.) ASSETS — Continued. widow's allowance, 393 fruit, 366 fence, 366 unfinished structure, 366 What deemed, 320 Wrongful death, etc., 533 is not in ordinary sense, 533 Assignment for creditors: To be converted into money, 1602 Guardian and trustee: Received from administrator, etc., to be adjusted, etc., 1367 retained with approval of Court, 1367 ASSIGNEE — See Assignment. ASSIGNMENT FOR CREDITORS — ASSIGNINIENT — Insolvent corporation, when made 1547 Appeal from order settling, 39 Contents of report, 1653 Examination of assignor and assignee as to, 1585, 733 Exceptions to, 1653 further time to file, 729 How filing and settlement of enforced, 1573 Jurisdiction of Probate Court over, 27, 1544 Notice of filing and hearing, how and by whom given, 1653, 729 costs of, 729 On resignation, removal or death of assignee who shall file, and settlej when, 1573 Time ior filing, 1653 hearing, 1653, 729 settling, 1573 Application for appointment, 1553 entry, 1555 Action : Common Pleas to deliver property, 1572 to settle question of lien, 1618 Fraudulent conveyance, action to set aside, 1580 notice of by creditors, 1580 how creditors made parties, 1580 Liens, action to sell real estate and settle, 1618 Limitation of action on rejected claim, 1628 Sale of real estate, action for, 1618 ' in Common Pieas, when, 1618 Successor may proceed on bond of assignee to compel delivery of trust effects. 1573 Trustees may compel delivery of trust property by, 1572 in what Courts, 1572 Appointment : Of assignee, 1546 trustee, 1559, 1564 Notice of, 1557 When property fraudulently assigned, 1580 Appraisement and Inventory: Appraisement must oe filed within 30 days, 1593 Appointment of appraisers, 1594 when justice may appoint, 1594 qualification of, 159,5 Homestead, etc., to be set off by appraisers, when and how, 1598 Inventory, 1594 1894 INDEX (References are to sections.) ASSIGNMENT FOR CREDITORS — Contmued. when to be filed, 1594 Personal property not to be sold for less than two-thirds, etc., 1610 Real estate not to be sold for less than two-thirds, etc., 1610 subject to re-appraisement, 1610 without the State need not be appraised, 1594 Return of appraisement, 1597 Schedule of debts to be filed, when, 1594 When part of estate in another county, 1594 What must be appraised, 1596 Assets, to convert, 1602 Assignee, qualification, 1553 must be within ten days, 1553 acceptance presumed, 1553 may carry on business, 1587 liability of, 1588 application for order to, 1589 form of application, 1590 entry permitting, 1590 Assignments in contemplation of insolvency: Assignments made in contemplation of, shall inure to benefit of creditors, 1570 Trusts arising thereunder must be administered as herein provided, 1579 Assignee may complete sales of real estate, 1591 Assignee, duties similar to trustee and receiver, 1542 Assignments to defraud, etc., creditors: Conveyances made to hinder, delay or defraud creditors, void, how, 1580 administered upon as in other cases of assignment, 1580 Court not administering trust, or on failure to give notice copy of certified judgment to be certified to Probate Court, 1580 which shall then, on its own motion, appoint a trustee, 1580 who shall administer trust; how, 1580 distribution, creditors entitled to priority in, when, 1580 notice, publication of, in such case, 1580 surplus, creditors failing to answer, share in, 1580 trustee. Probate Judge to appoint, after conveyance declared void, 1580 Bail: Assignee heretofore appointed may be required to give, 1576 Removal for failure to give, 1576 Bond: Action, 1573 Appeal, 43 Assignee's, 1546 additional, when required, 1546 form, 1554 Failure to. give, cause for removal, 1559, 1572 Form of, 1554 Fraudulent conveyance, to secure costs of suit to set aside, 1580 New bond on application of sureties, 1562 discharges sureties on original, 1562 On requisition to reject claims, to pay costs, 1635 Trustee's, 1572 Business of assignor: See Carrying on Business. When Court may order to he carried on by assignee, 1587 Common Pleas Court, jurisdiction of, 1545 only where power of Probate Court inadequate. 1545 Collection oif assets, 1602 INDEX 1 895 (References are to sections.) ASSIGNMENT FOR CREDITORS — Continued. diligence required, 1G03 Claims : Account of, to be filed, 1653 when to be filed, 1652, 1654 what it should contain, 1655 form of, 1656 entry and order of notice, 1657 hearing, 1658 exceptions, 1659 dividend ordered, 1659 notice to creditors of dividends, 1660 report of payment, 1661 form of, 1661 entry on, 1661 Affidavit, to be filed with before allowance or payment, 1632 Bond, assignee or creditor must give when filing requisition, 1635 Secured by mortgage, 1631 Chattel mortgage, 1608 application for allowance, 1608 entry, 1608 creditors notified, 1608 Costs may be allowed, how, 1628 Creditors must file their claims when and how, 1629 Desperate, sale or compromise of, 1602 Disallowance of, on requisition of creditor, 1635 though previously allowed, 1635 bond of creditor, 1635 notice of disallowance, 1635 procedure on, 1636 where to be entered, 1638 when suit must be entered, 1637 Distribution in proportion to amount of, 1579 only on allowed claims, 1629 must be according to law of domicile, 1654 Dividends, payment of, 1653 report of payment, and of those remaining uncalled for and unpaid when due, 1653 notice to owner of unpaid dividend, 1653 distribution of unpaid dividends, 1653 on what amount, etc., 1631 of dividends reserved for claims disallowed or held under ad- vertisement, 1653 Examination of claimant under oath by assignee, 1632 Fraudulent, power of Court to prevent allowance or payment of, 1585 Fraudulent conveyance, in action to set aside, creditors cross-petition- ers to set forth amount of, etc., 1580 Indorsement by assignee, etc., of rejection or allowance, 1628 Judgment against assignee on rejected claim, how awarded, 1628 Laborer's wages, what preferred, 1647 Preferred claims, 1647 payment of, 1640 cost of administration, 1641 lien holder not to be cliarged with, 1641 commission of assignee, 1642 ordinary services, 1643 extraordinary services, 1644 afTidavit to. 1644 attornev fees, 1644 1896 INDEX (Referencps are to sections.) ASSIGNMENT FOR CREDITORS — Cow^inwed. itemized bill.. 1645 affidavit to, 1645 lien existing at time of assignment, 1646 by statute, 1647 taxes, 1648 affidavit when services performed by others, 1642 labor claims, 1649 operative, 1649 labor liens, 1650 rights between various, 1651 Presentment for allowance, when, 1628 when to be presented, 1629 effect of failure to, 1629 should be within six months, 1629 allowed how, 1634 what to be presented, 1630 contingent, 1630 secured by mortgage, 1631 entitled to dividend on, 1631 how presented, 1632 in writing, 1632 affidavit, 1632 and affidavit that services were performed, etc., 1642 form of. 1633 rejected, how, 1634 Rejected, when action to be brought, 1628 Report of assignee and when to be filed, 1628 Report of, filed, 1639 form of, 1639 Surety may present and prove. 1632 but dividend must be paid to owner, 1632 when owner proves claim, 1632 Taxes, preferred claims, 1647 Validity of not affected by determination of Court, as to, in election of trustee, 1564 Wages due operatives preferred claims, 1647 Compensation of assignee: See above Preferred Ci-aims. Commissions usually allowed. 1642 Extra for carrying on assignor's business, 1587 Further allowance for extraordinary expenses and services, 1642 and reasonable counsel fees. 1642 whether performed by assignee or not, 1642 but bill of items must be filed for further allowance, 1642 oy statute, 1647 Maladministering not entitled to, 1643 No allowance for expense of employing auctioneer, unless, etc., 1644 Corporation : Can not give preferences, 1581 May assign, 1547 Creditors may elect, 1564 Costs : Fraudulent conveyance, in action to set aside, when creditors to se- cure, 1580 Of contesting claim when disallowed on requisition of creditor, etc., 1635 Of notice of filing accounts, 729 Rejected claim, of action on. 1628 Effect of order and issue of letters, 1556 INDEX 1897 (References are to sections.) ASSIGNMENT FOR CREDITORS — Continued. Definition, 1542 Death of assignee or trustee: Account, legal representative must file, 1573 Court may appoint successor, 1561 Duties of assignee, 1578 similar to trustee and administrator, 1578 Deed: Acknowledgment necessary to convey real estate, 1550 Form of, 1550 Should be filed in recorder's office, 1552 Time of delivery of assignment to be indorsee? on, 1546 Where must be filed, 1551 Wife's answer as to dower has same effect as, of release, 1600 When takes effect, 1551 Distribution : Cannot be made before eight months, 1614 Only on allowed claims, 1659 partnership, 1659 Assignee bound by Court's, 1659 Must be according to law of domicile, 1542 Dividends: See above Preferred Claims. By whom and when declared, 1653 Notice of making and time and place of payment, 1653 Report of payment, and of those remaining uncalled for and unpaid to be made when, 1653 New notice to owners of unpaid, 1653 distribution, when not demanded within twelve months there- after, 1653 Of dividends reserved for claims disallowed or held under advisement, 1653 Dower, assignment of, 1600 Effect of bankrupt act, 1543 Exempt Property: Excepted unless expressly waived, 1598 From levy, 1598 Homestead, etc., to be set off by appraisers, when and how, 1598 five hundred dollars in lieu of, 1601a petition for allowance, 1600 Wife's property excepted, 1598 Examination of assignee, 1585 procedure, 1586 Foreign assignment: Does not affect real estate in Ohio, 1542 Of Ohio land, superior to subsequent foreign attachment, 1542 Of personalty, superior to subsequent attachment of Ohio debtor, when, 1542 When deed takes effect, 1546 How made, 1550 Incumbrances, to pay on order of Court, 1618 Liens: Action in Common Pleas to marshall, and quiet title, 1618 decree and order of, 1618 report of proceedings certified to Probate Court, 1618 sale of real estate on, 1618 Assignee takes subject to, 1592 Assignment does not affect priority of, 1631 Probate Court to order payment of in order of priority, 1618 Letters, form of, 1556 1898 INDEX (References are to sections.) ASSIGNIVIENT FOR CREDITORS — Continued. Mortgage : Claims secured by, 1631 Rights of assignee in respect to, 1549, 1608, 1592 Notice: Accounts, filing and hearing, 729 Appeal, of intention to, 43 Appointment of assignee, etc., 1557 Disallowance of claim on requsition of creditors, etc., 1635 Dividend, of making and paying, 1653 to owner of unpaid dividend, 1653 Fraudulent conveyance, of action to set aside, 1580 Form of, 1557 Of appointment, 1557 Sale of assigned property, 1625, 1601 Trustee, of time and place for election of, 1564 Property that may be assigned, 1549 homestead rights reserved, 1549 subsequent services of assignor not, 1549 goods in transitu not, 1549 lease, etc., 1549 Partnership : Partner can not make assignment for firm unless, etc., 1547 Sole surviving insolvent partner can assign, 1547 Where there are joint and separate assets, 1659 Assignment of individual members after dissolution, 1547 Probate Court jurisdiction, 1544 is exclusive when, 1544 cannot hear action to set aside, 1544 Removal : Election of trustee. 1565 to qualify, 1560 Election by creditors, 1570 entry, 1571 form of petition, 1566 entry ordering citation, 1567 form of citation, 1568 hearing, 1569 entry, 1569 For failure to file assignment or give bond, 1559 to give new bond on application of surety, 1562 to appear when cited or give bail, 1576 Appeal and error, 1575 Procedure, 1563 Power of Court as to, 1562 Settlement must be filed by assignee on, 1573 Trustee appointed, 1572 Rights of.insolvent debtor, 1572 Resignation: • Of assignee or trustee, when and how, 1561, 1573 Raising, 1577 form of application, 1577 entry ordering, 1577 Sale: Application for of personal property, 1607 form, 1607 entry, 1607 Appeal, none lies from order refusing to confirm, 906 Appraisers, appointment, 1594 INDEX ] 899 (References are to sections.) ASSIGNMENT FOR CREDITORS — Continued. when part of property is in another countj^ 1594 return of inventory and appraisement, 1394 Assignee can not purchase at, 889 Claims in favor of estate may be sold, when, 1611 Confirmaiion of, 1594, 1613 Contemplation of insolvency void, 1579 how set aside, 1580 what sufficient causes, 1581 burden of proof is upon person assailing, 1581 presumed fraudulent when, 1582 who should bring action, 1583 in what Court brought, 1584 Desperate claims, 1611 Dower not extinguished by, 1600, 1601 answer of wife to contingent right of, 1600 Election of husband or wife to be endowed out of proceeds of sale, 1600 when Court to order sale free of contingent, etc.. 1601, 1618 Homestead exemption not affected by provisions with respect to, 1618 How to be sold, 1605 Of real estate, 1617 petition should always be filed, 1617 nature of action, 1619 where brought, 1620 parties, 1621 form of petition, 1622 procedure, 1623 laying out of town lots, 1624 notice of, 1625 return of, 1626 confirmation, 1626 Liens, action to settle, 1618 Notice to lien holders, 1607 Notice of, 1624 of personal property, 1609 Price for which real estate to be sold, 1625 limitation as to not to apply to land out of State, 1610 Public, of personal property, 1609 conduct of, 1009 when not sold, 1611, 1612 application for resale, 1612 entry, 1612 report of sale, 1614 confirmation, 1614 Private, when property may be sold at, 1610 affidavit as to making, 882 price at which property to be sold, 1610 property not sold at. officred at 7)ublic auction, 1611 Return of sale to be made, when, 1613 Terms of sale, on what to be made, 1625, 1606 When and what must be sold, 1604 When may order sale to be made, 1601 TowTi lots, when petition seeks to have laid out. 1624 Schedule of debts must be returned with inventory, 1597 Successor of. Probate Judge to appoint, 1561 Taxes : A preferred claim, 1647 Trustees elected by creditors: Application for election, how made, 1564 1900 INDEX (References are to sections.) ASSIGNMENT FOR CREDITOES — Continued. Bond, trustee to give, when and how, 1564 Court may approve choice, 1564 Creditors may elect, when and how, 1564 Notice to creditors of meeting to elect trustee, how, 1564 Number of creditors required to be present, 1564 Number of creditors required for choice of trustee, lo64 Proceedings of meeting, how conducted, 1564 Record to be kept, 1564 Title to be conveyed to insolvent debtor, 1574 Trustees appointed by Probate Court: Bond, trustee to give, when and liow, 1572 Failure to give bond held to be a declination, 1572 Order to put new trustee in possession of property, Court may eii' force, 1572 Real estate, assignee and debtor shall convey to trustee, 1574 Taking possession of property by another under lien or execution, 1592 right of lienor retained, 1592 Time: When assignee to file and produce assignment in Probate Court, 1546 WTien assignment to take effect, 1546 Who may make, 1547 not required to be in failing circumstances, 1547 when member of partnership may, 1547 corporation may, 1547 surviving partner, 1547 Who may be assignee, 1548 Wif** of assignor: Real estate of, excepted, 1598 Ref»l estate, wife to be made party to proceedings to sell, 1600 answer, may file, asking for value of her contingent right of dower in money, 1600 effect of answer, 1600 mortgage proceedings when wife has executed a joint mortgage with husband, 1601 proceedings wiien husband executed alone, 1601 provisions of Sec. 6350f as to the right of wife of assignor made ap- plicable to proceedings to sell encumbered real estate, 1618 ASSIGNMENTS TO AVOID ARREST — See Revised Statutes. Accounts, Probate Court to settle, 27 appeal from order settling. 39 examination of commissioner under oath as to, 733 notice of filing and hearing, 729 cost of, 729 ASSIGNMENTS WITH INTENT TO DEFRAUD, ETC., CREDITORS — See Assignments. Action of creditor to set aside, 1580 Appointment and duties of trustee, 1580 " By a Court of competent jurisdiction," 1584 Evidence of fraud, etc., 1581 Notice of action by publication, 1580 " Or procured by him to be made," 1582 Parties to action, 1580 answer of, when to be filed, 1580 costs to secure, 1580 Pleading, 1586 What Court to administer trust, 1580 KNDEX 1901 (References are to sections.) ASSIGNMENTS WITH INTENT TO DEFRAUD, ETC., CREDITORS — Continued. proceedings when Court does not administer or notice not giv- en, 1580 What is a fraudulent conveyance and what is not, 1582, 1581 Inure to equal benefit of all, 1579 How preferences may be given, 1582 ASSIGNOR — Incompetent to testify, when, 11495 G. C. ASYLUM — Orphan asylum, 1906 Admission of patient to, 1999 Affidavit for admission to, 1999 ATTACHMENT — Power of Probate Judge to issue, 17, 1976 Property exempt from, 1598 Heir's interest may, 590 Against person guilty of contempt of Court, 1980 ^uministrator's commission cannot, 655 Against executor or administrator failing to return sale bill, 303 or to file account, 741 When administrator or executor may file petition in error to reverse order discharging, etc., 11867 G. C. Attendance of witnesses, 20 ATTESTATION — Definition, 1041 Of wills, 1034, 1040 Presumption as to, 1106 Form of clause, 1041, 1106 Administration of estate when Probate Judge interested aSj ^ ATTORNEY — Attorney Fees : Administrator may act, 508 Appointment in appropriation proceedings, 1694 Appointment of to file motion for contempt, 1982 Employment generally, 508 Estate not primarily liable therefor^ 509 Employment of by guardian, 1402 Emploj'ment of by ward, 1519 For what services allowed, 508, 509 Fees allowed, amount, 510 how stated in account, 725 In assignments, 1644 affidavit to claim, 1644 Must be for benefit of estate, 511 Must represent assignee's creditors at meeting to elect trustees, 1564 Notice to, on application to -admit lost will to probate, 1144 Priority of, 508 When charged to beneficiaries, 508 Court passes upon account, 508 When to share with litigant, 509 Preferred claims, when, 509 Court does not determine amount, 510 Probate judge or deputy imt to act as, 7 Should employ in real estate sale, 829 When not allowed, 509 When allowed. 509 AUCTION — See Sale of Real Estate, Assignee's sale must be at, when, 1602 ExecAitor's, etc., sale of j)ersonal property at, 479, 495 See Sale of Personal Pboperty. AUCTIONEER — See Sales of Personal Property. 1902 INDEX (References are to sections.) AUCTIONEER— CoHimwed. No allowance to assignee for expense of employing, unless, etc., 660 See Sale of Real Estate. AUDITOR — in road appeals generally, 1787, 1789 in county ditch appeals, 18.50 concerning property of unknown decedent, 2862 G. C. Probate Judge to report fees to, when, 545, 3046 G. C. Proceedings on complaint against for neglect of duties, 2121 AUTHENTICATED COPIES 17a— Of foreign wills, 1132, 16!) B. BANK— Liability of trustee, executor, etc., for loss of money deposited in, 578 See Money on Deposit. Unknown banking depositors and deposits annual report to Probate Judge, 501) BANKRUPTCY— Effect of on insolvency, 1543 State laws as to exemption followed, 1543 BANS— When to be published before marriage, 2117 BASTARDS — See GuARDLiNS. Capability of as to inheritance, 936 When legitimated, 937 BEDS — Widow and children entitled to. 320, 322 BENEFITS — Assessment of. compensation for property condemned irrespective of, 1706 Special, 1672 General, 1672 BEQLTEST — Charitable, when valid, 1028 See Charitable Use. Debt, bequest of to executor to be construed as a specifi.- 'cgacy, 391 Definition, 1013 Land, sale of to pay, when, 819 Legatee must pay back, when, 159 Specific, exempt from sale unless required for payment of debts, 1208, 1209, 470 See Payment of Legacies. to witness void, when, 1044 how delivered to legatee, 474 See Legatee. when paid within two years, 696 See Residuary Legatee. Who may make, 1018 BIBLE — Widow and children entitled to, 320 BILL OF EXCEPTIONS — See Error. Allowance of, signing, 11564 G. C. In proceedings on allowance of claims of executor, etc., 641 INDEX ■ 1 ()q;^ (References are to sections.) BILL OF ITEMS — To be filed and verified to entitle assignee to extra compensation, \G4i BIRTHS — Statistics of to be kept by Probate Judge, 2014 BLIND — May make will, 1023 BOARD OF EDUCATION — Duties of in establishing joint sub-districts, 2013 BOARD OF EQUALIZATION — Proceedings on refusal of witness to appear or answer before., 2014 BOND — Administration of estates: Accepting forged bond, 239 Action on administration bond, 255 by creditors, 262 legatee or distributee, 265, 269 succeeding administrator, etc., 278 in what courts, 261 Administrator's, 124, 86, 93, 105, 114 additional required, when, 95, 873, 875. 248, 258 distinction between, and new, 258 corporation may give, 241 administrator de bonis non, 95-124 foreign administrator, 199, 200, 190 refunding, 192 to secure distributee, 194 special administrator, 133, 134 with the will annexed, 105 Action in what Courts, 261 Appeal, 43 when need not be given, 44 when must file, 45 to whom payable, 46 amount of penalty, 47 form, 48 Appeal of executor's, etc., claim against estate, 43, 641 Claim against estate, requisition of heir, 561 creditor, when may sue on, 262 Distributees to give bond to executor, etc., to return assets, when, 751 Construed strictly, 259, 237, 234, 236 Executor's, 83 additional, executor must give when, 95, 873, 875. conditions, 83 cannot act without, 71 creditor, when may put in suit, 262 legatee, widow, etc., may put in suit, when, 265 form of, 84 when need not be given, 85 liable on, when executor is, 255 may be separate, 86 in what courts action on, may be brought, 261 not required when so provided in will, 83 when required nevertheless. 83 residuary legatee, bond of when executoi- is, 57 form of, 58 liability on. 59 not to disfhargp lien on testator's property unlesa, 60 suit on, 310, 262-277 J 904 ' INDEX (References are to sections.) BOND — Continued. such bond not to discharge liens on testator's property except, 60 when sells more land than necessary for payment of debts, 873 when liable on, 255 where to be filed, 86 when is residuary legatee, 57 widow, etc., may put in suit, when, 265 Filed in Court taking same, 86 Probate Court, 238 Foreign executor, etc., to give bond, when, 199 to give further bond to account for surplus when he sells more land than necessary, etc., 200 refunding bond may be required by of heirs, when, 190 may be required to indemnify sureties, 193 Heirs, bond of to creditor for payment of claim not due in two years, 581 action on such bond, 581 bond of for rejection of claim against estate, 561 Joint or co-administrator, 202 Joint or several, 86, 1271 Judge not liable for judicial act, 14 Non-resident, administrator may be granted on estate of, 170 New bond, when required, 875, 248-250 removal for failure to give, 243, 252 sureties on, 250 Limitation of action on, 4984 R. S. Legatee's for delivery of property to, 474, 475 payment of legacy within two years, 696 when executor is residuary legatee, 57 Reduction of bond, 25na Requirement of, 233 Sale of land, to account for surplus, 873 additional may be required, 875 by foreign executor, etc., 199, 200 by persons interested to prevent sale, 826 Sureties, bond to indemnify, must be given, when, 253 order takes effect when, 248 examination, 242 number of, 241 liability on different bond, 251 application for indemnity, 254 form, 255 how sureties may be released, 243 notice, 247 cause for release, 243, 244 need not be named in body of, 236 liability generally. 259 when liable, 259 not discharged by death, 259 acts done colore officii, 259 when sureties insufficient, new bond may be required, 248 form of application, 245 valid if one sign, 236 order of removal, 247 qualifications of sureties, 86, 240, 241 signing conditional bond, 236 Where to be signed, 237 Appeal : See Appeal. Appeal bond, 43 i INDEX 1905 (References are to sections.) BOND — Continued. amount of penalty, 47 form, 48 In road cases, 1787, 1805 county ditch case, 1833 to whom payable, 46 township ditch case, 1857 when need not be given, 44 when must file, 1806 Appropriation of property, etc. : By interested parties, 1772 For appeal, 1778 by guardian, executor, etc., 1779 Appointment without voidable, 233 Approval and custody, 238 Assignment for creditors: Action on to compel settlement of accounts, 1573 Assignee's, 1546 effect of failure to give, 1559 Court may require additional, 1546 New, on application of sureties, 1562 To pay costs on application of assignor or creditor to reject claim, 1635 To secure costs of suit to set aside fraudulent conveyance, 1580 Trustee's, 1572 effect of failure to give, 1572 Filing, 238 Guardians and trustees: Additional, by guardian of insane person, when, 1528, 1398 Appeal, 43 when not required, 43 Foreign guardian of foreign idiot must give, 1483 Non-resident minor ward, of guardian, 1481 Not invalid for informality, 1337 One for two or more wards, 1338 Sale of real estate, additional before, 1422, 1522, 1334 Testamentary, 1310 Testamentary, when not required, 1310 Trustee of non-resident, of non-resident lunatic, etc., 1277 when wife appointed, of idiot, etc., 1512 Conditions of, 236 Liability of judge in accepting, 239 Miscellaneous: Bond company's approved by Probate Judge, 241 Legatee to give refunding, G96 Official bonds, duties of Probate Judge as to in absence of prosecuting attorney, 2020 G. C. Partner, surviving to give on taking assets, 427, 429 Probate Judge's, 14 Prosecuting attorney's approved by Probate Judge, 2911 G. C. Requisition not to allow claim, 564 Road appeals. 1787, 1805 Penalty, amount, 240 Signed in blank, 235 See Appeal Bond. Sureties on, how released, 243 qualifications, 86 Trustee, testamentary. 107 when not required, 1256 1906 INDEX (References are to sections.) BOND — Continued. when required notwithstanding provisions of will, 1256 removed by Court for not giving, 1258 separate or joint may be taken, 1264 under foreign will, 1268 when Probate Court appoints, 1271 appointed by foreign Court, 1269 on non-resident lunatic, 1277 To whom made payable, 234 To secure claims not due, 578 form of, 579 To prevent sale of real estate, 826 form of, 828 iNduction of, 250a Suit on. 2fi0-279 procedure remedy, 260 remedy is statutory. 260 what authorizes suit, 260 jurisdiction of, 261 by creditor on liquidated demand, 282 kind of creditors claim^ 263 when can bring suit, 264 legatee may bring when, 266 distributee may bring when, 266 widow may bring when, 266 at what time may be brought, 237 on unliquidated demand, 268 Court must authorize, 269 application for leave, 270 form of, 271 entry. 272 notice, 273 hearing, 274 entry granting leave, 275 defence in suit on, 276 suit by succeeding administrator, 278 time within, must be brought, 279 Executors, etc., and guardians to invest, in what, 1367, 514 Of insolvent debtor, must be sold when and how, 1602 Inventory of decedent's estate, to contain particular statement of, 296 not to be sold, when, 470 may be distributed in kind, when, 751 BOOK ACCOUNTS — How inventoried, 295 BOOKS — Delivery of to trustees of insolvent, how enforced, 1572 Widow and children entitled to, what, 320 BOYS' INDUSTRIAL SCHOOL — ("••:rm!ttal and discharge of youths to. 212S BROTHER — See Descent — r Inheritance of real and personal property by. 915. 917, 920, 921 . BURIAL OF DECEDENT — See Funeral Expense.s. Expenses a preferred claim. 647 BUSINESS — See Carryixg on Business. When assignee may carry on, of assignor, l.^ST INDEX 1907 (References are to sections.) • c. CANAL — Appropriation of private property for, 1749 CANCELLING — Revocation of will by, 1049 See Revocation of Will. CARRYING ON BUSINESS — Carrying out contracts of deceased: Growing timber, 519 Parties to proceed with same. 519 Indefinite contract not enforced, 519 By guardian, 1379 By admr., 518 By extr., 435 CARE AND DILIGENCE, 506 et seq.— See Assets. CAPACITY — See Wills, 1018 See Testamentary Capacity. Appropriation of private property for, 1749 not confined to land within the corporation, 1749 what land can not be taken for, 1749 CERTIFICATE — Of appointment of appraisers of decedent's real property. 861 to be returned with appraisement, 861 of decedent's personal property, 286 to be returned with inventory, 286 Of Probate Court to executor, when proceedings for partition com- menced and deficiency of assets found, 1880 Of Probate Court's approval binding out ward, 1370 See Guardian. Of deposit of will in Probate Court, 1067 CERTIFIED COPY — Autlicnticatcd, 17a Of appointment of foreign trustee, 1269 Of foreign will, effect, 1119 Of will and order of probate, effect, 1110, 1111 Of order of Probate Court setting aside will to be filed in Common Pleas on appeal, 1117 of foreitrn court setting aside will to be filed, in what Probate Court. 1133 CHAILLENGES— See Jury. In condemnation cases, 1704 In road appeals, 1808 In county ditch cases, 1864 CHARGE UPON LAND — By will, not deemed a revocation, 1058 devisee take subject, 10.'^8 See Devisee. Dower especiallv assigned, to be, 870 CHARITABLE USE — Gifts to receive liberal construction, 1030 What are, 1030 Bequest to, when valid, 1028. 1030 When applies, 1028 Object of statute, 1030 CHATTF.L ]\10RTGA<:JE — Assets when, 365 Cannot be foreclosed, 388 In assignments, 1601, 1592 Unfilwl void as to creditors, 388, 365 CHILD— See Heir, Infaxt, Guardian, Will, Absent to have portion of estate when will made, 1064 1908 INDEX (References are to sections.) CHILD — Continued. Adoption of, 1888, 1898 See Adoption of Child. Advancements made to, 928, 93-4, 1065 See ^-Vdvancement.s. Apprenticeship of, 1370 See Guardian. Action in habeas corpus. See Habeas Corpus. Bastard, right of inheritance, 936 legitimated, when, 937 Can not act as executor until of age, 93 Can not be separated from mother, when, 9 Damages for death by wrongful act, 534, 536 See Wrongful Death. Descent and distribution to, 915 Distributive share, 938 may be attacked, 759 See Distribution. Effect of birth of. after execution of will. 1062, 1064, 1210 Entitled to be present at making of appraisement, 292 to one year's allowance for support, 324 to what personal property of decedent. 320, 322 to full share of testator's estate, when absent born s-.fter execution of will, oi erroneously supposed to be dead. 1064 contribution in such case, 1064, 1210 Improvement of real estate, 1530, 1533 Lease of real estate, 1525, 1527 Posthumous, inherits, 941 Right to contest will, 1112 to contest supplied record of will, continues, till, etc., 1157 Rights of. under foreign will, not included until, etc., 1133 Sale of real estate, 1.522 Vagrant, or incorrigible, sent to asylum, etc., 1906 proceedings. 1907 entry. 1908 order child committed, 1909 When incompetent to testify, 11493 G. C. CHILDREN'S HOME — Vagrant or incorrigible child may be sent to, 1906 CHOSES IX ACTION — Are assets, 385 Damages for right of way, 385 Debts of executor, 389, 390 Debts of heir, 392 Judgments ar", 385 Mortgaged premises. 386 Tort does not survive, 385 Vendors lien. 388 CITATION — Assignee of, to give bail in case of unsettled assignments, 1576 Executor, etc.. of to return inventory, 303 additional inventory, 311 to return sale bill, 491 to render an account. 741 to compel settlement of insane or deceased guardian, 1499 for failure to return sale bill. 491 to render account of insolvent estate, 992 INDEX ;i909 (References are to sections.) CITATION — Continued. to compel distribution. 761 service and return, 761, 774 Forms, 101, 1984, 768, 401, 304, 1073 Officer of municipal corporation guilty of misfeasance, etc., 2006 Person of, to attend settlement of trustees, etc., 1294 Person of, suspected of concealing, etc., assets of estate, 395 Person of, to produce papers or give evidence relative to lost record. 12345 G. C. Special administrator of, to deliver over property to executor, etc., 142 Trustee of, non-resident minor, etc., 1294 Widow or widower of, to make election under will, 1215 Will, to enforce production of for probate, 1072, 1077 See Custody of Will. CITY — Appropriation of private property for, 1750 et seq. See Appeoprlation of Property. Devise or bequest to, when valid, 1028 Guardian may invest in bonds of, 1367 CITY SOLICITOR — To be furnished with copy of complaint against municipal officer, 2006 to appear on behalf of complainant, 2006 CIVIL DEATH — Administration cannot be granted on, 109 CLAIMS NOT DUE — See Presentation of Claims. Allowance not conclusive, 580 Action by heir, 581 Appeal and error, 583 Contingent claims, 572, 569 when should be presented, 569 Form of application, 573 How presented, 573 Notice, 574 Order of Court, 575 Ordering claim paid, 576 Ordering assets retained. 577 Ordering giving bond, 578 form of, 579 When to be paid by administrator, 570 When allowed by Court, 571 What included, 572 CLAIMS UNPAID AT SETTLEMENT — Creditor need not present claim, etc., 584 Estate in hands of heirs liable, 585 how suit brought, 586 Estate of heir liable after his death, 589 Heir to contribute, etc., 587 Heirs contribution, 593 Insolvency of heir, 591 Suit against all heirs, 590 Claims in favor of estate: See Assignment. See Payment of Debts of Decedent. Death by wrongful act, for, 534, 536 Desperate, when may be sold, compounded or filed in court, 456, 463 notice of application to Court for sale, 459 1910 INDEX (References are to sections.) CLAIMS UNPAID AT SETTLEMENT— Com ^mwed. notice of sale, how given, and how sale made, 463 Discharge of in will against executor, effect, 391 Mortgage, when secured by, 387, 388 See Secueed Claim. Naming person executor, not to extinguish, 389 Neglect to collect or pay, unfaithful administration, 255 Sale of, 470 what must not be sold, 470 Time for collecting, 440 may be extended, 445, 446 when can not be extended, 448, 448o See Assets. CLAIMS AGAINST ESTATE— See Prese.ntation of Claims. Allowance of, inilorscniont of, 558 refusal to indorse a rejection, 449 does not preclude disputing validity of, when, 277 of claims not due in two years, 571 Barred, when, 622 See Statute of Limitations. Bond to pay, to prevent sale of land, 826 claim nob due in two years, 571 Contested in suit on administration bond, 277 Contingent, of insolvent estate, provisions for, 982 when such debt becomes absolute, 9S3 Contribution, when devised or bequeathed property taken to pay, 1207 except when will otherwise provides, 1208 Costs of suits, against whom taxed, 629 disallowed at instance of creditor or heir, 561 disallowed claims against insolvent estate, 972 Deficiency' of assets, when may proceed to pay, without being liable for, 667 Discharged from payment of, on proof of disbursement of assets, when, 669 Disputed, when action to be brought on, 609 Doubtful, may be referred to arbitrators, 594 See Arbitration. proceedings when claim does not exceed one hundred dollars, 697 when it exceeds one hundred dollars, 599 report of referee, 602 proceedings of Court on report, 602 Executor, etc., claims of, not entitled to preference, 647 See Claims of Executor. not to retain assets in payment of, when, 631 such claims to be presented to Probate Court for allowance, 633 notice of such claims, 633 exceptions and appeal, 641 Insolvent estates, action against executor or administrator, 985 appeal from decision of commissioners, 1004 See Insolvent Estates. omission, how remedied, 1008 allowance not to disturb prior distribution. 1010 appointment of commissioners to audit, 993 barred, if not presented as prescribed, 987 commissioners may examine claimants, etc., under oath, 1000 contingent debts, provisions for, 982 when they become absolute, 983 costs of suit on disallowed claim, 972 disallowed claim may be referred, 969 !.\1)KX 1911 I Rileiviiccs ;iii' t(i sections.) CL M.MS AOAIXST ESTATE— Caul inucfl if not referred, creditors to commence suit or barred, 971 Court or referee to award costs, 972 how jud^ient rendered, 973 Of executor, etc., against estate not entitled to preference, 631 not to retain assets in payment of. when, 631 such claims to be presented to Probate Court for allowance 633 notice of such claim, 633 exceptions and appeal, 641 Order of payment, 647 when to be paid ratably, 647 restriction on order of payment, 647 liens not affected, 666 Preferred, what are, 647 See Payment of Debts. not affected by solvency or insolvency, 671 if assets exhausted in payment of, executor, etc., may ple;id that he has fully administered, 671 Presentation when residue insufficient to satisfy, 670 Proof of, how required, 557 before whom oath may be taken, 557 expenses of, by whom paid, 557 Provisions as to, not due within two years, 571 Referees, compensation of, how paid, 602 Rejected, when action to be broucrht on, 609-971 executor or administrator to act when commissioners not ap- pointed. 963 limitation of action on disallowed claim. 971 when creditor may su'e after three years on claim not presented, 991 list of claims to be filed, 967 notice to creditors by executor, etc., 965 form of notice, 966 presentment, time allowed for, to commissioners, 998 td executors, etc., 967 Interest, debts not due paid on rebate of, 570 Joint contract, e.state liable on as if joint and several, 624 Liens not affected by § 6090 providing for manner of application oi assets, 666 Limitation of action bj^ creditors, 613 proviso as to claims accruing after two years, 613 assets received after two years, 015 claims not due in two years, when disputed, 580 claims disputed or rejected by executor, etc., 609 of insolvent estate, 971 when rejected at instance of heir or creditor, 561 what deemed a rejection. 609 at instance of heir or creditor, 561 Requisition on executor, etc., to reject, who may file, 561 Revivor of barred claim, 622 See Statute of Limitations. appointment of administrator dc bonis non does not revive, 62? Right of action, when accrues after two years, 571 See Limitation of Actions. Court with consent of creditor may order discharge of such claim- when, 571 Undevised real estate first to be applied, to pay, 1206 When whole estate to be administered does not exceed twenty dol- lars, 152 1912 liSlDEX (References are to sections.) CLAIMS UNPAID AT SETTLEMENT — Co>i CONDITIONS— See Construction of Wills. CONFIRJVIATION — Of sale of real estate by executor, etc., 890 See Sale of Real Estate. by assignee of insolvent debtor, 1613 by guardian, 1429 Of viewer's or reviewer's report in road appeals, 1797 CONSENT — See Guardians. Of parent or guardian to marriage of minor, 1997 See Parent. Of creditors of insolvent debtor that business be carried on by as- signee, 1587 Of guardian, etc., to sale of land, 838 See Sale of Real Estate. Of parents to adoption of child, 1888 CONSERVATOR — Powers of foreign, of idiot, imbecile, etc., 1483 CONSOLIDATION — Of appeals in county ditch cases, 1850 Road appeals, 1825 CONST ablp:— Amercement of, guilty of misconduct, 2125 To attend court, serve process, etc., 2125 CONSTITUTIONAL PROVISIONS— As to establishment of Probate Court, 3 jurisdiction of Probate Court, 18 "appropriation of property, 1664 CONSTRUCTION— Of "living" and "died" under statutes of distribution aiul descent, 940 Of term "will" in statute, 1033 Inheritance tax law, 2015 1916 INDEX (References are to sections.) CONSTRUCTIOX OF WILLS— Where Probate Court may give, 20n Agreement as to, 1180 All parts to be construed in rcL^tion to each other, 1180 1181 Action to obtain, 33 After acquired property, 1191 Assets, how marshaled by claimants under will 1209 Claim appointing debtor executor does not discharge, 389 Contribution when devised property taken to pay debts, 1206-1213 Contest ot foreign not allowed in this State, 1133 Construed as an entirety, 1171 Children construed, 1193 Contribution when devised or benueatlied property taken to nav debts, 1207 i i . f j Court of Equity will not -reform. 1180 Devise for life, remainder to heirs in fee, 1188 Devise in, how affected by debts by testator. 1026 Domicile controls when. 1118, 1016" Definition. 1180 Declarations of testator, 1187 not admissible to affect construction. 1187 admissible in fraud, undue influence, 1187 admissible to show state of testator's mind, 1187 made to scrivener not, 1187 Devise not to lapse by death of devisee, 1194, 1195 Descendants' construed, 1201 Disinheriting heirs, 1202 how, 1202 not by implication, 1202 not by doubtful words of exclusion, 1202 not of undevised real estate, 1202 Extrinsic evidence, 1185 admissible when, 1185 not admissible'where no am.biguity, 1185 patent ambiguity, 1185 latent ambiguity, 1185 Wigram's Rules, 1185 Entire will construed as a whole, 1181, 1182 Estate directed to he sold, death of executor. 1053 Estate vests, tiiough in control of trustee, 1190 Executors, when one or two or more qualifies or survives, how Express provisions to prevail, 1180 powers, 107. Fee passes witliout word '"heirs," 1189 ForeigTi, effect of setting aside, 1133 Heir, how construed, 1196 as used in will, flexible term, 1196 Intestacy never presumed. 1181, 1182 Irreconcilable clauses, 1180 Issue construed, 1197 offspring synonymous, 1197 Intention to prevail, 1182 Intention, rviles as to, 1182 must be expressed In will, 1182 general, control, , 11S2 express, control. 1182 words ordinary meaning. 1182 clearly expressed controls doubtful, 1182 punctuation not authority, 1182 will upheld as far as practicable, 1182 some meaning to be given, 1182 extraneous facts may aid but not control, 1182 child not to be disi'nlierited by doubtful construction. 1182 Location controls dispositon of real estate, 1118 INDEX 1917 (References are to sections.) CONSTRUCTION OF WIIA.S — Continued. Life estate with power of disposal, 1193 constructon of power, 1193 Lapsed bequest, 1195 when does not, 1195 Next of kin construed, 1199 Operation and, 1133 Purchaser without knowledge of foreign will, protected, 1133 Property acquired subsequent to making vnl\ passes, 1191 Presumption and person making will intends all his property to pass, 1191, 1192 Provision against contesting, 1203 valid in Ohio, 1203 Parol evidence, 1186 admissible when, 1186 not admissible to alter, detract from or add, 1188 See Instances in Text. Perpetuities, 1031 JRelation construed, 1200 Repugnancy, rules as to,, 1183 must arise on face of will, 1183 charge on land not to sale of land, 1183 not except from necessity, 1183 general and specific word, 1183 last portion controls. 1183 Restraint of alienation, 1204 fee cannot be, 1204 against execution, 1204 against partition, 1204 Restraint of marriage, 1205 absolute, 1205 remarriage, 1205 to certain person, 1205 for divorce, 1205 Rules of, 1181 to ascertain intention, 1180 domicile controls personalty, 1181 location, realty, 1181 technical words not necessary, 1181 speaks from what date, 1181 heir how dininherited, 1181 not by negative words, 1181 extrinsic evidence not admissible to vary, 1181 Court looks at all circumstances, 1181 absurdity of devise, 1181 not strained to bring within, 1181 favor nor disfavor, 1181 ordinary sense of words, 1181 presumption as to technical words, 1181 subsequent events, 1181 independent devises, 1181 presumption as to taking effect, 1181 Record, must be offered for, when, 1133 Rights of persons under disability as to, 1133 Sale of lands under authority of will, who may make, 107 See Sale of Real Estate Under Power. Statutory meaning of certain words, 1033 Supplication of words, 1184 by intendment, 1184 by reference, 1184 by codicil, 1184 transposition, 1184 Shelley's Case, rules in, 1189 does not apply to wills, 1189 point never strained to bring within, 1189 1918 INDEX (References are to sections.) CONSTRUCTION OF WILLS — Continuea. law favors a fee to an estate tail, 11 Sn intent governs, 1189 Term " will," 1033 Undevised real estate to be applied to payment of debts instead oi devised personal property, 1206 Vesting of estates, 1190 law favors, 1190 equitable vest how, 1190 devise for life, 1190 devise for years, 1190 controlled by intent, 1190 With coJicil. 1176 When under will, 1190 When clear and obvious, nothing to construe, 1180 Where open to, 1180 Whole estate to pass, 1192 examples, 1192 Words construed, Words of survivorship, relation to, when, 1190. Words given ordinary meaning, 1182 See Defixitiox. CONTEMPT OF COURT — Appeal, 1994 Commitment, form of, 1990 Court may enforce sale, 889 Definition," 1976 Discharge of party, 1992 form of. 1992 Error, 1994 Entry appointing attorney to bring action, 1982 Entry ordering summons, 1984 Entry ordering attachment, 1984 Form of summons. 1985 Form of attachment, 1985 Final judgment, 1993 Form of charge, 1983 Imprisoned till order obeyed, 1989 Inherent, 1976 In presence of judge, 1978 entry, 1978 Jurisdiction ot Probate Court, 1976 Kinds of, 1977 Mittimus, what should contain, 1990 Not in presence of judge, 1979 Power to enforce order in proceeding in aid of execution, 1936 Punishment if found guilty, 1988 form of entry, 1988 Power of judge to punish. 17 Pixjperty vests when, 1190 Punishment for, 1980 Right of accused to bail, 1986 bond to satisfaction of clerk, 1986 Trial, 1987 cannot demand jury, 1987 cannot be tried on affidavits, 1987 What are, 1980, 1979 Written charges should be filed, 1981 When party fails to appear, 1991 CONTEST OF WILL— §§ 12079-12087 G. ^C. Acts of testator when to be shown, 1187 Common Pleas can not appoint receiver, 1113 who may, 1113 INDEX If 19 (References are to sections.) CONTEST OF WILL — Continued. Duty of judge on notice of, 1113 Of foreign, cannot be made in this Stat«, 1133 Uncontested, probate after two years binding, 1112 sav-ing of rights of infants^ insane persons, etc., 1112 Of supplied record of will, 1157 limitation and saving of right, 1157 Powers of executors, etc., during, 95 COXTIXGENT CLAIMS — Distribution will not be striven for, 5G9 CONTINGENT DEBTS — Against insolvent estate of decedent, provisions for, 982, 983 CONTINGENT DOWER — See DowEE. Contingent Legacv, 695 CONTINGENT REMAINDER— Definition, 10.33 Continuing business, 1589 CONTRACTS — Between guardian and ward, 1399, 1497 Completion by guardian, 1398 Carrying out deceased, 519 Dower waived by, 946 Distinction between and will, 1014 For sale of real estate, 523 nature proceedings, 524 parties, 525 petition, 526 notice, 527 order of deed, 528 hearing, 529 entry, 530 form of deed, 532 heir may enforce, 532 Liability of estate of deceased on joint, 624 Not binding, 520 Of insolvent debtor, 1611 Power of ward to make after finding of guardianship, 1511 after notice of, 1519, 1538 Will to make, 1032 CONTRIBUTION — Among heirs, devisees, etc., to raise portion of child dead, born after execution of will, etc., 1064, 1210 to raise portion of devisee witness to will, when, 1044 when devised or bequeathed property taken to pay debts, 1207 except when will otherwise provides, 1208 portion of child, born after execution of will or supposed to be dead, subject to, 1210 if any liable to are insolvenS, how others to make up deficiency, 1211 such cases may be determined in a single action, 1212 or adjusted, etc., upon order of sale to pay debts, 1213 Among heirs, devisees, etc., to pay claims after settlement of estate, 587 effect of provisions of wi\i, for, 587 limitation of action by creditors, 587 estate of any heir, etc., liable after his death, 589 when two or more liable, creditor may proceed against all in one action^ 590 effect of insolvency, etc., of heir or devisee, 591 liable to indemnify others, 503 ' how indemnity recovered, 593 CONVEYANCE — See Deed. Fraudulent Conveyance. Gift. Sale. To hinder, delay or defraud creditors, void, 1530 1920 INDEX (References are to sections.) CONVEYANCE— See Deed, Fraudulent Conveyance, Gift. Sale. To hinder, delay or defraud creditors, void. l.)3l) To avoid proceedings against persons suspected of concealing, etc, assets of estate void, 415 Of real estate of decedent, sold to pay debts, 890 On judgment for specific performance of real' contract, 528 Will, how affected by conveyance of testator, 1057, 1059 COOKING UTENSILS — Widow and children entitled to, 320 COPYRIGHTS — Pass to administrator, 875 COPY— See Certified Copy. Assignment of to be filed in Court, 1546 Authenticated. 17a Will, appeal from Probate Court, copy of the order rejecting will sent to Common Pleas, on, 1117 authenticated copv of, and of order of probate in another coun- ty, effect of," 1111 certified copy of record of, effect of, 1110 destroyed, authenticated copy of, may be admitted to probate or record, 1154, 1157 See Spoliated Wills. foreign copy of, may record here, 1119 sale of lands, copy of will to be exhibited to Court on, 832 CORPORATION — Appropriation of property by municipal, 1750 et seq. private, 1674, 1675 Assignment by, 1547 can not give preferences, 1579 How stock of sold by executor, etc., 502 CORPSK — C'annot be dispDSed of by will, 049 COSTS — Administration of estates : Accounts, notice of filing, 729 in action for not filing, 276 Action for wrongfully causing death, deducted from damages, 536 Appeal from decision of commissioners of insolvency, etc., 1004 Bond, to pay costs of contesting claim, 561 to pay debts and prevent sale, 826 of executor, in action on, 261 amount of recovery in action on administration bond for not filing account, 276 when defendant to recover costs, 276 Claim rejected at instance of heir or creditor, 561 Distribution in action to enforce order of, 774, 777 Insolvent estate, on appeal from commissioner's rejection of claim, 1004 compensation of commissioners paid as part of, 1012 on reference of disallowed claim, 972 Inventory, hearing exceptions to, 312 Liability of executors, etc., for, 629 Preferred claim, 647 Reference of claim, 602 of insolvent estate, 972 Rejected claim, how paid on judgment against executor, 561 Sale of real estate, application of money to pay, 903 must be set out in petition for, 830 bond to pay, and prevent sale, 826 when order of sale objected to, 854 INDEX 1921 (References aro to sections.) COSTS.. Continued. ■Security for, when executor, etc., not required to give, 441 Surety of executor, etc., applying for release, 243 Appropriation of property: See Ditch Appeals, Road Appeals, Etc., infra. By municipal corporations, 1770, 1777 By private corporations, 1713, 1723, 1682, 1732 new trial, who to pay costs of, 1718 unfinished road bed, costs in proceedings to appropriate, 1732 view of property, expense of taking taxed in bill of, 1708 when costs may be apportioned, 1746 when action may be brought against corporation for, 1726a Assignment for creditors: Accounts, of notice of filing, 729 Fraudulent conveyance, in action to set aside, 1580 Rejected claim, suit on, 1628 When claim disallowed on application of assignor or creditor, 1635 Guardian and ward: Guardianship, letters oi, cost of issuing, how taxed, 1338 Tax title of ward, guardian tendering release of, provision as to costs, 1395 COUNCIL — Concurrence of two-thirds necessary for condemnation of property, 1749 Proceedings on complaint against members guilty of misfeasance, etc., 2006 COUNSEL — See Attorney. COUNTERCLAIM — To be set forth in affidavit to claim against insolvent estate, 1632 COUNTY — Authenticated copy of will filed in other, effect, 1119 Devise or bequest to, when valid, 1028 Guardian may invest in bonds of, 1367 Where actions against executor, etc., guardian and trustee may be brought, 607 COUNTY AUDITOR — See Auditor. COUNTY COMMISSIONERS — See Commissioners. COUNTY DITCH APPEALS — See Appeal, 1833. COUNTY INFIRMARY — See Infirmary. COUNTY ROAD APPEALS — See Appeal, 1787 COURT — See Common Pleas, Probate Court, Superior Court, In- solvency Court. COURT HOUSE — Plans, etc., of, approved by Probate Judge, 2348 G. C. COW — Widow and children entitled to, or what else, 320. CREDIT — Given by executor, etc., in sales of personal property. 482, 483 CREDITS — See Accounts. To be returned in inventory and administerr-d. 83. 124 1922 INDEX (References are to sections.) CREDITORS — See Presentation of Claims. Administration of estates: Ancillary administration, 170 Bond, Court may authorize suit on bond of executor, 2G9 when creditor may sue on, 262, 204 Desperate claims may be filed for benefit of, 456 Direction of Court may be asked respecting estate, 33 Distribution may compel, when, 761 Disallowed claims, when suit on to be brought against administrator, 971 Insolvent estate of decedent, creditors of barred from recovering if claim not presented, 987 when estate is declared probably insolvent, creditors have six months to present claims, 967 Heir subrogated to share of, 750 Inventory, may be present at taking, 292 may compel filing of, 303 Letters of administration, 122 Lien on personal property .when not aflfected, 6G6 Legacy to, 688 Limitation of action by, 613 as to claims accruing after two years, 613 assets received after two years. 615 when administrator de bonis non appointed, 618 extension of limitation, 619 claims not due in two years, 580 •on rejected claim, 609, 561 See Limitation of Actions. May ask Court to allow claim for services rendered administrator, 645 Proceedings on complaint against person suspected of concealing as- sets, 395, 414 Proceedings against heirs, etc., after settlement. 585 Refund, not compellable to when debt presented to executor, etc., after one year, 670 Requisition on executor, etc., to reject claim, 561 Suit on bond by, 264 When to be paid pro rata, 647 When entitled to administration, 114, 170 When may be paid before debt due, 570, 571 When executor, etc., liable to suit of creditor, 611 When may sue on administration bond, 262 Assignment for creditors: Assignment preferring, inure to the benefit of all, 15V9 to hinder, delay and defraud, void, 1580 Limitation of time for filing claims, 1628 of action on rejected claim, 1628 May carry on assignor's business when. 1587 Removal of assignee on application of. 1559 CROPS— See Emblements. Assets in hands of executor, etc., 369 See Assets. Purchaser may enter premises to gather, 370 Sale of. what may be deferred, 470 CROSS-PETITION — Of creditor in action to set aside fraudulent conveyance, 1580 CURTESY — See DowEU. INDEX 1923 (References are to sections.) CUSTODY — See Wills. Of files, etc., of Probate Court, 11 Or minor, by guardian of person and estate, 1366 D. DAMAGES — See Appuopriation, etc. For appropriation of property, 1671 ditch, county, 1852 municipal corporation, 1763 private corporation, 1715a. roads, county, state and township, 1812, 1822 For death by wronfjful act, 534 refusal to produce will, 1079 unfaithful administration, 255 DEAD BODY— Disposition of property found on, 2S59 to 2864 G. C. DEAF PERSON — May make a will, 1023, 1018 DEATH — See Wills, Probate of Wills, Letters of Administration. See Gifts causa mortis. Administration not granted unless party dead, 109 Action for injury by wrongful, 534, 535 See Wrongful Death. for whose benefit and by whom to be brought, 536 limit and distribution of damages, 536 limitation of action, 536, 535 power of executor, etc., to settle amount to be paid, 536 when death caused by wrongful act in another State or county, 538 Assignee's, Court must appoint trustee, 1561 See Assignment. legal representative must settle account, 1573 Executor's or administrator's when and by whom final account may be rendered, 707 of sole executor, administration with will annexed, to 1^ granted, 94 of estate directed or devised to be sold, 107 when there are two or more executors, 107 Guardian's, executor, etc., to settle account, 1499 Presumption of, 109 Surety's of non-resident on bond, of executor, etc., releases, 243 Trustee's, of non-resident executor, etc., to render final account, 1295 • Ward's to terminate lea.se, unless, etc., 1445 of one of several wards, ell'ect, 144.1 lien of tenant for improvements, 1445 of imbecile waril to terminate lease, unless, etc., 1525 lien of tenant for improvements, 1525 DEBTS— See Life Estate. See Payment of Debts. See Claims, Presentation of. Debt barred can not be set ofi" against interest of heir, 798a Heirs chargeable with, 393 Turning over notes in payment, 048n DEBTOR— Legacv to, 689 DECEDENT'S ESTATE- See Letters Testamentary. See Letters of Administration. 1924 INDEX (References are to sections.) DECISION — See Judgment. DECLARATIONS — Testator not admissible to afiect construction of will, 1187 Admissible to show state of mind, 1187 In gifts causa mortis, 1248 DECLINATION — By widow or next of kin, of administration, 114 See Letters of Ajjministration. By trustee of insolvent estate, 1572 DECREE — See Judgment. DEED — See Forms. Assignment for creditors, 1550 See Assignments. Assignee's of insolvent debtor, 1602 Executor's or administrator's, under power of will, 107 See Power. under order of Court to sell land, 890 See Sale of Real Estate. when survivor puchases partnership property, 437 See Partnership Assets. on completion of decedent's real contract, 528 See Contracts. guardian's, on sale of ward's land, 1429 See Guardians. releasing insane widow's dower, 1523 releasing ward's tax title, 1395 Testator's, affects will how, 1058, 1060 Trustee's, for non-resident minor, etc., 593 DEED OF GIFT — See Descent. Order of descent of real estate, where title came by, 915, 918 What constitutes, 910 See Gifts causa mortis. See Wills. DEFENSE — Of infant by guardian ad litem — 1384 Of in.sane person by guardian, 1384 In action on administration bond for not filing account, 276 DEFINITIONS — Administrator with the will annexed, 99 Administrator, 108 Administrator de bonis »ion, 151 Ancillary administration, 165 Administrator de bonis non with the will annexed, 161 Assets, 363 Advancements, 929 Attestation. 1040 Annuity, 374 Absolute legacy, 680 Adeemed legacy, 685 Ancestor, 908 Ancestral property, 908 Assignment. 1542 Adoption, 1887 Bequest, 1013 Clearly and manifestly in will, 1191 Continuing business, 1589 INDEX 1925 (References are to sections.^ DEFINITIONS — Continued. Contempt, 1976 Codicil, 1174, 1052 Construction of wills, 1180 Contingent claim, 569 Contingent legacy, 679 Conditional legacy, 680 Cumulative legacy, 681 Disputed claim, 560 Demonstrative legacy, 677 Distribution, 755 Descent, 907 Dower, 943 Devisor, 1013 Devisee, 1013 Descendants, 1201 Domicile, 74 Executor, 68 Emblements, 368 Eminent domain, 1662 Foreign will, 1118 Foreign administrator, 186 Fraudulent conduct, 223 Fixture, 365 Freehold, 373 Gifts causa mortis, 1240 Gifts intcrvivos, 1240 Guardians, 1305 General benefits, 1672 Gross neglect of duty, 221 Good will of business, 382 General legacy, 676 Heirs, 1196 Habitation, 74 Habitual drunkenness, 220 Habeas corpus, 1951 Imbecile, 1503 Insane delusion, 1022 Insanity, 1022, 1503 Interested person, 737, 1142 Intestate, 110, 907 Incompetency, 222 Inventory, 280 Imbecility, 1022 Issue, 1197 In rem, 543 In personam, 543 Joint will, 1170 Joint or co-administration, 201 Judicial act, 239 Lunatic, 1503 Last sickness, 1160 Legacy, 1013 Legatee, 1013 Legal heirs, 11 DO Legal representative. 912 Lapsed legacy, 083 Last illness, 052 Last, as a])plied to wills, 1139 ' Ministerial act, 239 Name, 2129 Nuncupative wills, 1158 1926 INDEX (References are to sections.; DEFINITIONS — Contmuea. Next of kin, 1199, 913, 121 Operative. 1049 Public charity, what is, 1029 Public use, 1667 Partition, 1879 Personal property, 364 Power, 907 Rejected claim, 560 Real chattels, 373 Relation, 1200 Revocation of wills, 1048 Residence, 74 Real estate, 1409 Special benefits, 1672 Special administration, 128 Sound mind and memory, 1021 Senile dernctia, 1022 Specific legacy. <375 Spoliated will, 1134 Satisfied legacy, 686 Testament, 1013 Testator, 1013 Trusts, 1250, 1361 Taking" property without right, 1669 Vested legacy, 679 Void legacy, 684 Wearing apparel, 321 Will, 1013 What is, DEPOSIT — See Money on Deposit. In bank, funds, 513 Of amount of verdict in appropriation proceedings entitles corporation to possession, 1723 Of will with Probate Judge. See Will, 1067, 1070 DEPOSITION — See Evidence. See Code of Civil Procedure^ 11522-11549 G. C. On trial in Probate Court, 38 Probate Judge may take, 13 DEPUTY CLERK — Cannot act for judge, wlien, 12 Probate Jlidge may appoint, 11 liability of, for acts of, 13 may take security from, 11 may perform duties of. 11 How appointed, 12 Oath and powers of, 11 Cannot perform judicial act, 12 Can not practice law, 7 nor prepare pleadings, etc., 7 nor make out accounts or records, etc., 7 Who may be, 12 DESCENT — See Distribution. Ancestor, meaning, 908 Ancestral property, 908 INDEX 1927 (References are to sections.) DESCENT — Continued. Applied on legal not equitable principles, 908 Advancements, 928 law presumes equal tlivision, 928 what is, 929 characteristics, 929, 930 when greater than heir's share, 932 real or personal estate, 933 value of, 934 ' Aliens may inherit, 935 Bastards may inherit, 936 Curtesy, estate by abolished, 938 Dower, 944 Definition, 907, 909 Difference between distribution, 907 Devise and descent, use of words, 909 Deed of gift, 910 what constitutes, 910 Heir at law, how designated, 1902 Illegitimate children, may when, 937 Living and dead, construction of, 940 Law controlling, 755, 757, 907 Legal and equitable, legal controls, 911 Legal representative, 912 Next of kin, 913 how computed, 913 our Court adopts civil law, 913 rules of common law, 913 Permanent leases, 941, 942 Partnership real estate, 917 See Partnership Assets. Personal estate, distribution of, 921, 938 Posthumous child, 941 Relict of deceased husband, 914 how applied, 914 former husband, 914 Real estate converted into money by guardian, 911 Real estate, order of descent where title came by descent devise or deed of gift, 915 where title came by purchaser, 917 when to next of kin of intestate, 918 when to children of former husband or wife, 919 Real and personal estate, when to descend to children of intestate and how, 923 when all descendants of equal degree of consanguinity, 924 when there are living both children and heirs of deceased chil- dren, 925 extent of application of such provision, 920 of estate which came from former husband or wife, 920 Statute emlnaces whole subject, 907 Statute applies when, 907 Title by purchase, 911 meaning, 911 partition among heirs is not, 911 when is. Oil Widow or widower entitled to what amount of personalty, 938 of realty, 944 1928 INDEX ' (References are to sections.) DESIGNATING HEIR-AT-LAW — By declaration in Court, 1902 Entry. 1905 form of, 1904 Nature of proceedings, 1903 DESPERATE CLAIMS — See Sale of Desperate Claims. Terms of compounding fixed in order, 463 Sale of, how conducted, 463 Disposition of, of decedent's estate, 456, 463 i of insolvent debtor, 1602 What are, 456 Notice of application to Court for sale, 459 Notice of sale, 463 Uncollectible, etc., 725 DESTROYED RECORDS — See Records, Will, 1154, 1157 DESTROYED WILL — New record or probate of, 1154, 1157 See Spoliated Wills. DEVISE OF LAND — See Devisee; Will: Receipts. Action to obtain construction, 33 See Construction of Wills. Charge upon not revocation, 1058 Charitable, when valid, 1028 See Charitable Use. Debts of decedent, devise subject to, 1206 Descent of land of intestate that came by, 915, 918 See Descent. Forfeited by neglect to probate will. 1084 See Probate of Wills. How land that came by passes, 915, 918 Lapses, when, 1194 See Legacy. Title to in other county, how perfected, 1111 To witness, void, when, 1044 To whom may be made, 1018, 1028 WTiat passes by, 1192 Who may make, 1018 DEVISEE — Assets of estate of decedent embezzled, proceedings by, 395 Bond, may be party to or may bring suit on, 261 when may give to creditor of estate for payment of claim accruing after two years, 571 Charged by will with payment of debt or legacy, effect, 587 takes land subject to charge, 1058 Claims may be filed in Court for benefit of, 456 Complaint against person suspected of concealing assets, etc., 395 Contribution by to raise portion for absent or posthumous child, 1064 1210 when not required to contribute, 1064 to raise portion of devisee, witness to will, when, 1044 when devised property taken to pay debts, 1207 unless will otherwise provides, 1208 in case of insolvency, etc., 1211 to pay claims after settlement of estate, 587, 593 Death of, before testator, effect, 1194 INDEX 1929 (References are to sections.) DEVISEE — Continued. Executor, etc., foreign rights of devisee as to, 195 Liability of after settlement of estates by executor, etc., 585, 593 Neglect to probate will in three years, effect, 1084 Notice to, of hearing of executor, etc., claim against estate, 633 Party in action to contest will, 12080 G. C. for sale of land, 833 to complete contract for. 523 on administration bond, 261 Residuary, takes deceased child's share of real estate, when, 1194 Revivor of action against. Code C. P., 11409 G. C. Service upon unknown. Id. See Sale of Real Estate. Specific performance by, 532 against, on decedent's agreement to convey land, 1057 Title of, to land, may be ordered sold, 850 When Probate Judge is interested as, effect, 9 Who may be, 1018, 1028 Witness to will, effect, 1044 DEVOLUTION — Of property. 54 DILIGENCE — Required, 442 DISABILITIES — See Guardians — Statute of Limitations. Appropriation proceedings, appointment of attorney for persons under, 1694 Saving of rights of persons in contest of will, 1112 of supplied record of will, 1157 as record of foreign will, 1133 in proceedings by creditors against heirs, «'tc., after settlement of estate, 587 DISALLOWANCE — Of claims against decedent's estate, 609 See Presentation of Claims. limitation of action after, 609 when claim disallowed at instance of heir or creditor, 561 Of claim against insolvent debtor, to be indorsed, etc., 1628 See Assignments. limitation of action, after, 1628 when claim disallowed at instance of assignor or creditor, 1635 DISCHARGE — See Accounting. See Termination of Trust. Of debt in will against executor effect, 391 naming a person executor does not operate as, 389 final discharge, how executor or administrator to obtain, 795 Of surety on administration bond, 243 on bond of assignee or trustee of insolvent debtor, 1562 Of prisoner in jail, proceedings for, 13530 to 13535 G. C. DISCOUNT — Of debt against decedent's estate paid before due, 571 DISCOVERY OF WILL — Effect on distribution, 775, 169, 152 DISINTERESTED PERSONS — Appraisers must be. 857 Arbitrators must be, 594 1930 INDEX (References are to sections - DISPUTED CLAIMS — See Assets — Arbitration, etc. Claims. Assignment for creditors. Id. Limitation of action on. by creditor of decedent, 609, 971 of insolvent debtor, 1628 DISTRIBUTEE — See Devisee, Legatee. See Heirs. To give indemnifying bond to executor, etc., when, 751 When may sue on administration bond, 265 form of petition, 265 DISTRIBUTION — Account of, 795 object of, 796 form of, 797 entry and order of discharge, 798 Action to enforce order of, 761 citation against executor, etc., to appear, 761 when returnable, 761 Common Pleas has concurrent jurisdiction, 781 Probate Court, on motion of either party may send case to Com- mon pleas, 779 execution, service and return, 774 hearing and judgment, 774, 777 lien of judgment, 774 parties, Probate Court may bring in all necessary, 777 petition for, 761 service on non-resident, 770 sureties may be made pirties to judgment, 783 defense of, in case of service by publication, 783 Appeal from Probate and Common Pleas Courts, 785 Assets in kind, may be made of, when and how. 751 Creditor of heirs may be subrogated to right of heir, 759 Child's share, how barred, 938, 939 Definition, 755 Debt of heir may be set off against heir's share, 760 Evidence of may be perpetuated how, 795 record of. how made, 795 Enforcement of, 761 nature of proceedings, 762 where brought, 761, 752, 781 parties, 763 sureties may be, 783, 784 petition, 764 form of, 765 citation, 765 entry ordering, 767 forni of, 768 service of, 769, 770 order for publication. 771 form of, 772 proof of service, 773 hearing and judgment, 774 trial, 775 proof. 775 judgment. 776 entrv, 776 INDEX 1931 (References are to sections.) DISTRIBUTION — Continued. Court may bring all necessary parties, 777, 778 case may be taken to Common Pleas, 779 motion for, 780 appeals, 785 Insolvent estates, 959-1012 See Insolvent Estates. allowance of, appeal on disallowed claim not to disturb prior, 1010, 1298 distribution after commissioner's return, 536 when Court to make order of on return of list of debts, 976 when Court to make further order of, 980 Investment of unclaimed money, 786 Insolvent debtor's estate, 1653 In kind, 751 what may be, 751 application for, 752 liearing and order, 753 indemnity bond, 754 Kind and when made, 756 voluntary, 756 involuntary, 756 in money, 755-785 in kind, 751-754 real estate, 757 personal estate, 757 Law controlling, 758 domicile controls personalty, 758 location real estate, 758 Method of, 750 Non-resident, interested in business here, 170 Notes, stocks, etc., may be distributed in kind, 751 Order of, 921 how enforced, 761-781 Right to, accrues when, 938 Statute directing, 907, 938 Sale of land, of money arising from, 814, 903 Widow's share, 938 how barred, 939 Distribution of funds by trustee, 1303 at his own peril, 1303 unless by order of Court, 1303 See Guardian, DITCH — County ditch appeals, 1850 DIVIDENDS — Assignments, 1631, 1659 how calculated, 1631, 1659 Declaring and payment of by assignee of insolvent debtor, 1653, 984, 1011, 976 when report of payment, etc., to be made, 1653 of claim of surety jointly liable with assignor, 1632 Payment of, 978, 974 To whom payable, 1289, 692 When assets, 374 DIVORCE — Guardinn cannot bring, 1383 1932 INDEX (Rt'fercnces are to sections.) DOCKETS KEPT BY PROBATE JUDGE— Administration, 15947 G. C. Civil, 15497 G. C. Execution, 15497 G. C. Guardian's, 15497 G. C. DOMICILE— When court may determine, 75 As to wills, 1016 controls construction, 1016 * Definition, 74 Place of probate of will, 1086 Of minor, 1322 how fixed, 1322 guardian cannot change, 1322 DOWER — Assignment of in sale of real estate, 869, 857 in metes and bounds, 869 in proceedings of sale, 869 how where homestead claimed. 869. 950 where she dies before, 869, 950 of rents and profits, 857 on sale of equitable interest in land, 825 See Sale of Real Estate. Adultery of husband, 954 Assignment of by action, 943 in Court of Common Pleas, 943 in Probate Court, 947 applies when, 957 application for. 958 entry, 958 Assignment for creditors, 1600 Assignment of by heir or guardian to be approved by Probate Judge, 951 Assignee's sale free of contingent right of husband or wife, 1600, 1618 See Assignments. answer of husband or wife to be endowed out of proceeds, 1600 when wife has executed a mortgage jointly with her husband, or husband has executed it for purchase price, 1601 Barred how, 954, 122. 943, 947 by adultery, 947 by waste, 947 by delinquent tax sale, 947 by actions, 947 by statute of limitation, 947 by accepting under will, 947 by judicial proceeding, 947 Consort must be dead, 948 Can be sold when, 943 Calculation of in proceeds, — , See Annuity Tables, Sale of Real Estate. Charge on land, when specially assigned, 870 Conveyance in lieu of, effect, 951 of defective conveyance, 952 effect of eviction from premises, 953 Definition, 943 Eviction of premises, 953 Election of widow or widower to take, or take under will, 1215, 1235 See Election Under Will. Guardian's sale of land, of contingent right of wife of, in the same ward, 1522 of dower of insane person, 1523 INDEX 1933 (References are to sections.) DO WER— f OH tinned. Guardian niav act for ward, 1396 Inchoate, 943 is not an estate. 043 Insane woman, proceedings to discharge land of dower of, 12021 et seq., G. C. Land sold fraudulently, 955 what is, 943, 946, 955 Legacy in lieu, 687 Liberal construction applied, 943 Not a vested right, 943 Of what estates a widow or widower endowed, 944 Property to which attaches, 949 not in public land, 949 in leasehold, 949 partnership lands, 949 vested remainder, 949 in trust, 949 exchange of properties, 949 burial ground, 949 land taken by condemnation, 949 Relinquishment oif, 946 by joining in deed, 946 by postnuptial contract, 946 by antenuptial contract, 946 equitable jointure, 946 contract in- writing, 946 election of proceeds of sale, 946, 947 /S^ Table for establishing value of, 2015-2024- .^/^*^ Value when land sold, 950 as to purchase money mortgage, 950 ante-marriage mortgage, 950 vendor's lien, 950 mechanic's lien, 950 sale by administrator, 950 sale on execution, 950 insurance money, 950 bankruptcy, 950 assignee. 1601, 950 When becomes fixed, 943 When exists, 944 Widow or widower, 945 marriage relation must exist, 945 cohabitation alone not sufficient, 945 divorce by aggression of husband, 945 See Election under Will. Waste, forfeits. 956 When lands are given up, fraud, etc., 955 When statute of limitations run against, 947 Interest of, 950 DRAIN— See Ditch, 1850 DRUNKARD — Appointment of guardian for, 1535 See Guardians. notice to be served on party, etc., 1537 sale thereafter invalid, 1537 when guardianship shall terminate, 1540 appeal from appointment, 39 Can not make will unless, 1022 See Testamentary Capacitt. Guardian may borrow money and mortgage real estate, 1460, 1472 19:U INDEX (.References are to sections.) DRUNKENNESS — Habitual, 220 Koinoval of guardian for, 1338 See Guardians. See Tkustee. of executor or administrator, 213 See Removal of Administrator. DUMB PERSON — May make a will, 1018, 1023 E. EDUCATION — Of ward, when guardian controls, 1311, 1366, 1367, 1375 See Guardian. when father controls, 1366 when mother controls, 1366 sale of property to provide, i405 lease of property to provide, 1433 ELECTION UNDER WILL BY WIDOW OR WIDOWER. Application for commission, 1232 form of, 1232 By acts of parties, 1226 must be with full knowledge, 1226 qualifying, as executor not an election, 1226 Court admitting will to probate only has power to take, 1224 Citation, when should issue, 1216 to issue for, 1215 to whom issued, 1217 divorced wife need not, 1216 form of, 1218 Commission to take, 1233 Commissioners' report, 1233 entry, 1234 Can not take both unless, etc., 1215 Construction of will, may file petition asking before election, 1215 Devisee how affected by, 1230 compensation by, 1230 Definition, 1214 Duty of Court to explain to her, her right?, 1221 Does not bar right to remain in mansion house or to year's support, 1221 Entitled to both dower and provisions of will, 1220, 1221 Entry of, 1225 Effect of election to take, 1227 only as to property devised, 1227 may cause relinquishment of right to other property, 1227 does not relinquish homestead right, 1227 nor year's allowance, 1227 Except in case of proceedings to contest will, 1215 Entered on journal, 1221 Effect of not to take, 1228 entitled to dower in real estate, 1228 can take nothing under the will, 1228 distributee's share of personalty, 1228 Failing to make election to retain dower, etc., 1221 How set aside, 1229 Probate Judge cannot, 1229 Chancery Court may when, 122fi Insane or imbecile widow, 1235 application for, 1236 form of commission, 1237 duty of commissioner^ 1238 duty of Court, 1239 form of entry, 1239 INDEX 1935 (References are to sections.) ELECTION UNDER WILL BY WIDOW OR WIDOWER — Continued. Judge to explains wills, 1223 includes what, 1223 Made in person, 1221, 1222 Must be made in one year, 1215 Taking under will bars dower, 1221 To be recorded, 1224 Time within which to be made, 1219 when construction of will is asked, 1219 Court of Chancery may extend, 1219 To take under will or take dower, 1215-1235 Where widow unable to appear, 1231 Where widow dies within one year and before election, 1222 When entitled to make election after such proceedings, 1215 ELECTION — Election of widow : Deputy can not make, 1223 Insolvents, election of trustees of, 1564 Time of election of Probate Judge, 7 ELIGIBILITY AND QUALIFICATION — for administrators, 115-123 for executors, 79-82 for Probate Judge, 6 EMINENT DOMAIN — See Appropriation of Property, 1674 Catholic school property may be taken, 1608 Electriic. road is not additional servitude, KidS Land for sidetrack may be taken, 1608 Legislature may confer power, 1666 Park property may be taken, 1668 Power of Probate Court, 20 Public use, what is, 1666 Right strictly construed, 1604 Taking what constitutes, 1668 Unused property mav be taken, 1668 EMBEZZLEMENT — Of assets, etc., of estate, proceedings in case of, 395, 414 See Assets. appeal from order of Probate Court in, 39 EMBLEMENTS — Are assets of estate — see Crops, 369 Definition, 368 Duty as to sale of, 476 Limitation of, 1030 May be sold before severance, 470 Purchaser may enter upon and possess, 370 Issue of first donee in tail to have fee, 1030 Sale deferred beyond three months, 470 Who entitled to at judicial sale, 368 ENTRIES — See Forms. ENTAILED ESTATE — Limited to issue of first donee, 1030 Law favors a fee in preference to, 1189 Rule against perpetuities, 1031 EPILEPTICS — Ohio Hospital for, admission to, 29. 1999 EQUITABLE INTERESTS — In real estate sold by admr., 820 EQUITY — Will not reform will, 1180 Will preserve a trust, 1275 ERROR — Appeal and may bw prosecuted simultaneously, 40 1936 INDEX (References are to sections.) ERROR — Continued. Appropriation of proj3(^rty bv private corporations, proceedings in 1720, 1722, 1733 ' by municipal corporations, 1773 Appointment of guardian, 1173 Can not be prosecuted to Circuit Court, 52 Claim not due, 583 Claim of executor, 642 Contempt of Court, 1993, 1994 Election under will, 1229 Foreign will, 1123 From Common Pleas to Probate, 52 Guardian sale of real estate, 1431 Guardian's accounting, 1495 Guardians of lunatics, etc., 1515 Hearing on appeal dismisses error, 52 How commenced, 52 Habeas corpus. 1975 In aid of execution, 1950 In construing will for widow, 1223 In real estate proceedings, 906 In distribution of personalty, 785 Interested party may prosecute, 93 Jurisdiction and procedure in, 12258-12282 G. C. Must be from judicial act, 52 Must be commenced when, 52 None from Common Pleas to Circuit on probate of will, 1153 ~Nunc pro tunc entry, 53 power under, 53 On hearing of executor's, etc., claim against estate, 641 Proceedings in general, 52 Probate of wills, 1114 Resignation and removal, 232 Removal of assignee, 1575 Removal of executor, etc., lies from order of, 213 Spoliated will, 1153 Same rules apply as Common Pleas, 52 To exceptions of account, 736 To removal of trustee, 1302 Widow's allowance, 340 What is final order, 52 What may he reviewed, 52 ESCHEAT — Of chattels, 921 Of lands, 919 ESTOPPEL — See Appropriation of Property. EVIDENCE — See Deposition. Action for breach of administrator's bond, etc., what may be given in evidence in, 276 Allowance of claim in suit on administrator's bond by creditor, 277 Appropriation proceedings by private corporations, 1711, 1673 burden of proof, 1695 iact of publication of service, how proved, 1692 View as, 1710 View of jury, 1711 Claimant cannot testify when, 040 Deed of execution, etc., under order of Court to sell and is evidence of what, 899 Injury by wrongful death, in action for, 536 Inventory, evidence of what, 318 In appropriation proceeding, 1673 Of minister's license to solemnize marriages. 1997 Of notice of appointment of executor or administrator, 546 INDEX 1937 (ReferL'UCfs ju-e to sections.) EVIDENCE— C'o« tin uccl. Of fraudulent conveyance, 1580 On examination of person suspected of concealing assets of estate 405. 406 Party can not testify when adverse party is executor; etc., execpt, etc., 11495 G. C. To prove contract to make will, 1170 Will, certified copy of is, 1110 admiission of, to construe will. 113.3 spoliated, testimony as to, 1146, 1148 what necessary before will is admitted to probate. 1105 revocation, to rebut presumption of revocation of bv birth of child, 1062 EXAJVIINATION — Of assignor and assignee as to assignment, 1585 Of creditor of insolvent as to claim, 1632 Of debtor in proceedings in aid of execution, 1911 Of assignee, executor, guardian, etc., as to accounts filed, 733 Of person suspected of concealing, etc., assets of estate, 395, 408 Of witnesses to will, 1095 Of witnesses on exceptions to inventory, 312 EXCEPTIOlSrS — See Ereob. Code of Civil Procedure, see § 11599 G. C. Account of admr., 737 Bills of, from decision of Probate Judge, how taken and allowed, 785 How tried, 739 To accounts of executors, etc., 743 further time allowed to file, 729 of assignee, etc., 1653 To guardian's bond, 1343 To inventory of estate, 312 appeal to Common Pleas, 312 Evidence, 740 In proceedings as to insolvent estates, 976 Error and appeal, 747 form of, 737 In proceedings to enforce order of distribution. 785 On hearing of executor's etc., claim against estate, 641 Road appeals, to report of viewers, 1830 EXECUTION — Cannot be had against estate of deceased, 816 Distribution, to enforce order of, 774, 777 How and when may issue against executors, etc., 626 when account has been rendered and settled, 626 runs against goods, etc., of deceased in their hands, 628 when returned unsatisfied, effect, 628 Insolvent estate, in proceedings against, 990 made to evade proceedings void, 415 On judgment for goods of estate concealed or embezzled, 413 Proceedings in aid of, 1911 See Proceedings in Aid of Execution. Reference of doubtful claims against estate, on judgment in ease of, 597 Stay of, on error. Code of Civil Procedure, 10825 G. C. on appeal, 12233 G. C. Waste on judgment for, G28 EXECUTION boCKKT— To be kept by Piobate Court, 1594 G. C. KXECUTOll— See Administrator and Executor. EXECUTRIX— Marriage of does not extinguish authority, 115 EXEMPT PROPERTY— See Homestead. ?]xpmj)ie(l from assionment unless expressly waived, 1598 Property exempt from execution, 807, 1598 1938 INDEX (References are to sections.) T:XEl\rPTION — Determined at time of distribution. 1601 Previous allowance will not bar when. 1601 KXHIBTTION QP CLAIMS AGAINST ESTATE— See Pkesentatiox of Claims. EXPECTANCY — Of heins assignable, 800 Can not be devised, 1026 EXPENSEiS — Court may order account shown, 653 See Accounts. Administrator's and executor's, 654 See Payment of Debts. Assignee's, 1642 See Assignments. Guardian's 1490 See Guardians. Of administration of estate. See Costs, 647 last sickness and funeral, 647 See Funeral Expenses. proving claim against estate, 557 sale of real e.state, 903 EXEMPTIONS — See Widow's Allowance. Who entitled to, 1598 ^Vhat entitled to, 1598 EXTRA CO^MPENSATION — What CDUstitutes, 659 FATHER — See Parent. Consent of, necessary on marriage of minor, 1997 Entitled to custody and control of education of minor, 1366 See Guardians. duty of guardian when father unable to maintain, etc.. 1.'367, 1313 May appoint guardian by will, 1307 May be appointed guardian for his children, when, 1311 When he inherits property, 917 See Descent. FEE BILL — C»f I'rohato .Tudgc to be filled and recorded, 1600 G. C. FEES — See Cosi.s. Administrator's and executor's, 654, 1499 special, 137 Appraisers' of personal property of estate, 301 of real property, 872 Appropriation of property by private corporation, 875 Assignee's, 1642 Attorney's, of assignee of insolvent debtor, 1642 of party under disability, etc., in appropriation proceedings, 1694 Clerk's in appropriation proceedings, 1746 Commissioner of insolvent debtor, 1012 Ditch, appeal county, railroad, 8912 G. C. Elections: contest of Justice of the Peace, 5168 G. C. Examiners' of county treasury. 2699 G. C. Girls' Industrial Home, commitment to, 2109 G. C. Guardians', 1490 when appointed for minors of same parentage, 1338 no extra for investing trust funds, 1367 Inquest of lunacv. 1999 Jurors, 3008, 11204 G. C. approj)riation of property, 1746 ditch appeal, county, INDEX 1939 (Referpncps are tf> soctlons.) FEES— Continued. township, 1873 Justice of the Peace, for issuing orders to appraisers, 286 Levee, construction of. See Ditch. Physicians attending insane patient in infirmary, 1081 G. C. Probate Judge's, generally, 1600 G. C. account of verified by, 1600 G. C. itemized, to be filed in eacli case, 1600 G. C. administration of estate, 1602 G. C. appropriation of property, assignment for creditors, 11145 G. C. bank deposits unclaimed, for record of, bounty cases, 1604 ditch, countv. See Ditch. railroad, 8012 G. C. contest of Justice of the Peace, 5768 G. C. girls' industrial home, commitment to, 2109 G. C. habeas corpus. 12179 G. C. levee, construction. See Ditch. marriage license, issuing, 11188 G. C. pension cases, 1619 G. C. proceedings in aid of execution, 11786 proceedings in case of fees paid to predecessor for services per- formed by Probate Judge, 1587 G. C. judge to make sworn statement of such services and prosecuting attorney to sue on bond of predecessor for same, 1588 G. C. road, state. See Roads. sale of real estate, action by executor, guardian, etc., for entry releasing liens, 814 tobacco inspector, appointment of, 6044 G. C. warehouseman, issuing license, 6044 G. C. trustee's accounts, settling, 1299 will, deposit of with, 1067 Prosecuting attornev's in inquests of lunacy, 1980-2029 G. C. Railroad ditch, etc.,' 8912 G. C. Road, state. See Roads. Sheriff's, 11204 G. C. appropriation of property, 11089 G. C. ditch, county, Trustee of insolvent debtor, 1642 of non-resident, etc., 1299 Unclaimed, Probate Judge to make list of and post in office, 3040 G. C. fees for, 3040 G. C. how disposed of, 3042 G. C. Will, deposit of with Probate Judge, 1067 Witnesses, 1 1204 G. C. appropriation of property, 11089 G. C. ditch, county, F. FEE SIMPLE— See Construction of Will. Devisee for life, remainder to heirs in, construed, 1188 See Descent. Passes without words, heirs, in will, 1189 See Shelley's Case. FILES— Probate Judge to liave custody of, of Probate Court, 11 .FILING— Of desperate claims in Court fqr benefit of heirs, etc., 456 Of wills in Prf)hatc Court, 1109 1940 INDEX (References are to sections.) FINAL ACCOUNT— See Account, Administeators and Executors, Assignment FOR Creditors, Guardians, etc. FINAL DISCHARGE— See Termination of Trust — Account. How executor, etc., may obtain, 795 Exempt from liability, unless, etc., 795 FINAL ORDER— See Roads — Ditches, etc. What is, 906 What is, in appointment of guardian, 1511 What is, in condemnation, 52 In appropriation proceeding, 1674 FINAL record- To be kept by Probate Court, 1594 G. C. what to contain, 1594 G. C. wben to be made up, 1594 G. C. FINAL SETTLEMENTS— See Account, Settlement — Termination Trust — Guardian. FINE — See Amercement, Penalty. Imposed by Probate Judge to be paid into county treasury, 13460 G. C. how collected, 13460 G. C. Marriage, for breach of provisions as to solemnizing, 1997 FIRE MARSHAL— Appeal from order of, 2006. FIXTURE— Agriculture, 365 Definition. 365 Domestic, 365 Fence, 385 Rules governing, 365 Trees, wood, etc., 366 FOREIGN ADMINISTRATOR AND EXECUTOR — Account, may be compelled to render at suit of heir or legatee, 190 Action may be brought by in this State, 195 under like restrictions as non-resident, 195 or against, 187 service in, for failure to pay heirs, etc., after order of distribution, 770 Action against by heirs, legatee, etc., 190, 191 Bond may be required of before sale, 199 unless he has already given one in foreign State and filed copy here, 199 for distribution of surplus proceeds of sale, 200 Courts have like power over as if appointed under laws of this State, 188 Cannot attack judgment in other State, 187 Caimot be charged with assets in another State when, 187 Contirmance ot verdict in condemnation 2>roceeding, 1711 Definitiori. 180 Form of refunding bond, 192 Form of bond to secure distributee, 194 Foreign executor must give bond, 199, 200 Laws governing settlement of estates generally control, 189 Laws applicable to, 198 Letters testamentary when to issue to, 1132, 169 May be sued here, 198 May be compelled in equity to disclose funds, 191 • May be required to secure distributees, etc., 193 May prosecute stiits in this State, 195 INDEX 1941 (References are to sections.) FOREIGN ADMINISTRATOR AND EXECUTOR — Con^i^iwed. Must give an appeal bond. 195 May be authorized to sell real estate, 197 Powers of, 1132, 169, 187, 195, 197 Refunding bond may be required of heirs, etc., when, 190 Sale of land by, for payment of debts, 197 power to sell real or personal estate, 1132, 169 Sureties on bond may require indemnity, when, 193 Validity of payment to foreign administrator, 196 What petition must show, 198 FOREIGN GUARDIAN — Cannot give title unless law authorizes, 1478 Guardian here, removed, 1477 what done in such cases, 1479 How may collect money, 1282 Idiot, imbecile or lunatic, 1483 Improvement of real estate of imbecile, etc., 1452, 1456 May recover property in this State and how, 1480 May sue and be sued here, 1481 Rights of in this State, 1480, 1481, 1475 Removal of ward, 1476 Sale of land of non-resident ward, 1481, 1482 additional security may be required of, 1481 Foreign assignments: See Assignments. FOREIGN WILLS — Admission and effect of admission to record 1130 Definition, 1118 Executed in other State, 1119 how admitted, 1020 application, 1121 form, 1121 form of entry, 1122 appeal, 1123 error, 1123 Executed in other country, 1124 proceedings, 1125 motion to admit, 1126 form of, 1126 ordering notice, 1127 form of, 1128 admission to probate, 1129 efTect of, 1130 entry ordering probate, 1131 effect of, 1131o Has same validity as original, 1130 Motion to admit continued for two months, 1125 Notice of filing application, 1125 Not defeated by production of, 1133 No contest of in this State, 1133 Of will of alien, 1130 Power of executor, etc., under, 1132, 169 Probate Court may appoint, 1271 Proceedings to admit to record, 1125 Record of will of alien, 1130, 1119 Rights of purchaser without knowledge of, 1133 Saving of rights of infants, etc., 1133 Set aside in foreign State, how far invalid here, 1133 Trustee named in to give bond, etc., 1268 appointed by foreign Court, 1269 by Probate Court of county where property is, 1271 Trust created by, how executed, 1267, 1271 1942 INDEX (References are to sections.) FOREIGN WII.LS — Continued. Unless offered for record with four years, etc., 1133 When trustee not required to give bond, 1133 What determines, 1118 Where to be probated, 1086 Where admitted to probate effect on earlier will, 1131o FORMS — Appeal bonds, 47 Administrator with the will annexed citation, application for executor, 101 entry ordering, 102 to renounce or take, 103 Ancillary Administration : application for, 174, 175 entry ordering, 178 application for letters, 179 bond, 180 letters, 182 Appointment, notice to administrator, 545 proof of publication, 547 petition where not given, 549 entiy, 550 Arbitration : agreement to refer, 596 order of reference, 600 notice and oath to referees, 601 subpoena, etc., 604 finding of referees, 604 confirming of award, 606 Accounts, Administrators : affidavit to voucher, 724 oath to account, 726 administrator's account, 727 entry, 728 notice of filing, 730 entry on. 731 account hearing of, 733 exceptions to account, 737 order of reference, 741 statement in lieu of account, 748 Assignment : deed of, 1550 application for appointment, 1553 bond, 1554 letters, 1556 notice of appointment, 1557 application to elect trustee, 1566 entry ordering citation, 1567 entry ordering election, 1569 confirmation of election, 1571 application to raise, 1577 entry, 1577 application to continue business, 1590 entry, 1590 application for sale of personal property, 1607 notice to lien holder, 1607 answer of chattel mortgage claim, 1608 order where property not sold, 1612 confirmation of sale, 1614 INDEX 1 ^)4:] (References are to sections.) FORMS — Continued. petition for exemption, 1601 petition for sale of real estate, 1622 assignee's deed, 1627 affidavit to claim, 1633 report of claims filed, 1639 affidavit to attorney fees, 1645 account, 1656 exception to account, 1659 report of payment, 1661 confirmation of report, 1661 Appropriation of Property by Private Corporations: Application for minor, 1678 entry ordering notice, 1678 notice, 1678 order of deed, 1678 deed, 1678 petition, 1688 entry ordering jury, 1702 entry ordering venire, 1702 oath, 1706 view of premises, 1707 empaneling jury, 1709 appointing attorney, 1709 verdict, 1716 confirmation, 1716, '719 on payment of amount, 1724 petition of owner, 1740 notice to corporation, 1738 demand of aescription, 1739 motion for injunction, 1745 entry on, 1745 Appropriation of Property by Mvmcipal Corporations petition, 1752 precipe, 1752 entry on filing, 1753 notice, 1755 ordering jury, 1759 confirmation of verdict, 1775 Appeal, County Roads: bond, 1788 entry on filing transcript, 1790 entry approving, 1793 entry reversing, 1794 entry confirming report, 1799 motion for review, 1801 ordering, 1802 Appeal. Road. Compensation : entry drawing jury, 1817 final entry, 1824 Appeal, County Ditches : exceptions, 1832 entry on transcript, 1838 consolidation of cases, 1840 ordering jury, 1843 oath, 1848 verdict, 1852 confirmation of verdict, 1854 Appeal, Township Ditches: 1944 INDEX (References are to sections.) FORMS — Continued. notice. 1862 ordering jury, 1864 Aid of execution : appplication, 1915 order, 1917 notice, 1918 warrant to arrest, 1924 order after arrest, 1925 order to apply property, 1941 order to sell real estate, 1947 Adoption : petition, 1892 consent, 1894 entry, 1897 Bonds : See various subheads for particular bonds. approval of trust company, 241 examination of sureties, 242 Bonds, Suit on: leave to bring, suit, application, 271 entry. 272 granting leave to bring, 275 Compounding claims, 452 entry, 454 Completion of contract for land: sale of real estate on contract, 526 entry, 530 deed, 531 Claim not due, 573 notice, 574 ordering paid, 576 ordering assets retained, 577 ordering bond given, 578 bond, 579 Claim of executor, 636 entry, 637 notice, 637 notice non-residence, 638 allowance of, 640 appeal bond, 644 approval, 644 Contempt : order when made in presence of judge, 1978 appointing attorney to bring action, 1982 charge of, 1983 summons, 1984, 1985 attachment, 1984, 1985 entry of guilty. 1988 commitment. 1990 order of discharge, 1992 Designation of heir, 1904 entry, 1905 Dower : assignment of, 958 entry, 958 Distribution in kind. 752 entry on, 753 indemnity bond, 754 INDEX 1945 (References are to sections.) FORMS — Continued. Distribution of Personal Property-. account of, 797 entry ordering discharge, 798 entry ordering citation, 767 petition, 765 citation, 768 notice by publication, 771 form of, 772 judgment, 776 motion to take case to Common Pleas, 780 Embezzled assets : complaint against person, 400 entry ordering citation, 401 citation, 402 commitment to jail, 404 examination in embezzlement, 407 order to draw jury, 409 report of clerk of jurors, 409 venire for jury, 409 verdict in embezzlement, 411 finding on embezzled goods, 412 Election under will : citation to widow, 1218 election. 1225 entry, 1225 commission for absent, 1232 journal entry, 1232 commission, 1233 commissioners' report, 1233 entry, 1234 commission for insane, 1237 entry, 1239 Franchise for street: petition, 1877 , Foreign guardian. Application to pay money to, 1283 entry, 1284 notice, 1284 order, 1285 Foreign administration: refunding bond. 192 bond to secure distributee from foreign executor, 194 Guardians : application for appointment, 1325 choice of, 1328 bond, 1334 property statement of sureties, 1334 mortgage security, 1335 entry appointment, 1340 letters. 1341 exceptions to bond, 1345 notice. 1346 order additional bond, 1347 order releasing surety, 1351 application for citation, 1364 entry, 1364 inventory, 1368 indenture, 1371 judge's certificate, 1371 1946 INDEX (References are to sections.) FORMS — Continued. entry of approval, 1371 application to invest in land, 1387 entry, 1387 application to sell land^ 1387 entry, 1387 petition to sell real estate, 1412 order of notice, 1414 form of notice^ 1416 order to appraise, 1420 order to give additional bond, 1421 form of additional bond, 1423 order of sale, 1426 guardian's deed, 1430 petition for a lease, 1436 entry on, 1437 appointment of appraiser. 1439 order to appraise, 1440 report of appraisement, 1440 order to lease, 1442 report of guardians, 1444 application to borrow. 1470 order and report of, 1471 entry confirming, 1473 guardian's mortgage, 1474o Guardian of lunatic: application, 1506 entry ordering notice, 1506 notice, 1507 entry ordering, 1510 fixing dower, 1513a Habeas Corpus: application by person imprisoned, 1956 application by third person, 1956 application by parent for child, 1956 entry ordering Avrit, 1959 writ when not in custody of officer, 1963 when in custody of officer, 1964 return of, 1968 answer of respondent. 1968 entry discharging person, 1972 entry remanding prisoner, 1973 Inventory : statement in lieu of inventory, 283 entry, 283 appointment of appraiser by justice, 286 notice of appraisement, 289 affidavit of service, 289 oath of appraisers, 291 citation to return inventory, 304 entry and writ, 305 entry for removal for not, filing inventory, 308 exceptions to inventory, 313 entry ordering notice, 314 notice. 315 hearing of entry, 316 Inheritance tax : notice to collect. 348 entry on. 353 appraisement for, 357 INDEX 1947 (References are to sections.) FORMS — Continued. entry allowing, 357 Investment of funds, 516 entry, 516 Investment of unclaimed money, 787 entry authorizing, 788 return of, 789 application to pay money to owner, 792 entry ordering, 793 Incumbrances, application, 7986 entry, notice, 798c order, 798d Insolvent estate settled by administrator: oath to insolvent commissioner, 994 report of commissioner, 975 to Probate Judge, 1007 appeal insolvent judge, 1006 form of bond, 1006 application for insolvency, 961 entry declaring, 964 notice of insolvency, 966 presentation of claim insolvency, 968 report of insolvency, 978 entry on^ 979 Judge where interested: application, 10 entry, 10 Letters of administration, 127 application for^ 112 administrator's bond, 125 Letters beyond twenty-one years: notice of hearing for appointment of administrator, 66 entry, 66 grant of letters, 66 Letters Testamentary : application for^ 78 executor's bond, 84 executor's letters, 87 entry appointing executor, 89 application of executor to borrow money, 97 entry granting, 98 Legacy, application for, 698 entry, 699 bond, 700 Proceedings to oust municipal officers: • complaint, 2007 entry on, 2007 empaneling of jury, 2007 verdict of jury. 2008 Partition : application for certificate of Probate Court, 1881 entry on, 1882 certificate, 1883 motion in Common Pleas, 1886 entry in, 1886 Partnership assets : application for appraisement, 419 entry ordering notice, 420 form of notice. 421 1948 ' INDEX (References are to sections.) FORMS — Continued. entry ordering appraisal, 422 appraisement of, 423 entrj' confirming, 424 bond of surviving partner, 429 approval of partner's election, 430 deed of partnership, 439 Real Estate: deed, of executor, private sale, 809 bond to prevent sale of, 826 petition of administrator to sell, 836 filing of, 837 notice of sale of, 841 waiver of summons, 843 guardian ad litem appointment, 845 answer, 845 widow's answer of, 846 decree of sale of, 852 order of appraisement of, 858, 852 copy of, 859 return of, 859 oath of appraisers, 863, 859 bond in sale of. 874 confirmation of appraisement, 876 order of sale of, 878 report of sale of, public, 878 report of sale of, private, 878 notice of sale, 887 confirmation of sale, 895 distribution of proceeds of sale, 895 resale of, 896 motion to set aside appraisement, 898 deed, administrators, public sale, 901 Removal of administrator: resignation, 212 entry, 212 removal, application for, 216 entry, 217 notice, 219 order, 228 Release of surety, 245 entry, 245 notice for new surety, 247 indemnity bond, 256 Rejection of claim:, afEda\at to claim, 558 requisition to reject, 563 bond for, 564 entry ordering, 565 notice, 566 Sale of desperate claims 458 entry ordering notice, 460 notice for, 461 entry for public sale, 464 return of sale, 465 private sale, 466 return of, 467 Sale of personal property: redelivery bond, 475 INDEX 1949 (References are to sections.) FORMS — Continued. order to sell property disposed of by will, 477 property not sold within three months, 478 entry, 478 notice of public sale^ 480 sale bill, 490 private sale, 496 less than appraised value, 497 affidavit for, 497 order for, 498 return of, 500 affidavit to, 500 Sale of stocks, 503 entry authorizing, 503 Special administrator's bond, 134 appointment, 135 letters, 136 application for citation, 144 entry ordering citation, 145 citation for special administrator, 146 attachment, 147 entry ordering, 147 writ of, 148 commitment to jail, 149 Trustees' bond, 1259 application for appointment, 1255 entry, 1261 form of letters, 1262 Vagrant child: application to declare, 1907 entry ordering notice, 1908 entry ordering child committed, 1909 Widow's allowance: increase of, 336 decrease, 336 •entry, 337 notice, 338 entry on hearing, 339 Wrongful death, settlement in, 538 entry allowing, 539 report, 540 approval, 540 apportionment, 542 Will, 1047 deposit of, 1067 order for, 1067 citation to produce, 1073 form of, 1074 entry for, 1074 attachment, 1075 commitment, 1080 probate of : application, 1088 entry fixing, 1090 notice of, 1093 testimony of witnesses, 1097 commission, 1103 order, absent witnesses, 1102 subscribing witness, 1111 return of commissioner, 1104 1950 INDEX (References are to sections.) FORMS — Continued. order of, 1107 foreign : Application for, executed in other State, 1121 entry ordering record, 1122 application for will made in other county, 1126 order of notice, 1127 form of notice, 1128 order admitting to probate, 1131 spoliated : application, 1143 order of notice, 1145 order establishing, 1151 nuncupative, 1 1 69 testimony in, 1169 codicil, 1179 FRANCHISES — See Appropriation. Hearing and decree, 1878 How acquired, 1876 Petition, 1877 form, 1877 Use of street granted to corporation. 1875 FRAUDULENT CONVEYANCE — Action to set aside by creditor of insolvent debtor, 1580 appointment of trustee to recover possession, 1580 notice of object of suit to be published, 1580 what Court to administer trust, 1580 Sale of land of decedent, may be set aside in action for, 823 when it can not.. 822 in what Court action to be brought, 823 limitation of, 822 parties to, 8.33 FRAUDULENT CONDUCT — Removal of guardian for, 1358 See Guardian. of executor or administrator, 213 See Removal of Administrator, Etc. FRAUDULENT CONVEYED LAND — 383, 1579 Dower in, 955, 939, 1249 FREEHOLDERS — • Appraisers of decedent's real estate must be, 857 of ward's real estate, 1418 to report as to leasing ward's real estate. 1438 Definition. 373 FRUITS — 366 See Emblements. FUGITIVES FROM JUSTICE — Proceedings relating to, §§ 13520-13522 G. C. FUNDS — Bank — deposited, 513 Custody of, 512 In hands of guardian at final settlement, 1388 Investtnent of, by executor, etc., guardians and trustees, 514 See Money on Deposit. by guardian of person and estate, 1367 unclaimed, belonging to heirs, etc., 786 FUNERAL EXPENSES — Amount of. 649. 650 extravagance not encouraged, 650 INDEX 1951 (References are to sections.) FUNERAL EXPENSES — Continued. position in life largely controls, 650 undertaker should be held to make proper charge, 650 Claims for should be presented, 649 Court will limit amount, 650 Executors may pay before letters granted, 70 Friend, when not entitled for payment, 649 First paid, 647 Husband liable for wife's, etc., 649 Includes what, 649 wake, 649 mourning apparel, 649 carriage hire, 649 claims of relatives attending, 649 taking up body, 649 communication of death, 649 Order of payment, 649 Of unknown person, 2S62 G. C. Tombstone in same class, 651 Wife not for husband's, etc., 649 ■ Who entitled to, 649 G. GAIN AND LOSS — How apportioned between life tenant and remainderman, 1290 GENDER ^ Words importing masculine applied to feminine, 1033 GIFT — Evidence of, 1248 Of real estate by drunkard void, when, 1537 To avoid proceedings against persons suspected of concealing assets, etc., of estate, void, 415 What constitutes, 1242 When is established, 1248 GIFT CAUSA MORTIS — Definition, 1240 Distinction between gifts, inter vivos, 1240 Drafts and checks unpaid not, 1241 Evidence of, 124S Intention to give is not a gift, 1246 Inter vivos, what are, 929 Makers own note cannot, 1241 Must be clear and convincing declarations, when not admissible, 1248 Requisites of, 1242 in view of death, 1243 what constitutes, 1243 death of donor, 1244 delivery of, 1245 owner must part with possession, 1245 must be with intention, 1245 Revocation of gift, 1247 Right of creditors and family, 1240 cannot defeat debts, 1249 nor wife of marital rights, 1249 but may of distributive share, 1249 Should be absolute, 1240 Subsequent birth of child, 1247 What may be given, 1241 GIRLS' INDUSTRIAL HOME — Comrnitnicnt to, proceedings, 2128 'GOODWILL OF BUSINESS^ Definition, 416, 425 Wiicii assets, 382 1952 INDEX (References are to sections.) GOODS AND CHATTELS — Executor and administrator to make inventory of and administer, 83, 124. 137 See Assets, Accounts, Choses in Action, etc. Proceedings asfainst persons suspected of concealing, etc., of estate, 395. 414 Widow and children entitled to what, 320, 322 GRANDCHILDREN — Inheritance of property by, 924 See Descent, Construction of Wills. GRAVESTONES — See Tombstones. GUARDIANS — Account, when may be opened. 1494 Accounting, 1484 appeal from settlement of, 39 appeal, 1495 appeal over appointment of same, 1515 barred by time, 1486 compensation how determined, 1490 Common Pleas to settle when Probate Judge interested, 7 deceased, insane or incompetent, executor, administrator or giiard- ian to settle, 1499 how settlement enforced, 1499 duty to, 1484 exceptions, 1492 further time to file, 729 effect of settlement, 1493 each is final, 1494 error, 1495 entitled to what credits, 1489 enforcement of filing. 1362 examination under oath as to, 733 female guardian on marriage must settle, 1356 final, what is, 1494 guardian should be charged with, 1488 hearing, 1492 how opened out, 1494 how finding enforced, 1498, 1499 intermediate what is, 1494 idiot, etc., guardian of must settle, when, 1513 when guardian becomes insane, his executor, etc.. or guardiar: to settle, 1499 when executor, etc., becomes insane or incompetent, his exec- utor, etc., guardian to render final account, when, 707 jurisdiction of Probate Court over, 27 notice, 1492 notice, none required to non-resident, 37n notice of filing to be published, 729 costs of, 729 Probate Judge or clerk can not prepare accounts, 7. 1491 review of, 1493 record of to be kept by Probate Court, 1594 G. C. what to contain and when to be made, 1594 G. C. removed, must render final, 1354 review of settlement for fraud, etc.. when and how. 1493 settlement with succeeding guardian. 1496 settlement with ward, 1497 settlement by executors of deceased guardian, 1409, 1500 what included. 1494 when to be filed, 1485 where to be filed, 1485 LNDEX 1953 (Ret'erences are to sections.) GUARDIANS — Continued. what should contain, 1487 when to be rendered, 1367 when estate does not exceed two hundred dollars, 1367 Authority dates from order of appointment, 13 Attorney, employment of, 1402 Arbitration, 1382 may compound, etc., 1382 should have order of Court in doubtful case, 1382 Ancillary, 1314 Application for appointment, 1324 what it should show, 1324 form of, 1325 Action and defenses : Against ward, 383, 1384 Answer of. Code C. P., 11326 Q. C. Bond, action on. Code C. P., 11242, 11243 G. C. Completion of real contracts, et seq., 523 of idiot, etc., 1398 Direction of Court, to obtain, 33 Foreign guardian may recover property of foreign ward by, 1480 right to sue in this State, 1481 Infant, when action to be brought by, 1383 defense of by guardian ad litem. Id., 1384 even if a guardian, 1384 Insane person, action to be brought by. Id., 1383 who may bring action, 1383 defense by. Id., 1384 Lease of ward's real estate, 1434, 1527 May sue without joining party in interest, 1383 Sale of ward's real estate, 1410, 1522 Where action against may be brought, 11278 G. C. Appeal : ""^ Accounts, as to settlement of, 39 Appointment of, 39 Bond not required, when, 43 Completion of real contracts, 39 Distribution, from order of, 785 From appointment, 1342 From order of Court, 1495 Road cases, 1785 bond not required, when, 1787 Proceedings in Common Pleas, 51 Sale of real estate. 39 Transcript, when to be filed, 49 Appointment, 1319 Appeal as to. 39 Application toi, 1323 for idiot, lunatic, etc., 1501 for drunkard, 1535 Jurisdiction of Probate Court as to, 1319 Not to be unless there is an estate, 1320 Not to be of person if father is capable, 1320 Proceedings is in rem, 1319 When minor may choose, 1327 minor can not select one of person and another of estate unless, etc., 1327 appointed before minor had right to select, how long to act, 1354 when minor fails to select suitable, court may appoint, 1327 When necessary, 1320 Who ineligible as. 1331 1954 INDEX (References are to sections.) GUARDIANS — Continued. Ward's presence, etc., 1319 Appropriation of property, 1397 By private corporations, 1676 By municipal corporations, appeal in. 1779 Has no right unless under order of Court 1397 Bond: Action must be within 10 years from time Court passes on account, 1353 Action on, how and bv whom brought. Code of Civil Procedure, 12242 G. C. limitation of action. Id., 12226 G. C. Additional may be required, 1343 before sale of real estate, 1422 exceptions to, 1343 who may file, 1344 from guardian of idiot, etc., 1522 from foreign guardian, 1481 notice and form, 1346 entry ordering, 1346 ordering additional bond. 1347 Appeal bond, when not required. Code of Civil Procedure, 43 Approval of, by Court, 1323 Exceptions to, how and by whom made notice of filing, 1343 Foreign guardian, on sale of land to give, 1481 Form 1334 Finding on account fixes amount of sureties liability, 1352 Informality or illegality, etc., not to render void, 1337 Joint bond when wards of sale parentage, 1338 fees in such case, 1338 Mortgage security in lieu of freehold sureties may be given, 1323 No authority until given, 1333 Of guardian of person and estate or estate only, 1323 Of guardian of person only, 1314 Penalty in, 1333 Road cases, appeal bond required, 1827 Responsibility of judge, 1333 Sale of real estate, bond for, 1422, 1522 Sureties must be freeholders, 1323, 1333 release of, extent of liability, 1348 application, 1349 notice, 1350 entry ordering, 1351 Testamentary guardian to give, 1310 when not required, 1310 Wife of idiot, etc., appointed his guardian, to give, 1512 Who may sue for breach, 1352 When required on completion of real contract of idiot, etc., 1398 Compensation : For services, 1490 Failing to render account within thirty days after notification, etc., to receive none, 1367 Of executor, etc., of deceased guardian for settlement, 1499 Complete contract for real estate, 1398 Contracts between, and ward, 1399 cannot make, valid. 1399 always viewed with suspicion, 1399 guardian must show otherwise, 1399 Choice of. 1327 when minor mav make. 1327 how made. 1328' INDEX 1955 (References are to sections.) GUARDIANS — Continued. cannot choose one person as guardian for estate and another for his- person, 1328 Court need not appoint unless suitable, 1328 once exercised cannot again, 1328 does not extend to testamentary, 1328 where made, 1328 form of, 1328 parents, 1329 dying requests of, 1329 Courts, 1330 duty of, 1330 must act before allowed, 1490 Custody of ward, duties as to, 1369 may enforce right, 1369 may apprentice ward, 1370 form of indenture, 1371 form of judge's certificate, 1371 entry of approval, 1371 Carrying on business of ward, 1379 guardian does so on his own responsibility, 1379 should not be done without order of Court, 1379 Conversion of real estate into personalty loses its ancestral quality, 911, 921 Can not purchase property of, 1403 Death : Executor or administrator of guardian to settle account, 1499 Distribution : Of assets in kind, power as to, 751 Received in, liability, 1380 Of funds from proceeds of sale of ancestral real estate, 915, 921 Duties, etc.. Statutory : Of guardian of person and estate, 1367 account to render, how and when, 1367 effect of failure to render, 1367 no extra fees allowed, 1367 education of ward, to attend to, when, 1367 funds, full itemized statement of, to render, 1367 insurance of buildings on which money loaned, 1367 inventory to make and file, how and when, 1367 effect of failure to make, etc., 1367 loan or invest money of ward, when and how, 1367 effect of failure to loan, etc., 1367 management of estate, 1367 payment of debts, 1367 prescribed by statute, 1367 settlement of estate, 1367 suits to attend to, 1367 Of guardian of estate. 1316 Of guardian of person, 1313 Definition, 1305 Domicile, what is, 1322 minor cannot change, 1322 mother cannot when, 1322 guardian cannot, 1322 at death of parent fixes, 1322 Distinction between and executor, 1361 Debts, collection of, 1381 guardian must collect promptly, 1381 if not acts at his peril, 1381 should be cash, 1381 1956 . INDEX (References are to sections.) GUARDIANS — Continued. Debts, of ward, 1380 cannot pay if barred by statute, 1381 guardian must pay, 1380 when Court may order, 1380 promise to pay not within statute of frauds 1380 Deposit of fund, 1389 Divorce cannot bring, 13S3 Evidence : party can not testify when adverse party is, except, 11495 G. C. when assignee or vendee of guardian is "adverse party, 11494 G. C. Error from appointment, 1342 Education, duties as to, 1375 according to ward's estate, 1375 must be proper, 1375 Father T^ii'-t consent when, 1312 Foreign guardian, 1475 See Foreign Guardian. Has no right to convert personalty into realty or realty into per- sonalty, 1386 How duties enforced, 1362 Inventory : form, 1368 record of, when to be made, 1594 G. C. when to be filed, 1368 when guardian to file and what to contain, 1367 effect of failure to file, 1367 what should contain, 1368 Investment of funds, 1385 duties of guardian to make, 1367, 1405, 1398 effect of failure to make, 1367 first mortgage, 1385 good faith and diligence required, 1385 how invested, 1385 in what securities to be made, 1367, 1398 must make as provided by law or at his own peril, 1385 testamentary, follow will, 1385 United States bonds, 1385 Investment of funds in lands, 1386 application for, 1386 when filed, 1385 form of, 1387 entry on, 1387 application to sell such land, 1387 entry on, 1387 how made, 1386 must be productive real estate, 1386 Interest on funds, 1388 rate on, 1388 when charged with, 1388 when guardian uses funds, 1388 Kinds, 1305 Letters of. 1341 form of, 1341 Lease of real estate: Appointment of appraisers, 1439. Order to appraise, 1440 Power of guardian to make for three years, 1432 When guardian may make for fifteen years, 1433 application for such lease, 1434 essentials of, 1435 form of, 1435 INDEX 1957 (References are to sections.) GUAKDIANS — Continued. notice, 1437 joint application for, 1438 report of appraisers as to, 1438, 1440 hearing and orders thereon, 1441 order authorizing, 1442 provisions as to improvements, 1443 extending beyond minority to determine, unless, etc., 1445 effect of death of ward, 1445 effect of death of one of several, 1445 lien of tenant for improvements, 1445 Power of guardian of idiot, etc., to make, 1525 when such lease to determine, 1525 lien of tenant for improvements, 1525 lease for three years, without order of Court, 1526 when guardian of idiot, etc., may make long lease, 1526 application for, 1527 proceedings on application, 1528 report of appraisers as to, 1528 when guardian to give bond, 1528 hearing and orders, 1529 Heport of guardian, 1444 Termination of, 1445 Power to lease real estate for petroleum oil or natural gas purposes, 1452, 1446, 1447 Court to prescribe terms, 1450 petition therefor, 1453, 1448 what to contain, 1448 notice of hearing, 1454, 1449 Court to prescribe terms, etc., 1455 Power to lease real estate for mining purposes, 1456, 1451, 1452 appraisement, 1454 petition; time for hearing, 1457, 1453 land to be viewed by disinterested freeholders, 1458 order to, 1455 Probate Court to order lease, 1447 royalty; report of by guardian, bond to recover, 1448, 1456 report of guardian, 1456 change in terms of lea.sing, 1448, 1457 lands owned in common by minor, 1449 owned in common, 1458 Liability : For failure to invest ward's money, 1367 For failure to list or pay taxes, 1392 For failure to file inventory, 1367 For failure to render account, 1367 For loss of money deposited in bank, when, 1385, 1389 For lease of ward's premises for sale of liquors, 1378, 1432 Of married woman, guardian of idiot, etc., 1512 Marriage : Of female guardian determine guardianship, 1356 Of female ward determines guardianship of person but not of estate, 1356 consent of guardian to marriage of, necessary, when, 27-2117 before license issues for, 1997 or before marriage solemnized after publication of bans, 1997 May bring action to construe trust, 34 Minor, who is, 1321 Money on iiands at final settlement, 1388 Mortgage in lieu of surety, 1335 form of, 1335 / 1958 INDEX (References are to sections.) GUARDIANS — Continued. Maintenance, duties as to, 1373 fixed allowance made by Court, 1377 not responsible unless he contract for same, 1373 not limited to income, 1373 no rigid rule can be adopted, 1373 cannot desert ward, 1373 examples of amount allowed, 1373 Management of estate, 1378 guardian has absolute control, 1378 liable if acts result injuriously, 1378 must act honestly, 1378 Management of real estate, 1392 has full control, 1392 can neither sell nor release except as provided by statute, 1392 must list for taxation, 1392 Mortgage of lands, 1459 statute must be followed, 1459 where action brought, 1461 when may, 1461 for whom may, 1462 application, when filed, 1463 what should contain. 1464 essentials of, 1465 form of, 1466 proceedings upon filing petition. 1467 viewers when appointed. 14G8 amount to be borrowed. HdO report of rate, etc., 1470 order to guardian, 1471 confirmation of report, 1472 entry, 1473 report of execution of mortgage, 1474 mortgage, form of, 1474a Natural, 1306 only exists as to person, 1306 when recognized, 1306 when mother is, 1306 Notice to parties, 1326 not essential unless statute requires, 1326 parent must have. 1326 Non-resident guardian and ward : Application for sale of real estate by, where to be made, 1491 Property in this State may be recovered by, 1480 Provisions as to resident guardian apply to, 1481 Rights of, in this State. 1480, 1481 Sale of land of non-resident ward. 1481 Security, additional, may be required of. 1481 Of estate : Appointment of, 1311 Chosen by minor. 1327 Executor or administrator can not be. 1331 Power to sell ward's lands, 1405 to lease ward's lands, 1432, 1433 Statutory duties, 1316 Of person: Appointment, 1311 Bond, 1314 Chosen by minor. 1327 Executor or administrator may be, 1331 INDEX 1959 (References are to sections.) GUARDIANS — Continued. Statutory duties, 1313 Of persop and estate: Appointment, 1311 Executor or administrator can not be, 1331 Power to sell ward's lands, 1405 to lease ward's lands, 1432, 1433 Statutory' duties, 1367 Order of appointment, 1339 cannot be impeached collaterally, 1339 form of entry, 1340 should show jurisdiction, 1340 should show parents' consent or notice. 1340 Oath: Of guardian of person and estate or either, 1367, 1314 to accounts, 1367 examination under, as to, 733 to inventory, 1367 to statement of ward's estate, 1323 to petition for leave to sell real estate, 1413 who may administer, 1336 Of freeholders, on report as to lease of ward's estate, 1438 Occupying claimant: In proceedings as to, § 11915 G. C. Rights of, holding under- sale and conveyance made by, 11908 G. C. Partition: May assign dower, 1396 Power of, to act for ward in, 1383, 1396 Person under, may make will, 1024 Power of Court over, 1363 guardian's discretion, 1363 should not be exercised when, 1363 Procedure when Court directs manner of executing trust, 1364 application, 1365 entry, 1364 form of citation, 1364 Power over person and estate, 1366 Parent, when may receive compensation for maintenance, 1374 father ordinarily not, 1374 exceptions where child's estate abundant, 1374 mother usually allowed, 1374 Personalty received from ancestor of ward, 1390 S3ust be approved by guardian, 1390 if not must convert into money, 1390 Residence, how determined, 1322 Rosident of county, 1322 Responsible when, 1361 Rights of parents, 1366 Rights to services of ward, 1372 when lives in family, 1372 when makes earnings elsewhere, 1371 Religious instruction. 1376 should be that which accords with ward's relations and friends 1376 Rents, 1393 guardian should collect, 1393 Repairs, 1443, 1394 should make ordinary, 1394 extensive not without order of Court, 1394 Rights of action against ward, 1401 1960 INDEX (References are to sections.) GUARDIANS — Continued. Removal : See Removal of Guardian. Causes for, 1358 same as trustee, 1360 religious teachings, 1360 attempt to alienate from parent, 1360 improper education, 1360 Failure to give new bond, for, 1348 How long powers shall continue, 1354 Inventory, may be removed for failure to file, 1367 Jurisdiction of Probate Court over, 27, 1359 Marriage of female guardian, effect, 1356 of female ward, effect, 1356 Notice to guardian, 1358, 1477 Procedure for, 1359 Removal from State of guardian, 1358 of ward and appointment of foreign guardian, 1476 removes resident guardian, when, 1477 notice to guardian, 1477 order of Court, 1479 When guardian discharged, 1355 Resignation : Court may accept and appoint another, 1357 Road cases: Appeals in, 1785, 1787 Sale: Coal, fire clay, etc., 1522 Sale of personal property: Guardian has full power, 1391 No order necessary, 1391 Not usual to sell family pictures, 1391 Purchaser not bound to inquire, 1391 When may be made, 1405 Sele of real estate: Appraisers, appointment of, 1418 oath of, 1421 Appraised value, not to be sold at less than two-thirds of, 1425 Appeal, 1431 Bond to be given before, 1422 Court can not waive giving, 1422 form of, 1423 giving is jurisdictional, 1422, 1424 Confirmation of, and deed, 1429 Court must look after interests of ward, 1417 Consent to sale by executor, etc.. may be signed by legal guardian, 838 but not by guardian of person, 838 Deed, form of, 1430 Error, 1431 Foreign guardian of foreign ward may make, 1481 additional security may be required of. 1481 when land situated in more than one county, 1481 GuardiaK. ad litem, when should be appointed, 1417 power to appeal cas^, 844 Hearing, 1418 Insane person of, 1522 sale or adjustment of dower, 1523 Joint application for, 1405 Jurisdiction of Probate and Common Pleas, 28 Liens, Court to determine priority of, 814 Nature of action, 1404 Order to appraise, 1420 INDEX 1961 (References are to sections.) GUARDIANS — Continued. Order of sale, how made, 1425 form, 1426 Petition for, 1410 essentials of, 1411 form of, 1412 notice of filing and hearing, 1413 ordering notice, 1414 service of notice, 1415 form of notice, 1416 of idiot, etc., 1522 wife of, to be made party, 1522 answer of, consenting to sale, effect, 1522 Parties to action, 1408 when next of inheritance, 1408 when liens on property, 1408 Private sale, when, 1425, 1428 terms, 1425 of idiot, etc., 1522 Proceedings when actions determined by Probate Court, 814 Purchaser, who can not be, 492, 889 Purposes for which sale may be had, 1405 of real estate of idiot, etc., 1522 Public sale, 1427 Release and satisfaction of liens to be entered of record, 814 fee for recorder, 814 Remedy of purchaser at invalid sale, 902 Report of, 1429 Survey of into town lots, may be made, 1410, 1418, 1425 Terms of, 1425 Where brought, 1406, 1407 What may be sold, 1409 When order should be granted, 1419 Service : Service on by summons, 839 by publication, when, 841 in appeals in road cases, 1818 Guardian ad litem can not waive notice or service of, in action for sale of real estate by executor, etc., 844 Settlement : By executors of deceased, 1499, 1500 Effect of, 1493 Review of, 1493 With succeeding guardian, 1496 With ward, 1496 Sureties on guardian's bond: Exceptions to, 1343 notice of, 1343 Liability, limited to penalty in bond, 1353 fixed by order of Probate Court, 1353 conditions of bond control, 1353 where there are different bonds, 1353 on bond for sale of real estate, 1353 when receipt of ward does not release, 1353 Release of, 1348 notice of application, 1348 extent of liability of original, 1348 Statement of ward's estate to be filed, 1323 Same powers as trustee, 1361 Termination of trust, 1355 1962 INDEX (References are to sections.) GUARDIANS — Continued. no power after, 1355 Taxation of costs of account, 1494 Taxes : May release ward's tax title, 1395 tender of release, its effect on subsequent costs, 27 Must list and pay taxes on ward's land, 1392 compensation for money, etc., advanced to pay, 1392 Unreasonable delay in collecting and paying debts, 255 Various kinds, 1317 Who may be, 1331 administrator or executor cannot, 1331 Probate Judge cannot, 1331 non-resident of State cannot, 1331 married woman can be, 1331 Who should not be appointed, 1332 ought to possess ability of ordinary trustee, 1332 ought to have confidence of ward, 1332 Ward's right of action against, 1400 GUARDIANSHIP — Appeal from removal, 1342 Appointment before appeal can be taken, 1342 Circuit Court to review order, 1342 GUARDIAN AD LITEM — Appointment, 845 Answer, 845 Appropriation of property by municipal corporation, appointment of, 1756 By whom appointed, 1384 Cannot enter appearance of ward, 1384 Defense of infant must be made by, Id., 1384 Duties and compensation. Id., 845, 844 Duty as to appraisement of property, 1396 In sale of real estate by guardian, 1417 Need not be appointed in action for sale of real estate by executor, etc., unless, etc.j 844 entry, 845 Can not waive notice or service of summons in such action, 844, 843 GUARDI.IN OF DRUNKARDS — Appeal from order appointing, 39 Appointment of for, when and how, 1535 . Duties, rights and liabilities, 1535 Guardian of drunkards minor children unless, etc., 1535 Incapacity to contract, 1538 Law relating to guardians generally, applicable, 1534 Mortgage of real estate by guardian, 1460-1472 Notice to be served on person before application, 1537 sale thereafter void, 1537 Procedure to appoint. 1536 Procedure to terminate, 1541 Sale, gift or conveyance after service of notice void, 1537 Termination of, 1540 When order to be made, 1539 When to be appointed, 1535 GUARDIANS OF LUNATICS, ETC.— Application for, 1504 form of, 1505 entry on, 1506 notice, 1506 form of, 1507 Appeal, 1515 Accounting : See Guardians. exceptions to,. 1517 INDEX 1968 (References are to sections.) GUARDIANS OF LUNATICS, ETC.— Continued. how opened up, 1517 settled, 1513 when and how, 1499 Action by, 1521 not to abate by termination of guardianship, 1521 Answer of, 845 Appeal from order appointing, 39 Appointment of, when, 1501 when wife to be appointed, 1512 liability and sureties, 1512 Court having jurisdiction, 1502 Completion of, of real contract of, 1398 when additional bond required, 1398 Dower, sale of insane widow's^ 1523 procedure in assignment, 1525 answer of wife of idiot, etc., consenting to sale of contingent, 1522 Defense of, by guardian, 1384 Duty as to existing contracts, 1519 may pay attorney of ward, 1519 Duties of, as to welfare, 1518 not limited to income, 1518 fancied enjoyments allowed, 1518 wards should be kept comfortable. 1518 Entry finding person incapacitated, 1510 Effect of finding of disability, 1511 right to marry, 1511 right to make will^ 1511 right to contract, 1511 Error, 1515 For whom made, 1503 Foreign, of foreign idiot, etc., may .'lell property in this state when, 1483 See Foreign Guardians. may collect money, how, 1282 Guardian of ward's minor children, unless, etc., 1501 Hearing, 1508 Insolvency of estate^ 1520 suit for wardj 1521 Imbecile defined, 1501 Improvement of real estate, 1530, 1398 proceedings, 1531 may unite with owners of adjacent property, 1532 guardian's report, 1533 Lunatic, imbecile, etc., 1533 Laws of ordinary guardians apply, 1516 Lease of real estate of ward, when and how, 1525 when to determine, 1525 lease for three years without order of Court, 1526 lien of tenant for improvements, 1525 when long lease may be authorized, 1526 application for, how made, 1527 what petition must contain, 1527 proceedings on petition. 1528 report of appraisers, 1528 final order on hearing, etc., 1529 Mortgage of real estate by guardian, 1460 petition therefor, 1464 proceedings upon filing a petition, 1467 amount to be borrowed, 1469 1964 INDEX (References are to sections.) GUARDIANS OF LUNATICS, BTC. — Continued. acceptance and confirmation of report and terms, 1472 Notice of guardians appointment, 1501 Notice of filing account to be published, 729 Nature of proceedings, 1508 Partition, power to act for wards in, 1383 of foreign guardian, Id., 12045 G. C. Review of settlement, when and by whom, 1516 notice of motion for, 1516 Removal, 1514 Sale of lands by foreign, 1481, 1483 Sale of dower of insane widow, 1523 Sale of real estate of idiot, etc., when, 1522 petition for, 1522 terms of sale, 1522 private sale, when, 1522 wife may be made a party, 1522 effect of her answer consenting to sale. 1522 Vouchers signed by ward not allowed on settlement, 1516, 1517 heretofore signed and allowed void, 1516 When order should be made, 1509 Who should be appointed, 1512 Ward, minor children of to be guardian of when, 1501 Wife to be appointed, when, 1512 bond of and its eflFect^ 1512 liabilities of sureties of, 1512 When and how guardianship shall terminate, 1513 Wrongful death, compromise for, 1367. 1387 H. HABEAS CORPUS — Answer of respondent, 1968 form of, 1968 Adjournment of cause, 1969 Appeal, 1975 A statutory right, 1951 Application, who may make, 1954 requisites of, 1955, 1962 form of, 1956 what should be stated in, 1956 Cannot be used to review or revise error, 1953 Definition, 1951 Entry discharging, 1972 Entry remanding prisoner, 1973 Error, 1975 Essentially civil, 1951 Entry ordering writ, 1959 Form of, when not in custody of officer, 1963 Form of, when in custody of officer, 1964 How prisoner designated, 1961 How servedj 1965 Hearing, 1971 Is a special proceeding, 1951 Jury, not entitled to. 1971 Jurisdiction of Probate Court. 1952, 28 Return of writ, 1966 what it shall contain^ 1968 form of, 1968 Second application, 1974 INDEX (References are to sections.) 1965 HABEAS CORPUS — Continued. Should be brought where defendant is, 1952 Venue, 1952 Who entitled to, 1953 When must be granted, 1958 Who may issue, 1960 When prisoner discharged, 1970 HABITUAL— Drunkenness, 220 Habitation, 74 HEIR— See Devisee — Distribution — Legatee. Adopted, right of, 1888, 1898 Advancements made to, 928, 934 Allowance to widow, may ask review of, 333 Appraisement, must be notified of, 288 may be present at, 292 Claim against estate, may require executor, etc., to reject, 561 must file bond in such case, 561 may give bond to creditor to prevent payment of claim not due in two years, 571 Contribution to pay claims after settlement, 587, 588, 593 See Contribution, Concealing assets, etc., of estate, may complain against person, 395 Completion of real contracts, parties in action for, 523 may have an action for, 532 Contest of will, parties to, 12080 G. C. Contribution by, to pay claims, etc. See Contribution, Devisee, 1064, 1210, 587, 593 Creditors, proceedings by, against, 585, 593. 590 of subrogated to right, etc., 751) attachment, 759 Debt of to estate may be taken out of share of, 760 statute of limitation as to, 760 Debt due from is in asset, 392 Descent and distribution, order of. See Descent and Distribution, 915 Disinheritance of 1181, 1202 Designation of heir at law, 1902 See Designating Heir at Law. Desperate claims may be filed in Court for the benefit of, 456 Distribution, may compel payment of order of, 761 Dower, assignment of by, 951 See Dower. minor not to be prejudiced by, 957 Entitled to possession of real estate, 799 Estate of liable, after death, 589 Foreign executor, rights of as to, 190 Guardian's sale of real estate, parties to proceedings, 1522 How construed, 1196 Inherits property, if will not probated, when, 1084 Inventory, may compel filing of, 303 Insolvency of not to affect others, 591 Liability of, for claims against estate, 587, 585 Provision against contesting will. 1203 Parties to action for sale of land, 833 on administration bond, 261 on rejected claim, 561 to complete real contract, 523 to contest will, 12080 G. C. Requisition to reject claim, 561-568 Revivor of action bv and against, when. Id., 11407-11409 G. C. of judgment, 11649 G. C. Restraint of alienation, 1204 1966 INDEX (References are to sections.) HEIR — Continued. Sale of real estate, parties to action for, 833 may sell interest in subject to debts, 749, 847 title of, to land be sold, 850 Transfer of real estate to. 1111a Unknown, proceedin«rs against C. C. P., 11298 G. C. service by publication. Id., 11298 G. C. When party may testify, when adverse party claims as. Id.. 1149.5 G.C. When Probate judge interested as, effect, 9 HEIRS, LEGATEES, DEVISEES AND DISTRIBUTEES — Account, foreign executor, etc., may be compelled to, at suit of, 190 Action by to enforce order of distribution, 761, 779 to enforce contribution, 593 on administration bond to recover share, etc., 265 for maladministration, 269 to review widow's allowance, 333 asking direction of Court respecting estate, when, 33 Action against by creditors after settlement, 585 See Attachment. contribution to be made, how, 587 creditors to proceed against all in one action, 590 estate liable after death, 589 heirs to indemnify one another in what cases, 593 jury may be called, when, 590 liability, in case of insolvency of heir, etc., 591 limitation of liability under will, 587 limitation of bringing action, 587 new parties may be made, 592 Action against by executor, etc., asking direction of Court respecting estate, 33 Appeal in action to enforce order of distribution, 785 Appraisement, notice to be served on, at taking of, 299 Bond to secure claim rejected at instance of heir, 561 to executor, etc., for payment of legacy, etc., within two years, 696 to prevent sale of land, 826 to creditor for payment of claims not due in two years, 571 refunding, to foreign executor when suits pending, etc., 190 indemnifying, when distributees to give to executor, etc., 751 Contribution may be required of, when and how, 1207, 1213 Contribution to raise portion for absent or posthumous child, 1064 portion of child, when subject to, 1210 when devised or bequeathed property taken to pay debts, 1207 when any liable are insolvent, 1211 in action by creditors to pay claims after settlement of estate, 587 heirs, etc., liable to contribution among themselves, 593 action to enforce. 593 Desperate claims may be sold or filed in court for benefit of, etc., 456 Debt against, 79Sa. Foreign executor, etc., may be compelled to account at suit, 190 refunding bond to, 190 Inventory, may attend at making of, 292 notice of taking to Le served on, 288 Parties in action for sale of land, 833 on administration bond^ 261 Proceedings by against persons suspected of concealing assets of estate. 395, 414 Property specifically bequeathed delivery of to, 474 Sale of land, parties in action for, 833 may give bond to prevent, when, 826 interest of in premises set off to widow may be sold, when, 850 INDEX 1967 (References are to sections.) HEIRS, LEGATEES, DEVISEES AND DISTRIBUTEES— Continued. When party can testify when adverse party claims or defends as. Codn of Civil Procedure, 11495 G. C. heirlooms- No right in equity to recover, 397 HOME OF THE FRIENDLESS— Commitment of girls to, 515 HOMESTEAD— See Sale of Real Estate, Exemptions. Assignment of, who entitled to, etc., 1598, 868, 867 on sale of land by executor, 857 by assignee of insolvent debtor, 1598, 1618 Property assigned subject to, 1549 Five hundred dollars in lieu of, 1600 application for, 1600 HOSPITAL— Admission to of epileptics, 10498 G. C. HUSBAND AND WIFE— See Wife. Husband : Not relation of wife, wlien, 1104 Action for wrongful death brought for benefit of, 536 Adoption of children by, 1888, 1898 Assignment for creditors, election to be endowed out of proceeds of sale, 1600 Dower of. See Dower, 944 in ward's real estate, provisions as to, on sale of. by guardian. 1413 When they inherit from each other. See Descent, 915, 918, 921, 938 When entitled to letters of administration, 114, 120. See Letters of Administration. I. IDIOT — See Insane Person. Action of, by guardian, 1521 See Guardian of Lunatic, etc. Appeal — see Appeal, Guardian. Appropriation of property of, 1677 Can not make will, 1022', 1020 Contracts, completion of real estate, 1398 Dower of, power of guardian to sell, 1523 Foreign guardian may dispose of effects of, 1483 Guardian appointed for, 1501 powers and duties, 1516 power of to borrow money and mortgage real estate, 1460-1472 wife of, may be, 1612 Improvement of real estate, 1530-1533 Inquest as to, 1999 Lease of real estate, 1525, 1529 Sale of real estate, 1522 Trustee of non-resident, powers and duties of, 1274 ILLEGITIMATE CHILD- See Bastard. ILLITERACY — How affecting qualification of executors, 79. 115 No ground for removal, 222, 226 IMBECILE — Idiot. See Guardian, 1501, 1513 Defined, 1501 Improvement of real estate, 1530-1533 Power to make will, 1022 1968 i^^^ (References are to sections.) IMPRISONMENT — See Contempt. Of person refusing to produce will, 1079 Of person suspected of concealing assets, etc., of estate, 402 IMPROVEMENTS — Executor cannot nial JUVENILE COURT— Continued. Evidence when may not be used, 2230 Expense, detention home, 2242 pursuit, capture, etc., 2218 Failure to support cliild, 2203 Felony, cliild charged with, 2242 Finding of court not evidence, 2230 Forfeit of Lond, 2227 Fugitive from justice, 2169 Forms: affidavit for publication, 2176 appointment probation officer, 2222 bond, non-support, 2207 citation, 2172 complaint for child, 2168 complaint delinquency, 2180 complaint non-support, etc., 2204 entry : arrest at hearing, 2213 binding over to court, 2244 ' citation, order for, 2176 order for publication, 2179 order for warrant, 2183 placing child, 2104 plea of guiltv, 2201 finding guilty, 2202 non-support, 2204 workhouse, 2200 notice to parents, 2173 oath probation officer, 2221 recognizance, 2245 warrant, 2183 Girl, age may be committed to industrial school, 2198 Girls' industrial home, commitment to, 2187 dependent not committed to, 2198 Habeas corpus, when writ may issue, 2159 Hearing, 2186 Historical, 2148 Home, private, may be placed in, 2187 Hospital, private, may be placed in, 2189 Hospital, public, may be placed in, 2188 Industrial schools, how construed, 2241 Industrial schools, commitment to, 2187 Institutions, 2189 Institutions for treatment, 2188 Jail, commitment to, 2211 Journal. See Forms Entry. docket, etc.. 2155 Jury, that may demand, 2185 Jury, drawing, 2185 Jurisdiction of court, 2156. 2244 when it terminates, 2199 non-support, 2159 Justice of peace, transfer. 2215 Juvenile court defined, 2153 Juvenile judge defined. 2150 Judge, how designated. 2152 Judge to request report, 2237 INDEX 1985 (References are to -eetlons. ) JUVENILE COURT— Continued. Law, liberally construed, 2247 Maintenance, charged to parent, Matron, qualifications of, 2231 Minors. See Child Defined, 2164 warrant for, 2179 Misdemeanors, against children, 2250 Nature of court, 2147 Neglect, 2213 Non-support, 2203 Notice to parents, 2169 Notice by publication, 2175 Ohio state reformatory, commitment to, 2187 Parental care defined, 2168 Parent defined, maintenance charged to, 2164 Penalty when child charged with, 2242 Permanent commitment, 2233 Physician's certificate, 2189 Police court, transfer from, 2215 Probation, statute relating to sentence not applicable, 1374 G. C. Probation officer: appointment, 2219 compensation, 2219 duties, 2223 oath, 2222 warrants, etc., issued to, 2217 when delinquent child to custody of, 2291 Procedure for adoption, 2233 Proper parental care, 2268 Prosecuting attorney's duty, 2224 Publication, notice by, 2175 Recognizance, form, 2245 Religious belief, 2240 Reputable citizen, cliild in custody of, 2187 Residence unknown, 2169 Seal of court. 2154 Separation of delinquent and dependent children, 2231 Sexes separate, 2231 Special room for trial, 2185 Suspension of sentence, 2226 Temporary commitment, 2233 Training school, commitment to, 2187, 2189 Trial, right to jury, 2185 by court, 2186 special room for, 2185 Warrant, right to issue, 2160, 2214 Who may file complaint, 2166 Workhouse, sentence, etc., 2210 L. LABOR CLAIMS— In settlement of estates, 647, 664 Preference in assignments, 1649, 1650. 1651 LABORERS— Wages of, a preferred claim against insolvent debtor's estate, when, 1647 , against estate of decedent, 647 1986 INDEX (References are to s^PCtions. ) LAND — See Real Estate — Title — Descent — Wills. LANDLORD AND TENANT— -See Liquor Laws. Lien of tenant for improvements made under lease of guardian of minor, idiot, etc., 1445, 1525 LAPSED LEGACY, 683 LAST SICKNESS— Order of payment, 652 \Yhat it includes, 652 Expenses of, a preferred claim, 647 Expenses incurred in, 652 LAST ILLNESS DEFINED, 652 LAST AS APPLIED TO WILLS, 1139 LEASE — • Duties of administrator, 373 Guardian of minor to make, 1432, 1445 See Guardians. of idiot, 1525, 1529 for petroleimi oil or natural gas purposes, 1452 for mining purposes, 1456 Freehold, what is, 373 Permanent leasehold estate descend same as fee simple, 942 Permanent are freeholds, 373 Trustee of minor. Idiot, etc., may make, 1278 WTiere deceased, lessee, assets, 373 LEASEHOLD — Descends as real estate, 942 dower in, 949 LEGACIES — See Legatee. AflFects settlement of estates how, 674 Absolute, 680 Adeemed. 685 distinction between and satisfaction, 685 Annuities in nature of, 692 what are, 692 Abatement of, 693 order of. 693 Creditor to, 688 order of abatement. 688 Collection where enforced, 674 Conditional, 680 Cumulative, 681 Contingent, 679 Demonstrative, 677 defined, 677 Dower in lieu of, 687 order of abatement^ 687 Debtor to, 689 is assets, 689 Discharge of debts in will against executor construed as, 391 must be included in inventory, 391 General, 676 defined, 676 gifts of stock, 678 Income, in nature of, 692 what are. 692 Land, charge on, 690 Life, for, 691 Lapsed, 683 what is, INDEX II S7 (References are to sections.) LEGACIES — Continued. what is, 683 how occurs, 683 when does not, 683 Payment rules as to, 694 ■ when should be, GiJo, 266 administrator may require bond, 696 form of, 700 entry, 701 sale of real estate for, 819 Paid within two years requires bond, 696 sale of real estate to pay, 819 Repeated, 681 Residuary, 682 See Residuary Legatee. defined. 682 Satisfied, 686 Substituted, 681 Stated amount, 682 Specific, 675 what is, 675 gifts of stock, 678 delivered how, 474, 675 abatement of, 675 Unpaid not subject to chattel mortgage, 674 Vested, 679 Void, 684 differs from lapsed, 684 LEGAL ADVERTISEMENT — See Sale of Real Estate. See Arsignme^n'ts. LEGAL HEIRS DEFLXED, 1196 LEGAL REPRESENTATIVES — See Heirs, etc., 912 LEGAL SERVICES — See Attorney. LEGATEE — See Legacies, Devisee, Residuary Legates. Allowance to widow, may ask review of, 333 Appraisement, notice to 'of, 288 may be present at, 292 Bond, to give for payment of legacy, when, 474, 696 redelivery, 475 when may bring suit on bond of administrator, etc., 265 when Court may authorize suit on bond of administrator, ste.. by, 269 Charged by will with payment of debt, effect, 587 takes land subject to charge, 1058 Concealing assets, rights against persons, 395 Contribution by, to raise portion for absent child, etc., 1064, 1210 to pay share of devisee witnesses to will, when, 1044 to pay legacies, etc., when devised property taken to pay debts, 1207, 1212 to pay claims against estate after settlement, etc. See Contribu- tion, ?iQ1, 593 Creditors may bring action against, after settlement, when, 587 Debt due from is an asset, 392 Death of, legacy not to relapse, when, 1194 Distribution, may enforce order of, 761 Foreign executors, etc., rights as to, 190, 193 How may obtain letjacy by action, 265 How may obtain legacy within two years, 696 Inventory, may compel filing of, 303 1988 INDEX (References are to sections.) LEGATEE — Continued. may be present at taking of, 292 Not to be sold unless required to pay debts, 474 Notice to, of hearing of executor's, etc., claim against estate, 633 of making inventory and appraisement to be given to. 288 Party to contest of will, C. C. P., 12080 G. C. in action on administration bond, 261 in action for sale of land, 833 Personal property specifically bequeathed to be delivered, when, 474 Probate Judge, when interested as, 9 Property bequeathed, takes subject to encumbrance, 1058 Residuary defined, 1033 See Hesiduary Legatee. bond of executor, who is, 57 not to discharge lien on real estate for payment of debts, except, 60 inventory, when not required to return, 57, 281 lien of decedent's creditors, land passing to, is subject to, 60, 281 takes deceased child's share of real estate, when, 1194 Bale of real estate to pay legacy of, 819 Sums paid to may be recovered, when, 159 Testimony, when adverse party claims as, 11495 G. C. Witness to will, eftect of beign, 1044 LEGITIMACY— Of persons born bastards, how effected. See Wills — Dkscext, 937 LETTERS OF ADMINISTRATION. See Administrator and Execijtob. Application for, to file affidavit and give bond, 114, 124 when and where made, 111 form of, 113 Bond must be given, 124 form of, 125 County in which granted, 72 Court should not appoint non-resident, 116 Creditor, 122 Definition, 108 Death of party for whom application is made, 109 Husband or widow entitled to, 120 abandonment, 120 adultery, 120 ante-nuptial agreement, 120 living apart, 120 In what county issued, 72 Jurisdiction, fifst obtained excludes others. 72 New, when tc be gi-anted, 306 Not to issue on estate of a life convict, 109 Not to issue as of right after twenty years. 04 when may issue after twenty years, 64 notice of appointment for, 64 Not to issue to Probate Judge, 9 Non-resident interested in business here, 170 No presumption of will, 110 Next of kin, 121 who are., 121 Order for, 129 form of. 129 Order of priority among tho«e entitled, 117 Residence of adininistrator, 116 Renunciation, waiver, etc.. 119 may be conditional, 119 Revocation of, 306, 741, 992 INDEX 1989 (References are to sections.) LETTERS OF ADMINISTRATION — Cona'wMed. by discovery of will, 162 To whom granted, 114 when in case of will probated without the State, 169, 1132 when persons entitled to are incompetent or neglect to take out, 114 To special administrator, 129 administrator with the will annexed, 100, 93 administrator de bonis non, 152, 64 To such person as the Court may see fit, 123 When in same degree, 118 Who entitled to, 114 Probate Judge is not, 9 Who is intestate, 110 Who may be appointed, 115 evidently unsuitable. 1 15 Will not issue of right after twenty years, 64 may issue, on petition, etc., 64 LMTERS OF GUARDIANSHIP — See Guardians. LEITERS OF ASSIGNEE — See Assignee. LETTERS OF TRUSTEE — See Tbustee. LETTERS TESTAMENTARY — Application for, 114 Apprication when made, 71 Application for appointment, 76 must state jurisdictional facts, 76 oath to, 77 foim of, 78 Bond, b3 must be given, 83 amount. 84 form of, 84 when need not be given, 85 County in which granted, 72 Definition of executor, 68 Distinction between administrator and executor, 69 Decedent resident or inhabitant of county, 74 Estate to be administered, 75 judgment is, 75 unliquidated demand is. 75 How granted during minority, 93 In what county granted, 72 Issue to person named in will, when, 71 on estate of non-resident, 72 under will probated without the State, 1132, 169 Jurisdiction, first obtained excludes all others, 72 exclusive jurisdiction to grant and revoke, 27 Not to issue to Probate Judge, 9 Order of appointment, 88 form of letters, 87 form of entrj', 89 efl'ect of, 90 how may be attacked, 91 Power prior to letters, 70 Revocation of, 306, 741, 992, 491, 213 See Resignation. Removal, etc. 1990 INDEX (References are to sections.) LETTERS TESTAMENTARY — Continued. Renunciation of executor, 92 Who entitled to, 71 minor must attain majority, 93 Probate Judge not entitled to, 9 when to issue to foreign executor, 1124, 1132, 169 What Court should grant, 72 Will must be duly probated, 73 Who may be appointed, 79 named in the will, 80 legally com.petent, 81 residence of the executor, 82 LIABILITY — Death by wrongful act, 534, 536 See Wrongful Death. Executors and administrators. Inventory, See Administrators and Executors. Guardians. See Guardians. Heirs, devisees, etc., to contribution. See Contribution, 1064, 1207, 1212, 587, 523 Lease of premises for sale of liquors, 1378, 1432 Person refusing to produce will, 1079 Trustee for loss of money deposited in bank, 512, 513 See Money on Deposit. Officer neglecting to serve or return process or pay over money, 2010 See Amercement. LICENSE — Minister of the Gospel, of, to solemnize marriage, 1997 to be produced to Probate Judge of county in which marriage solemnized, 1997 Parties of applying for marriage, 1997 LIENS — Administration of estates: Bond of residuary legatee does not discharge, except, 60 Concealing assets, of judgment against persons, 408 Debts, on undevised real estate for payment of, 1206, 1209 unaffected by provisions as to payment of, 666 Distribution, against executor, etc., to enforce order of, 774 Judgment of, 774 embezzling, etc., estate, 408 Mechanics, rights and duties of executors, etc., 519 On personal property of decedent created during his life time, order of payment, 666 Residuary legatee, bond of to j)ay debts does not release, 60 Sale of real estate, holders of parties in action for, 833 priorities of, adjusted in such action. 814 proceeds, applied to satisfy, order of, 903 Taxes, of executors, etc., for jayment of, 1392 Assignment for creditors : See Assignments. Assignee takes subject to, 1631 Assignment does not affect priority of. 1647 judgment can not attach after assignment, 1646 Payment of by order bf Probate Court. 1618 Sale of real estate free from, 1602 Title requiring decree to settle action for sale may be brought in Common Pleas, 1618 Guardians, etc. : See Guardians. INDEX 1991 (References are to sections.) LIENS — Continued. Lease of real estate to discharge, 1433 of tenant for improvements, 1445. 1525 Of drvinkard, after notice of appointment of guardian void, 1537 Sale of real estate to discharge, 1405 petition to describe, 1410 Sale of liquors on ward's premises, 1432 Taxes paid, of guardian for, 1392 LIFE — Expectation of, 2142 LIFE ESTATE — Devise for life, limited to heirs, how construed. 1188 With power of disposal, 821, 1193 construction of power, 1193 Rule in Shelley's case abolished as to wills, 1189 Given by will not enlarged to fee by power of sale, etc., 1193, 821 And remainders in shares of stock, 692 • Wlicn widow may dispose of property. 1193 LIFE TENANT — Alteration and repairs aflfects how, 1291 Gain and loss, affects how, 1290 Insurance of property, 1292 Principal and income affect show, 1288 Special assessments, 1292 Taxes of property, 1292 LIMITATION OF ACTIONS — Administration of estates: Administrator has no right to pay when barred, 608 Administrator cannot waive, 614 Action against heir, 617 Action against administrator de bonis non, 618-620 Barred if not sued in six months, 609 Barred by General Statute, 608 Bond of executor, etc., 267 Creditors by, against executors and administrators, 613 cannot acquire superior right, 612 on claims accruing after two years, 613 when administrator maj' be sued, 613 when assets received after two years, 615 new assets, 616 claim must ha\e been presented, 613 on claim rejected by executor, etc., 609, 580, 610 assets received after two years, 615 of insolvent estate, 971 at instance of lieir or creditor, 561 when administrator, etc., dies, etc., and new one appointed, 618 against administrator de bonis non, 619 when former administrator, etc., has not given notice of appoint- ment, etc., 620 when notice of appointment is not given within proper time, and is given afterward, 548 special administrator, limitation of action when appointed, 150 time within which brought, 611 against heirs, devisees, etc., after settlement, 587 where brought, 610 on bond of executor, etc., 267 Pifferent j)rovisions, 607 Executors, etc., by. for death by negligence, 536, 535 to subject land fraudulently conveyed. 822 1992 INDEX (References are to sections.) LIMITATION OF ACTIONS — Continued. Insolvent estate, failure by creditor to present claims a bar to recov- ery, when, 987 action against, when barred, 971 to remedy an omission to appeal from decision of commissioners of insolvent estate, 1008 Rejection of claim, what is, 560-610 Will, contest of, 1112 Assignment for creditors: On claims rejected by assignee or trustee, 1628 Fraudulent conveyance, action to set aside, 1581 Guardian and ward: To open and review settlement of guardian, 1493 of guardian of limatic, 1516 LIQUOR LAWS — Liability under, for lease of premises for sale of liquors, 1432 LIVING PERSONS — Administration on estates of, 109 LOANS — Duty of guardian to make, of money of ward, 1367 See Investments. of trustee of minor, idiot, etc., 1286 LOST RECORDS — ilow restored. See Record, 12345 G. C. LOST stock- How restored. See Recced, 12345 G. C. LOST stock- How re-issued, 2131 LOST WILLS— Admission to probate, 1135 See Spoliated Wills. lunatic — See Insane Person, Guardian. Power to make will, 1022 Election for under will, 1233 M. MACHINERY, 365 See Fixtures. MAINTENANCE— Duty of guardian of person to furnish ward, when, 1313 Sfee Guardians. MALFE AS AN CE— Proceedings on complaint against municipal oiRcer for, 2121 manda:\ius— To compel judge to grant Jiabcas corpus, 1958 MANSION HOUSE— See Widow. Rent for, 372 Right of widow or widower to remain in for one year, 944 election of widow to take under will does not bar right, 1221 MANURE— Personalty when, 367 Real when, 367 MARK— Testator's signature by, 1038 Attesting witness' signature, 1041 MARRIAGE— Certificate of to be transmitted to Probate Court for record, 2117 penalty for neglect to make record, 2117 for neglect to return certificate, 2117 Condition in will restraining, 1205 Dissolution of, effect on legitimacy of issue, 937 Does not revoke will, 1061 INDEX 1993 (References are to s.^tions. ) MAHmAGE— Continued. Disability of guardianship, 1511 Effect on previously born children, 937 Fines for illegal solemnization of, etc., how recovered, 27 License of minister to solemnize, 2117 Mayor may solemnize, 11182 G. C. Must be valid before dower attaches, 945 Of administratrix and executrix, does not revoke her authority. 70, 115, 81, 27 Of female ward, determines guardianship as to person, but not as to estate, 1356 Of female guardian, determines guardianship, 1356 Of woman, does not revoke her will, 1061 . Publication of bans for, 2117 evidence thereof required, when, 2117 evidence of consent of parent or guardian required, 2117 Record to be kept by Pro1)ate Court, 1594 G. C. what to contain", 1594 G. C. Who may solemnize and how, 2117 penalty against minister or justice for illegal solemnization of, 12921 G. C. penalty for solemnization by unauthorized person, 12921 G. C. Who may contract, 2117 when consent of parent or guardian necessary, 2117 MARRIAGE LICENSE— Age, 27, 2117 Ministers, 2117 Residence, 2117 Relationship, 2117 MARRIED WO:\IAN— See Marriage. Liability on appeal in condemnation proceeding, 1779 Liability as guardian of idiot, etc., 1512 May make a will, 1018 Saving of rights in proceedings by creditors against heirs, etc., after settlement of estate, 1410 as to foreign wills, 1133 MARSHALING ASSETS— See Assets. In conformity with will, 832 When devised property taken to pay debts, 1207, 1209 MECHANIC'S LIEN— Administrator's relation to, 519 MENTAL CAPACITY, 1021 See Testamentary Capacity. MILITIA— Bond of adjutant-general, sufficiency certified by Probate Judge, 2128 of treasurer of, to be approved by Probate Judge, 2128 Drafts, how conducted, 2128 MINING— Power of guardian to lease real estate for, 1456 MINISTER— May solemnize marriage and how. See Marriage, 2117 To keep registry of deaths and report to Probate Judge, when, 2117 penalty for neglect, 2117 MINISTERIAL ACT— Deputy can perform, 13 Definition, 239 Error docs not lie from, 52 1994 INDEX ' (References are to 't-ctlons. ) MINOR — See Child, Guardian, Infant. Appropriation of property of, 1677 Indenture of, 1370 See Guardian for rights, etc., in relation to. Can not make will, 1020 Consent of parents necessary for marriage of, 2117 Guardian for, 1321 To whom administration granted while executor is, 93 Guardian may consent to appropriation of property, 1678 form of, 1678 entry of notice, 1678 ordering conveyance, 1678 deed for, 1678 When entitled to homestead exemptions, 867 MISFEASANCE— Proceedings on complaint against municipal officer for, 2121 MISTAKE — See Construction of Wills. When and how accounts of executors, etc., may be opened to correct 743 of guardians, 1493 of trustees, 1298 MONEY — Assignee must deliver to successor, 1573 Assignor's property must be converted into, 1602 Distribution, order of, how enforced, 761 Executor's etc., commissions on amount collected, 654 Foreign guardian of non-resident ward can get, how, 1480 Found on body of unknown person, how disposed of, 2014 Inventory must contain account of, 297 and if none, must so state, 297 Investment of, by executors, tru.stees, etc., 514 by guardians, 1367, 514 belonging to heirs unclaimed, 786 Liability for deposit in bank, 1264 I See Money on Deposit. Must be inventoried and administered, 83, 124 Officer refusing to pay over, how punished, 2010 Order for payment of, how enforced, 2010 Proceedings against persons suspected of concealing, etc., 395. 414 Sale of real estate, proceeds arising from, how applied, 903 Trustees may get possession of, how, 1572 Unclaimed, how invested, 786 Widow and children entitled to, how much at appraisement. 325 Widow may receive in lieu of dower, 859, 825 Wife of assignor may receive in lieu of contingent right of dower, 1600 MONEY ON DEPOSIT — By guardian, 1389 Custody, 512 Failure of bank, 513 Not assets, 378 When is, 378 MONOMANIA — See Testamentary Capacity. MONUMENT — Court may allow for and credit to executor, etc., 651 See Funeral Expenses. executor, etc., not bound to procure, 651 i INDEX 1995 (References are to sections.) MOURNING CLOTHES, 649 See Funeral Expenses. MORTALITY TABLES — See Tables. MORTGAGE — Administration of estates: By guardian, 1459 Inventory must contain particular statement of, 296 Mortgaged premises considered as personal assets, 386 executor or administrator may take possession of, 386 may release and discharge, 387 may foreclose, 388 Mortgagees necessary parties when, 833 Order of priority as to payment, 666 Sale of real estate, priorities adjusted in action for, 814 duty as to, 521 administrator cannot, real estate, 802, 815 application of proceeds for payment of, 903 payment on, 897 cannot be sold subject to, 815 deferred payments secured by, 890 Assignment for creditors: When executed by husband and wife, 1601 by husband alone for purchase money, 1601 Void as to creditors, void as to assignee, 1549 Rights of assignee as to, 1579 Guardian, etc.: May give in lieu of bond, 1323 Must take on loan of ward's money, 1367 Proceedings by to borrow money and mortgage real estate of ward, 1460-1472 Sale of ward's land to satisfy, 1405 deferred payments secured by, 1425 MOTHER— See Parent. Consent of, when necessary for marriage of minor cbild, 2117 See Education. Inherits property, when, 917 See Descent. may inherit from or transmit inheritance to bastard, 936 May appoint guardian by will, 1307 See Guardians. MOTHER'S PENSION— Act, to whom applies, 2250, 2269 Additional requirements, 2254 Allowance, to cease when, 2261 Amount allowed, 2252 Appeal and error, 2268 Application for support, 2261 Attempts to obtain bv fraud, 2266 Benefit of child, 2253' Child, allowance for, 2255 Child, living with motlier, 2250 Commissioners may transfer fund, 2264 Conditions of allowance, 2253 Detailed record, 2260 Disposal of funds, 2264 1996 INDEX (References are to &?etlons. ) MOTHER'S PENSION — Con ^m«ecZ. Forms : Application for support, 2255 detailed record, 2269 entries, pending examination, 2256 allowance, 2258 discontinuance, 2260 extending allowance, 2261 refusing allowance, 2262 order to auditor, 2259 Fund, when insufficient, 2264 Journal entry. See Forms. Length of time of allowance, 2250 Modification of allowance, 2263 Motion to set aside, 2267 Penalty, to obtain by fraud, 2266 Persons, who may receive, 2251 Preliminary examinations, 2255 Probation officer to visit, 2250 Proceedings, record of, 2269 Provisions for tax levy, 2270 Qualifications of mother, 2253 Record, detailed, 2269 Record of proceedings, 2267 Tax levy, 2270 To whom act does not apply, 2265 Urgent cases to have preference, 2264 Visitation of homes, 2250 When allowance shall cease, 2263 Who entitled to, 2250 MOTION— See FoEMS. Appropriation proceedings, for new trial, 1715a. for abandonment of proceedings, 1725 Compel guardian to render account, 1367 Extension of time to collect assets, 445 Open guardian's settlement, 1516 notice of, 1516 Payment of ward's money to foreign guardian, 1282 Road cases, for new trial, 1822 Transfer of proceedings to Common Pleas when Probate Judge in- terested, 9 MUNICIPAL CORPORATIONS— Appropriation of property by, for public use. See Appropriation of Property, 1750-1783 Device of bequest to, when valid, 1028 INDEX 1997 (References are to sections.) MUNICIPAL CORPORATION" — Continued. Proceedings against officers of, for malfeasance or misfeasance, 2006 citation for accused, 2000 order of, 2007 complaint, by whom and how made, 200G form of, 2007 costs, 2008 security for, required of complainant jury, may be demanded, 2007 challenges of, 2008 prosecution, by whom conducted, 2007 removal of officer found guilty, 2008 trial, 2008 aiUTUAL WILLS— Power to make, 1173 N. NAME— Change of, of adopted child, 1888 adult, 2129 NECESSITY OF ADMINISTRATION — See Administration. NEGLIGENCE — See Administrators and Executors. See Assets. Guardian, etc.. Liability: Libility for death caused by, 534, 536 See Wrongful Death. NEWSPAPER — See Notice. NEW TRIAL — Appropriation of property by corporations, 1718 For what causes granted, 52 Motion cannot be made after term, 52 Road appeals, 1822 When and how application made during term, 52 When and how application made after term, 52 NEXT FRIEND — Action of infant must be brought by, or guardian, 1383 See Guardians. May select certain property for minor child at appraisement, 320 NEXT OF KIN — Defined, 122 See Definitions. Damages to, for death by wrongful act, 536 Entitled to administration, when, 114 Inherit property, when, 915 Meaning in will, 1199 Notice to, before probate of will, 1067 before granting letters to, 114 Parties in action on administration bond, 261 Remedy against, on decedent's bond to convey land, 1057 When legacy demanded before two years, must give bond, 696 When may sue on administration bond, 269 NON-HESIDENT — Administration on estate of, in business here, 170 to whowi letters granted, 170 disposition of assets, 170 Appropriation of property, service on, 1692 1908 INDEX (References are to sections.) NON-RESIDENT — Continued. Claims of executor, etc., against estate, service of notice of hearing on, 633 Distribution, to enforce order of, service on, 770 Foreign executor, etc. See Administration of Estates, 188 Guardian may recover property in this State, 1480 of minor, idiot, etc., 1282 may enforce collection of judgments, 1481 may sell lands, 1481 Road appeals, notice to appellants and obligors, 1818 Sale of lands by executor, etc., service on, 838 Service by publication, 840 Trustees of, powers and duties. See Trustees, 1274-1300 Widow's election, how taken, 1231 NOTES — Inventory to contain particular statement of, 296 May be distributed in kind, when and how, 751 Negotiable cannot bind estate, 651 Not to be sold, when, 470 Promissory, given to secure resignation void, 210 not to be sold, 471 how inventoried, 297 given to administrator, 507 duty as to, 507 not subject of gift causa mortis, 1241 On sale of personal property, how taken, 483 Surviving partner purchasing partnership property may give, 427 NOTICE — Administration of estates: Account of administrator, etc., of filing, etc., 729, 732 costs of, 729 Appeal, 43, 45, 1008 Administrator de bonis non, 160 Appointment of administrator or e.xecutor, 544, 543, 551 filing of, purjM)se of, 540 See Appointment. Object and purpose, 543 when and how given, 544 proof of, 546, 547 form of, 545 aflidavit for, 546 liability of executor, etc., and sureties for failure to give, 550, 531, 543 failure to give extends time for bringing action, 620, 548 by administrator de bonis non, 621 when Court may allow, after proper time, 548 Petition for, 549 entry, 550 eflfect on limitation of action, 548 of application for, after twenty years, 64, 66 application for, 66 Bond, notice to executor, etc., that new bond is required, 248, 249 Claims of executors, etc., against estate, of hearing, 633 filing requisition to reject, 561 Desperate claims, of application for sale, etc., 459 of sale of such claims, 463 Disallowance of claim at instance of heir or creditor, 561 Evidence of, what is, 546 For leave of Court to bring suit, 273 Failure to pay over money, of filing petition against executor, etc, INDEX 1999 (References are to sections.) NOTICE — Continued. for, 761, 770 General for ancillary administrator, 176 How given when law does not direct, 37 Insolvency of estate, 965 form of, 966 of meeting of commissioners to receive claims, 996 of appeal from decision of commissioners, 1004 of filing petition on omission to appeal, 1008 Inventory and appraisement, of making, 288, 289 of filing and hearing exceptions to inventory, 312 must be in writing, 45 Non-resident : See Non-resident. Next of kin, 111 Public sale, 480 Removal of executor, etc., twenty days' notice, 213 Sale of personal property, 479, 495 See Sale of Personal Property. of desperate claims, application for, 459 sale of, 463 of real estate, 883 See Sale of Real Est.vte. notice of, in German or Bohemian newspaper, 885 of filing petition for, 838 waiver of, 838, 844 Sale of real estate, 841, 887 Surety's application for release, 243 new, 245, 246, 247 to executors, etc., when sureties insufficient, 248 To executor, 101 Will, of probate of, 1067 of application to probate lost, spoliated or destroyed will, 1144 to admit foreign will to record, 1125 of existence of will deposited with Probate Judge, 1070 publication of, to admit will to record when record destroyed, 1157 of appeal from refusal to admit Avill to probate, 1116 Appropriation of property : TJy private corporation, by landowner to compel, 1735 to unknown or non-resident, 1692 By municipal corporation to property owners, 1754 of intention to appeal, 1778 Assignment for creditors: Accounts, of filing and hearing, 1653, 729 Appointment of assignee, etc., 1557 Disallowance of claim on application of assignor or creditor, 1635 Dividends, of making and paying, 1653 to owners of unpaid dividends, 1653 Fraudulent conveyance, etc., of action to set aside, 1580 Sale of property, 1611, 1609 how given, 1625, 1609 Trustees' election, of time and place, 1564 of appointment, 1557 Ditch appeal : County, 1833 Drift: Removal of, appeal, 2119 Guardians, etc.: 2000 INDEX (References are to sections.) NOTICE — Continued. Accounts, of filing and hearing, 729 Filing exceptions to bond, 1343 Idiot, etc., appointment of guardian, 1501 Foreign guardian, application of, for settlement by resident guardian, 1477 Lease of real estate, 1454, 1457 Motion to review settlement of guardian of lunatic, etc., 1516 how given, 1516 Of petition to pay ward's money to foreign guardian, 1282 Of application for appointment of guardian of drunkard, 1537 of termination of guardianship to be given to guardian, 1540 Removal of guardian, 1358, 1477 Road, of appeals, 1818 Sale of land, of filing petition for, 1413 notice of sale, 1425 Surety's application for release, 1348 Inquest of lunacy: To Probate Judge for removal of patient, 2117 Marriage: Notice of to be given before solemnization, 2117 Partnership: To administrator, etc., of deceased partner for appointment of ap- praisers, 417 Proceedings in aid of execution: Of order against judgment debtor, 1911, 1920 Railroad ditch, etc., 2120 Road. See Road Appeal. Trustee : Accounts, of filing and hearing, 729 Bond, of giving by testamentary, 1256 Settlement of, etc., 1294 NUMBER — Words importing plural applied to singular, 1033 NUNC PRO TUNC — Power of Probate Court, 53 NUNCUPATIVE WILLS — Appraisers of decedent's personal property, 284, 290 Expenses and fees of Probate, etc., by whom paid, 1112 Definition, 1158 For personal property only, 1161 Form of will, 1169, 1159 Form of testimony, 1169 How made, 1169, 1159 How probated, 1167 In last sickness, 1160 definition, 1160 Proof required, 1168 Reduced to writing, 1162 within ten days, 1162 INDEX 2001 (References are to sections.) NUNCUPATIVE WILLS — Continued. Rogatia testium, what sufficient, 1164 Subscribed by competent witnesses, 1163 Testator must call upon person present, 1164 no set words necessary, 1164 what sufficient, 1164 Testamentary words, 1165 what constitutes, 1165 Time within which must be admitted to probate, 116C O. OATH — See Affidavit — Forms. Administrator's and executor's, 302, 703 real property, 863 Appropriation of property, of jury, 1706 Deputy clerk of Probate Court may administer, 11 Ditch appeal, county, of jury, 1847 Guardian, etc., on application for appointment, 1323 to accounts of, 1367 to inventory, 1367 of appraisers of real property, 1421 of freeholders on report of lease of ward's land, 1438 Insolvent estate, witness and claimant may be examined under, 1000, 1001 Marriage license, on procuring, when, 2117 Probate Judge may administer, 13 Road appeals, of jury, 1820 OFFICE — Of Probate Court, where kept and how furnished, 4 Term of, of Probate Judge, 5 OHIO — When property escheats to, 919, 921 OMISSION — Of executor, etc., to give notice of appointment, liability, 550 OPEN AND CLOSE — In proceedings to appropriate property by municipal corporations, 1763 In county ditch appeals, 1851 by private corporations, 1711 OPENING SETTLEMENTS — See Accounts. Of executors, etc., 743 guardian, 1493 See Guardians. trustee, 1298 See Tbusteb. OPERATIVE— Defined, 1649 ORDER— See Forms. Administrator of estates: Account, appeal from final, 39 Appealable, in what cases, 39 Arbitrator's award, 002 Claims, payment of falling due after two years, 571 2002 INDEX (References are to sections J ORDER — Continued. bond for, 571 as to disposition of desperate claims a sufficient voucher, 456 Debts, of payment of, 647 Distribution, 27 to enforce, 761 of insolvent estate, 1011, 976, 980 Execution on judgment against executor, etc., 626 Inventory, as to, 281, 303, 470 Liens, determining, priority of, 814 Money belonging to unknown heirs, investment of, 786 distribtuion of, arising from sale of lands, 814 Notice of hearing of executor's, etc., claim against estate, 633 Sale of lands to pay debts, 816, 814, 850, 856, 890, 903, 825 Will, certified copy of, in other county, 1111 of foreign, filing and recording, 1130 Appropriation of property: To draw jury, 1701 Conduct jury to view premises, 1707 Assignment for creditors: Continue assignor's business, 1587 Fraudulent transfer, to prohibit, 1585 Payment of dividends, 1653 Sale of property, 1625 To put trustee in possession, etc., 1572 Ditch, ai^jjeal: County, to draw jury, 1842 conduct jury to premises, 1847 Guardians, etc.: Drunkard, terminating guardianship of, 154C Duties of, to enforce, 1302 Guardian must obey all, etc., 1367 Lease of real estate, 1441, 1529 Sale of real estate, 1425, 1522 Inquest of lunacy, 1999 Money : Payment of, how enforced, 1599 G. C See Contempt. Municipal officer : In proceedings against, to draw jury, 2006 Payment : By executor of decedent's debts, 647 Of money arising from sale of land, 903 By assignee of insolvent debtor, 1647 Punishment : For refusal to obey, 2010 Road appeal: County, to conduct jury to view premises, 1822 conduct jury to view premises, 1822 ORPHAN ASYLUM — Vagrant or incorrigible children may be sent to, 1616 OUTLETS — See Appeals, County Ditches. INDEX 2003 (References are to sections.) P. PAPERS — Filing, must be docketed, 1998, 16 Surrender of to trustee of insolvent debtor enforced, 1572 PARDON — Duties of Probate Judge on violation of conditional, 158S G. C PARENTS — Action in habeas corpus: See Habeas Corpus. Allowance for maintenance, 1374 Adoption of children by, 1888, 1894 See Adoption of Child. Consent of, necessary for marriage of child, when, "1997 CSonsent as to guardian, 1312 Custody of ward, when to have, 1366 Choice of guardian, 1329 Damage to, for death by wrongful act, 534 Is natural guardian, 1306 Inherit property, when, 917, 936 Marriage of. effect on children, 937 of dissolution of marriage, 937 May appoint guardian by will, 1307 Notice must be given of appointment of guardian, 1326 Religion of, should be followed by guardian, 1376 Service on, when child under fourteen, 841 When entitled to administration of estate, 114 PARTIES TO ACTIONS — Administrator, to action on bond of, 261 Appropriation of property by private corporation, 1684 of unfinished railroad bed, 1731 Claim of executor, etc., against estate, 633 rejected by executor, etc., at instance of heir or creditor, 561 may be contested though previously allowed, 277 Complete real contracts, 523 Distribution, in action to enforce order of, 777 Fraudulent conveyance, to set aside by creditors of insolvent debtor, 1580 in action for sale of land by executor, etc., 833 Lease of ward's land by guardian, 1438 of idiot, etc., 1527 Proceedings by creditors against heirs, etc., after settlement of estate, 592 Revivor of action by guardian of idiot, etc., 1521 Sale of real estate by executor, etc., 833 when fraudulent conveyance is sought to be set aside, 833 how summoned, 838 waiver of service and consent to sale, 838 Court may adjust all liens, etc., 814 of equitable interest of deceased in land, 825 of ward's land by guardian, 1413 of idiot, etc., 1522 of insolvent debtor's land, 1602 of insolvent debtor's land to adjust liens, 1618 PARTITION - Affects title how, 911 Action for in Common Pleas, 187!) Action of administrator to sell supersedes, 817 Certificate from Probate Court to C\)niiiion Pleas, 1880 2004 INDEX (References are to sections.) PARTITION — Continued. form of, 1881, 1883 Creditor not to be made a party, 1880 Common Pleas must order paid over to administrator, 1884 proceedings in, 1885 motion, 1886 entry, 1886 Definition, 1879 Does not prevent administrator from bringing action to sell real estate, 1879 Guardian mav act for ward, 1396 Order of Court, 1882 entry, 1882 can not be attacked in Common Pleas Court, 1882 Restraints as to in will, 1204 When will lie, 1879 PARTNERS — See Paktnekship Assets. Administration of estate of non-resident, doing business in this State, 170 Assignment for creditors by, effect, 1547, 1550 Surviving, duties and rights of, 417 notice to administrator of deceased, for appointment of ap- praisers, 417 inventory to be delivered to surviving partner and filed, 417 when executor, etc., to have appraisement made, 426 when executor apointed in county other than that in which part- nership existed, 426 when surivor may purchase partnership property, and on what terms, 427 receiver to wind up partnership if surviving partner does not purchase property, 427 interest of deceased partner disposed in accordance with articles of co-partnership or provisions of will, 427 how partnership real estate to be conveyed, .437 Testimony in action by or against C. C. P., 11495 G. C. PARTNERSHIP — See Pabtnership Assets. Dividends in. 1059 Surviving partner no right to appointment, 418 When partner make assignment, 1547 PASSBOOKS DEPOSIT — Gift causa mortis, 1245 PARTNERSHIP ASSETS — Application for appraisement, 418 entry on filing, 419 form of, 419 form of notice, 420 what to contain, 419 Appraisement, how made, 425 Application to take at appraisement, 428 form of, 428 Administrator continuing business, 436 Duty of partner, 417 Entry confirming appraisement, 424 Executor may have appraisement, 426 Entry approving election, 430 Executor continuing business, 435 Form of executor's deed, 439 Form of bond, 429 Inventory and appraisement, 423 I INDEX (References are to sections.) 2005 PARTNERSHIP ASSETS — Continued. Insolvent estates, 977 Ordering appraisement, 422 Oath of appraisers, 423 Report of appraisers, 423 Right of administrator at common law, 416 Rights of surviving partner, 433 Value of good will, 425 When partner fails to take, 431 When statute does not apply, 432 Where executor is surviving partner, 434 What is partnership real estate, 438 PATENTS — Belong to administrator, 375 PAYMENT OF DEBTS OF DECEDENT — See Claims, Presentation of Claims, Limitation of Actions, Statute of Limitation, and Legacies, Payment of. Sale of Real Estate: Action on bond for neglect of, 255 All general creditors stand alike, 646 Administrator is entitled to charge estate only what he pays, 646 Allowance to widow, 661 Administrator liable if order not followed, 648 Before final settlement, 673 Cannot pay in order other than statute directs, 648 Cause of violation of order, 648 Compensation of executor or administrator, 654 when entitled to, 655 how calculated, 656 fixed by will, 657 joint administrators, 658 extra, 659 Debts due United States, 662 Debt of executor, etc., against the estate, how paid, 631, 641 Expenses of administrator, 653 Employment of agent, office rent, etc., 660 Expenses of administrator, 653 Funeral expenses, 649 when to be paid, 649 in first class, 649 person furnishing entitled to be paid, 649 administrator personally liable when, 649 what are, 649 amount to be allowed, 650 tombstone, 651 General creditors, 665 Heir maj' give bond to prevent sale of real estate, 826 Interest on claims, 672 Insolvency, how made in case of, 976, 980 Last sickness, 652 in preferred class, 652 what included, 652 Limitation of actions by creditors, 613, 571 on rejected claim, 609, 561 Notice of demands, 668 Order of, 647 liens not affected, 6^6 Principal function of administrator, etc., 646 Personal property is primary fund for, 646 2006 INDEX (References are to sections.) PAYIVIENT OF DEBTS OF DECEDENT — Con itnwed. Residuary legatee may give bond for, 60, 281 Secured creditors, 666 Taxes, 663 Undevised real estate to be first applied, 1206 Wages, 664 When may be paid without liability, 667, 669, 670, 671 Sale of real estate for, 819, 816 allegation of petition, 830 When not due, 570 in two years, 613, 571 When provisions made for by will, 1208, 1209 Whole estate liable for, 1209 PENALTY Guardian, against failing to file inventory, 1367 to list or pay taxes, 1392 refusing to serve process or pay over money, 2125 Probate Judge or clerk practicing law, 7 Probate Judge improperly issuing marriage license, 11104 G. C. Justice, minister or clerk, etc., failing to transmit marriage certificate to Probate Judge, 2117 Justice or minister for illegally solemnizing marriage, 2117 Unauthorized person solemnizing marriage, 2117 how and in what Court covered, 2117 PENSION CASES— Duty of Probate Judge in, 1604 G. C. PERISHABLE PROPERTY— Sale of, 505 PENSION MONEY— When belong to administrator, 376 PERMANENT LEASEHOLD ESTATE— Descends same as fee simple, 942 PERPETUITIES— Applies to real estate, 1031 Application to personalty, 1031 Rule against, 1031 Who comes within, 1030, 1031 PERSONAL PROPERTY— See Assets — Ixvextory — Sale of Persottai Property. Administration on, not necessary if less than twenty dellars, 192 Distributed according to law, domicile 185. PERSONAL ESTATE — Distribution of, 938 Distribution of, 921 See Distribution. how order of enforced, 761 Definition, 364 Goes to administrator when not to heir, 54 Guardian cannot change real into personalty, 1386 Invenory of, of decedent, 281 See Inventory. See Forms. of insolvent debtor, 1594 of ward, 1367 Liable for debts, 55 Legatee takes subject to charge on, 1058 Preservation of, 506 INDEX 2007 (References are to sections.) PERSONAL PROPERTY — Continued. Primary fund for payment of debts, 646 Real estate, when considered personal, 438 Received by guardian from administrator, 1390 Rule of perpetuities, 1031 Sale of, of decedent, 470 See Sale of Personal Pkoi'ekty. private sale, 479, 495 liability of executor, etc., for not selling, 717 what not to be sold, 470 specifically bequeatlied exempt from, unless required for payment of debts, 1208, 391 of insolvent debtor, 1602 of ward, 1405 Sale of by guardian, 1391 Widow and children entitled to wliat, exempt from adniinistiiitimi. 320, 322 See Widow's Allowance. allowance for one year's support, 324 Will to be probated before title passes, 1108 subsequently acquired, passes, 1191 Construction of, domicile controls, 1016 PERSON INTERESTED — Account, may file exceptions to, 743 Bond may be required by from executor, etc., though will dispenses with giving, 83 to use of on appeal of executor's etc., claim against estate, 641 new bond may be required by of sureties, 248 Claim due after two years may be disputed by, 571 may give bond to creditor for payment of. 571 action on such bond, 581, 582 must be notified of trial of executor's etc. claini against estate, 633 may appeal from decision of Court in such case. 641 Distribution, may sue executor, etc., to compel. 761 parties to action to enforce, 777 Guardian's settlement, may open up, etc., 1516 Inventory, may file exceptions to, 312 May complain against persons concealing assets, etc., 395 May bring action asking direction of Court respecting estate, etc., 33 May sue on administration bond, 269 Mortgaged premises held in trust for, when. 387 Parties in action for sale of land, 833 to enforce distribution, 777 Sale of personal property may be had on application of, notwithstand- ing will, 470 may give bond to pay debts and prevent sale of real estate, 826 Will, to be notified of deposit of, 1070 may enforce production of, 1072 appeal from refusal to probate. 1116 application to probate foreign will, 1125 notice of application, 1125 right to contest supplied record of will, 1157 When Probate Judge is, effect, 9 PETITION — See Forms. Adoption of children, 1888 Administration after twenty years, 64 Appeal of claim disallowed by commissioner of insolvent estate, 1008 2008 INDEX (References are to sections.) PETITION — Continued. Appropriation of property by private corporations, 1679 by land owner to compel, 1735 by municipal corporations, 1750 Distribution, to enforce order of, 761 Improvement of real estate of imbecile, etc., 1530 Injury by wrongful death, 536 Lease of ward's land by guardian, 1434 of idiot, lunatic, etc., 1527 for petroleum oil or natural gas purposes, 1452 for mining purposes, 1457 Levee, construction of, 2002 Mortgage, real estate of ward by guardian, 1460 Road, abandonment of, 2001 Sale of land by executor, etc., 833 of equitable interest of deceased in land, 825 by guardian of minor, 1410 of lunatic, 1522 by assignee of insolvent debtor, 1618 by trustee of non-resident, 1278 PETITION IN ERROR — Filing in Supreme Court with leave, 12250 Review of proceedings to appropriate propertv bv 1773 PHYSICIAN— f f J J, Certificate of, for admission of patient to insane asylum, 2118 PICTURES— What v.'idow and children entitled to, 320 PLANS — Probate Judge to approve of, of court-house, jail, etc., 9 PLEADINGS — See Petition. See Forms. Appropriation of property, 1686 Code of Procedure governs, 36 Not necessary on appeal of executor's etc., claim against estate, 641 Rule days for, 837 POSTHUMOUS CHILD — Inherits when, 941 Birth of, revokes will, unless, etc., 1062 POSTNUPTIAL CONTRACT — As to widow's year's allowance, 327 As to dower, 947 PO\YER — Construction of, 805 Cannot be delegated, 806 Control of Court over, 807 Defined, 803 Disposal of life estate, 1193 Expiration of, 807 How, 801 Life estate with power of sale, 821 May be applied, 803 vVhat is. to sell, 803 INDEX 2009 (References are to sections.) PRACTICE LAW — Judge and deputy clerk cannot, 7 PREFEKRED CLAIMS — See Labor Claims. Against estate of decedent, 647, 666 See Payment of Debts. of insolvent debtor, 1647 See Assignments. PREFERRED CREDITORS — Assignments inure to equal benefit of all, 1579 PREMISES — View of by jury. See Jury. PRESENTATION OF CLAIMS — Against estate of decedent, 557, 609 when insolvent, 998, 967 Administrator must give notice of appointment, 552 Affidavit to, 557 form of, 558 when not required, 558 Allowance of, 559 Action on rejected, 568 Creditor may lose right by laches, 552 Creditor must be diligent, 552 Contingent claims, 569, 982 how presented, 570 when allowed by Court, 571 what included, 572 how presented, 573 Claims not due, 569, 583 application, 573 notice, 574 order of Court, 575 ordering paid, 576 ordering assets retained, 577 ordering giving bond, 578 action on, 581 form of, 579 allowance of Court not conclusive, 580 Disputed or rejected, when is, 560 Funeral expenses should be, 649 Liability of executor in ignoring claim, 560 Literal compliance with statute necessary, 555 Insolvent estates, 993-1112 Must creditor be noWtied, 559 Need not be formally presented, 554 Payment of interest is allowance, 559 Of insolvent debtor, 1628 Object and purpose, 552 Rejection, what constitutes, 560 indorsement not necessary, 560 Rejected at instance of heir, 561 purpose of, 562 requisition, 563 bond, 564 ordering notice, 565 form of notice, 566 action on real estate stayed, 567 Sufficient ])resoiitati()n, 555 Voucher for, 479b When once allowed sufficient, 554 When should be, 608 What must be, 553 What need not be, 554 When waived, 556 Wliat amount of, 559 2010 INDEX ( References are to sections. ) PRESENT VALUE— Vested dower, 2138 Table for, 2139-2140 Contingent dower, 2141 table, 2142 PRICE — For which property of insolvent debtor may be sold, 1610 of real estate without State, 1610 Real estate of ward, 1425 cf decedent, 880, 879 personal property, 479, 495 PRINCIPAL — Trustee must maintain, 1288 When used for repairs, 1291 When suffers loss, 1290 PRIORITY — Of liens on real estate of decedent, how adjusted, 814 See Dividends. on insolvent debtor, 1618 Of payment of claims against decedent's estate, 647, 666 insolvent debtor's estate, 1647 PRIVATE PROPERTY — Condemnation of, for public purposes by municipal corporation, 1748-1783 by private corporation, 1674 PRIVATE SALE— J Of insolvent debtor's property, 1610 I ward's real estate, 1425 decedent's real estate, 879 personal property, 479, 495 . Affidavit before confirmation of, 882 I PROBATE — " See Probate of Wills. Admission of will to, how and when, 1067, 1044, 1105, 1155 not admitted to probate without notice to widow and next of kin, 1067 Appeal to Common Pleas, if probate of will refused, 1116 Enforcement of production of will for, 1072, 1079 Foreign will admitted to record, how, 1119, 1124 Jurisdiction of probate of wills, in Probate Court, 27 in Common Pleas Court, 27 Lost, spoliated, etc., will, probate of, 1135, 1157 Nuncupative will, probate of, 1166 Testimony as to, 1095, 1101 Will, probate of, lost or spoliated, 1135. 1157 See Spoliated Wills. necessary to its validity, 1108 nuncupative will, 1166 See Nuncupative Will. record, when and how made, 1109 PROBATE COURT AND JUDGE- See JuRiSDicmox, etc. — Inheritance Tax. Accounts, to publish notice of filing, 729 may examine accountant under oath, 733 may reduce such examination to writing, 733 and require accountant to subscribe same, 733 INDPLX 201 1 (References are to sections.) PROBATE COURT AND J\JI>GFj — Continued. Acts judicially, 13 Acts ministerially, 13 Acknowledgements, may take, 13 Action for sale of real estate, 24 Adoption of child, 1888, 1898 Administration of estates. See Infra. Appeals. See Infra, 39 Appropriation of property. See Infra. Assignment for creditors. See Infra. Asylum, duties in reference to admission, 2118 Bond of, 14 duties as to guardians, 1334 deposited where, 14 liability under, 14 to be filed in office of, 238 to have control and custody of, 11 Cannot be guardian, 1331 Cannot act where interested, 8 Cannot hold any other office, 6 Cannot practice law, etc., 6, 7 difficulty in following law, 6 Can order contract executed. Cannot direct administrator to allow claim, 27 Cannot direct executor to purchase monument, 27 Cannot modify judgment, 6 Commission from Governor to receive, 1588 G. C. Choice of guardian, 1330 Commission Pleas, to act for, when, 9 When Common Pleas may act for, 10a has same powers, 32 Contempt, power to punish, 17 proceedings for, 1980 Constitutional provision, 18 status under, 19 Costs. See Costs. County auditor, examination of complaint against, 2124 County commissioners, judge's duty as to filling vacancy, 2397 G. C, County seat. Probate Court to be held at, 4 Depositions, may take: may be used in evidence in, 38 Deputy clerk, powers, etc., 11 can not practice law, 7 Probate Judge may perform duties of, 11 to appoint, 12, 13 Designation of in various States, 1 Ditch appeal, county, duty on, 1833 Dower, assignment of approved by: code civil procedure, 95 Drift, removal of, appeal to, 2000 Duty to examine accounts whether exceptions be filed or not, 734 Election of judge, 2 Election of widow or widower, 1223 can not set aside, 1229 Entries, etc., omitted by predecessor to make, 1586 G. C. Error from to Common Pleas C. C. P., 12241 G. C. to Supreme Court, C. C. P., 12250 G. C. transcript to furnish or tender of fees C. C. P. 12264 Execution from, 1599 G. C. proceedings in aid of, 1911 Execution of judgment of, stay of, C. C. P., 12265 Fee bill and report of fees, 1600 must return list of, 16 fees of, 1601 G. C. See Fees. 2012 INDEX (References are to sections.) PROBATE COURT AND JUDGE— Continued. ^ Fugitives from justice, arrest of by, etc., 71 Girls' Industrial Home, may commit to, 2107 G. C. Guardian ad litem may be appointed by. See Guardian ad litem. Guardians, duties as to, 1319 duties as to bond, 1334 See GUAKDIAN Infra. Habeas corpus, may grant writ of, 1552 Has common-law jurisdiction, 19 High character required, 6 Heir at law, how clesignated, 1902 Home of the Friendless, commitment of girl to, 4100 G. C. Incumbrances, receipt for recorded, 798a. See Incumbrances. Ineligible to certain other offices, 6 Infants, may be taken from parents, when, 1906 Inquest of lunacy, duties as to, 1999 Insolvent estates'. See Assignment for Creditors, infra. Interested, duty, when. 9, 1682 Inventory, must require, 282 duties as to, 293 Investment of trust funds, to direct, 514 Joint sub-district, when petition for mav be filed with, 2013 Judgment in, how vacated, 11631 to 11643 G. C. Judgment debtor, order by for examination of, 1911 Jurisdiction, concurrent, 28 equity, 20 exclusive. 27 limited. 22 acquired by, excludes other Probate Courts, 29 to review inferior courts, 31 in habeas corpus, 1952 Justices of peace in township, may change number of, 2012 Law, not to practice, 7 Levee, construction of, duties as to, 2002 Marriage licenses and licenses to solemnize marriages, to issue, 1997 May order administrator to receive payment of note, 27 Must finish business oi predecessor, 16 Municipal officers, proceedings on complaint against, 2006 New trial. See new trial. Non-residents, appointment of trustees of, etc.. 1274 Notice of filing accounts, to punish. See Notice, 729 how to give notice not otherwise provided, 37 Oaths, may administer, 13 Office, where kept, how furnished, 4 Omitted entries and records, how supplied, 16 proceedings against judge on default, loSS G. O. Origin of, 1 Organization, 2 Partnership assets, on death of partner, S117 Place where held, 4 Power over nunc pro tunc entries, 53 Power as clerk, 11 Powers, same as Common Pleas, 32 same England. 1 Practice of law cannot, 6 Procedure where interested, 10 motion, 10 action of Common Pleas, 10 Proceedings in aid of execution, jurisdiction, 1912 Power to hear common law action, 21 Power 'to appoint trustee, 1253 Process, etc., to issue, 17. 2011 INDEX 2013 (References are to sections.) PROBATE COURT AND JUDGE — Continued. Procedure in, 36 Code governs, 36 required State finding, 36 Qualifications of judge, 6 Questions of fact, may determine, 35 Railroad train, duty as to, 2002 Rank of court, 3 Receiver may be appointed by, when, 26 Required to state findings, when, 36 Road appeals. See Appeal, 1785, 1805, 1812 abandonment of roads, 2001 Rooms for, etc., 4 Rules of practice, to make and submit to Supreme Court, 15 of Common Pleas to govern when applicable, 32 Seal of, 1591 G. C. Sherifl's, etc., to attend, 2010 iSubpoena for witnesses issued by, 2011 Sureties of, application for discharge, 12195 G. C. Telegraph lines, duty as to, 1875 Terms, wlien exist, 5 Terms of court in criminal jurisdiction, 5 TransQript on appeal. See Transcript on error, 12264 G. C. Trust funds, to direct investment of, 514 Vacation or modification of judgment by, 11643 G. C. Wills, duties as to. See Wills. Who may be, 6 Administration of estates: Accounts, may require filing of, 741 to be filed in, 721 may allow on oath of one of two or more executors, etc., 709 may refer to commissioner, 738 may open, when, 743 may examine executor, etc., under oath as to, 733 may give further time to file exceptions to, 729 notice of filing and hearing to be given by, 729 Administrator de bonis non, may appoint, 1.52 Appraisement of land, may order, included in inventory of person- alty, 299 Assets, may extend time for collecting, 445, 448o proceedings against persons suspected of concealing, etc., 395, 414 judgment a lien on real estate, 408 Bond of executor or administrator to require, 83, 124 may authorize suit on, 269 may require executor, etc., to execute bond of indemnity to surety, when, 253 Claim of executor against estate presented for allowance, 633 notice required to be given, 6.33 requisition to reject claim against estate, when filed in, 561 notice to be issued on, 561 not due in two years, may order executor, etc., to retain funds to pay, 571 or bond to be taken for, 571 decision of court not conclusive against executor, etc., 580 Compensation of executor, etc., to allow, 654 Compounding of debts due estate, may approve of, 450 Damages for wrongful death, to apportion funds on settlement of, 536 Desperate claims, application for disposition of, made to, 456 proceedings on, 459, 463 2014 INDEX (References are to sections.) PROBATE COURT AND JXJDGE — Continued. Distribution, petition to enforce filed in, 761 to issue citation against executor, etc., 761 service on non-resident, 770 hearing and judgment, 774 all necessary parties brought in, 777 may send case to Common Pleas, 779 Foreign executor, etc., power of court over, 188 Insolvent estate, to appoint commissioners, 993 report of commissioners to be made to, 998 to make provision for contingent debts of estate, 982 appeal from, if commissioners reject claim, 1004. 1008 order of distribution made by on return of list of debts, 976 may compel rendition of account, 992 to fix compensation of commissioners, 1012 Inventory of personal property to be returned to, 281 proceedings on exceptions to, 312 Investment of moneys belonging to heirs, etc., unclaimed. See In- vestment, 786 may order payment of invested funds, 791 responsible for safe keeping of, 794 Legatee may be required by to give bond before distribution, 696 Letters testamentary to grant, when and how, 72, 71 See Letters Testamentary. of administration, when executor renounces, 100 on death of executor, 94 in what order. 114 Notice of appointment of executor, etc., how evidence of, perfected in, 546 Removal of executor, etc., by, 213 Resignation of executor, etc., may receive, 210 Sale bill to be returned to, 491 Sale of lands, jurisdiction as to, 813 See Sale of Lands. proceedings for, 813, 833 may determine equities and priorities. 814 sale, how ordered, 847 order to contain, what, 850 to appoint appraisers, 857. 861 to order assignment of dower, 857 may set aside appraisement, 880 may fix amount for which to be sold, 880 and manner and place of sale, 633 may order deed, 890 and secure dower when specially assigned, 870 Sale of personal property though will directs otherwise, 47C may order same sold at private sale. 479. 495 Surety may apply to for release from bond, 243 Vouchers, may allow what expenditures, without, 723 When Probate Judge is interested, etc., effect. 9 Appeals to. See Appeal. Accounts, settlement of, of executor, guardian, etc., 39 Administration of estates, 39 Completion of real contracts, 39 Ditch, county, 1833 township, 1857 Guardians and trustees, 39 Insolvent estates. 39 Roads. State and county, etc., 1785 township, 1805 INDEX 201 5 (References are to sections.) PROBATE COURT AND JUDGE — Continued. for damages, 1812 Sale of real estate by executors, etc., 39 Widow, allowance to, 39 See Widow's Allowance. Appropriation of property by private corporations : Abandonment of property, duty on, 1725 Costs, may apportion, 1746 New trial, may grant, 1718 Petition to be filed in, 1679 to issue summons on, 1690 proceedings on, how conducted, 1692 Proceedings in to condemn road-bed of unfinished railroad, 1731, 173JI To appoint attorney for absent, etc., parties, 1694 When interested, what proceedings had, 1682 Appropriation of property by municipal corporations, 1748 Assignment for Creditors: Accounts, to examine, 1653 to publish notice of filing and hearing. 1653 Assignee to appear before, 1546 Bond of assignee, to be approved by, 1546 new bond may be required, 1562 of trustee, 1572 Claims, to order disallowance of, 1635 Compensation of assignee, etc., to fix, 1642 Deed of assignment to be filed in, 1546 Dividends, to declare, 1653 Examination of assignor or assignee, may require, 1585 Fees allowed to, 6358 R. S. Former assignment, proceedings by in case of, 1576 Fraud, to make and enforce orders to prevent. 1585 Fraudulent assignment, etc., proceedings, when set aside, 1580 Homestead, may order set-off, 1598 Incumbrances on real estate, to order payment of, 1618 Removal of assignee, if no bond ^ven, 1559 Report of assignee to be filed in, 1628 ' report and settlement to be made to, 1653 Resignation of assignee, may accept. 1561 Sale of property, to fix terms of, 1610 Trustee, to appoint, when, 1561 creditors may petition for election of. 1564 to give notice of meeting for, 1564 to appoint person elected, 1564 for property fraudulently conveyed, 1580 Guardians : Appointment of, 1319 Bond of, to approve, 1323, 1314 exceptions to, 1343 Lease of lands, may order, 1433 application for, 1434 proceedings, 1438, 1441 Removal of guardian by, 1358, 1476, 1479 Resident guardian may be required to settle, 1476. 1479 and give way to foreign guardian, 1477 Resignation of guardian, may accept, 1357 Sale of land, to require service of notice of petition for. 1413 to appoint appraisers, 1418 to require bond before sale. 1422 , to issue order of sale for, 1425 to confirm sale and order deed. 1429 2016 INDEX (References are to sections.) PROBATE COURT AND JUDGE — Continued. Statement required of applicant, 1323 Sureties released on bond of guardian by, 1348 Guardian of drunkards: Appointment of, by, 1535 To terminate guardianship, when, 1540 Guardian of lunatics: Appointed how, 1501 Improvement of real estate, proceedings for, 1513 Lease of lands of, how authorized, 1525, 1529 Sale of lands of, how authorized, 1522 proceedings to authorize foreign guardian to sell lands, etc., 1483 • To terminate guardianship, when, 1513 Wife may be appointed, when, 1512 Marriage licenses: To be issued by, how and to whom, 1997 Trustees of non-residents, lunatics^ etc.: See Trustees. Accounts to be rendered to Probate Court, when, 1293 Appointment of, 1274 Bond, to be approved by, 1277 Citations and notices, to issue, 1294 Compensation of. allowed by, 1299 Lease of sale of lands, 1278 May authorize trustee to pay over money, etc., to foreign guardian, when, 1280 Resignation, when court may accept or remove, 1300 To determine questions of settlement of, etc., 1295 appeal from determ.ination, 1297 force and effect of determination, 1298 PROBATE OF WILLS — Appeal, 1116 only to refusal to admit, 1118 how perfected, 1116 Application for, 1087 statements of, 1087 time of hearing, 1089 entry fixing, 1090 form of, 1088 Admission of, 1105 sufficient proof, 1106 preponderance, 1106 forgetfulness of witness, 1106 presumption, 1106 judge should have reasonable assurance, 1106 cannot refuse because will is absurd, 1106 testator must have properly executed will, 1106 importance of attestation clause, 1106 examination of witnesses, 1095 what witnesses may, 1096 form of, 1197 Binding if not contested within two years, 1112 Contest of jurisdiction, 1086a Commission to take testimony, 1101 order to take, 1102 entry, 1102 form of, 1103 return of, 1104 Certified copy, 1110 INDEX 201' (References are to sections.) PROBATE OF WILLS — Contimied. Codicils, 1178 See Codicils. Definition, 1081 Error, 1114 will not lie to admission, 1114 will to refusal to admit, 1114 Filing and recording of, 1109 where, 1111 Foreign wills, 1118-1133. See Foreign Wills. Joint or mutual will, 1172 See Joint Wills. Nuncupative wills, 1158-1169 See Nuncupative Wills. Notice, 1091 to whom given, 1091 service of, 1092 form of, 1093 Nature of proceedings, 1081 common form, 1081 solemn form, 1081 is ex parte, 1081 special, 1081 Orde;r of, 1107 entry, 1107 sufficient, 1107 effect of. 1108 Proof, essentials of, 1094 examination of witnesses, 1095 what witnesses may, 1096 form of, 1097 sufficient, 1106 Refusal of, appeal may be had to in Common Pleas, 1116 Repropounding, 1115 Spoliated wills, 1134-11.57 See Spoliated Wills. Testimony, 1097 form of, 1097 where witness unknown or absent, 1098 sufficient, 1099 form of. 1100 Uncontestable after two years, 1112 Void without, 1108 When becomes effectual, 1108 Witnesses, 1095 what, may be heard, 1096 who may call, 1096 only person interested in will, 1096 unknown, etc., 1098 What may be admitted to, 1082 must be of testamentary character, 1082, 1014 in doubt should be, 1082 When should be presented, 1083 no time limited, 1083 effect of withholding, 1084 only party holding, 1084 Who should present will, 1085 any party in interest, 1085 ' Where to be, 1086 2018 INDEX (References are to sections.) PROBATE OF WILLS — Continued. Probate Court has exclusive jurisdiction, 1108 where estate, 1086 where domiciled, 1086 PROCEEDINGS BY CREDITOR — After settlement of estate, 584-593 PROCEEDINGS IN AID OF EXECUTION — Arrest, when order of may issue, and proceedings thereon, 1922 1921 1925 , , warrant to, form, 1924 form of order, 1925 Ascertainable interest in the property, proceedings when another has. 1946 Appeal, 1950 Attendance of parties and witnesses enforced, how, 1932 Auxiliary to some other, 1910 Bond, debtor may be required to give, when, 1922 in default, may be committed to jail, 1922 Common Pleas Court, jurisdiction of, 1911-1922 Compensation of, clerks, sheriff, etc.. 11 787 G. C. Continuance of proceedings, 1931 Probate Judge, 11786 G. C Costs, 11787 G. C. Dismissal, 1949 Debtor of judgment debtor may be examined, 1926 effect of order for such examination, 1926 notice may be given to any party. 1926 notice to judgment debtor, 1928 order to be signed by judge and served as summons, 1948 order may be issued before issue and return of execution, when, 1926 proceedings for, 1927 Debtor may pay execution against his creditor, 1936 sheriff's receipt a discharge for amount paid, 1936 Disobedience of order for, how punished, 1934 Error, 1950 Examination of party, 1919 Earnings of debtor, when and what cannot be applied on execution, 1937 Fraud, fact that examination may lead to conviction of. not to excuse from examination, 1929 Injunction, when may be granted, 1943 Hearing, 1916 Judge may order property to be applied on execution, 1937 when and what personal earnings of debtor cannot be applied. 1937 Judgment, power to enforce by contempt proceedings, 1935 Jurisdiction of Common Pleas and Probate Courts, 1911, 1922 Method to be pursued, 1910 Nature of. 1910 Oath, examination to be under. 1933 Original in Probate Court. 1910 Order for examination, 1917 Probate Court, jurisdiction of. 1911. 1922 Petition on motion for, 1914 form. 1915 Notice, 1918 Probate Judge, compensation of 11786 Order to apply property on judgment, 1938 Order to apply money on judgment. 1941 Proceedings before return of execution, 1921 INDEX 2019 (References are to sections.) PROCEEDINGS IN AID OF EXECUTION — Con Hnwed. Proceedings when another has an ascertainable interest in the prop- erty, 1946 Proceedings under, 1947 receiver may be ordered to sell debtor's interest. 1946 order to sell, 1947 sale conducted in the same manner as sales on execution, 1946 Property that may be reached, 1939 Property that cannot be reached, 1940 Receiver may be appointed, and transfers, etc., prohibited, 1942 appointment of, 1943 liability of sheriff on bond when appointed receiver, 1945 may be ordered to sell debtor's interest in the property. 1946 oath and undertaking by, 1945 Reference may be ordered, 1930 examination before referee to be certified. 1933 must be under oath, 1933 Return of execution, examination after, 1911 examination before, 1920 Second proceeding, 1949 Transfers of property may be prohibited, 1942 Who can bring, 1913 Warrant for arrest, may issue, when, 1922 by whom to be issued and where to be executed, 1922 copy of warrant and testimony to be delivered to debtor, 1922 debtor must be examined under oath, 1922 When and where to be brought, 1912 must be a valid judgment, 1912 execution must have been returned, 1912 PROCEEDS — Arising from sale of land by executor, etc., how applied, 903 PROFITS — Assignment of dower in, 857 Executor, etc., not to derive from increase of estate, 718 How accounted for, 716 PROMISSORY NOTE — See Notes. PROOF — Appropriation proceedings by private corporation, burden of proof, 1695 Of claim against decedent's estate, 557 insolvent debtors, 1632 Of publication of notice of appointment of executor, etc., 546 To obtain service on non-resident by publication, 841 See Sale of Real Estate. Of mailing notice to non-resident, 842 PROPERTY — Dead bodies is not, 1013 PROSECiUTINCx ATTORNEY — Escheated personal property, to collect, 921 Municipal officers, to prosecute for malfeasance, when, 2006 To file information against Probate Judge or clerk practicing law, 7 To issiie execution and pay over money on judgment against persons concealing assets of estate, etc., when, 414 compensation, 414 PROVISIONS — Allowance of to widow and children for support, etc., 324 PUBLICATION — See Notice. Accounts in Probate Court, of notice of filing, 729 Appropriation proceedings by private corporations, 1692 service on non-resident or imknown person by, 1692 in proceedings to appropriate unfinishod railroad bed, 1731 Mewspaper, what notices to be published in, 841, 855 2020 INDEX (References are to sections.) PUBLTCATTOX — Continued. Service by. in what cases, 840 affidavit to obtain, 841 PUBLIC CHARITY — Whsit is, 1029 PUBLIC USE — What constitutes, 166G See Appeopriation of Propeety. PUNISHMENT — 1988 See Contempt. PURCHASE — Title by, 911 PURCHASERS — Appraisers, executors or administrators cannot be, at sale of land by executors, etc., 889, 492 Guardian cannot be, 1391 Title of, to lands fraudulently conveyed, 822 to lands derived from heir without knowledge of will, 1133 Q. QUARANTINE — Widows, 341 R. RAILROAD — See Appeopeiation of Propeety. Proceedings to compel to drain land, 2003 Unfinished road-bed of, may he condemned, 1731 proceedings in such case, 1732 in what courts proceedings may be commenced, 1733 RAILROAD DRAIN — See Ditch. 2003 REAL ACTIONS— See Sale of Reajl Estate. Executors, etc., by, to complete contract for sale of land, 523 conveyance under, who to execute and its effect, 528 parties, 523 service, when petition filed in Probate Court, 523 Form of petition by executor, 526. See Forms. Guardian to bring, to complete real contract of ward, 1398 Heirs of deceased purchaser may enforce specific performance, 523 Jurisdiction of Probate Court, 13 REAL CHATTELS— Defined, 373 REAL CONTRACTS — Assignee of insolvent debtor may complete, when, 1602 Executors, etc., action to complete, when, 1398 * REAL ESTATE — Appraisement of, of decedent's estate, 857 of insolvent debtor's, 1610 of wards, 1418 Action to sell stayed, when, 567 Accounting for, sold, 714 Appraised with personalty, when, 299 Completion of contract for, 523 nature of proceedings, 524 petition, 526 notice, 527 order for deed, 528, 530 hearing, 529 form of deed, 531 €are of, 506 Court may enforce sale by contempt proceedings, 889 Error — what is final judgment, 906 Descends to the heirs, 54, 915 Distributed according to law where situated, 757, 185. 810, 758 Dower in, 944 See Dower. Fraudulently conveyed may be sold, 822 INDEX - 2021 (Refcrances are to sections.) REAL ESTATE — 6'on(t«M6d. how possession gotten, 823 proceeding where, 824 Guardian cannot dedicate, 1398 Guardian, foreign may sell, 1481 Heir takes subject to debts, 800 Heir may enforce specific performance, 532 Improvement of real estate by guardian of imbecile, etc., 1530-1533 Investment in, by guardian. 1367 Jurisdiction, when presumed, 853 Judgment creditor not party defendant, when, 834 Lease of, by guardian, 1432, 1525 Liens on, adjusted, 1618 Liable for debts, 55, 800 Legacy on, 690 Lease, administrator cannot, 801 Mortgage, administrator cannot, 801 Mortgage of, bj' gviardian, 1400-1472 Management of, by guardian, 1392 Not subject to gift causa mortis, 1249 cannot change real estate to personalty, 1386 Partition, 1879 See I'artitiox. Proceeds of sale assets, 384 Personal property first applied to debts, 800 Possession, 799 administrator generally not, 799 Record of payment of lien created by will, 798a Rule of perpetuities, 1031 iSale of by guardian, 1404 Sold without order of Court, 802, 804 See Sale of Real Estate Under Power. Sale by foreign administrator, 197-200 Sale by joint administrators, 203 all must join, 203 Sale by executor, 816 See Sale of Real E-.state. Sale by assignee of insolvent debtor, 1602, 1618 Sale by county auditor, of escheated lands, 8599 G. C. Transfer of, llllfi L^pset price, when fixed, 877 When assets marshaled in conformity with will, 832. When action to sell may be brought, 816 When considered personal, 438 RE-APPRAISEMENT — when to be ordered, 856, 880, 1625 RECEIPTS — See Vouchers. Executor, etc., required to produce for debts and legacies, etc., paid and filed -with account. 721 what items may be allowed without, 723 order of record for payment of incumbrance, 798a RECEIVER — Cannot appoint in administration of estates, 26 Court cannot appoint during contest of will, 96 In partnership, 26 Probate judge may appoint, wlieii, 26 In aid of execution, 20, 1943 Same as Court of Common Pleas in actions pending therein, 26 RECORD — Authenticated copy, 17a Account, final, of administrator or executor must be recorded, 795 Adoption, of child, 1895 of heir, 1902 will, or probate of will of, 1154-1157 Levee ])roce('dings, record of, 2002 2022 IxNDEX (References are to sections.) RmjOUD— Continued. Tncumbrance, paynipiit of 798« ^fairiaoe records, 1!H)4 of ministers authorized to solemnize, 1994 Naturalization, record of, 1998 Road appeals, of proceedings in, 1827 non-cupative will, 1166 recorded in each county in which land is situated. 1111 restoration of record of destroyed will, 1154, 1157 REDUCTTOX OF BOND— Application, 259a Entry, 2590. REFEREES — Doubtful claim against estate may be referred by executor, etc., to, 594 by wliom approved, 594 proceedings when claim is less than one hundred dollars, 597 when claim exceeds one hundred dollars, 599 proceedings, powers and compensation of, 602 costs, how awarded, 602 Claim disallowed by administrator, etc., of insolvent estate may be submitted to, 909 costs awarded by. 972 judgment on award, 973 REFERENCE — Court may refer account, 1492 Of administrator's account, 738 Of questions arising in actions in Probate Court, 35 Of doubtful claims against estate, 594 Proceedings in aid of execution, reference in, 1911. 1930 REJECTION — See Presentation of Claims. Of claims against estate by executor, etc., 609 at instance of heir or creditor, 561 by assignee of insolvent debtor, 1628 at instance of assignor or creditor, 1625 RELATIVE DEFINED, 1200 RELEASE — See Incumbrances. Effect of, of debt in will against executor, etc., 391 EflFect of assignment providing for, 1546 Of ward's tax title, 1395 Of sureties on administrator's, etc., bond, 243 assignee's, 1562 guardian's, 1348 RELEASE OF SURETIES — 243 et seq. See Sureties. RELIGIOUS TEACHINGS — See Guardian. REMAINDER — Alteration and repairs, affect how, 1291 Gain and loss, affect how, 1290 Construction of devise for life, remainder to heirs in fee. 1188 of life estate and remainders in shares of stock. See Dividends. See Rents. Principal and income, affect how, 1288 Rents. 371 Contingent remainder, 1033 Dividends, 1289 Street assessments, 1292 Tenant for life, or in dower, guilty of waste, liable to remainderman, 956 Insurance of property, 1292 Taxes of property, 1292 INDEX 2023 (References are to sections.) REMOVAL — See Resignation and Removal. Administrator or executor, 213 Failure to return inventory, 306 Guardian, 1358, 1476, 1477 Assignee or trustee, 1559, 1562, 1576 Trustee of non-resident minor, idiot, etc., 1300 of unknown and non-resident owners, 1286, 1277 RENTS — Apportionment, 371 Accounting for, 716 Assignment of dower in, 863 Due after asi^ignmeut, 1042 r.uardian must collect, 1393 Farm land, 371 If administrators collect must account for, 372 Improvements may be made by tenant of ward as part of, 1443 Mansion house, 372 When will directs land sold, 372 Statement of value of, of ward's real estate in application for appoint- ment as guardian, 1323 by guardian in inventoiy, 1367 in petition for sale of ward's real estate, 1410 in application to make long lease, 1434 of real estate of idiot, etc., 1528 When belongs to administrator, 371, 372 When it accrues, 372 RENUNCIATION — Of administration, 100, 119 REPORT — Appraiser's, of decedent's real estate, 863 of ward's real estate, 1422 Assignee or trustee, of claims presented for allowance, 1628 of payment of dividends, when, 1653 Commissioner of insolvent estate, 998 Examiner of county treasury, 2014 Executor's, etc., sale of real estate, 890 when no sale is effected, 890 Freeholder's, as to lease of ward's real estate, 1522 of idiot, etc., real estate, 1528 Guardian, of sale of real estate, 1429 Referee, of doubtful claims, against estate, 602 Viewers or reviewers in road appeals, 1797 REPRESENTATIVES — Legal — see Heirs, etc. See Definitions. Personal — see Administrators and Executors. REQUISITION — May be filed on executor, etc., to reject claim against estate, 561. 566 on assignee or trustee of insolvent estate. 1635 Object of, 562 form, 563 bond, 564 entry ordering, 565 action when allowed, 562, 567, 568 RESIDENCE — See Domicile. .Appointment of testamentary guardian without reference to, 1309 Suit as to determinin" action against in same ward, 1384 Defined, 74 2024 INDEX (References are to sPctions. ) RESIDUARY LEGATEE— Discharges lien on property, 60 Form of bond, 58 Is liable for all debts, 57 Liability upon bond, 59 Mnst be appointed executor, 57 Need not tile inventory, 282 When no administration. 57 RESIGNATION AND REMOVAL OF ADMINISTRATOR — Acceptance of by court granting letters, 210 Absconding or concealing of executor, etc., of insolvent estate, 992 Account, for failure to render, 741 Account, failure to file by executor of insolvent estate, 992 Acts prior to removal valid, 62, 63 Acts after removal, 230 can only turn over property and file accounts, 230 Appeal and error, 232 Application for removal, 214 who must file, 214 essentials of, 215 form of, 218 entry, 217 notice of hearing, 218 form of notice, 219 Bond, for failure to give, 83, 992 Contest terminating in favor of will, 162 Court having jurisdiction, 209 Causes for removal., 220 habitual drunkenness, 220 what is, 220 gross neglect of duty, 221 incompetency, 222 hostility between heirs and executor, 221, 222 what constitutes incompetency, 222 fraudulent conduct, 223 removal from State, 224 unsettled demands, 225 any other cause, 226 failure to keep account, 226 refusal to obey court, 226 gross carelessness, 226 mismanagement, 226 other statutory causes, 227 neglect to file inventory, 227 return of sale bill, 227 file account, 227 new bond, 227 indemnity bond, 227 Court should order filing of account, 229 Discovery of will, on, 102 EflFect of removal, 229 on previous liability, 229 on previous sales and other acts. 159 is a judicial proceeding, 229 Error and appeal, lies from order of removal, 232 Failure to give new bond, 252 to give bond of indemnity to surety, 253 Fraudulent conduct, 213 Form of resignation, 212 entry, 212 Gross neglect of duty, 213 Habitual drunkenness, 213 INDEX 2025 (References are to sections.) KBSIGNATIOX AND REMOVAL OF ADMINISTRATOR— 6'ori4 INDEX (References are to sections ) SALE OF REAL ESTATE — BY ORDER OF COURP — ADMINISTRA- TOR — Continued. appeal, 906 error, 906 judicial is, 877 Surviving executor may sell, 107 Securing payments, 897 mortgage, how made, 897 Statute complied with, 811 Trial if contested, 849 costs, etc., 854 Title may be quieted, 815 Terms of sale, 847, 880, 879 Title of heirs, in land set off to widow for dower may be sold, 850 Venue of action, 813 When sale not to be made for less than two-tliirds appraised value, 880 When Court to order sale, 847 Whole estate to be sold when partial sale, would injure residue, 851 Will authorizing no order required, 802 When executor, etc., authorized to sell real estate. 816, 802, 819 when authorized by terms of the will, 802 when testator has given a legacy by will that if effectual to charge the real estate and there is not sufficient personal estate to pay it, 819 when personal estate is insufficient to pay the debts of the de- ceased, allowance to the widow and children and charges of administration, 816 Will or statute followed, 811 When action to be brought, 816 limitations as to, 817 while unpaid debts exist, 817 What may be sold, 820 all interest of deceased, 820 equitable interest, 825 land fraudulently conveyed, 822 What cannot be sold, 821 not for costs, etc., 821 Who may become purchaser, 506, 889 appraiser cannot, 889 administrator cannot, 889 agent for administrator cannot. 889 Widow, answer of, 846 cross-petition, 846 heir may file, 846 SALE OF REAL ESTATE — UNDER POWER — Administrator with will annexed may complete, 806 Account must set out in detail, 810 Action to construe power, 810 Construction of power, 805 must be strictly pursued, 805 Contingencies complied with, power ends, 807 Control of Court over power, 808 Deed, form of, 809 Distributed as power directs, 810 same as under order of Court, 903 Debts barred by statute, 805 Expiration of power, 807 Judicial not, 810 May be implied, 803 not further than necessary, 803 I INDKX 2085 (References arc to seel ions, i SALE OF REAL ESTATE— UNDER VOW KH— Con tinned Naked power, 805 Power defined, 803 Purchaser need not inquire as to payment of del)ts, 805 Power can not be delegated, 806 Title under power, 804 when executor has, 804 When authorized by will, 802 What constitutes power, 803 Who can execute power, 806 all must join, 806 satisfied legacy, 686 SCHEDULE— Allowance to widow or children to be stated in separate, 324 Assignee or trustee of insolvent to file schedule of debts or lial)ili- ties, L594 Insolvent debtor, schedule of debts to be filed; what to contain, 15!)4 SCHOOL— Appropriation of, 1748 school lands by railroad company, 1747 Decedent's personal property escheated to State applied to support of, 921 Widow and children entitled to books, 320 SEAL— Of Probate Court, 1591 G. C. SECURED CLAIMS— Dividend on, 974, 1631 SECURITIES'— In what, executors, trustees, etc., may invest. 514 See Investment of Funds. guardians, 1367, 514 For claim against insolvent debtor to be stated in affidavit of claim- ant. 1632 examination of claimant as to, 1632 SECURITY FOR COSTS— On complaint against municipal officer, 2006 In proceeding to establish joint sub-district, 2013 When plaintiff must give C. C. P., 12359 G. C. •SENn.E de:\ientia— Disqualifies person from making will, 1022 See Testamentary Capacity. SEPARATE TRIAL— In condemnation suits, 1711 See Appeals, Ditches. SERVICE — See Notice and Summons. Appropriation proceedings, in, 1690, 1731, 1742 Actual, 841 By publication, 840 affidavit to obtain, 840 Lands, in action by executor, etc., to sell, 838 Non-resident executor, on, in action for failure to pay ln'ir, etc. after order of distribution, 770 SET OFF— Code of Civil Procedure, 11323 G. C. Affidavit of claim against insolvent estate, must show, 1(132 SETTLEMENT— See Contracts. '■SETTLEMENT OF ACCOUNTS— See Accounts, Administrators, KxEctnoRs. GrAKniANs. 2036 INDEX (References are to sections.) SHEEP— Appeal from allowance by co-commissioners. 1990 specific legacy, C75 Widow and children entitled to, 320 SHELLEY'S CASE — Does not apply to will, 1189 Rules in, 1189 SHERIFF — Amercement of. 2010 Jury in Probate Court, to summon, 1690 Will, to serve process to enforce production of, 1076 liability for neglect. 1077 SICKNESS, LAST — Expenses of, a preferred claim, 647 SIGNATURE — Of person making will, at each end. and thereof, 1037 how made, 1039 SISTER — See Descent. Inherits property, when, 915 et seq. SOLICITOR — To prosecute claim against municipal officer. 2007 SPECIAL ADMINISTRATOR — Action cannot be brought against by creditors of decedent, 150 Application for, 131 Application for citation, 143 entry ordering, 145 form of, 144 Appointment of to preserve effects of estate, 129 Bond and conditions. 133 Bond, must give, 133 form of, 134 Compensation, of, 137 Committing to jail, 149 Definition, 128 Duties and powers, 137 cease on appointment of regular executor or administrator, 141 Form of letters, 136 Form of citation, 146 Form of writ of attachment, 148 How proceeded against by executor, 142 In discretion of Court, 132 Need not file inventory, 128 Not of frequent occurrence, 128 Order appointing, 135 Ordering writ of attachment, 147 Powers limited to collect and preservation of property, 128 Power to sell, 139 Power to pay debts, 140 Regular administrator, proceed against, how, 142 What delay warrants appointment, 130 When power ceases, 141 When appointed, 129 contest of will. 129 other causes delay granting of letters, 129 Who may be, 132 SPECIFIC PERFOR^IANCE— See Appeal, 39 Of contracts of decedent, 523 Of contracts of idiot, etc., 1398 INDEX 2037 (Ri-fercnces are to Rections.) SPENDTHRIFT— Guardians SPINNING VVHEEI^— Widow entitled to, 320 SPOLIATED WILLS — Application for probate, 1142 who may offer, 1142 essentials of, 1142 form of, 1143 notice of, 1144 ordering notice, 1145 entry on, 1145 Admission to record, 1154 Authenticated copy recorded, 1156 notice that copy has been admitted, 1157 Appeal, 1153 As applied to wills, 1139 Burden of proof is on proponent, 1136 Court to find and establish contents of when, 1148 Definition, 1134 Degree of proof, 1149 must satisfy judge, 1149 Effect of establishing, 1152 Error, 1153 Examination of witnesses, 1146 same as original wills, 1147 How admitted to probate, etc., 1135, 1152 Lost after probate, but before record, may be recorded, when, 1148 Must have been a will, 1136 Must have been destroyed before death of testator, 1136 Must be duly executed, 1137 Must have been lost, spoliated or destroyed, 1139 evidence as to, 1139 Must have been lost subsequent to death of testator, 1140 Not revoked at death of testator, 1138 Nature of proceedings to establish, 1147 same as ordinary will, 1147 Notice of application to admit to probate, how given, 1144 On what proof established, 1148 Order establishing, 1151 entry, 1151 Original will afterwards admitted, 1155 Probate of, 1135 Proof of contents, 1150 Served, who must be on application to admit to probate, 1144 Testimony of absent witnesses ordered taken, 1146 Testimony of witnesses reduced to writing, 1146 Witness, what to be examined, 1146 STATE OF OHIO — Escheat of property to, 919, 921 STATE ROAD APPEAL — See Appeal, 1785 STATEMENT — In lieu of inventory. See Inventory. Made to Court by executor, etc., in partition sales, 1880 Of ward's estate on application for appointment as guardian, 1323 Of money in county treasury to be furnished by auditor to examiners, etc., 1129 R. S. STATUTE OF FRAUDS — Promise of administrator within, 607 Promise of guardian not within, 1380 2038 INDEX (References are to sections.) STATUTE OF LIMITATIONS — See Assignments: Limitation of Action. Administrator must collect claim before barred, 444 Administrator cannot revive, 608 Action on distribution barred in six years, 756 Debt of executor, 632 when begins to run, 632 Debt of heir, 760 Dower affected by, 947 General provision, 607, 608 Guardian must plead, 1384 Not sued on within six months after rejection barred, 60n, 610 On guardian's bond, 1352, 259 Payment prevents running of, 608 Real estate cannot be sold for debt barred, 805 Testator may revive by will, 60S When begins to run, 44 4 When begins to run against funeral expenses, 552 When claim once allowed by administrator statute does not run, 808 STAY OF EXECUTION — Code of Clivil Procedure, 12265 G. C. STEALING WILI^- Punishment for, 12451 G. C. STOCK — See DividExNds. Care of, 522 Gift of, 078 How sold by executor, etc., 502 application for, 503 May be paid over in kind, when, 751 Of life estates and remainders in shares of, 6!)2 Re-issue of last, 2014c proxy to vote, 522a STRAW— When assets, 368 Sale of. 471 SUBSCRIPTION— 1037-1040 See Signature. SUIT — See Action, Limitation of Actions. SUI^BIONS — Appropriation proceedings by private corporation, in, 1690, 1747, 1742 in proceedings to appropriate unfinished roadbed of railroad, 1731 Contempt, Probate Court to issue in proceedings for when, 1980 Service and return of in action for sale of land by executor, etc., 838 waiver of service, 838 guardian ad litem can not waive, 844 Service by publication. 840 Manner of service and return generally, 839 how served on corporations. 11201 G. C. on infants, 839 Who may serve, 839 What equivalent to service, 840 When returnable, 840 SUPERIOR COURT — to compel foreign executor, etc., to account. 190 in action on administration bond, 261 in proceedings by creditors against heirs, etc., after settlement, etc.. •'^85 _ __ in proceedings to condemn unfinished roadbed of railroad. 1733 liVDEX 2039 (References are to sections.) SUPPORT — Ser Widow's Allowance. Lease of ward's land for, 1433, 1526 See Wrongful Death. Sale of ward's lands for, 1405, 1522 See Guardians. SURETIES — Application for indemnity, 252 form of, 254 sufficient cause, 255 indemnity bond, 25(5 May require executor, etc.. wasting estate to give indemnifying t>ond, 253 foreign executor, 193 to render an account, 253 Bound by order of Probate Court, 259 Examination of. 242 Executors, etc., of, may require creditors to sue, 12191 G. C. Entry ordering notice, 246 General liability, 259 Liability of prior sureties, 250 Liability of new sureties, 251 Number of, must be two or more, 83, 124, 241 Of legatee requiring legacy to be paid within two years, 717 On appeal of executor, etc., claim against estate, 641 Order takes effect when, 248 On notes at administration sale, 483, 484 Parties in action to enforce distribution, 783 on administration bond, 255 what defense may make, 783, 276 Payment of claim of, of deceased insolvent debtor, 082 Qualifications of, of executors, etc., 86, 240, 241 Release of, of executors, etc., 795, 243 death of surety operates as, 243 form of application, 245 notice to executor, etc., required, 243 form of notice, 247 not released until executor, etc., gives bond, 243 extent of liability of, 243, 249 costs paid by surety unless, 243 Rights of certain not affected, 625 Rights on additional bond, 258 When insufficient, new bond may be required, 248 Appeal bond, 43 Assignnient for creditors: , May require assignee or trustee to give new bond, 1562 discharged from liability on new bond given, 1562 Jointly liable with assignor, may present and prove claim aguinst estate, 1632 Guardians, etc. : Exceptions to, sufficiency of, 1343, 1353 Additional may be required, 1343 Release of, how obtained, 1348 notice of application, 1348 extent of liability, 1348 SURVEY — Of ward's land into town lots ordered, when, 1418 SURVEYOR - See Sale of Real Estate. , To attend viewers in State and county road apj)eals, 1795 2040 81-1117 vol. 1 INDEX §1118-2024 vol. 2 (References are to sections.) SURPLUS PROCEEDS — Of sale of real estate by executor, etc., considered and disposed of as real estate, 905 Disposition of, of estate of non-resident decedent in business here 17C SURVIVING EXECUTOR — Powers of, 107 SURVIVING PARTNER — See Partnership Assets. Rights and duties of, 417 SURVIVING TRUSTEE — May execute trust, 1265 T. TABLES — Contiiigtiil (lo\\er, 2142 Dower on Carlisle, 21.39 Uower on American, 2140 Expectation of life, 2142 Mortality, 2138 Present value of certain annuity, 2144 Present value of sum certain, due at end of number of ytai>. 214o TAXES — All in hands of administrator liable, 511 Assessments, 663 Assessments special, apportionment, 1292 Direct inheritance tas: — see Inheritance Tax, 343 Duty of executor to par, 506 Estate of decedent, taxes a preferred claim agniii-t. 047 Guardian must list, etc., 1393 Execution for, no exemption or stay, 511 Payment of, 663 order of, 663 Executor or administrator must pay, when, 95. 663 Must be where administrator resides, 205 Executor to li.st personalty, 511 liable for real tax, when, 511. 663 liable to devisee for neglect to list or ]):iv. oil lien for taxes advanced, etc., 1392, 511 ')03 In assignments, 1648 Uen for taxes advanced, etc., 1392. 51 i. G63 When cliarged to income. 2li2 When become a lien, 511 ' When executor, 663 When heirs should pay, 662 When listed, 511 When listed in co-administration, 205 When testamentary trustee liable, 511 TAX TITUE — Release of ward's by guardian, 1395 elfect of tender to release, 1395 TELEPHONE — See Appuopkiation, Franchises. TELEGRAPH, ETC., COMPANIES — See Appropriation, Franchises. Appropriation of property by, 1876 Public grounds, streets, etc.. 1876 proceedings in Probate Court to appropriate, 1876 TENANT — See Life Tenant. Life, guilty of waste forfeits estate, 8503 G. C. In dower, "guilty of Avaste forfeits dower, 956 INDEX 2041 (References are to sections.) TERM — Of office of probate judge, 2 TERMINATION OF TRUST — Heirs cannot, 1304 Court wdll not, when, 1304 TER]\IS OF PROBATE COURT — Error in real estate proceeding, 898 For civil business, 5 criminal business, 5 Nunc pro tunc entries, 53 Proceeding in error, 52 Probate Court has wliat, 5 TERISHS OF SALE — Of personal property of decedent, 479, 495 of insolvent debtor, 1610 Of real estate of decedent, 880, 879 of ward, 1425 of insolvent debtor, 1610 TESTAMENT- See Hill. Definition. Forging, altering or counterfeiting, how punished, 13083 G. C. Stealing, destroying, or secreting, how punished, 12451 G. C. allegation of property or value unnecessary, 13591, 13592 G. 0. TESTAMENTARY CAPACITY — Blind, deaf and dumb persons, 1023 Idiots, imbeciles and lunatics, 1022 Not under any restraint, 1025 meaning of, 1025 Old age, 1022 Persons under guardianship, 1024 Sound mind and memory, 1021, 1082 test of, 1021 Senile dementia, 1022 Testator, lOiil TESTAMENTARY DISPOSl IION — What is, 1013 TESTAMENTARY GUARDIAN — Bond of, 1310 when not required, 1310 Duties and liabilities, 1309 Entitled to preference, 1309 Grandfather cannot, 1307 How designated, 1307 Investment of funds, 1385 Need not be express designation, 1308 Such guardian to have preference, 1309 Who is, 1307 Who may appoint, 1307 When mother may be, 1307 When Court must appoint. 1309 Who can not be, 1.331 TESTAMENTARY POWER — See Testamentary Capacitt. Right nut inalienable, 1017 TESTAMENTARY TRUSTEES — Rules governing guardians applied, 1250 TESTIMONY — See Evidence. Of witnesses to will, 1095 to be reduced to writing and filed in Court, 1095 Depositions on trial in Probate Court, 38 TIME — Administrators, etc., of, to publish notice of appointment, 544 file inventory, 83, 124, 303 collect assets, 440-448a file accounts, 83, 124. 703. 707 2042 INDEX CReferences are to sections.) riME — Continued. make sales of personal property, 479, 495 real estate, 883 Assignee or trustee to file assignment and give bond, 1546 publish notice of appointment, 1557 file inventoiy, 1594 file report of claims, 1628 file schedule of debts, 1594 file accounts. 1653 make sale.s, 1602 report payment of dividends, 1653 Creditors to present claims against insolvent estate. 1628 of decedent, 998, 967 to bring actions. See Limitation of Action. Statute of Limitations. Filing appeal bond, 43 Guardian, to file inventory, 1367 file accounts, 1367 Trustee of non-resident, idiot, etc., to file accounts, 1310 Widow or widower, to make election under will. 1215 TIME OF COMMENCING ACTIONS — See Limitation of Actions. — Statute of Limitations. TITLE — . See Real Estate ; Receipts ; Will. Devise to sell, 804, 805 By descent and devise, 909 Of bona fide purchaser to land not defeated by production of will, when, 1133 By deed of gift, 910 to land fraudulently conveyed, protected when, 822 By purchase, 911 Of heirs, ete., in lands set-off to widow may be sold, 850 Questions as to on assignee's sale, how adjusted, 1618 Statute controls, 907 Abstract of, to be furnished by applicant for appointment as guard- ian, when, 1323 Conversion of, etc., 911, 921 Release of ward's tax, by guardian, 1395 Warrant of, 593, 902 by assignee, 1616 TOMBSTONE— See Funeral Expense. Administrator's discretion, 651 Amount allowed, 651 Court may allow for, 651 Court can not order purchase, 651 executor, etc., not bound to procure, 651 Order of payment, 651 Not for other than deceased, 651 TORTS— See Guardians. Action on does not survive, 385, 520 Security on bond not liable for torts of administrator, 259, 261 Estate not liable for torts of administrator, 888, 578 519 TOWN LOTS^See Sale of Re.\l E.state. Land of ward may he ordered laid out in, 1418 1425 INLFX 2043 (References are to sections.) TRANSCRIPT — Appeal on, generally, when to be filed, 49 to be filed in Probate Court, 51 who may file, 50 Appropriation cases, in, 1780 Concealing or embezzling assets, proceedings against persons sus- pected of, 413 Distribution, in proceedings to enforce order of, 779 Ditch case, county, who to furnish, 1833 to be sent to auditor, 1855 township, to be sent to township clerk, 1874 Drift, removal of, 2000 Road cases, 1789 to be sent to township clerk, 1827 When Probate Judge interested in cause, 9 TRANSFER — Fraudulent, to hinder, etc., creditors, 1580 TRANSFER OF REAL ESTATE. 11 11a TREASURER — Personal property escheated to State paid to, 921 TREASURY — Examiner or accountant appointed by Probate Judge, when, 2024 TREES, WOOD, ETC. Fruit, 366 Rails, 366 Right to in highway, 1668 When assets, 366 When not assets, 366 • TRIAL — Appropriation of property by municipal corporations, 1760 by private corporations, 1708 Complaint against municipal officer, 2121 against county aiuiitor, 2124 Ditch appeal, county, 1849 township, 1865 Drift appeal, 2000 Exceptions to account, 739 Election of Probate Judge, contest of, 5151 G. C. of justice of the peace, 5165 In action on distribution, 775 In sale of real estate, 812, 849 Levee improvement case, 2002 On appeal. 42 Road appeals, 1822 What may be heard, 42 TRUST — Assignments preferring creditors, trust arising under, how adminis- tered, 1579 Equity will not permit to fail for want of a trustee, 1275 Fraudiilentlv conveved property, 1580 Generally, 1293, 1300 Non-resident minors, lunatics, etc., how administered, 1274, 128() Religious institution, when valid, when made in will in favor of, 1028 Testamentary, administered how, 1256, 1271 When Probate Judge may appoint person to execute, 1266 When mortgaged premises held by executor, etc., in, 387 TRUSTEES — TESTAMENTARY AND OTHERS — Administrator and executors and guardians are, 1250 Alterations and repairs, 1291 when should get order of Court, 1291 2044 INDEX (References are to sections.) TRUSTEES — TESTAMENTARY AND OTUERS — Continued. Accounts of, in Probate Court, 39 must render when, 1293 after removal, 1301 same as administrators, 1293 citation, 1294 duty of Court in relation to, 1295 may involve, construction of trust, 1296 appeal from order of Court, 1297 effect of settlement, 1298 allowance of compensation, 1299 Application for, 1254, 33 should be in writing, 1254 any person may make, 1254 form of, 1255 Appeal may be taken from order settling. 39 biennially, must render, 1293 citation issued for, how, 1204 examination as to, in Probate Court. 733 Probate Court to pass on, 1295 appeal from determination, 1297 settlement of, how opened, 1298 settlement, mistakes in, how, corrected, 1298 Assets, when liable to refund to executor or administrator, 751 Appointment, 1256 Bond, 1256 when not required, 1256 • when required notwithstanding provisions of will, 1256 when new bond required, 1256 removal on failure to give, 1258 separate or joint may be taken, 1264 Contest of will, powers and duties of trustees during, 95 Cannot deal with estate for his own profit, 1287 Cannot purchase from trust, 1287 Confined to use of income, 1288 Causes for removal, 1302 Court will appoint, 1266 Court may appoint under foreign will. 1271 before appointment, will must be recorded, 1272 Care of estate, 1287 Death, removal or incapacity effect, 1265. 1266 Definition, 1250 Distinction between executor and, 1251 Dividends, belong to whom, 1289 Distribution of funds, 1303 makes at his peril, 1303 legal advice will not protect, 1303 should have order of Court, 1303 Entry for appointment, 1261 Expenses, how charged, 1292 Form of letters, 1262 Foreign Court appointing, to give bond, etc., 1269 Foreign will creating, to execute trust, 1268. 1270 trustee to give bond, 1268 when bond not required, 1268 when Probate Court may appoint, 1271 to give bond, 1271 Gain and loss, how accounted for. 1290 How designated in will, 126Q INDEX 2045 (References are to sections.) TRUSTEES — TESTAMENTARY AND OTHERS — Continued. In doubt devolves upon executor, 1251 Income, who entitled to, 1288 Insurance to be kept on property, 1292 Inventory, 1263 should be filed, 1263 Jurisdiction of Probate Court, 1253 not exclusive, 1253 cannot construe, 1253 under foreign will, 1253 Letters should be issued, 1260 Liable for what errors, 1287 Must act in good faith, 1287 May use principal when, 1288 Must give bond, 1256 when may be omitted, 1257 form of, 1259 Non-resident should not be appointed, 1260 Power of testamentary regulated by will, 1251 Requires utmost good faith, 1251 Release of, 506 Removal for failure to give bond, 1258 Resignation, 1300 Court may accept, 1300 even if in default, 1301 Removed, when may be, 1300 how, 1301 on written application, 1301 made by one-half of heirs, 1301 causes for, 1302 Separate bonds, 1264 Surviving may act, 1265 Securities, trustees may invest in what, 514 Taxes paid by, 1202 Taxe*, when Ixind for, 1292 Trust created under foreign wills, 1267 Termination of trust, 1304 by expiration of time limit, 1304 where no cause for continuance, 1304 Common Pleas Court only can compel. 1304 Under foreign will must give bond, 1268 Where same person is executor and trustee, 1251 Who may be, 1252 corporation may, 1252 estate may vest in infant, 1252 should be fit person, 1252 relationship, 1252 TRUSTEE FOR NON-RESIDENT — Appointed when and how, 1274, 1276 Bond of, its conditions, etc., 1277 Court may appoint, 1273 Duties of, 1277 Foreism guardiac may collect money from, 1282 petition for, 1283 entry and notice, 1284 hearing, 1285 may loan money, 1286 How long to hold office, 1279 Jurisdiction, 1276 May lease real estate, 1278 2046 INDEX (References are to sections.) TRUSTEE FOR XOX-RESIDEXT — CojifmwecZ. May sell real estate, 1278 Non-residents or unknown parties, appointment, 11022, 11023, 1102- G. C. Powers of, money, may loan in certain cases, 1286 money of beneficiary, when and to whom to pay, 1280 real estate, may lease or sell, 1278 When appointment to be made, 1275 TRUST PROPERTY — Administrator not to account for, 377 Does not belong to administrator, 377 Indemnity notes, 377 What is,' 377 TRUST, TERMINATION OF, 1304, 4909 Of guardian, 1333 Settlement with succeeding guardian, 1496 Settlement with ward, 1497 Table to ascertain present value, 2145 Table to ascertain annuity, 2144 Table to ascertain consummated dower, 2139 Table to ascertain contingent dower, 2142 U. UNCLAIMED BANK DEPOSITS— See Bank. Annual report to be made to Probate Judge of, 509 UNOLAIMED COSTS— Clerk of Common Pleas and Probate Judge to make list of, when 3041 G. C. Probate Judge to post list in office, 3041 G. C. how disposed of, 3041 G. C. UNCLAIMED MONEY — Belonging to heirs, legatees, etc., how invested, 786 how obtained, 791 UNDERTAKING — See Bond. UNFAITHFUL ADMINISTRATION — 255, 268, 274 See GoMPEXSATiON. UNITED STATES — Debts due to, 662 Debts against estate of decedent entitled to preference under law* "of, 647 Guardian may invest in bonds of. 1367 Order of payment, 662 UNKNOWN HEIRS, DEVISEES, ETC.— How service made upon. 841 UPSET PRICE — When Court may fix.