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Library
Collection
PURCHASED FOR
The School
of
Law of
IN
Cornell University
14,
1803
By
A. M.
his
BOARDMAN
ELLEN
D.
WILLIAMS
Co ,eU
Unwersnv
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KFN5210.M12
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1890
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The executor
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complete manua,,
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The
original of this
book
is in
restrictions in
text.
http://www.archive.org/details/cu31924022809424
THE
EXECUTOR'S GUIDE:
<
COMPLETE MANUAL
FOR
FULL EXPOSITION OF THEIR RIGHTS, PRIVILEGES, DUTIES AND LIABILITIES, AND OF THE RIGHTS OF WIDOWS IN THE PERSONAL ESTATE.
THIRD EDITION.
BY
ROBERT
H. M_cC
LELLAN,
ALBANY,
N. Y.:
1882,
By ROBERT H. McCLELLAN,
in the office of the Librarian of Congress, at Washington.
ALBANY,
K. Y.
A
bring
Third Edition of
this boolc
it,
having been
to
tailed for,
it
I have prepared
to
endeavoring
up
state-
ments as
executors,
to practice,
etc.
while
I was engaged
to
in active practice,
have
been obliged
my
son,
The book
it
is
submitted
will be of value
infants.
Robert H. McClellan.
Troy, October 2, 1882.
Table of Contents.
Chapter
Of Wills and Manner of Execution
I.
PAGB
Chapter
As
to the
II.
Chapter
Who may
such
III.
Disability, how
of
who mny
Serve as
10
Removed
Chapter IV.
The Duty
an Executor
in
13
Chapter V.
The Proceedings on
Presentation of the Petition for Proof
17 of the Will and the Service of the Citation
Chapter VI.
Proceedings on Return of Citation and of Proving the Will, and of New Trial within One Year
25
Chapter VII.
Of Granting
Letters Testamentary and Renunciation of ExecutorsAdministration with the Will Annexed How Executors compelled to give Bonds
32
vi
Table of Contents.
Chapter
Letters of Administration
VIII.
page.
38
Chapter IX.
General Provisions in regard to Letters Testamentary and of
Administration
etc
are Revoked,
48
Of the Power of Executors and Administrators in Discovery and Recovery of Property their Duties in regard to the Inventory and the Rights of the Husband, Widow and Minor Children
;
57
Chapter
;
XL
<
how
Chapter
Of
the Collection of the
XII.
Debts
71
Estates Compromising
Due
Chapter
Of
the
XIII.
83
Payment
of Debts
and Legacies
Chapter XIV.
Of the Accounting of Executors and Administrators The Settlement and Distribution of Estates and of Commissions,
96
Chapter XV.
Of the Mortgage, Lease or Sale of the Real Estate of a Deceased Person for the Payment of his Debts 119
Table op Contents.
vii
Chapter XVI.
Guardians and "Wards
pagb.
134
Chapter XVII.
Accounts of Guardians
How Compelled
.
to Account, and
how Removed
Appendix
Index
147
157
201
EXECUTOR'S
ADMINISTRATOR'S GUIDE.
Chapter
Of Wills and Manners
I. of Execution.
will is a disposition of
upon
and persons of unsound mind, may so dispose and males of the age of eighteen years, and females of the age of sixteen years, may
idiots
in like
manner dispose of their personal property. Married women, formerly disabled by law from making a valid will, are by the statutes of 1848, 1849, and 1869, expressly empowered to devise and bequeath their property, in the same manner as if
unmarried.
But these
gave to a married
of
woman no power
to
dispose by will
property
own
labor.
{Ryder
v.
v.
see also
Woodbeck
Havens, 42 Barb.,
Wills,
How Made.
(2 E. S., 60
it
testator
is
plainly
expressed
but
it
is
The
it
may
fully appear
that in
making
40.
last will
it,
the
" Every
ing manner
''
1.
It shall
made by
to
the testa-
or shall be acknowledged by
him
have been so
made
" 3.
to
time of making such subtime of acknowledging the same, shall declare the instrument so subscribed to be his
scription, or at the
last will
The
and testament.
[Unless the testator declares, or gives the witnesses, in some form, to understand at the time of making or
acknowledging
signed
is
instrument
no
sufficient publication.
(Bagley
v.
Blackman, 2 Lansing,
41.)]
Wills,
How
Executed.
two
attesting witnesses,
as a witness at the
each of
whom
name
end of the
[It
will, at the
(Ruddon
v.
McDonald,
1 Brad., 352.)]
41. " The witnesses to any will shall write opposite to their names their respective places of residence
and every person who shall sign the testator's name to any will by his direction, shall write his own name
as a witness to the will.
Whoever
shall neglect
to
who
shall sue
nor shall any person, liable to the penalty aforebe excused or incapacitated on that account from
sufficient that the testator,
when executing
the
makes the
declaration
and request
to the wit-
nesses, in
An
but
it
them
to recall
It should
when they
shall
come
to
be sworn.
1
always be appended.
(For form of
will, see
Appendix No.
and Codicil
No.
2.)
To
constitute a valid
it
unwritten
will,
made by a
soldier,
actual
Nuncupative Wills.
United States or the State of exposing his
New York
life,
in such service, he declared what disposition he desired to make of his personal property, under such circumstances as to make it appear that he
wounds
will.
He may make
sary, even, that
answer
to questions put to
him by another, and it is not neceshe request any other to witness the
to
county
where the deceased resided, who will record the testimony proving the declaration made as a will and if he
;
considers
it
it to
it
the
will
person
named
operate as
estate.
(Code, 2618.)
mariner at
sea,
whether
in the
merchant service
such a
may make
what
same manner.
as to
The
constitutes
being at sea
has been held (8 N. Y. Rep., 196), that a master of a vessel lying at anchor in a bay of
it
and
the ocean, near the land, where the tide ebbs and
flows,
was
at sea in the
stat-
carried out
will
be
as
it is
reasonable to supvessels
will include
mariners on
engaged
even
if
Wills,
How
Revoked.
Hudson river at any place below Troy. In one English case, under a similar statute, a mariner being on shore at Monte-Video, in South America, received a wound and died, having first
made
A
ing
will
may
it,
or by executing a
new
will expressly
revoking
Power
as to Personal Property.
Chapter
As
to the
II.
an
becomes the
immediate duty of the person so appointed, to decide whether or not he will take upon himself the discharge of the trust to which he is nominated, and to
give notice to those interested in
decision.
the will,
ot
his
in
First.
By remaining
no steps
in the matter.
1
Second,.
By making and
filing
renunciation.
(See form and directions, Appendix No. 3.) In case more than one person is appointed will, any of them so appointed may decline to
in the
act,
or
will, as if all
appointed
proved,
The duty
lated
is
by
statute.
16.' (2
K.
S.,
71
in
"
No
executor
named
mentary are granted, have any power to dispose of any part of the estate of the testator, except to pay
Power
in
as to Personal Property.
nor
to interfere
is
funeral charges,
preservation."
From
sell
this
it
named may
sary to
money
to
remove
is
it
being wasted or
to take
it,
neglected in which
case he has
for his
power
and he should do so
own
protection.
He may,
articles
money
perishable
to
be
inventoried.
Where
if
necessary,
and he
purpose.
will
.
He may
them
its
The
opened and
if
any directions
8
There
is
some parts of the State, a practice of waiting for six weeks after the death of the testator before opening the will, or taking any steps to prove
it.
This
is
founded
is
in a
deceased, but
a mistaken exercise of
way
to manifest
such respect,
is
them into effect, which can only be done by proving his will and caring for the estate which he accumulated for his family.
In this connection,
bilities
it
may be
lia-
of any unauthorized
[When an
letters
own
first act
of unauthorized interference.
1 Tucker, 110.)] 60. "
from such
assets for
to
him " from the deceased, personally, in his lifetime. But he may retain any such assets for a sum due to him for care taken of them, or for labor expended on them, and demand payment of a lieu so acquired before delivering them up, or he may have such sum
or interfered
action, to the executors or general or special administrators of such deceased person, for the value of
any
all
damages caused by
deceased."
It
his
acts
to
the
estate
of the
may
above
all
other claims.
10
Disability op Executors.
Chapter
Who may
The
III.
Appoint an Executor and who mat Disability, how Removed. Serve as such
statutes, as
amended by the
acts of
1848 and
1849, in respect to the rights and powers of married women, provide that " all persons except idiots, per-
mind and infants, may devise their by last will and testament," and that " every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal
sons of unsound
real
estate
estate
by
will, in writing."
An
alien
cannot take or
The power
to
make
power to
" No person shall be deemed 3. (2 E. S., 69.) competent to serve as an executor, who at the time the will is proved shall be:
making a contract (except women). married " 2. Under the age of twenty-one years.
1.
"
Incapable, in law, of
" 3. " 4.
An
alien,
v.
{McGregor
Who
prime.
"
5.
tent,
Who, upon proof, shall be adjudged incompeby the surrogate, to execute the duties of such
Disability of Executors.
11
R.
S., 70,
6, 7.").
Married
women
and of receiving letters testamentary as though they were single women and their honds, given upon the
;
granting of such
effect as
have the same force and were not married. (Chapter though they
letters, shall
782,
Laws
of 1867,
2.)
last
quoted, letters
the consent
woman upon
husband
in writing, filed
her
The
disability arising
is
son appointed,
at
from the minority of the peran end at the arriving of the person
of. this State.
appointed at
full
naturalized, or
becoming an inhabitant
The
idiots
first
of committees
and lunatics and habitual drunkards in charge and the disability ceases in case of
;
when they
are discharged
of their
managing
that
subdivision it maybe remarked however guilty or base the executor appointed may be, conviction must precede the objection and
;
12
Disability of Executors.
(1 Barb. Ch. R.,
;
47
v.
Harrison
v.
McMahon,
1
;
Brad., 289
McMahon
Emerson
in
v.
Bowers, 14
fifth
K Y.,
449.)
the
sub-
own
affairs
is
supposed,
1
is
and write would ordinarily be a sufficient objection. A professional gambler is presumptively incompetent.
{McMahon v. Harrison, 6 N. Y., 443 1 Brad., 289.) "Any surrogate may, in his discretion, refuse the
;
application
for
letters
testamentary, or letters of
administration, of
any person unable to read and (Chap. 782, Laws of write the English language."
1867, 5.)
may be made
at
open
to
Where Will
to be Proved.
13
Chapter IV.
The Duty
There
is
no absolute necessity that application for the probate of a will be made by an executor it may
;
Even
a creditor
may make
citation,
in
as
executor.
The same
2614.
may present,
may
in the
next section,
may
bate thereof.
Upon
must
The
fixed by statute
Procedure.
2476.
The
proof of a will, and to grant letters testa-, mentary thereupon, or to grant letters of ad'ministrato take the
14
Where Will
to be Proved.
cases
1.
Where
Where
erty within the State, or leaving personal property, which has, since his death, come into the State, and
remains unadministered.
3.
Where
State, died
or leaving personal
property which has, since his death, come into that county, and no other, and remains unadministered.
4.
Where
under subdivision second or third of this section, has not been filed in any surrogate's court but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this
tion,
;
chapter,
is
no other.
Preliminary to the application it must be ascertained who are the lieirs-at-law and next of kin of the
testator, or it
The
diligent
inquiry
required,
is
seeking
the
requisite information
may
be expected
to
know
Heirs- at-Law
Next of
Kin.
15
We
tees
to
confound the
with lega-
in the statute,
and devisees in the will. The terms heirs and next of kin imply blood connection, while the relation of legatee or devisee arises from the will, and the testator and the legatee or devisee, may be strangers
in blood as well as in fact.
the
last
Thus
1.
His children
2.
His
father, if
4.
he be
,His col-
R.
The next of kin are 1. The children 2. The father 3. The mother, and brothers, and sisters, and
;
S., 41.)
is,
have died
4.
His
beyond
3 R. S.
brothers'
and
sisters' children.
(2
R.
S.,
96
The
if
heirs-at-law
relatives on
chap. 236.)
the part of his mother. (S. L., 1845, " And illegitimate children born since
Having ascertained these facts they should be embodied in a petition to the surrogate (see form, Appendix No. 5), which, together with the will,
should be presented to that
officer,
who
will issue a
16
Who Mat
if
Prove Will.
the surrogate will issue a
it
he cannot obtain
it,
produce
it.
no executors named in the will, or if he removed to a great distance, or are dead, the duties above specified devolve upon any person interested in the will, who may proIf there be
Who
to be Cited.
17
Chapter V.
The Proceedings on Presentation of the Petition for Proof of the Will and the Service of the
Citation.
The
he
them,
at
cited,
upon
:
the husband,
2.
any, and
all
erty, the
husband or wife,
if
any, and
all
the next of
erty, the
husband or
wife, if
and
all
2616. The citation must set forth the name of the decedent, and of the person by whom the will is pro-
pounded
and
it
must
state
relates,
Where
is
that fact
must be stated
Where
the surrogate
unable to ascer-
to his satisfaction
18
Service of Citation.
property, to
the attorney-
where
it
public administrator,
entitled
intestate.
{Gombavlt
v.
Pub. Admr., 4
The time
depends on the time required for service, from eight days to six weeks, and is fixed by statute as follows
2520.
Except where
special provision
is
otherwise
made by
copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns,
with a person of suitable age and discretion, under such circumstances, that the surrogate has good reason
copy came to his knowledge in time for him to attend at the return day. A citation
to believe that the
must be
so served,
if
fifteen
time.
Any
proceeding,
may make
Where
serve a citation. But the surrogate an order for substituted service in all cases
in certain cases
may
on a non-resident, and
it
on a resident.
appears to the surrogate by affidavit that proper and diligent effort has been, made to serve a
citation
Service op Citation.
served cannot be found, or,
service, so that it
if
19
may
make an order
(
it
served by affixing
person's residence,
thereof,
The
unknown
citation
2522.
is
The
surrogate, from
whose court a
issued,
may make
Where
it is
to be served
tion, or
is
State.
2.
Where
Where
cir-
made by a
resident of
judge.
4.
'
Where
is a^
was made
surrogate's court,
20
Service of Citation.
and
next preceding the application for the order, if the time had not been extended by the attempt to serve
the citation.
2523.
also
make an
order,
citation
Upon
by
is
a party to
whom
is
directed,
either
his full
name or
by
cannot,
surrogate
of
that
satisfied,
affidavit, that
the residence
party
after
diligent
inquiry,
be
Upon one
or
more unknown
a
citation
creditors, next of
a class, to
whom
designating them by
scribed in this article.
a general description, as
The publication required is for six weeks in two' newspapers to be fixed by the surrogate. The order for publication is granted upon an affidavit showing
the non-residence or other fact authorizing
it.
may be made
In
all
thirty
must be made returnable upon a day than four months after the date
more
thereof.
(Code,
to its parent,
may be.
Service on Infants.
by delivering
committee.
So, also,
a copy to such person
21
also to his
and
whom
cited, is
the
be
an
where the surrogate has, in his opinion, reasonable ground to believe, that a person, cited or to be cited, is an habitual drunkard, or for auy cause mentally
incapable adequately to protect his rights, although
may,
in his discretion,
with
make an order
deemed complete
such delivery.
is
cited or to be cited,
whom
copy of the citation was delivered in behalf of the infant or incompetent person, is adverse to that of
the infant or incompetent person, or that, for any
reason, he
is
not a
fit
may likewise make such an order and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, he may
rights, the surrogate
22
liabilities, as a
com-
special guardian
may
Where
a party
who
is
who
drunkard does not appear by his committee, the surrogate must appoint a competent and responsible person to appear as spea lunatic, idiot or habitual
cial
Where
an infant appears
where a lunatic, idiot or habitual drunkard appears by his committee the surrogate must inquire into the facts, and must in like manner appoint a special guardian if there is any ground to suppose that the interest of the general guardian or committee is adverse to that of the infant
by
his general guardian, or
or incompetent person
ing him.
2531.
Where
application
Peoop of Service,
or incompetent person,
also
if
How
Made.
manner
23
he
if
is
any, in like
citation
But
of this chapter
of the order to be
made
in such
proper.
The
application
may
;
be
made
time of pre-
and in that case die order to show cause may, in the surrogate's discretion, accompany the citation. (For notice, see form in Appendix.) It appears, therefore, that the order to show cause may be served in every case, except where the prosenting the petition
ceeding
is
may
made
that they
might show
delay.
made without
The
in
and the notice are usually incorporated the same paper and may be served by any person
citation
;
may be made by
is
affidavit,
or where
made by
service
which
may
be proved by an affidavit
is acquainted
of
full
may waive
all
the
uniting in
24
Tkavbl to be Allowed.
consent to the course, the surrogate
and issue
letters
forthwith.
may
duty being, in
fact, to
with.
Should
of the
it
be necessary to travel
the
in
making
service
may be allowed his expenses of such travel, or he may employ a person to make the service, and he may be allowed a reasonacitation,
executor
ble
payment made
to
such person.
It will
subpoena for
the
witnesses
;
and
Appearance on Proof.
25
Chapter VI.
Proceedings on Return of Citation and of Proving the Will, and of new Trial within one
Year.
On
if
all
the parties
who
ought to receive notice, the surrogate may adjourn the proceedings and issue a further citation, and as
may sometimes
may
be
filed at
any
new
citation
them
into court.
party of
full age,
to
be incompetent,
jurisdiction, as
may
the proceeding in
citation.
(Code, 2528.)
If the service or appearances are complete, the surro-
appointed ( 2530), and the special guardian shall appear in person before any further steps are taken.
The witnesses will then be examined. At this point, the party offering the will for probate, may learn for the first time, that the probate is contested.
26
Witnesses to be Examined.
more nearly interested by immeis
in
proving the
diately notifying
them
contested,
that they
make
They
will
contested,
it
is
in this State,
two of the witnesses, if so many are living and of sound mind, and are not disabled from age, sickness, or infirmity, from attending, shall be produced and examined and the death, absence
At
least
any of them
If
shall
2619.)
any such aged, sick or infirm witness resides in the same county with the surrogate, the surrogate
will,
he reside in
will
State,
the surrogate
by the surrogate
If
all
may
and circumstances
remain on
file in
as
would be proper
to
prove such
The
must
the surrogate's
( 2620.)
issue, as in
the supreme
27
lost or
in a surrogate's court,
when
;
was fraudulently
and
its
and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one
witness.
( 1865, 2621.)
must inquire particularly into all the facts and circumstances, and must be satisfied of the genuineness He may of the will and the validity of its execution.
require proof of the circumstances not only of the
execution, but the possession thereof, and
may
call
( 2622.)
was in all respects competent to make a will and not under restraint, it must be admitted to proing
it,
may
be.
2623.)
shall
to
be such
after signing,
he acknowledged
it,
to
as
;
above
that he
was of sound
28
Record of Will.
To
entitle it to
be recorded as a will of real estate, it must further appear that the testator was a citizen of the United or if an alien, that he had taken the States
;
The
accordance with the order, and will attach a certificate to the will, that the same had been duly proved
before him, as a will of personal estate, or of real
and
it it
may
be,
and
will retain
and then will on demand the person from whom he received it; of his death, insanity, or removal from any devisee named in such will, or to assigns of such devisee or if the same sonal estate only, to any acting executor
;
deliver
or,
to
in
case
of such will,
named The
therein.
will so
( 2635.) certified,
proved and
proofs thereof,
when
it
must be
recorded in the
offices
which such
real estate
may
lie,
who
are required to
This is required to be done by the executor within twenty days after the issue of letters, and to comply with it the executor
must take out an exemplified copy. ( 2633.) Exemplified copies of wills proved out of the
devising real estate,
State,
may be
recorded in the
office of
is
29
of the
will
The probate of
on
all
conclusive as to personalty
parties until
by the surrogate
sumptively
all
( 2626),
while
it
establishes
pre-
( 2627.)
Any may
bate
competency of the proof, and praying that the promay be revoked, and that the persons enumerated
interest
it
under the
will,
may be
"-''
cited to
The
petition
from the probate of the will, except that in case of a minor it may be presented in one year after majority,
an insane person upon recovery, or a person in prison
upon
( 2648.)
The
sees
citation is to
persons
and legatees named in the will, and to all other who were parties to the proceeding for proIf the legatee shall have died, his bate of the will. administrator must be cited, if one has executor or if none has been appointed then been appointed such persons must be appointed as representing him,
;
( 2649.)
Upon
proceedings relating
30
Probate of Heirship.
he may recover or care for and pay the debts he may
;
it
permits.
Upon
and
if
any
died
without the State, or has become incompetent, then his testimony which was taken on the previous hearing will be received in evidence.
( 2551.)
is
not sufficiently
proved or
is
invalid,
make
If he
2662.)
will,
who
has
died intestate
may
situated, a written
and
his interest,
and that
all
parties
may be
probate.
( 2554.)
all
The
tioner,
the parties
peti-
name
of the decedent
and the
and the share which the petitioner claims, and a brief description of the property and at the hearing any heir may appear and make himself a party.
;
(2555.)
The
Probate of Heirship.
tions of the parties, and if
it
31
is
share to which he
is
there
is
no
contest, the
must
establish
by
satisfactory
evidence
make
a decree describ-
facts.
2656.)
office
The
decree
may be
recorded in the
of the
county clerk, or the register of deeds, and is presumptive evidence of the facts declared to be established thereby.
( 2657.)
Any
person
who
is
ing may, at any time within ten years, apply to the surrogate that the decree be set aside or modified, and
all
it
why
( 2658.)
32
Letters Testamentary,
How
Delayed.
Chapter VII.
Of Granting Letters Testamentary and Renunciation or Executors -7- Administration
Will Annexed
give Bonds.
How Executors
After a will of personal estate shall have been proved the surrogate will issue letters testamentary thereon
to
And
any competent person who shall' appear and qualify. they may be granted immediately unless some
files
person interested
he
is
tions,
of them.
and that he intends to file a specific statement Tf such an affidavit is filed the surrogate
letters, at least thirty days,
The
must be
2696.)
verified
believes
it
to
be true.
The
not a
resi-
he may be entitled to letters upon his giving But a non-resident as prescribed by law. is entitled to letters testamentary without giving a bond, if he has within the State an office for the regular transaction of business, and the will directs
bond
Renunciations.
that he
33
(-2637,
may
2638.)
A person named as executor may renounce the duty by an instrument in writing, signed by him, and
acknowledged or proved as a deed is required to be proved or attested by one or more witnesses, and
proved to the satisfaction of the surrogate.
He may
any person, or
they
after
been so issued,
persons to
if
whom they
named
incompetent.
If a person
( 2639.)
the surrogate, on
the
application
of another
may
time
make an order
requiring
him
to
to quality within a
deemed
have renounced.
The
It
order
may
would be improper to issue letters until all the executors have qualified or actually or legally renounced.
(2644.)
But
if
there
is nc-
person
named
or
fail
as executor, or all
the persons
named renounce
to qualify, or are
legally incompetent,
named
in the will
no exethe resi-
1.
To
2.
legatee;
3.
To
the
To any widow or
;
next of kin
4.
To any
To any proper
3
5.
34
Administration, with
Will Annexed.
like regulations
in the
and restrictions
of intestacy
;
as letters of administration in
cases
testa-
Letters
mentary upon a
without
may
also be issued
by the surrogate of any county in which there may be any property or effects. ( 2476.) So an executor may be appointed under a power
given in the will authorizing some person to select an
executor.
But the
selection
But the
issue of
Any
person interested
may
file
the selection
interest,
is
made, by an
affidavit
allowing his
may be
will.
named
in the
same
as in
made to an executor. ( 2641.) The official oath required of executors, administrators and guardians may be taken before any officer
authorized to take an
affidavit
to
be used in the
(
supreme
2594.)
may
cases, a creditor,
may
were issued
Kevocation op Lettbbs.
those letters
;
35
may
1.
why
be made accordingly
Where
when
letters
were issued
petent, or disqualified by law to act as such ; and the grounds of the objection did not exist, or the objection was not taken by the petitioner, or a person
whom
2.
money
invested
money
in securities unauthorized
by law, or
or by reason of other
he
is
due execution of
his office.
3.
Where he
surrogate, contained in a decree or order; or any provision of law relating to the discharge of his duty.
4.
Where
estate.
or
is
not one where a non-resident executor would be entitled to letters without giving a bond.
36
management of
estate
;
The proceeding
tion is issued.
is
upon a
petition on
which a
cita-
( 2686.)
may
enjoin an
until
executor
or
administrator
from
acting
the
An
where he has no property except an unliquidated demand, and is about to remove from the State. He should not (2 Barb. Oh., 426; 4 Paige, 299.)
be required to do so merely because he does not own
property to the
full
(8 Paige, 475.)
The main
the
trust,
point
is
is,
whether
of an
it
is
doubtful whether
(1
fund
Brad., 148.)
The circumstances
duct
present
when
and conor
such
evidence
of
improvidence
recklessness
imthe management
its
or of his own, as in
discreet
men, endangers
Though bank-
Incompetency of Executors.
37
The term improvidence refers to such habits of mind and conduct generally, as render a man generally,
all
circumstances, unfit
is
to
serve.
It
Hun,
gambler is (6 N. Y., 443.) Although an executor is illiterate and of, small means, and has been guilty of misconduct or mis-
management
sede him.
He
to give security.
38
Administration.
Chapter VIII.
Letters of Administration.
When
is said to
die intestate,
and
granted
on his estate.
Administrators,
(16 N. Y., 278
is local,
in
their
representative
capacity,
letters of administration
;
special
upon the estate of either an letters of adminwith the will annexed; letters of adminisistration tration upon the estate of an absentee. Administration upon the estate of a decedent is granted by the surrogate, where he was a resident of the county where not being a resident he died within
intestate or testator, in certain cases
; ;
or leaving
death,
personal property
which
has, since
his
;
which has, since his death, come into that county and no other, and remains unadministered or where the decedent was a non-resident but left real estate subject to be sold for payment of his debts. ( 2476.)
;
Administration, to
Under
certain circumstances
Whom.
39
gates
two or more surrowhere the decedent was a non-resident of the State, and his personal property is in or comes into two or more counties or where he left real estate in two or more counties subject to be disposed of for payment of his debts. Application for letters may be made in either
may have
who would
be entitled to succeed to his personal estate, if they, or any of them, will accept the same, in the following
order " First,
to the
widow
fourth,
third,
to the
to the father;
the
;
mother;
fifth,
brothers
children
who
would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors,
administration shall be'granted to their guardians
;
if
none of the
first
be entitled to the preference. If no creditor apply, then to any other person or persons legally competent but in the city of New York the public administrator shall have preference, after the next of kin, over creditors and all other and in the other counties, the county treasperson's
; ;
40
all
Who
Entitled to Administer.
other persons.
And
in
the case of
married
woman dying
intestate,
Where
whole blood, to those of the half blood unmarried women, to such as are married and where
relatives of the
; ;
enti-
may
,
discretion
29.
wise competent, according to law, shall be solely entitled to administration on the estate of his wife,
shall give
and
bond
And any
her consent
person entitled to
in writing,
letters,
by
filing his or
may have
competent person,
as, for
example, a widow
a son or a daughter
joined with
him
or her.
Where
a married
woman
same may be granted to her as if she were unmarried. (Chap. 782, Laws of 1867.) And if any person who would otherwise be entitled,
Who
ian, the
if
Incompetent to Administer.
lettei-6 shall
41
be a minor, such
same
as they
(2
would be
S., 75.)
R.
(Page
75.)
"
No
letters
of administration
shall be granted to
any person convicted of an infamous crime, nor to any one incapable, by law, of
a contract, nor to a person not a citizen of the
making
United States (unless such person reside within this State), nor to any one who is under twenty-one years of age, nor to any one who shall be judged incompetent,
trust,
want of understanding."
The
the statute.
(1
As
to the
5. (S.
in
"Any
surrogate may,
testamentary,
or
to
letters
administration
of any
person
unable
read
and
write
the
English
language."
must
ing of renunciations by executors (see form, Appendix) of all persons having a prior right to administration
or the surrogate must issue a citation to such persons,
requiring them to show cause
why
administration
One who
has renounced
may revoke
his renunciar
42
tion at
Citation,
any time before
citation
How
Served.
granted.
(4 Brad., 13.)
The
as reside in the
fif-
and on such
days before
as reside
least thirty
its
return,
or
it
may be
whose residences cannot be ascertained, once two papers designated by the a week surrogate and by service of copies by mail. A like citation must be served, at least twenty days
State, or
before
its
in all cases
where
it
names and
Appendix.)
if
On
right, or
is
filing, the renunciation of persons having the prior right, or on the return day of the citation to such persons, if they or some of them
entitled as a class, or on
do not take
letters or show cause why the applicant should not have them, letters will issue to the applicant on his taking an oath or affirmation, before
officer
any
bond required.
(See oath,
in
Appendix.)
as
he may
The
(See
widow
third, to the
mother
kindred
to
chap. 236.)
Letters of administration upon the estates of nonresidents, in cases
where
letters
at
and issue
to
legally
producing his
some
spe-
person appointed
receive them.
cified apply,
by
if
the
foreign
administrator to
But
may do
letters.
so,
and
may
receive
Upon
44
Special Administration.
may
fix
decedent to residents of
( 2699.)
The duty of the ancillary administrator is to collect and transmit the prdperty to the principal administrator in the other State, but he
in the
with the will annexed, or of administration in cases of intestacy or where by reason of absence from this State of any
executor named in the
delay
or
is
will,
or
for-
any other
causes, a
where a person, of whose estate the surrogate would have jurisdiction, if he was shown to be dead,
disappears or
his
is
abode cannot be ascertained, and under circumstances which afford reasonable ground to believe either that he is dead, or that he has become a lunatic, or that he has been secreted, confined, or otherwise
unlawfully
a temporary administrator
tion of his property,
is
those
who
found that he
In the
first
dead.
Temporary Administrators.
proceeding
is
45
ment * * * must be made by petition, in like manner as where an application is made for administration in a case of intestacy
;
are the
same as prescribed in the case of a decedent. Such an application for the appointment of a tempo-
rary administrator
may
also be
effect,
was made by a creditor, by the county treasurer of the county where the person, whose estate is in question, last resided or, if he was
if it
;
situated.
These temporary administrators must qualify as in case of administrators on the estate of a decedent, give a like bond and take a like oath of office.
They may
and may maintain actions for leave obtained from the surrogate, an action may be had against them. The surrogate may, by an order made upon at least ten days'
secure and preserve
those purposes.
Upon
notice,
authorize
the special
administrator to
sell,
decedent or
absentee.
The
surrogate
may
also authorize
payment
the surrogate
to
of the
46
debts.
Temporary Administrator.
The temporary
administrator
may
be cited
and have settlement. ( 2673, 2674.) Such an administrator may be authorized by the surrogate to lease real estate from year to year.
( 2675, 2676.)
The administrator on
family of the absentee.
They must
bank
deposit any
money coming
to
hand
in a
If he neglects to
may
The
( 2679, 2680.)
his appointment.
The
surrogate
may reduce
in certain cases.
new
sureties to a
bond
of the
may
fund
is
deems it amount
may
county treasurer, or be deposited, subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized bylaw to receive the
same.
gate
may
the
amount
of the bond,
with respect to
Administrator's Bond.
47
withdrawn from
in
originally
ments or otherwise, that the penalty of the bond given, will be sufficient in amount to
satisfy the provisions of
law relating
to the
is
penalty
withdrawn
also
reckoned
Where
trator a
bond with
sureties, is
the adminis-
to take
48
Power
of Administrator or Executor.
Chapter IX.
General Provisions in Regard to Letters TestaFor what mentary and of Administration
etc.
estate of
the decedent.
Letters testamentary
likewise
do
not, except
where the
expressly
Heirs-at-
But
if
an executor or adminunless
it
real estate,
is
wanted
as
pay debts, those interested may treat him a trustee and make him account. (3 Edwd., SIM
to
Where one
of
trators dies, or
him
or where
revoked with respect to one of them, a successor to the person whose letters are revoked shall
necessary, in order to
;
of a will
and may continue any action or special proceeding, brought by or against all. ( 2692.)
But where
to
all
whom
letters
die, or
become
Property,
letters are
How
all
Distributed.
of
49
revoked as to
them
the surrogate
must grant
former
letters of administration to
one or more
if
the
is
;
is
;
to such law.
( 2694.)
also
be required
of
an executor or
administrator.
Any
duly
may
bond,
insufficient, or
inadequate in amount; and praying that the principal in the bond may be required to
give a
new bond,
4
in a larger penalty, or
;
new
or addi-
or,
in default
50
New
Sureties Required.
his office,
thereof, that he
and
Where that letters issued to him. may be revoked. taken is that of a guardian, the petition the bond so
may
also
When
be presented by any relative of the infant. the bond is that of an executor or administra-
may
also be presented
by any cred-
If
it
that there
is
bond
to
petition
Upon
must hear the, allegations and proofs of the parties; and if the objections, or any of them, are found to be valid, he must make an order, requiring the principal in the bond to give new or additional sureties, or a new bond in a
larger penalty, as the case requires, within such a
gate fixes
letters
and directing
be revoked. ( 2598.) If a bond with new or additional sureties, or in a larger penalty, is approved and filed in the surrogate's
required by such an order, the surrogate must
office, as
make
upon such
otherwise he
a decree
revoking
issued
to
him.
may be
or
released,
and new
sureties required.
Any
all
Sureties
administrator
mat be Released.
51
the surrogate's
from responsibility on
he should not give
may new
It
why
The
citation accordingly.
any reason
but
that
it is
Upon
if
the executor
or administrator
sureties to the
gate
fixes,
make
a decree releasing
any
subsequent act or default of the principal ; otherwise he must make a decree revoking the delinquent's
letters.
( 2601.)
Where two or more co-executors or co-administrators disagree respecting the custody of money or other
property of the estate, or two or more testamentary
trustees or guardians disagree respecting the custody
of
money
the application
of
to
show cause
why
premises.
Upon
if
gate may,
he thinks
any property
custody
of the
executors, administrators,
52
Letters,
When
Kevoked.
money
of the estate be
may
It will hardly
interfere
may
be in
would seem
and that he
can,
by
may
Where
when
letters
were issued
act as such,
exist, or
whom
was not taken by the petitioner, or a person he represents, upon the hearing of the applica-
hands, or invested
money
in securities unauthorized
by law, or otherwise improvidently managed or injured the property committed to his charge, or by
reason of other misconduct in the execution of his
office,
Letters,
When
is
Kevoked.
53
due execu-
want of understanding, he
tion of his office.
3.
Where he
surrogate, contained in
vision of
or, without good any lawful directions of the a decree or order, or any pro-
law relating
But if he obeys the direction or law, and makes amend to the person injured, the surrogate may dismiss the petition.
4.
Where
false
But
if
the
may
5.
estate.
But
may
or
is
is
not one where a non-resident executor would be entitled to letters without giving a bond.
7.
In
tli
by the terms
is
shown that the absentee has returned, or that he is living and capable of returning and resuming the management of his affairs, or that an executor or
54
Lettees,
When
Revoked.
upon
his
committee of his property has been appointed by a competent court of the State.
or
that
(2685.).
make
Where
the person, to
a-
whom
issued, is not
absent there-
showing a
Where
by law, cannot be personally served upon him, by reason of his having absconded or concase prescribed
cealed himself.
3.
Where, by reason
jail,
committed to
this act.
4.
made and
this
act,
served, as prescribed in
2679 of
directing
him
to deposit
money, or show cause why a warrant of attachment should not issue against him, and a warrant of attachment, issued thereupon, has been returned not served upon him. ( 2691.)
55
any
act
previously
done in
good
faith.
(2603.)
surrogate's court,
He may He may
for
bond
any
( 2608.)
person aggrieved
person removed.
Where no may
successor
is
appointed,
of
any
the
'
( 2609.)
Under
trust,
1880 gave
An
may be
judi-
may thereupon be made, and discharging him accordingly ; and that the same persons may be cited to show cause why such a decree should not be made, who must be cited upon a petition for a judicial settlement of his account, as prescribed in article 2 of title 4 of the chapter. The petition must set forth the facts upon which the application is founded and it must, in all
that a decree
revoking his
letters
56
How Executor
Resigns.
administrator.
entertain
The
or decline
entertain
the
application.
(2689.)
in relation to
A.s
own
application.
why
he
who
petitions.
tor or administrator
who
would be
he cannot longer attend well his duties, would make a ease in which the decree removing him would be
granted.
If the surrogate entertains the application of the
first
determine
will
whether
of the petition.
If
he so determines he
make
an order to that
effect,
all
money which
and
deliver-
estate,
ing over
or in such a
manner
may
petitioner's letters
( 2690.)
and
57.
Chapter X.
Of the Power
in Discovery
of Executors and Administrators and Recovery of Property their Duties in regard to the Inventory, and the Rights of the Husband, Widow and Minor
;
Children.
The
summary
pro-
and recovery of
assets
belonging to
a decedent, and
it is
may
have, tending to
show
that
some person
lias
it
or conceals
it
so that it
cite
may
the
He may make
of
may be
examined
ished.
If
it
fully,
and a
testify
may
be punreason
the
Additional evidence
may
also
be introduced.
is
to suspect
money
or
other
property of
decedent
is
he
will
make
bond in a penalty approved by the surrogate, to deliver property or pay the full value thereof and damages in
unless the person cited shall give a
sureties
and
case
judgment
him
in a
58
suit therefor.
The Inventory.
In case such a bond
shall
is
But
it
no bond
to a sheriff or constable
empowering him
to search for
The duty
highly
cases in
which
it
is
consistent
an inventory.
to file
it.
The
two
surrogate granting
upon the
may
and appraise the property of a deceased person. (2 E.. S., 82.) The appointment is made by the surrogate, and he usually consults the
require, to estimate
desires of the
parties as to
whom
to
fix
to appoint.
The
a value to charge
who
law
in
may be
interested.
The fees of an appraiser are, besides actual expenses, sum to be fixed by the surrogate not exceeding five
No
Two
or
more
Duty of Appraisers.
3.
shall
59.
"A
where
it
shall also
be posted, for
Appendix.)
And
it
is
inventory
filed
The
their
in ventory,
tially
exhibited to them.
After the
first
meeting, they
may
adjourn from
time to time, as
It being the
may
be necessary.
may
well
it
in
classes
before
Thus, he
may
class,
bonds*
and mortgages
on the farm, furniture, etc., in other classes. 5. " The appraisers shall, in the presence of such
of the next of kin, legatees or creditors of the testator or intestate as shall attend, pro6eed to estimate
and appraise the property, which shall be exhibited to them, and shall set down each article separately with the value thereof, in dollars and cents distinctly, in
figures, opposite to the articles respectively."
(See
60
6.
What
shall
are Assets.
shall
be deemed
assets,
and
estates held
life
of
another person.
2.
The
interest
after the
by
him
3.
or
The
support.
poles used on the land are part of the realty.
123.)
is
Hop
(11
K Y.,
Cotton machinery
157.)
personal property.
(10 Barb.,
Looms
N. Y.,
estate.
(18
28.)
Water-wheels, mill-stones
are part of the realty.
g.,
Wend., 169
2 Hill, 142.)
On
the contrary,
manure
is
The
What
at
are Assets.
is,
61.
soil, as
6. Every kind of produce raised annually by labor and cultivation, excepting grass growing and fruits
not gathered.
7.
Rent reserved
to the deceased,
at the
Brad., 241.)
Where
to recover
Where
had
due
in
August went
to the
N. Y.,
64.)
Where
having demised premises, dies on or after the day the rent becomes due, his executors or administrators may
recover the rent.
But if he dies before the rent becomes due, the rent ^shall be apportioned between the executors or administrators, and the reversioner.
(1
R.
8.
S.,
747, 22.)
Debts secured by mortgage, bonds, notes or bills, accounts, money and bank bills or other circulating
medium, things
9.
utensils, furniture,
cattle, provisions
property and
62
Rights op Widow.
Assets of a partnership in the hands of a surviving
by the
repre-
of
the
deceased partner.
He
and
is
only
it is suffi-
to state it as
(1 Brad., 24.)
7.
to
any build
mentioned
The
but there
is
no statutory provision
against an administrator.
He
is
a claim.
(2 Paige, 149.)
8. The right of an heir to any property not enumerated in the preceding sixth section, which by the common law would descend to him, shall not be impaired by the general terms of that section.
(Page 83, as amended by chap. 782 of Laws of When a man having a family shall die, leaving a widow, or a minor child or children, or a widow
9.
1867.)
estate,
1.
stoves put
up and kept
Rights of Minors.
2.
63
The family
bible,
in the
and books not exceeding in value fifty dollars, which were kept and used as part of the family
3.
fleeces,
ten, with their and the yarn and cloth manufactured from the
same, one cow, two swine, and the pork of such swine.
4.
orn a-
ments proper
one
of.
the
children
is
the following
amended by chap.
782, Laws of 1867.) " Where a man having a family shall die, leaving
widow
widow
shall
minor child or children, there inventoried- by the appraisers and set apart
die leaving a
shall
be
for the
widow and
or
children,
or
of such child or
children, in the
provisions or other personal property, in the discretion of said appraisers, to the value of not exceeding
fifty dollars, in
by said
N. Y., 31
2 Brad.,
1.)
64
Widow's Quarantine.
section 13 of chapter 782, of
all
By
is
Laws
of 1867,
it
and property set apart, in accordance with law for the benefit of a widow and
provided that
articles
minor or minors,
shall
shall
minors
have arrived
The
as to
what
and
if
they neglect
the surrogate
them
ers to
do
so,
he will order that sum or so much as the appraisers neglect to set apart, to be paid to the widow or minors, they having a right to the provisions as
against next of kin, legatees or creditors.
widow
is
her husband for forty days after his death, and in the
meantime
(1
is
of his estate.
This
is
called the
widow's quarantine.
B. S., 742.) In providing this sustenance, the executor or administrator must exercise judgment and discretion in the
same manner
if
as in
Thus,
debts without
widow and
may be
if
while
65
could be allowed.
11. (2 R.
S., 84.)
"
The inventory
all
shall contain
payment
money, belong-
ing to the deceased, which are known to such executor or administrator, specifying the names of the
sum
originally
appraisers
and the sum which in the judgment of the may be collectible on each security."
doubtful or bad, as they estimate them. 12. " The inventory shall also contain an account
bank bills, or other medium, belonging to the deceased, which shall have. come into the hands of the executor \r administrator; and if none shall have come to his
of all moneys, whether in specie or
circulating
may
out some
came
and charge in his what he may have paid out. account Where by the will, a debt or demand of the testator against any executor named, or against any other
originally into his possession,
person,
is
66
iNVBNTORr TO BE VERIFIED.
the inventory of the
and
and
shall, if nec;
payment
of his debts
and
This
is
a statutory application
of the
no
Upon
shall be
made and
one of
which
trator,
shall be retained
within three months from the date of the letters, or in such further time, not exceeding four months, as
the surrogate shall for reasonable cause allow.
On
scribed
by law, which
shall
be indorsed upon, or
Appendix), and
officer
annexed to
competent
Where
him
or, if
it
pay the value thereof, or the amount of the injury thereto and that he may be cited to show cause why such a decree should not be made. If the surrogate is of the opinion that sufficient cause is shown, he must issue
has been
injured, or disposed of, to
;
a citation accordingly.
Upon
67
may
The
decree,
made upon a
may award
68
Chapter
Beturn of Inventory
;
XL
Compelled
it.
;
How
and
make an
an
or
show cause
why
( 2'715.)
person committed to
jail,
upon his paying and delivering, under all the money and other property of the deceand all papers, relating to the estate, under his
by
( 2716.)
may also be revoked under the general provisions giving power to the surrogate to revoke letters.
letters'
The
The
may,
in the discretion
And
gate will grant letters of administration of the goods, chattels and effects of the deceased to the persons
69
same manner,
as original letters of
Such
all
letters
and
shall deprive
power,
deceased
and
by
demand and
wherever the same may the former executor or administrator may be prosecuted, under the direction of the surrogate, by the new executor or admin-
and
be found.
by
full
value
Any
named
may
have any power over the personal estate of the deceased bat the executor or administrator, so returning an inventory, shall have the whole administration
;
Whenever personal property, not mentioned in any inventory that shall have been made, afterward come
into the possession or
knowledge
of
an executor or
same manner
as before directed,
and
shall file
the
after discovery
70
Necessity of Inventory.
(2 E. S., 86.)
of the property.
may be
manner
The
necessity
of taking an
becomes
The inventory
estate
fixes the
prima facie
it,
value of the
testing on final
as to
Where no
of proof
inventory
is
administrator.
71
Chapter XII.
Of the Collection
Claims.
Several co-executors or co-administrators are in law
of the Estate; Compromising Debts due the Estate, and Advertising for
deemed the
act of
One,
without the concurrence of his co-executors or administrators, may release a portion of mortgaged premises
from the
lion,
or give
a satisfaction-piece (2 Barb.
administrator, as
may
from
other funds
if
trust
as to
in process of
The whole
representatives.
may
not compromise a debt due from one of them(20 Alb. L. Jour., 357.)
selves.
A cestui
que
trust, or
which he
is
72
interested.
Assets to be Insured.
(38
N. Y., 410.)
It
An
and one of several executors has no power to charge either the estate or his co-executor by making or indorsing a note in the name of the estate, even if it
be given
in
renewal of one
the
by them
is
note.)
But an executor
who
For the
title
is
vested with
all
the personal
(27 How.,
wherever
situated.
474
29
id.,
240.)
a.
It is the
duty of an executor, as
keep the
may
same time
when necessary, for if he moneys loaned on personal security by the decedent, and a loss accrue, which might have
by
collections,
neglect to call in
73
be will
be
early collection,
He
may
is
amply empowered
making
collections,
and
the State.
He may
may
employ an agent
if
it.
He
All transfers
rights of
made by any person in fraud of the creditors, may be treated as void by executors
it is
their
shall
duty
have
1858,
(S. L.,
3. Administrators shall have actions to demand and recover the debts due to their intestate, and the personal property and effects of their intestate and shall answer and be accountable to others, to whom the intestate was holden or bound, in the same manner
;
as executors.
who
shall
have wasted,
own
his
use, the
lifetime.
goods of their testator or intestate, in They may also maintain actions for
real estate of the
trespass
committed on the
deceased
in his lifetime.
5.
Any
shall
the
goods or
74
chattels of
6.
person,
The executors and administrators of every who as executor, either of right, or in his own
shall
wrong, or as administrator,
verted to his
own
manner
if living.
They
are
bound
to collect or
endeavor to collect
They
are
bound
to use the
same
his
dili-
in
own
They
gence in making
They
are
bound
to endeavor to
make
and
if
collections
States,
necessary
some proper person to be appointed adminthere, and when such a debt is lost by rea(11
Wend.,
They may
whole or in
due from
legatee or
The
he retains in his own hands a part of the funds out of which payment is to be made. (2 Barb. Ch.,
533.)
But an executor
to the estate
;
or
but on the
final settlement,
the execu-
75
or
(2 Paige, 149.)
may be Or
may
may
require,
may
be
by the
court.
11 Barb.,
The
statute gives
upon
is
extended
months substantially
estate.
favor of creditors
As
against
barred
accounting.
For the purpose of converting the personal estate into money, the executor or administrator may sell at public or private sale, and except in the city of New York, on a credit of not exceeding one year with approved security, and he is not responsible for any loss happening by such sale, when made in good faith and with ordinary prudence. Where an administrator sold leasehold property on credit, without security, whereby,purchase-money was lost, he was held liable to the next of kin. (3
Johns. Ch., 552.)
An
either
76
How
shall
Sale to be Made.
of
assets,
but
be considered a trustee for the person interin the estate, and shall account for the utmost ested
extent of advantage
made by him
;
of the subject so
purchased.
9 Paige, 237
1 Sand. Ch., 148 4 Kent Com., 438.) Articles not necessary for the support and sub(
34
bequeathed, shall be
shall not
first
sold
and
articles
so
bequeathed
Where
sales are
made
at auction,
as
is
manu-
facturer
may
the market.
The executor
or administrator should
latterly to insert in
and proper provision tains no such provision the executor, and in all cases the administrator, to make a compromise of a claim should obtain authority for that purpose from the
surrogate.
ed.], 174.)
(S.
L.,
3 R. S.
[5th
77
law, an
common
additional protection,
honest.
(21
if
The act enables them judgment of the surroown, and this affords them their conduct is fair and
N. Y., 179.) To obtain this he must present to the surrogate a petition showing the facts which render it for the interest of his trust to make a compromise, as that
the debtor has failed and will pay in settlement so much per cent / that nothing can be collected by course
of law from the debtor, but that he will pay so
to be released,
much
and that he
fears
make
more on the
may
may
ment
authorize
him
to
The
settle-
made
trator, unless
on the
settlement
it is
shown
that
he acted in the matter fraudulently or negligently. At the expiration of six months from the granting
of letters,
unless
the executor or
administrator
is
is
lie
may
be ignorant, or unless he
is
so interested in the
him
The
surrogate, directs
shall
be
78
inserted in,
Notice to Creditors.
and
it
shall
Appendix No. 6.) There are few cases besides those stated above, in which it will be prudent to otnit this, as the compensamonths.
(See form notice,
tion of an executor or administrator
is
too small to
warrant any
risk,
and
if
he pays out
all
the estate,
acting on his
shall
distribute
among
creditors
who
shall
have pre-
who fail so to present them. The notice to present claims, must be to present them to the executor or administrator personally, not
against those
to an attorney, for the
power
not be delegated.
The claims may be presented by letter, or in any way which deals fairly with the executor or administrator,
claim has been virtually presented and acknowledged by the executor or administrator before notice to
creditors to present claims,
sent
it
where the executor or administrator admits the validity it from time to time, it is tantamount to a formal admission of its justice upon presentment under notice. (11 Paige,
of the claim, by paying interest on
265.)
a trustee,
and not a
creditor.
And
79
cestui
trustees,
where the
names of the
que trusts are not given in the deed, he is bound to exercise the utmost care before he accepts a claim
as entitled to payment, and the law will afford
all
him
doing.
He
cannot be
granting
letters.
The remedies
he
prosecute an action, but he must do so at his own and expense, and not at the cost and expense of the estate, unless he can show that the executor or administrator has been guilty of some laches, or illegal
may
cost
(16
How.,
407.)
The
under
it is
executor or administrator
may
require by law
such as
is justly due that no payments have been made thereon, and that there are no assets against the same (unless stated in the account) to the knowledge of the claimant. If the executor or administrator doubt the justice
or some part of
414.)
(2 Barb. Oh.,
The
rejection
communicated
rejection to the
to the
himself.
Notice of
out
attorney employed to
(50
make
;
the
claim
165.)
is
not
sufficient.
N. Y., 538
4 Daly,
80
And
more
by the
sur-
in Appendix),
and upon
filing
supreme
court,
aud
may
be appealed from as in
begun
in that court.
from commencing a
six
the executor
or
months from such dispute or rejection, or within six months after the same or some part of it became due and the executor or administrator may prove the facts of such refusal and neglect to commence a suit within six months in bar to an action begun afterwards. (1 Brad., 192 1 Den., 159 3 Hill, 36.)
;
;
To
from
costs,
he should accompany
an offer to refer
;
it.
The
need not be
in writing
and where the parties cannot agree (9 How., 434) upon the referee, or referees, it seems that the offer should be to refer to one or more to be approved by the surrogate. (16 How., 313.)
Where
rejected
the executor,
when
it,
reference to a settlement,
rejection
it was held that his previous was waived, and the statutory bar to an
81
which
would have
he had
lived.
publi-
legacies, or
any debts or
among
was commenced, on proving such advertisement. But any creditor who may have neglected to present his claim under the notice may, notwithstanding, collect it of the next of kin or legatees who may have received assets from the estate.
No
upon any special promise to answer in damages or to pay the debts of the testator or intestate out of his own estate, unless the agreement for that purpose or some memorandum or note thereof be in writing (expressing a consideration), and signed by such executor or administrator, or by some other person by him thereunto specially authorized. (2 K. S., 113.)
Liability of the Executob as to Obligations
Contracted bt Him.
The
question as to
who
is
Ferrin
v.
Myrich
which
for the
liable per-
made
all
causes
upon contracts made by executors or administrators are against them personally, and
6
82
that
is,
against his
own
goods, and
of action
Such causes
An
(2
agreement therefor be in writing and signed by him. R. S., 113.) His promise, unless in writing and
signed by
him
is
void!
Order of Payments.
83
Chapter XIII.
Of the Payment of Debts and
At
letters,
Legacies.
is
presumed
to
know
he
and
dis-
may
tribute
among
letters, unless
;
by the
will,
an
all
27.
(2
R.
S., 87.)
Every executor and adminispay the debts of pay the same according to the
:
Debts entitled to a preference under the laws of the United States. 2. Taxes assessed upon the estate of the deceased
previous to his death.
Taxes assessed on real estate subsequently to the death of the deceased, are not to be paid by the executor or administrator. (26 Barb., 316 ; 4 Bradf.,
216.)
An
tes-
although a lien upon the real estate, is also a debt to be paid out of the personal estate. (3
tator's decease,
Brad., 207.)
3.
84
the deceased
respectively.
4.
the
priority
thereof
notes, bills
The
to
pay a portion of a judgment against the decedent and another, surviving, until the judgment-creditor
(2
Eedf. R., 92.) Mortgages cannot be paid out of the personal estate,
payment is provided for in the will. (4 But where the real and personal estate into one fund, in which the same parties are thrown are interested equally, the executor may, for the
unless such
Brad., 114.)
(2 Brad.,. 47.)
Where
Paige, 446.)
The
full.
167
id., 19.)
But reasonable
Funeral Expenses.
The question
often
arises,
85
funeral expenses?
In answer
may
be said, as a
on the subject, that as between the executor or administrator and legatees or next of kin, expenses incurred in burying the deceased according to his station in life, as determined by the custom of the place of his residence, are reasonable
charges and will be allowed.
must
monument
it
or tombstone.
And
be greater
in a city
The
When
his
neces-
body
to his late
(1 Brad., 248.)
when the
for the
of
estate
was
Moderate expense
family
penses.
(1
mourning
as part
widow and
may be allowed
Ashmead,
314.)
But
this
hardly applies
in this State.
who
provides what
is
neces-
86
sary,
Preferred Debts.
and attends the funeral for hire or reward.
are
if
'
All
necessarily
gratuitous.
is
(5
Daly,
1.)
An
executor,
he has funds,
who
Daly, 214
id., 1.)
up the deced-
who
Daly,
1,
sup.)
The law
cutor, to
expenses.
N. Y.,
574.)
No
in the
payment
class,
same
nor shall
any debt, or the obtaining a judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class. 29. Debts not due may be paid by an executor or administrator according to the class to which they
suit for the recovery of
may
upon the sum paid for the time unexpired., 30. Preference may be given by the surrogate to rents due or accruing upon leases held by the testator or intestate at the time of his death, over debts of
it
shall
be made to appear
87
to his satisfaction that such preference will benefit the estate of such testator or intestate.
(1 Barb., 372.)
Rent
is
not, in
Lans., 485.)
Rent on a pew
it
in
church
is
be due on a lease for years, which is an asset in the hands of the executor or administrator. (11 Paige,
265.)
Judgments
priority.
are to be paid in
(7 Paige, 439.)
A judgment of
docketed.
bond without
immedi-
is
is
Edwd., 341.) The claim of a son who had acted as agent for his aged mother, presented against her estate, upon a con(2
tract
in
his favor,
the
confidential
is
and cannot be
claimed
unless there
The executor
in
ment
Wend.,
(4
503.)
The
260
;
may be
N. Y.,
362.)
88
What
In regard to leases held by the decedent, it is the duty of the executor to collect the rents on such leases and pay them to the landlord, not to put them
estate.
The executor
is
per-
by him, as
for
In
all cases
(See form, Appendix, No. 7.) So it appears, that each of the foregoing classes must be paid in full before any debts of a succeeding class can be paid, and if the estate cannot pay any class in full, the debts of that class will be paid pro rata, except in the third class, in which the judgments or decrees are to be paid according to their
priority.
the defendant
a notice for
that purpose, given with his plea, that there are debts
is
and
as
same class with that on which the suit is brought. But the plaintiff may, as in other cases, take judgment for the whole or part of his debt (so much as he
proves), to be levied of future assets.
No
execution
Executor's Claim.
89
order permitting
surrogate
it to
who
issued
Any
creditor
neglected to present
may, never-
pay himdue from the deceased, he must prove the same and have it allowed by the surrogate, and it is not entitled to any preference over others of the same
entitle an executor or administrator to
class.
To
It
must be presented
settlement.
( 2740.)
who makes a claim must support it by a sworn voucher, such as he may require from others, under section 35 of the statute, and it is error for the surrogate to allow
executor or administrator
against the estate,
it,
An
verified.
compounds
the benefit of
it
to
himself.
(5
he be permitted to buy up claims against creditors of the estate, for the purpose of obtaining a set-off in equity. He cannot retain (2 Brad., 24.)
will
Nor
moneys
Wend.,
ested
for a debt
due
to himself barred
by the statute
(3
of limitations in
503.)
the lifetime of
the testator.
And on
making payment
90
Specific Legacies.
of debts or legacies, when he cannot pay in full, should be careful not to pay even fro rata, so much
as
to
leave
not
enough of
the
estate
to
pay
his
due
that
Tucker, 42.)
executor or administrator
legacies,
all debts and even and distribute the estate without the delay
may pay
incident to advertising.
Specific legacies
may be
delivered as soon as
it
shall
be clear that
it
will not
be necessary to dispose of
them to pay debts. If specific articles not necessarily consumed in the using, are bequeathed to a legatee for life, with a limitation over, and without any directions to the executor to hold them in trust for
the remainderman, the
deliver the
executor
is
authorized to
same
therein
only belong to
the
first
taker for
to be delivered to in remainder.
and that afterwards they are the legatee who is entitled to them
life,
As
any executor or administrator nntil after the expiration of one year from the time of granting letters
testamentary or of administration, unless the same
are directed by the will to be sooner paid. (2 E. S., 90.)
44. (Id.)
may
require a
Abatement of Legacies.
bond, with two sufficient sureties conditioned, that
91
if
any debts against the deceased shall duly appear, and which there shall be no other assets to pay, and there shall be no other assets to pay other legacies, or not
sufficient, that
may be necessary for the payment of and the proportional parts of such other legacies, if there be any, and the costs and charges incurred by reason of the payment to such legatee; and that if the probate of the will, under which such
other legatees as
said debts
legacy
is
whole of
such legacy, with interest, to the executor or administrator entitled thereto. 45. After the expiration
granting of any letters testamentary or ot administration, the executors or administrators shall discharge
the specific legacies bequeated by any will and pay the general legacies,
if
if
there be
made
in equal proportions.
legacies
are
not
subject
to abatement,
they shall be
so.
(1
P. "Williams, 540.)
the
general
legacies,
(1
P. Williams, 127; 6
92
Paige,
411.)
Edwards' CL,
Paige, 278.)
Such payments may be enforced by the Surrogate same manner as the return of an inventory, as hereinbefore provided, and also by a suit on the bond of such executor or administrator, whenever directed
in the
by the surrogate.
(12
Hun,
207.)
letters, a creditor
may
obtain from
why he
sh6uld
( 2717.)
The
statute of limitations
may be
interposed with
when
six years
have elapsed
from the
was
1
Paige, 574;
42 Barb.,
75.)
.But where a sufficiency of assets is admitted, or if upon the accounting there appears to be sufficient, a
made for payment. Payment of a legacy or distributive share, or a part thereof, may be obtained in certain cases against any
decree will be
New
York.
if
upon the
citation,
petition for
When
of
Legacies Paid.
if it
93
money, and thu value of the other property, in the hands of the executor or administrator, applicable to
payment of debts, legacies and expenses, exceed, by at least one-third, the amount of all known debts and claims against the estate, of all legacies which are entitled to priority over the petitioner's claim, and of all legacies or distributive shares of the same class ; and that the payment or satisfaction of the legacy, pecuniary provision, or distributive share, or some
the
part thereof,
is
of the petitioner
make
a decree,
payment
or
satisfaction
with
bond which an executor, or an adminismay require from a legatee, upon payment or satisfaction of a legacy, before the expiration of one year from the time when letters were issued, pursuant to a direction to that
respect to a
trator with the will annexed,
effect,
contained in the
will.
Legacies to Minors.
"In case any legatee is a minor, his legacy, under the value of fifty dollars, may be paid to his father, to the use and for the benefit of such minor.
46.
if
who
shall
to be approved cation
94
Legacy to Minor.
security required in this section
is
The
to
in addition
made no
part of
name and
;
and the
interest
may be
,
to the support
and education
of
such minor.
where
there
office
no guardian of such minor, to keep in his the securities so taken, and to collect, receive
;
and apply the interest and, when necessary, to collect the principal and reinvest the same, and also to reinvest any interest that
as aforesaid.
50. "
On
and the
moneys
that
liis
51. "In case of the death of such minor before coming of age, the said securities and moneys shall go to his executors or administrators, to be applied and distributed according to law and the surrogate aud his sureties shall, in like manner, be liable to
;
Moneys,
How
Invested.
95
Of
Investments.
An
money
in
good
securities.
When
He
be
own
affairs,
when
real estate
in question, or as to the
security offered
by a bank,
if
a deposit
is
made
of the
fund.
United States.
security,
And
made on
it.
and a
loss accrue,
he
shall
bear
(4
Edwd.
Ch., 422.)
There is no doubt that he should change investments made by the decedent in stocks or bonds other than those above specified, and that il railroad or other stocks should fall in value on his hands, he would
be liable for the
loss.
96
Accounting Compelled.
Chapter XIV.
Of the Accounting
trators
;
and who
may
cause the
and show
,
cause
why he
The
has
been made
for the
or distributive share, or
expired.
( 2723.)
An
executor or administrator
may
file
an
interif
he
vol-
( 2722.)
The
It is
surrogate
may compel
any time.
trator to account at
elapsed,
beyond the eighteen months allowed by law, without the application of any one, if he has reason
97
his action.
Judicial Settlement.
may
why he
may
making
of a will
or or
by a surety
to
in the official
account,
;
surety
but
the petition
may
No.
his discretion.
8.)
2726
Appendix,
On
to call
or administrator
may deny
him
to an account, and
may
say he.
is
not a
creditor, a legatee, or
in the estate.
.
When
was held that the surrogate could not try the question whether the assignment was valid, and the executor was ordered to account. (3 Brad.,
it
429.)
A mere
98
As
to a debt
due
to
estate,
he will be
And
if
the surrogate, on
is
he
will
but
if
he finds that
the petitioner
is
interested,
he
from time
that purpose.
( 2727.)
He may
be punished
for
ing
is
to be conducted in the
accounting in judicial
(final) settlement.
The
costs of the
proceeding may,
the surrogate
The executor
cited, or
have
hira
is
ordered to account, or
if after
contest he
may apply
for a judicial
2728.)
He may make
ment
settle-
The
a petition stating
all
the deceased, to
On making
Citation on Settlement.
99
may be
consolidated.
is
If the petition
made by one
of several executors
must be
cited.
9.)
The citation must be made returnable upon a day not more than four months after the date thereof, and must specify whose estate is iu question. The names of
all
must be contained
or part of the
Where
the
name
name
of either of
them cannot be
in the citation.
must be stated
is to
be
made by
with the person to be served, or with a person of suitable age and discretion at the place of his sojourn or
residence, under such circumstances that the surro-
tlie
came to the knowledge of the person served in him to attend on the return day. If the service is made in the county of the surrogate or in an adjoining county, it must be made eight or more days
for
copy time
If in
fifteen
or more days.
The
State,
service may be made on parties not within the andtm unknown persons, either personally, or
sonally,
by publication and service by mail. If served perit must be done at least thirty days before the return day. If by publication, service must be made also by mail on persons whose names and resi-
100
Citation,
How
Served.
dences are known, on or before the day of the first publication. The publication is in two papers designated
by the
surrogate.
Service must be
made on an
The proof
made by
by
affi-
( 2532.)
The appearance
of a person to be cited
( 2528.)
is as effectual
as actual service.
With
ment of a
his general
tic, idiot
He
if
may,
in like
manner, appoint a
special
guardian
appears,
The
on written consent.
( 2530.)
files his
The executor
10.)
or administrator then
account,
He
must produce
sums over
twenty
dollars,
Account,
What
to Contain.
101
must show by his own oath, or another's testimony, he did not take a voucher when he made the payment or that the voucher he took is lost or destroyed. Instead of a voucher, he may prove by testimony the actual payment. But the allowance
that
;
is satisfied
that
correct
and
just.
( 2734.)
Any
The
oath,
person interested
may
the surrogate
may
pose.
ing to a
The surrogate may refer the accountreferee, who has the same power and is
entitled to the
supreme court
in the
plape
not con-
and their value, although it is prima facie evidence against him on the accounting before He is not precluded from showing the surrogate. that assets inventoried did not belong to the estate,
or that the estate inventory.
was of
less
Where
the executor or
and of the
interest
received
if
on such funds, he
is
interest,
payable periodically.
11 Paige, 142.)
102
services
Contest of Account.
by the day or
in gross, but can
only charge
the legal commissions and their just expenses; the commissions being the pay for their services. Thus,
he cannot charge for the hire of a horse when he drives his own, although he may charge for such hire
when
ance.
He
at
home
may
charge for
home on
the business
As
may
The
contestant
may
allege that
articles not
accounted
for,
for,
or he
may
allege
when
the
inventory
is
accounted
In these
executor
proofs.
or administrator
(2
Brad.,
165.)
payments charged
were not made, or that not so much was paid as charged, specifying in what instances. The executor or administrator must then produce the vouchers for such payments, which are conclusive evidence of payments unless successfully impeached by the contestant. (1 Brad., 265.)
The
contestant
lost,
may
charged as
was
lost
The
Value of Inventory.
his duty,
103
and
to charge
him
when
collectible
collection
bad must prove it to be so. This proof may be that the debtor had been commonly reputed to be insolvent for a length of time; that he has actually taken the benefit of an insolvent act or that executions have been returned unsatisfied
;
against him.
Where
executor
and clear as
to
that
amount
are supported by
who
and sustain
in the
allegations,
id., 220.)
with
proof thereof.
Brad.,
265
is'eonsidered good
is no inventory, the whole estate and collectible, and the executor or administrator charging any of the claims as bad,
must prove
the fact.
show the
104
Commissions.
amount
for
which they
should be held
liable.
(3 Brad., 13.)
The proof being closed, the surrogate decrees the amount of the commissions upon the estate, which are computed upon the aggregate sum received and paid
out by
all
(2 Barb.
Oh., 430.)
the distribution of
S., 93, as
as follows
On
his services,
him for more than one, shall apportion among them respectively over and above
or administrator, the surrogate shall allow to
and
if
there be
For receiving and paying out all sums of money not exceeding one thousand dollars, at the rate of five
dollars per cent.
For receiving and for paying out any sums exceeding dollars, and not amounting to ten thousand dollars, at the rate of two dollars and fifty
one thousand
cents per cent.
For
all
And
be made for
their actual
as shall appear
Where the value of the personal estate of the decedent amounts to one hundred thousand dollars or more over all his debts, each executor or administrator
is entitled to the full compensation allowed by law to a sole executor or administrator, unless there are more
Commissions,
Pat for
must
Services.
105
be divided equally
( 2736.)
also be
and preparing seem reasonable, not exceeding the sum of ten dollars for each day engaged therein.
thereon,
said surrogate shall
The
rule as to commissions
:
may
be expressed more
shortly thus
all
sums up
to
one
thousand dollars
two and
dollars,
up
to
one per cent on all above ten thousand dollars. Commissions are not allowed on articles specifically bequeathed (1
may be
allowed com-
And
an
N. X., 430.)
is
An
beyond commissions.
An
106
legacies,
Brad., 198.)
The among
less
it
the
commissions
estate
dered by each.
he
fails
to.
do
so,
and the
is,
(4
Abb.
Ct. of
App.
Dec,
Where
an executor or administrator, he
of
a renunciation
2737),
in
except
it
the will
was
to
be in addition
to
commissions.
Where
estate to a person, or
and afterwards
letters testamentary,
(2738.)
An
S.,
executor, also,
who
filing
Where
is
in this article,
must
direct the
payment and
dis-
Distribution.
to
107
is
If
must be
this
act.
prescribed
in
section
2727 of
Where
share,
whom it
and
is
payable, the
sum
by reason
thereof,
all
other questions
With
enumerated in this section, the decree is conclusive upon each party to the special proceeding, who was duly cited or appeared and upon every person deriv;
ing
title
( 2743.)
may
per-
money value
of
the property
Where
all
the
parties interested,
who have
the surrogate's
it
office.
Where
The
not
if
by an appraisement under oath, made by one or more persons appointed by the surrogate for
fix it,
the purpose.
( 2744.)
is
Where
not yet
payment
is
pend-
108
Distribution.
ing between the executor or administrator, and a person claiming to be a creditor of the decedent ; the
decree must direct that a
claim,
sum
to
or
the proportion
which
it
is
entitled,
amount
of the interest
and
costs,
;
party
pany, subject to the surrogate's order; or be paid 'into the surrogate's court for the purpose of being
applied to the
it is
due.
recovered or settled
not needed for
according to law.
Where
order.
sum
due
to
an infant,
it
may be
paid to
under the
surrogate's
Where
The
sum
is
it
must be paid
istrator to
pay
to
distributive share
which
is
not paid
to the person
the time
it
it is
payable.
The county
( 2748.)
If there be
be paid in
a surplus,
full,
it
enough of the estate, the creditors will and if after paying them there remains
will,
or, if there
be no
among
Interest will be
computed on
is
payable, either
by the
will or by
given to a
widow
in lieu
Interest on .Legacies.
109
of dower, and she accepts the same, she will be entitled to interest thereon
(3 Brad., 193.)
testator..
And
where a legacy
is
no other provision
will be allowed
made
(2
Where
sum of money
bequeathed to executors
to
and
whom
the provision
made
is
entitled
provided a
amount remains,
after deducting
The
directed,
by
the
of
will, to
way
this
principle.
533;
Barb. Oh.,
105.)
begins to run,
Interest begins to run on general legacies, from the period of one year from the issue of letters testa-
is
specified for
pay 7
{Matter of Finis's Estate, 19 Abb., 209.) Interest runs on a legacy from the period of one year from the death of the testator, when no time is
ment.
fixed by the will for payment.
Williamson
v.
v.
Wil-
liamson
(6 Paige, 293)
Campbell
Cowdrey (31
N".
How.,
172).
Bradner
v.
Faulkner (12
Y., 472),
seems to hold that interest runs on legacies from the time they are legally payable, but the point was not
110
Distribution.
Campbell
v.
Cowdrey, supra.)
Di8tributon.
The
is
as follows 75. (2
E.
S.,
96.)
"
Where
and where the left a will, the surplus' remaining after the payment of debts and legacies if not bequeathed, shall be distributed to the widow, children or next of kin
after
;
payment of debts
all
among
sncli children, if
any
of them shall have died before the deceased. 2. " If there be no children nor any legal representatives of them, then
is,
one-half) of
the whole surplus shall be allotted to the widow, and the other moiety shall be distributed to the next of
nephew
or niece,
;
the
if
widow
shall
but
to
Distribution.
dollars,
Ill
brothers and sisters and their representatives. 4. " If there be no widow, then the whole surplus
be distributed equally to and among the children and such as legally represent them.
shall
5. " In case there be no widow and no children, and no representatives of a child, then the whole surplus
to the deceased
6.
and the
legal representatives.
the
widow and a mother, the moiety not distributed to widow shall be distributed in equal shares to- his
;
mother and brothers and sisters, or the representatives of such brothers and sisters and if there be no widow, the whole surplus shall be distributed in like manner to the mother and to the brothers and sisters, or the representatives of such brothers and sisters. 7. " If the deceased leave a father, and no child or
descendant, the father shall take a moiety,
if
there be
if
there be no widow.
or representatives
if
there be no
illegi-
widow.
timate,
And
if
and have left a mother, and no child or descendant or widow, such mother shall take the whole, and shall be entitled to letters of administration in exclusion of
all
And
if
the mother of
312
Distribution.
manner
9.
as
it
same
order.
"Where
"
When
among
those entitled
;
thereto, according
so that those
who
take in
their
own
who
which the parent whom they represent, would have been entitled.
11.
if living,
"No
among
and
sisters' children.
manner
13. "
in
Advancements.
76. " If
shall
Advaxcements.
among
the children
;
113
and
But
if
much only
all
as shall be sufficient
make
all
the shares of
be estimated."
Under
it
Quarles, 4
Kenny v.
ment, operates as a
final settlement;
release,
and
the
is
a bar to claim
on
for
be.
such release
78.
is
when
The maintaining or educating or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of the
shall
last
two sections;
nor shall those sections apply in any case where there be any real estate of the intestate to descend to
the heirs.
79. The preceding provisions respecting the distribution of estates, shall apply to the personal estates of married
women
ing
and the husband of any such deceased married woman shall be entitled to the same distributive share
;
114
Effect of Settlement.
no more.
of 1867.)
(As
Laws
to the distribution
woman
applies only
when
If there
A judicial settlement
gate's court, or
is
conclu-
who were
title
duly
cited or appeared,
from
and
any of them
at
facts,
money
and for his services, are correct. That the accounting party has been charged with
all
money
embraced
3.
which he was
legally
accountable.
That the money charged to the accounting party as collected is all that was collectible, at the time of the settlement, on the debts stated in the account. 4. That the allowances made to the accounting
party for the decrease, and the charges against him
for the increase in the value of property, were correctly made.
(
2742.)
Trustees
May Account
or Resign.
115
Testamentary Trustees.
Testamentary trustees may account voluntarily, or be compelled to account in the surrogate's court in
the same manner as executors, and the proceedings are the same, so that
to the sections of the
ings.
(
it
will only
be necessary to refer
Code
2803,
etc.)
So, also, a
trust
testamentary trustee
may
resign his
( 2814),
in
same
reasons.
He may
also be
as an executor reasons.
.
for the
removed same
( 2817.)
Opening Decree.
A decree once entered maybe opened and set aside, where the surrogate had no power to make it (9 Paige, 128), or to correct an error. (24 N. Y., 46 15 Abb., But the surrogate will not, under- ordinary cir12.) cumstances, open a decree after six years. (2 Redf.
;
Rep., 151
2481.)
A
1.
decree
made
for the
enforced
2.
3. 4.
By execution, as on a judgment By attachment, as for a contempt; By suit on the bond and By an action on the decree.
;
First.
As
Where
116
money
more persons
therein
upon payment of
all
more
trans-
ment
for a
sum
of
money
such a decree.
is
Each county
file it,
clerk, to
whom
such a transcript
his fees,
presented, must,
upon payment of
immediately
and
a judgment.
(2553.) thereupon the surrogate, or the clerk of his court, issues an execution returnable to the court,
And
which the
sheriff executes as if it
( 2554.)
of
an action
may
The
sureties
made up of a debt owing by the executor or administrator to the decedent, and even if their principal is insolvent.
if it is
If these
fail,
an attachment will
issue.
The
pro-
Collection by Attachment.
117
2555. In either of the following cases a decree of a surrogate's court, directing the
payment of money, or
act,
may he
whom
is
it
is
person
it
;
who
and if he refuses or willfully neglects to obey by punishing him for a contempt of court 1. Where it cannot be enforced by execution
prescribed.
2.
as
Where
cution, in
part of it cannot be so enforced by exewhich case the part or parts which cannot
be so enforced
section.
3.
may
Where an
last section, to
The
surrogate
may
manner, either without issuing an execution or after the return of an execution, as he thinks proper.
Punished Criminally.
own
use, or take,
way
make own
his trust,
he shall be adjudged guilty of embezzlement, and, on conviction, shall be fined not less than the
interest
shall
118
Decree,
How
Satisfied.
The
fine,
when collected,
shall be paid to
But if the party convicted amount embezzled and interest, the fine pay the
remitted but not the additional per centage. Satisfaction of Decree.
may be
may be dis-
charged by
that the
certificate of
him
a certificate of
119
Chapter XV.
Of the Mortgage, Lease oe Sale of the Real Estate of a Deceased Person for the Payment
of his Debts.
The
if
payment of
to
his debts,
insufficient
for-
made
whom he
the pay-
may
be disposed
of, for
ment of his debts and funeral expenses, as prescribed by statute except where it is devised, expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution, as a burying ground properly set apart, or a homestead. But the exemption of the
;
homestead expires at the majority of the youngest surviving child, and on the death of the widow, or when the homestead ceases permanently to be occupied by the family.
The
expression
penses," as used in this connection, includes a reasonable charge for a suitable headstone.
( 2749.)
after letters
were
120
When
Petition to be Made.
temporary administrator;
is
or
creditor
of
th^
a
mortgage, which
property,
a lien
real
may
which
letters
duljj
1
in
real
much
thereof as
is
payment of his
debts or
funeral expenses
and
may
1
why
A
years,
creditor
may have
by commencing an
and
filing in
pendency
of
of
the action.
The
notice
must
specify the
names
security for
( 2751.)
will be held as
in the action.
A sale
made upon
a petition presented
more than
(4T. &C, 267; 62 JST. Y., 494.) During the period of three years, purchasers from
heirs or
and a
sale in partition
between heirs
is
no -bar to a
What
sale for the
Petition to Contain.
121
payment of debts in these proceedings. But if an heir or devisee shall have 188.) lands, and some remain to him, a sale will be directed first of those which remain. (6 Paige, 521.) The petition must set forth the following matters, as nearly as the petitioner can, upon diligent inquiry, ascertain them 1. The unpaid debts of the decedent, and the name
(10 How., sold some
and the amount of the unpaid funeral expenses of the deceased, if any, and the name of each person to whom any sum is due by reason thereof.
2.
general description of
all
as prescribed in this
whether
improved or not
if
whether
an
it is
occupied
in
real
or not; and,
occupied, the
name
of each occupant.
interest
Where
tract),
the
petition
describes
in
interest attaches.
3.
The names
all
if
any
and
4.
by a creditor, the
name
If the petition
presented by an executor or
122
What
come
to his
administrator, the
has
co-administrators, if
may
(2752.)
If the petitioner
presented by a creditor,
necessary,
( 2753.)
the surrogate
may
tor to account if
he deems
if
The fact
But the
debts
death (12 Barb., 392) nor a claim for the support of his infant children (2 Edw., 259) ; nor expenses of
administration
(1
Tuck., 250)
and
it
must not be
(9 Paige, 66;
by executor and
creditor,
Appendix, Nos.
12 and
the
13.)
The surrogate thereupon issnes a citation directed to kuown parties, and if there has been no notice to creditors published, to all other unknown creditors. The citation is served as in other cases, but if directed to unknown parties it must be served by publication.
(2754.)
Upon
think
it
the return of
it,
special
guardians will be
surrogate
The
may
Any
will
person interested
may
If
When
administrator,
Decree to be Made.
123
only after a
trial
heir or devisee
counter-claim.
may
succeed in reducing
it
by a
( 2756.)
legal or equit-
proved
and
facts,
He may
county court.
( 2547.)
made only
in
conformity
to this title.
That the debts, for the payment of which the is made, are the debts of the decedent, or are just and reasonable charges for his funeral expenses and are justly due. 3. That they are not secured by a judgment or
2.
decree
debt
is
so secured or charged
upon a portion
124
to
be disposed of was
payment
or, if so
and
is
not subthereof;
ject to a valid
power
payment
it is
not practicable
has effectually
relinquished the
same.
5. That all the personal property of the decedent, which could have been applied to payment of the decedent's debts and funeral expenses, has been so
applied
to the
payment of those debts and funeral expenses; and that it is insufficient for the payment of the same, as
established by the decree.
.
( 2759.)
money can
be
raised best
lease shall
by mortgage or lease, he so decrees, but a not be made for a longer time than until
A mortgage or lease is of the same had been made by the decedent immedi( 2760.)
But
sary, sold.
if
he will decree
( 2761.)
is
He may
direct
what
shall be
If a sale
ent passes.
jurisdiction
The
title
surrogate has no
upon the
where the
lands
Order of
Sale.
125
(3 Bradf.,
some of the
real estate
is
in
contro-
versy, and
may
be postponed, but
may be
'
afterwards proceeded
with by order.
( 2762.)
Where
more
or his
property
the decree
may
made,
them.
3:
devisee.
The
cutor or administrator upon his giving the bond prescribed by law, or in case of his failure so to do, by a
freeholder, to be appointed
Where
trators,
if either
them
within a reasonable
may
126
direct those
'
Teems of Sale.
the bond to execute the
decree.
person
so appointed
must
nominated by the
creditors.
( -2767.)
The
may await
( 2769.)
The
complete execution of a decree, of all the executors or administrators, who have been directed to execute
it,
not suspend or affect the execution thereof; but the successor of the person who has died, been removed
or
become
disqualified,
must proceed
to
complete
completed the same and he must give such security for the due performance of his duties as the surrogate
;
prescribes.
( 2770.)
the sale to be
made upon
a credit of not exceeding three years for not more than three-fourths of the purchase-money, to be
secured by bond and mortgage.
The
parcel.
sale
may
N. Y., 301.)
The
power
to
compel a
127
new
sale
in
fail
to
The
morning and
son taking
per-
down
But an omission
or the taking
down
or defacing of a notice
when put
1384, etc.)
Where
one or
more distinct parcels, the person making the sale must cause each distinct parcel to be separately exposed
for sale, unless otherwise directed in the decree', or in
2773.)
An executor or administrator upon the estate, or freeholder appointed to execute a decree, or a general or
special guardian of
an infant
who has an
interest in
any
real
firmation,
become
when authorized
do
in his
name
A
53.)
violation of
(5
N. Y.,
256; 41
If,
id.,
132; 44
id.,
237; 26
is
id.,
sold in
good
faith to a
stranger,
128
executor, there
from buying afterwards. (12 Penn. St., 67.) But if an administrator purchases at his own sale, and afterwards conveys to a third person, the title is defective.
(3 Sandf., 592.)
all
who have
appeared, will
fairly
made and
legally conducted,
to of
opinion that a
sum exceeding
re-sale,
may
he
If
it
shall
sufficient, to satisfy
all
The deed
with the order of the surrogate, and the money will be paid into the county treasury. The purchaser will
the crops growing on the land when sold, although sown by the heirs or his tenant. (16 Barb.,
hold
193.)
The deed
so given
(15
Hun,
11.)
Effect of Conveyance.
129
to
conveyance of
real property,
made pursuant
title
purchaser or mortgagee,
in
of a
for value,
letters
upon the
were granted by
a surrogate's
court having jurisdiction to grant them, upon a petition therefor, presented within
death.
(2777.)
as prescribed above, a
Except
conveyance in these
all
and interest of the decedent in the real property so conveyed at the time of his death, free from any claim
of his
widow
for dower,
by judgment, mortgage or otherwise, which existed at the time of his death. Where dower has been assigned to the widow, the grantee takes the part of the
decedent for purchase of real estate, and any payment is yet due, the sale will be subject to any such payments, and the purchaser must give a bond to indemnify the estate against the liability for such payments.
(2779-80.)
If the surrogate
sale of
deems it proper, he may direct a a part only of the contract interest of the
( 2781.)
decedent.
is
an assign-
130
Irregularities of no Effect.
title
The
is not,
sale
pursuant
to a
is
this title
nor
any way
affected by any
of a purchaser at a sale,
made pursuant
to the
directions contained in a
judgment rendered by
:
the
supreme court
1.
in an action
Where
a petition
mortgage or
if
first
error,
between the
return
Where an
to
the surrogate to
make such an
order of confirmation;
by any
2784
The proceeds arising from a mortgage, lease or sale, made as prescribed in this title, must be paid into the
surrogate's court
or
he
131
act.
and
their assigns,
sufficient, after
deducting the
to satisfy
tbose debts.
Immediately
prescribed in
newspaper published
( 2787.)
At
creditors,
inter-
as pro-
vided for
A "debt established on
may be
covery of
new
132
How
and
the,
Distribution Made.
made by
the surro-
of the proceeding.
contract, all
was a
sums
not
The
a consent, a
sum
in gross to the
tables.
widow
and
to be
rule,
ascertained
by the
(See
table
Appendix.)
4.
5.
The costs awarded to the petitioner. The sum found due to the executor
shall be paid to
or adminis-
But
no more
than
6.
is
him
full.
as assignee of claims
pro
rata.
Funeral expenses in
7.
first
if
proceeds are
hearing in
pay in
full.
last
full, or
The executor
mission, but
is
or administrator
to
is
allowed no comsale,
and a reasonable sum, not exceeding five dollars, for each day actually and necessarily occupied, and such
Securities Taken.
further
133
sum
services of attorney
and counsel.
may admit
394
name
of the county
by the surrogate.
He
shall
2800.)
134
POWEE OF GUAKDIANS.
Chapter XVI.
Guardians and Wards.
Guardians are persons having, by reason of their by appointment, the care and custody, of infants during their minority.
'
relation or
is
one of
trust and
much
so
that they
cannot, in any
wards.
Guardianship by relation
of the statute.
arises
Where an
infant,
rights,
become vested
in an
the guardianship of such infant, with the powers and duties of a guardian in socage shall
1.
belong:
To
2.
If there
3.
If there be no father
in
E.
S.,
718, 5.)
The
be superseded by a testamentary or other appointment, but will continue if there is none. (5 Johns., 65.) He
may
his
appointment of a guardian. (46 N. Y., 594.) Guardians may be appointed by the father, by the supreme court or by the surrogate.
1.
(2
R.
S., 150.)
full
age or a minor) of a child likely to be born, or of any living child under the age of twenty-one years and
Appointment by Father.
135
not have
mother, whether of
child,
full
may, by her deed or last will, duly executed, dispose of the custody and tuition of such child during
its
2.
it
shall
take
it
whom
of a
shall
be made,
all
him or them
and obligations
guardian of such minor, and shall be valid and effectual against every other person claiming the custody
or tuition of such minor, as guardian in socage or
otherwise."
The appointment
surrogate.
of the father
by
will or deed is
3.
"
is
Any
person to
whom
minor
so disposed of,
may take the custody and and may maintain all proper
management
of his real estate during the time for which such disposition shall have been made, and
may
bring such
might by law."
The guardians
removed
136
for
Appointment by Court.
incompetency, irresponsibility, improvidence
b}'
or
compel them
to
when
advisable, order
them
to give security.
It
is
by
will,
the trust
it,
they must
some
business
estate.
The supreme
of his duties
;
compel him
to
remove him
guardiap
;
for cause, as in
case of a testamentary
him from
his trust.
not conarrives
by the
when he
We
power and
It has also
power
and authority
How
father or mother
is
Appointed.
137
living,
woman. Such power and authority must be exercised in like manner as they were exercised by the court of
chancery,
subject
to
the provisions
of
this
act.
of an
may be committed
to dif-
As
to Petition by Infants
may
he
is
which any
of his prop-
duly
or of
;
his
if
property,
or both,
as
the
case
and,
by law
cited to
to
be cited upon such an application, may be show cause why such a decree should not be
a general
by the
deed of his
this act}
and recorded
2.
as prescribed in section
2851 of
Where
a general guardian
so appointed has
138
died,
to act
office
What
;
Petition to Contain.
;
become incompetent or disqualified or refuses or has been removed or where his term of
;
has expired.
the petitioner
is
Where
only,
it
non-resident married
not subject to the control or disposition of the tioner's husband, by the law of the petitioner's
dence.
( 2822.)
petiresi-
The
is
determined by the
38.)
if
;
(2 Brad., 214
Tuck.,
But
this
must be
A guardian
ment, but a
relative,
The
must
state
whether
or
known
if it
to be living,
person expedient,
ment of the
father or mother.
must pray
for the
cita-
mother
if living.
The
if
must be served
before
it is
returnable.
The former
he be living.
is
guardian,
any,
must
also
be cited
if
The
surrogate
may
also cite
in the county.
( 2823.)
If the petitioner
husband must omit citing her father or mother. petition of infant, Appendix, No.
2824
See form
14.)
Upon
Temporary Guardian.
make such
139
He
Where
a citation
is
not
the petition,
amount of
may
before
him
to testify respecting
is satisfied
therein.
If he
petition
by the appointment of a
not be appointed.
and
issue a citation to
show cause
ment
(2825.)
The guardian
is
to
in his behalf.
made by some relative or other person The petition may be made in behalf*
property in the county, and showing
a decree appointing a guardian.
is
the facts,
( 2827.)
The guardian
called a
temporary guardian
because he
be superseded
when
the infant
(See petition,
Appendix, No.
15.)
140
Power of Guardian.
in an^r case before letters are issued
official oath, which may be adminisany officer competent to administer an oath, tered by and files a bond with at least two sureties approved by This is the proceeding also the surrogate. ( 2830.)
to
where the guardianship is of the person only. ( 2831.) His sureties are liable for money in hand at the
time of his appointment, as well as that subsequently
received.
(16 A.m.
Dec,
635.)
The guardian
father,
duty
is
manner
suitable to his
He
shall
industry
if
he do so permit him, he
and
cating him.
(8 Paige, 152.)
Though a
to support
father
is liable
he
is
bound
him and
is
guardian
is not so liable. (4 Watts & Serg., 118.) In case the guardian abuse the power he has over the person of the ward, the court will interfere and
remove him
if necessary.
estate, the
power
of the
to
Power
nent
securities,
of Guardian.
it
141
in good,
permaol the
income
and
he
may
sell
and
to
after paying the taxes and for the necessary repairs, expend the surplus for his ward as above, when necessary, or invest it and suffer it to accumulate for
his benefit.
It is his
(1
duty to lease do
so,
if possible,
it
and
if
he
will-
fully neglect to
or occupy
himself, he will be
He
He lias
but
no power to mortgage or
as guardian,
may make,
an application to the
supreme court
age joining therein) that a special guardian be appointed to sell the real estate at any time it may become necessary for the support,
etc., of his
is
value, or that
if satisfied
it,
it is
least price at
which
it
may
be sold.
it shall appear to the supreme court on the report of a referee appointed by due for the purpose, that any infant holds real estate in
And whenever
proof, or
142
Power op Guardian.
joint tenancy or in
common, or in any other manner which would authorize his being made a party to a suit in partition, and that the interest of such infant
requires that partition of such estate should be made,
such court
as
shall be incapable of
division, or as shall be
most
infant to be sold.
It is a sufficient
ground
the real
adults,
estate
is
held jointly
or in
common
with
in
and that the value of the estate is small comparison with the expense of a partition suit, which it must otherwise be subjected.
to
20. (2 E. S., 152.) " Every guardian in socage, and every general guardian, whether testamentary or appointed, shall safely keep the things that he may have in his custody belonging to his ward and the inheritance (the real estate) of his ward, and shall not make or suffer any waste, sale or destruction of such
things, or such inheritance, but shall
keep up and
with such other moneys belonging ward as shall be in his hands, and shall deliver the same to his ward when he comes to his full age, in as good order and condition, at least, as such guardian received the same, inevitable decay and injury only excepted and he shall answer to his ward for the issues and profits of real estate received by him, by
profits thereof, or
to his
a lawful account."
Liability of Guardian.
21. " If* any guardian shall
143
make
or suffer any-
sum
at
shall
be taxed by the
jury."
But the guardian shall not be held to repair from own moneys, where the income of the estate of his ward is insufficient, although such insufficiency is a good ground for an application to the supreme court
his for a sale.
The
ward
is
one of
derive
way
the
beyond
count,
his fees.
him
at a dis-
ward
only.
He
for his
ward in any
he do so put himself in place of his ward, and a accrue, he himself will have tp bear it.
If he purchase land in a sale
interested,
where his ward is and take the conveyance to himself, his ward, on coming of age, may, if he so elect, claim the benefit of the purchase. If he settle a debt due to his ward and take a promissory note, running to himself, he will be held accountable for it, whether it
be collected or not
;
otherwise,
if
himself as guardian.
If the guardian use the
moneys of
ward
in trade,
the ward
may
elect,
on coming
144
interest, to
Liability op Guardian.
meet the
profits.
If he neglect to invest
the
money
he is usually allowed six months), he must pay interest, and in case of gross neglect he will be charged compound interest. (40 N. Y., 76 see, also, 2 Wend.,
;
77
8 Barb., 48.)
He may
at the
expense of his ward, to do those acts which he ought to do himself, such as the collection of rents, etc., his
If he have
his
ward
ble
in his
own
sum
earn
enough
to remunerate him.
(I Brad., 345.)
guardian
may
to
expend so much
as
may be
education, especially
this in the highest
degree important.
of
is
A
his
bound only
prudence
and
and
his acts,
guardian appointed
in
another State
cannot
ward
a
but, to
and
security.
And
guardian
Ancillary Letters.
145
ward sitnated
in
another State.
strictly local,
(1
and can;
Story Conf. Laws, 414.) Nor have they any authority over the real property of their wards situate in
other countries
;
for
such property
is
governed by the
law rei
sites.
But
a non-resident guardian
may
Where an
infant
who
is
entitled
to property within
who own
peti-
may
appointment here.
( 2838.)
The
and showing
are
( 2839.)
Ancillary
letters
issued
without
author-
office.
They
whom
demand
to dispose
of
them
in like
manner
and
to
remove them
to maintain or
But they
testa-
not authorize
him
to
receive,
from a resident
from a
mentary
gate's court,
*
money
10
146
Legacy to Minor.
to
except
by the
of the
letters
special direction,
surrogate's
court from
;
were issued
We
to a
minor
of
fifty dollars
may be
may be
who must
first
give security to
the minor, to be
and
of
the legacy.
When
a distributive share
is
to
be paid
to a minor,
court,
the surrogate
may
direct that it
his orders
;
be paid into
or he
may
direct that
A general guardpro-
have
if
of full age.
Accounting.
147
Chapter XVII.
Accounts
Guardians How Compelled to Account, and how Removed ok Relieved of Their Trust.
of
will,
or by
He
must, in the
month of January
in
each year, as
file
in the
ment and
property
inventory,
and an account of the manner in which he has disposed of each item not in hand, and a full description of the nature and of the amount of each
investment.
It shall also contain
and
creditor,
of
all
his receipts
148
He
and
annex
affidavit,
statute.
Appendix, No.
It is the
February in each year, to examine or cause to be examined all these inventories or accounts filed during the year, and if it appears to him that any general
guardian has omitted to
a
file
his
inventory or account
more
full or
surrogate must
make an order
and he may require the guardian to pay the expenses personally of serving the order upon him. Where he fails to comply with such order within
three
months
after it is
may
appoint a
fit
and proper person special guardian of the ward the purpose of filing a petition in his behalf for
removal of the guardian and prosecuting the
sary proceedings.
( 2844, etc.)
for
the
neces-
no authority to authorize more than the income .a infant's property, but this power has been of the extended now, he may, upon notice to such persons
.Formerly, surrogates had
the application
erty to
by the guardian of the infant's propthe support and education of the infant of
as to the surrogate
such a
sum
of
Guardian's Settlement.
income
cipal.
is
149
There
cial
ward or the
.
guardianship
continues.
(37
But a
petition
may be
By By
the
ward
after
who
has died
3.
By
is
It
11 N. Y., 324.)
adverted to
The
may
be made by
if
he has
not accounted, or which he has not paid to the guardian of the infant's property.
( 2848.)
guardian
may
his account
when
ward has attained full age, or successors have been appointed, and
his
the petition.
from the
of
proceedings in
it
case
of
the accounting
an executor, that
forms.
150
Guardian's Account.
His account should give dates and names of parties whom payments have been made, and should charge the guardian with the whole of the personal property received by him, and with all interest received, or
to
for
six
which he is liable tor funds uninvested months from the receipt of such funds.
after
It
his
The
administrators, that
to the estate,
by the court as to executors and however beneficial their services however onerous the trust, they could
is
(49 N. Y., 667.) The commissions for receiving and paying out moneys are similar as allowed
on all sums up to two and one-half per cent on Bums above one thousand dollars, and up to ten thousand dollars; and one per cent on all sums above ten
to executors, to wit
:
thousand
dollars.
He
by
his oath,
conducted in
all
may be
contested in the
same manner.
After the settlement, should the decree be against
the guardian, a certificate thereof
clerk's office, so as to
may
be
filed in the
make
it
and an execution duly issued thereon. The payment may likewise be enforced by
an
Removal op Guakdian.
attachment as one against an executor
suit
151
( 2553), or by upon the bond of the guardian. The decree may be discharged in the same manner
as a
decree against an
executor or administrator.
may
guardian
1.
Where
for
the guardian
reason,
is
disqualified
by law,
his
or
is,
any
incompetent to
fulfill
trust.
2.
properly
money
or
property
of
his
ward, or improvidently managed or injured the personal or real property of the ward, or by reason of
office,
or his
understanding, he
his office.
3.
unfit
for the
due execution of
or,
Where he
without
the
Where
him was
ob-
Where he
State.
has removed or
is
about to remove
from the
6.
ment of another guardian. Upon petition the surrogate issnes a upon the hearing testimony is taken.
citation,
and
152
New
Sureties of Guardian.
of
The insolvency
the guardian,
or
one
of
his
(2 Paige, 34.)
is also cause.
Gross intemperance
(1 Paige, 488.)
of,
the guardian
Where
to
liis
money
was held
insanity
Tucker, 34.)
And
also a cause.
tion,
The surrogate, at the time of issuing the may also, in his discretion, make an order
sus-
pending the guardian, wholly or partly, from exercise of his powers during the pendency of
proceedings.
the the
Any
or
a petition set-
of the
of the citation,
if
allega-
tions of the'parties
to
be
valid,
he will
( 2597, etc.)
If the
new bond
they are
not,
153
at
any
may be judicially settled, and that his may be revoked and himself discharged. He
as a reason for his resignation his physical
may show
disability
illriess,
his
removal,
where the
is
situated, or
he deems proper, and upon the return of the citation will appoint a guardian ad litem, for the ward, and
will allow
any person
to appear
appli-
a case proper
he will allow the petitioner to account for the purpose of being discharged.
Upon his fully accounting and paying all money which is found to be due from him to the ward,
and delivering
all
manner
be
revoked and he will be discharged. The citation should be served on the ward and on
such other persons as the surrogate shall direct.
served in the same county or adjoining county
it
If
must
154
be served at
Guardian's Letters.
least eight
if
is
But notwithstanding the discharge of the guardian made upon his own application, his successor or the ward may compel the judicial settlement of his account, in which the previous account, upon his discharge, is of no value, and his sureties remain liable
until his account
is
judicially settled.
'
provided
shall
appointment in a
letters
to
unless
And
where
not recorded
presumed
to
have renounced
will
the appointment.
must qualify
is
have renounced the appointment, but the surrogate may extend the time for not more than three
months.
Objection
deemed
as
they
may be made
tried as in
may be
that case.
Guardian by Will.
will
155
may renounce the appointment. ( 2852.) Where the guardian of the infant's person or property
has been appointed by will or by deed, the infant, or
any person in his behalf, may apply to the surrogate's court, by a written petition, setting forth facts which were then interposed as an objection to granting letters testamentary to the executor, would make it necessary for such person to give a bond, and the surrogate
will issue a citation requiring the guardian to
security.
( 2853.)
The
bond to the same effect, bond of the general guardian. The guardian appointed by
will or
deed
is
subject
and
file
them.
is
liable as a
guardian
This order
may be made
so
upon the
person
in the
any
relative or other
in
behalf,
requiring
file
the guardian
same manner
(
as a guardian appointed
by the
also
surrogate's court.
2855.)
A guardian
in
may
be
would be compelled of the account of the guardian appointed by the court, and the proceedings to procure such settlement are the same as if the guardian had been so
any case where a
appointed.
( 2856.)
Such a guardian appointed by will or deed may be removed, and may be allowed to resign in the same
156
Cotjrt
as a
is
may Appoint
to
Successor.
manner
reference
heretofore.
made
what
is
said
upon that
subject
Where the sole guardian appointed by will or by deed has been, by the decree of the court, removed
or allowed to resign, the court
unless such an appointment
the
APPENDIX
No.
The
last will
."
1.
and testament of A.
,
in the county of
and
State of
I,
New
York.
A.
B.,
make
this,
my
my
last will
and testament,
as
follows
First. I direct that
administering
my
estate,
and
if
my
payment
estate
thereof, or of
I
whereof
may
payment of the
bequeathed, I authorize
my
executors
hereinafter
named
such part of
my
real
estate as
may
be sufficient for
those purposes.
my
beloved wife,
sum
of
dollars, to
of
my
tributive share in
my
estate.
be paid to her by
my
my daughter C. D., one thousand dollars, executors, for her separate use.
158
Appendix.
I further direct that if she should die during
And
my
shall be living at
my
to
decease, said
sum
shall be paid
would be paid
said
statutes of this
sum
estate.
of
-,
and I authorize my executors, and prudent, to pay the said legacy to the father of said infant, and to take his receipt therefor, and his agreement to hold the same in trust for the said infant, to be paid to him when he shall arrive at full age, with interest; or, if they
if
safe
may
deposit said
and proof
of such deposit
be a
sufficient discharge to
my
the same.
Fifth. I give and bequeath to each of
my
brothers,
A. and
B., the
sum
of five
hundred
dollars,
and
my
die during
shall
my
If both of my said brothers my lifetime, then the legacies to them shall lapse into the residue of my estate. Sixth. I give and bequeath my ten shares of one
go
to the survivor.
shall die
during
hundred
Union National
Bank
of Troy, to
my
friend
my
Appendix.
dwelling-house and lot in the village of
;
159
,
where I now live, for and during her natural life and from and after her death, I give and devise the same to my son, A. R., his heirs and assigns forever. Eighth. I hereby dispose of the custody and tuition of my infant children during their minority, and
while they shall remain unmarried, to
wife, so long as she shall
my
beloved
;
remain
my widow
but
if
life
and
to
commit
their custody
and tuition
my
of
friend,
R. F.
Ninth. I give, devise and bequeath all the residue my estate, real and personal, to my children, share
alike, as tenants in
and share
R.,
common.
Lastly. I appoint
my
my
friend,
A.
executors of this
all
my
last will
and testament,
made.
hereby revoking
former wills by
.'
me
,
my
day of in the year of name, this our Lord one thousand eight hundred and
(Signed)
A. B.
same time declared the same to be his last will and testament, and requested us to sign our names as witnesses, which we do in his presence.
C. D.,
N. Y.
R. M. D.,
Troy, Rensselaer Co., N. Y.
160
Appendix.
Acknowledged.
On
the above
named A.
and
at the
last will
same time declared the same to be and testament, and requested ns to sign
which we do
in his presence.
his
the
same
as witnesses,
CD.,
Troy, Rensselaer Co., N. Y.
K. M. D.,
Troy, Rensselaer Co.,
2V.
Y.
On
this
day of
.-
named
A. B. to be of sound mind and memory, saw the said A. B. subscribe the foregoing will, and at the time of
such subscription, the said A. B. stated to each of the
undersigned that the paper so subscribed by him was
his last will
do in his presence and in presence of each other, attest and subscribe the same as witnesses, the day and year above written.
CD.,
Troy, Rensselaer Co.,
E. F.,
iV^.
Y.
Troy, Rensselaer
Co.,
N. Y.
G. H.,
Albany, N. Y.
Appendix.
161
vivor of
same
to the said E.
H. and her
assigns, notwithstand-
ing her coverture, for her sole and separate use, from
and E. H., his wife, so that the said E. H. shall not sell, mortgage, charge or otherwise dispose of the
same in the way of anticipation. And if the said E. H. shall survive her said husband, then upon trust to pay the said principal sum to the said E. H. but in case the said E. H. shall die during the lifetime of
;
trust, after
sum
of
two
by any writing
her
last will
and testament, shall limit or appoint, and in default of such appointment upon trust, to pay, transfer and assign the same to the next of kin of the said E. H.,not including therein the said G. H., her
husband.
11
162
Appendix.
Clause in a Will Limiting Real Estate to the Separate Use of a Maeeikd Woman.
I give
and devise
to
A. B. and C. D. during
Gr.
the
that
joint lives of E.
H. and
1,
all
me by
R.,J., by deed
office
dated
November
in
book
No
of deeds, page
etc.,
upon
trust to
to the said E.
lives
of the said
E. H. and
Gr.
H.
same
in the
way
of anticipa-
said
But
H.
common.
and bequeath
the name,
to the
(American Bible
Society,
stating
if possible,
or otherwise clearly
sum
of one thousand
society.
dol-
Appendix.
No.
Whereas,
2.
163
Codicil.
I,
James Richards,
of the
town of Scho-
made my
last
,
and testament, bearing date the 1882, in and by which I have given and bequeathed Now, to my daughter Mary, five hundred dollars. do, by this instrument, which I hereby therefore, I declare to be a codicil to my last will and testament, and to be taken as a part thereof, order and direct that only the sum of two hundred dollars be paid to
my
my
said
last
will
and
testament.
And
it is
my
my
last
will
and
In witness whereof I have hereunto set my hand and seal, this first day of March, A. D., 1882.
JAMES RICHARDS,
[l. s.]
The foregoing instrument was, at the date thereof, subscribed by James Richards in our presence, and he
at the
said instrument to be a and testament, and requested us to sign our names as.witnesses, which we do in his presence, and in the presence of each other.
codicil to his last will
A.
B.,
N. Y.
N. T.
164
Appendix.
No.
3.
Renunciation of Executob.
County.
Testament
of
/
Deceased.
1
THOMAS WILLIAMS,
I,
Henry Williams,
of the
town
of Brunswick,
in
said
executors
of
and testament
Thomas Williams,
hereby renounce the said appointment, and all right and claim to letters testamentary of the said will, or
to act as executor thereof.
HENRY
Dated Teot, February
Signed
in
WILLIAMS.
20, 1882.
the presence of
John
Stiles.
affidavit of one
Appendix.
No.
165
4.
SUBROGATED COURT.
In the Matter of Proving the Last^ Will and Testament of
of
Deceased.
To Moses Warren,
of Rensselaer:
Esq., Surrogate
of the County
in the last
The
will
petition of
named
,
and testament of
,
late of the
of
State of
New
on information and
188.., at the
place of
the said
day of
in
death.
That
testa-
the instrument
petitioner.
.,
now
purporting to be the
and
ment
date upon the
day of
.
188
. .
your petitioner.
verily believe.
to
,
be such
last will
and testament
instrument purporting to be such
last will
ment
relates to
And
your petitioner
left
further
show
that the
deceased
all
and the
166
Appendix.
petitioner., therefore pray., that the persons
Tour
above-named may be cited to attend the probate of Baid will, and that a citation may issue to the heirs-at law and next ot kin to said deceased,
requiring
them
form of the
New
York
in such case
And
your petitioner
pray, etc.
.Dated Troy,
,188...
STATE OF
NEW
YORK,
,
gg
j
Rensselaer Couhty.
the foregoing petition by
that
is true,
except as to the matters which are therein stated to be alleged on information and belief, and as to those matters
believe
. .
it
to be true.
'
Sworn
to before
me,
this
188..
Appendix.
No.
5.
167
SUKEOGATE'S COURT.
In the
Letters of Estate
To Moses Warren,
of Rensselaer :
Esq., Surrogate
of
the
County
The
petition of
of the
town of
shows upon
That
in said county, died
,
late of the
town
of
day of
188
the town
of.
any last
will
.
and testament
death was pos-
of
New
of
sum
your petitioner.
is
And
is
the
.
Tour
left ....
petitioner.
surviving
. .
.was
at,
or immediately
Your
petitioner
pray
that administration
upon
168
Appendix.
may
be granted
to
your petitioner
Dated Tboy,
188
STATE OF
NEW YORK,
)
ss.
Renssela.ee County.
that
named
is
true of
own
knowledge,
to
be on information and
believe
.
belief,
and
as to those matters
it
to be true.
this
,
188.
Appendix.
No.
169
6.
To
the
legatees
and next of
km
of John Doe,
deceased:
Rensselaer County,
ss. :
Take
of Troy,
in
the said
and
and, with the aid of the said appraisers, take an inventory thereof.
Dated February
22, 1862-.
JOHN DOE,
Administrator,
etc.
Inventory.
We, whose names are hereunto signed, appointed by the surrogate of the county of Rensselaer, having
taken and subscribed the oath required by law, and hereto annexed, do certify that we have estimated and appraised the property in the annexed inventory
first
ability,
Dated
this
170
Appendix.
STATE OF
NEW
YOEK,
Rensselaer County.
shall
my
knowledge and
(Signed)
JOHN DOE.
\
Sworn
John Kirbt,
Justice of the Peace.
STATE OF
NEW YORK,
'
>
)
ss.
Rensselaer County.
I do solemnly swear, etc., (the same as the oath above to be signed by the other appraiser and sworn
to in the
same manner).
(Signed)
RICHARD
)
J
ROE.
this
28th
Henry Kirby,
Justice of the Peace.
true
all
and
singular
of
Richard
,
Roe,
made by
administrator
may
(John Doe)
appraisers appointed
Appendix.
The following
minor
articles are stated
171
but not appraised,
set apart
by law.)
The following
for the use of the
and
set apart
widow
in
widow and
enumerated
minor children),
addition
those
One mahogany bureau One sofa One sideboard One carpet One eight-day clock
(And furniture The following
Forty sheep, 20s
to the
$15 00 75 00 3 50
5 00
5 00
amount of $150.)
are in
articles
addition to those
$100 00
60 00 75 00
One One
sorrel horse
black horse
(And thus through the like articles.) The following accounts and notes are
good and
collectible, to wit
considered
Note, John
Myers,
dated
February 10,
$100 00 15 00
(And
172
Appendix.
are considered doubtful, to wit
1,
The following
Note,
1857,
no indorsement
$16 00
(And
The
(Here
bad items in
28, 1862.
detail.)
Dated February
(Signed)
Appraisers.
The
nexed
following affidavit
to the inventory
is
to
be indorsed on, or
an-
when
'
filed
i
STATE OF
NEW
YORK,
<
ss
Rensselaer County,
(John Doe), executor,
depose and
tory
say, that the
is in all
respects just
all
true statement of
come
knowledge of
moneys, bank
this
bills,
to the said
(Signed)
R. C. Jennings,
Justice of the Peace.
Appendix.
No.
'173
7.
hereby
exhibit the same, with vouchers thereof, to the subscriber, executor of the will of the said deceased, at
town of Brunswick, on or
Dated February
(Signed)
28, 1862.
Executor.
Affidavit to
Annex
to Claim.
Rensselaer County,
ss. :
Edward Murphy
say that
Kyran
this
Cleary, deceased,
;
justly due
and owing
to
deponent
made
same
(Signed)
EDWARD MURPHY.
i
Sworn
day of March,
George Day,
Commissioner of Deeds, Troy, N.
Y~.
174
Appendix.
No.
8.
Receipt of Creditor.
Received, Troy, April 10, 1862, of John Jones,
executor, etc. (or administrator,
etc.),
of
Henry
Jones,
in
payment of
said
demands due me
(or
from the
estate
of
deceased),
for
taxes
Troy on the
estate of said
(Signed)
AMOS
S.
PERRY.
made
day of
bequeathed to
me
and testament, dated the 1862, in which he gave and the sum of (five hundred dollars)
,
Now,
said
therefore, I
receipt of
sum
so
executor
named
1862.
MARY
WILLIAMS.
Appendix.
No,
175
9.
Payment of His
Claim.
To
of
the Surrogate
of the County of
,
The
petition of
,
of the
respectfully shows
is
a creditor of
of
,
in said
to the said
deceased, in his lifetime, goods, wares and merchandollars, which sum he promised to pay at the expiration of months, but he did not pay the same, nor have any payments been made thereon since, and there are no
offsets against the
petitioner,
and there
due thereon
dollars,
to
your petitioner
day of 1882. day of That on or about the 1882, the last will and testament of the said deceased was duly proved in this court, and letters testamen,
executor
named
in said will,
who
That
against the
estate
176
Appendix.
the granting of such
letters,
demanded payment
executor,
thereof.
Dated July
28, 1882.
(Signed)
Rensselaer County,
ss. :
,
says
by him
is true
of his
as to those matters
which are therein alleged to be stated on information and belief, and as to those matters he believes it to be
true.
(Signed)
this
,
1882.
Appendix.
No. 10.
Petition fob Judicial Settlement.
177
of the County
The
of
petition of
of the
respectfully
w
. .
.
granted and
iss.ued
your petitioner.
That your petitioner. ha. returned to the surrogate of said county an inventory of the personal
property and estate of the said deceased.
left
surviving
And
named persons
:
are, or claim
deceased
pray
that
may
may
settlement.
And
Dated,
188..
12
178
Appendix.
ss. :
Rensseleab County,
that
own which are therein stated to be alleged on information and belief, and as
is
same
true of
knowledge, except
to those matters
as to the matters
believe
it
to be true.
Sworn
to
before me,
188..
Appendix.
No. 11.
Account of Executor oe Administrator.
[This form may be adapted to any estate or any amounts. ]
179
of O. D., deceased :
1862.
Dr.
Jan.
2.
not inventoried
15 50
6 10
To
$571 60
I860.
Contra
Cr.
testa-
July
1.
By By
paid
surrogate letters,
mentary, etc
expenses to and
at
$15 00
Troy
to
obtain letters
3 00
,
9.
20. 29.
By paid C. D., witness to will By paid E. F., witness to will By paid J. H. and E.R., appraisers, By paid oath, filing inventory By paid funeral charges By paid support of widow and
.
.
2 00
1 50
6 00
50 40 50
10 50
By By
paid, surrogate's
order to ad-
75
5 50
paid, printing
same
180
1861.
Appendix.
Jan.
3.
By
Iobs
on sale of inven-
toried articles
$16 00
4 50
$20 50
$108 75
Showing balance
distribution of
$462 25
against
Edward Murphy
James Jones
(Stating
$150 00
16 00
in full.)
them
The following
annexed
affidavit is
to
be included
in,
or
to the account
ss. :
,
Ebnsselaee County,
A. B. of the town of
in the county
That he
is
and singular the goods, chattels and credits of) C. D., late of said town of deceased, and that the foregoing (or annexed) account that the same accordis in all respects just and true
istrator of all
,
belief, contains
and
disburse-
to the
Appendix.
estate of the said deceased,
.
181
his
any creditor
or person interested
in,
the estate of
And he
dollars,
charged in said account, for which no vouchers or other evidence of payment are herewith filed, or for which he has not been able to produce vouchers
or other evidences of payment, have actually been
him
as charged.
(Signed)
A. B.
this
,1882.)
182
Appendix.
No. 12.
Release fok Discharge of Decree.
of ...
of
J-
Deceased.
Whereas, by a decree of
county of
the
day of
.will
1873,
executor of the
named in said will, the sum of dollars, now I do hereby acknowledge the receipt of the said sum from said and release him
,
from
all
Witness
my
hand, this
day of
1873.
(Signed)
Rensselaer County,
ss. :
,
On
before
this
day of
personally
1.873,
me same person described in and who executed the foregoing instrument, and acknowledged that he executed the same for the uses and purposes
,
me
came
to
known
to be the
therein mentioned.
(Signed)
Appendix.
No. 13.
183
tor or Administrator.
County.
of
A.
B.,
Deceased.
1
County
To Moses Warren,
of Rensselaer
:
The
the
A.
B., late
of
town of Brunswick, in the county of Rensselaer, deceased, shows that your petitioner has made and
filed
same
deceased.
come
to the
sum
of $578.
That the outstanding debts of the deceased, which remain unpaid and which are justly due and owing, and which are not secured by judgment or mortgage, or expressly charged on the real estate of the deceased, as near as the same can be ascertained, amount to the sum of $1,005, owing as follows
:
To A. B To C. D To G. F To G. EL
184
Appendix.
your petitioner verily believes and states the he has proceeded with reasonable dilisaid
to
And
the
real
as stated in
is to
no other
in the State of
New York
is
which may
devised by the
or funeral expenses, or
sale
is
by virtue of an execution. And your petitioner further shows that S. B. is the widow, and A. B., C. B. and E. B., of the town of Brunswick, are children and heirs-at-law of the said A. B., deceased, of the age of twenty-one years and upwards, and J. B. and K. B. are infants of the age
of fourteen years and upwards, and aged sixteen and
and are
also children
and
heirs-at-law of the
Your
may
to
New York
in such case
Appendix.
made and
to
185
much
And
pay the debts of the deceased. your petitioner will ever pray,
(Signed)
1,
etc.
C. D.
Dated October
1882.
r
)
co So-
by him subscribed,
is
true of his
own knowland
as to
belief,
to be true.
(Signed)
C. D.
Sworn,
etc.
186
Appendix.
No. 14.
Petition of Creditor for Sale.
To Hon
cotmty
Surrogate of
The
of
petition of
,
of the
respectfully
is
shows
as follows
,
Tour
of the
petitioner
a creditor of
,
late
of
and interest upon a promissory note, made by him to your petitioner or order, dated the day 1882, and
the
of
dollars
,
sum
Said claim
is justly
your petitioner, no payments have been made thereon, and there are no offsets against the same to
due
to
is
not
by judgment, mortgage upon or expressly charged on the real estate of the said deceased.
Letters of administration of the goods, chattels and
on the
of the
day of
,
1873, to
still
remain in
full
your
that
;
petitioner, he
is
The
said
intestate
sum
Appendix.
187
that
is
to say
value).
and
Tour
petitioner has
made
diligent inquiry as to
real estate within
left
any other
he did
so.
is
of full age,
and
an infant, of the
,
an infant,
whom
have a
general
guardian,
are
deceased.
Your
will grant
admin-
istrator as aforesaid, to
payment of
may be thereupon
had, as
may tend
to the
aforesaid.
Dated December
1,
1874.
(Signed)
County,
,
ss. :
true of his
own knowledge
therein stated
on information and belief, and those matters he believes it to be true. Sworn, etc.
(Signed)
188
Appendix.
No. 15. Annuity Table and Rule.
^
Age.
'1
2
Appendix.
No. of years
Age.
purchase.
189
No. of years
purchase.
Age.
57 58
59
8,999 77
8,801 78
60
61
62 63
64
65
66 67
68 69
7,276 85 7,034 86
70
71
72
73
87
88
89
90
91
4,277 4,035 3,776 3,515 3,263 3,020 2,797 2, 627 2,471 2,328 2,193 2,080 1,924 1,723 1,447
1,
92
93
153
816
74
75
990 94 4,744 95
4,
524
238
76
511
is
life
190
Appendix.
Example.
to
is
is
Suppose a widow's age is forty, and she is entitled dower in real estate worth $1,500 one-third of this $500 interest on $500, one year, at five per cent,
;
;
$25
number
of years
purchase set opposite her age, and you have $2#5.92, as the gross value of her dower right.
Appendix.
No. 16.
Petition foe Guaedian, Infant
191
Ovek Foubteen.
of the County of
of
To Moses Waeeen,
Rensselaer
Esq., Surrogate
The
the
fully
petition of
of
respectis
a resident of the
who
has no testamentary
years of age on
and
is
the
day of
is
last past.
your petitioner,
it
is
'.
...
minority.
ject to the
Your
of the
in the
county of
prays
petitioner will ever pray.
to be such guardian
and
appointment accordingly.
And your
Dated the
day of
A. D. 188.
Rensselaee County,
ss. :
The foregoing
that
is
true
own knowledge,
192 and
it
Appendix.
belief,
and
as to those matters
believes
to be true.
Sworn
day of
188.
Consent.
t
I,
of the
,
of
do hereby consent
to be
Dated
this
day of
A. D. 188
Affidavit as to Property.
} ss.
\
of the
of
is acquainted with the propand say that erty and estate of the above-named minor and that the same consists of real and personal estate ; and
;
the
sum
and
and
or thereabouts.
Sworn
Appendix.
CouNTr of Rensselaer,
I,
193
ss. :
,
do solemnly
dis-
and estate of
according to law.
a minor,
day of
,188..
13
. .
94
Appendix.
No. 17.
Under Fourteen.
of the County of
of
To Moses Warren,
HenSselaer
:
Esq., Surrogate
The
the
petition of
of
respectfully
is
.
in the
county
peti-
of
tioner
the
;
of
.
minor.
.Rensselaer,
in the county of under fourteen years of age, and has no testamentary or other guardian, and whose
and
....
father
is
deceased
that said
was
,
day of
enti-
tled
to
personal property
the
value of
about
dollars, as
informed and
seized
profits
verily believes,
real
of
certain
estate,
sum
of.
dollars to each,
rights
and to protect and preserve the legal minor.... it is necessary that some
Your
appoint
of
petitioner
therefore
prays
that
you
will
of the
in the
county of
he
shall
teen
years,
and
another
guardian
shall
be
appointed.
And your
Dated
this
day of
A. D. 188
Appendix.
Consent.
I,
,
195
of the
,
do hereby consent to be appointed the guardian of the person, .and estate of the above-named minor, .during. minority.
of
. .
.
Dated
this
day of
188
STATE OF
NEW YORK,
,
County of Rensselaeb.
of the of
going petition by ... subscribed is true of own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as
.
to those
it
to be true.
this
..., 188.
1
County of Resselaer,
I,
ss. :
,
will
well,
and estate
of
[
1
day of
188..
196
Appendix.
No. 18.
etc.,
and Inventory.
of
A.
B.,
a Minor.
Inventory.
A just and
1862:
etc.,
of
$350 00
1861.
Dr.
214 00
310 50
stock par
John La Fountain, bond and mortgage, $200, interest one year, $14 R. Thompson, bond and mortgage, $300,
interest six months, $10.50
Ten
shares Central
Railroad
830 00
Troy,
street,
800 00
at
Farm
in
2? 000 00
$4,504 50
Appendix.
Account.
197
J. K.,
1861.
De.
Apr.
1.
To To
interest
on La Fountain mort-
gage
Oct.
1.
$14 00
interest on
Thompson mort21 00
gage
1862.
Feb.
1.
To dividend
per cent..
Central Railroad, 3
30 00
street
To
Mar.
1.
three
164 Fourth
180 00 200 00
To 1 year's Lake
rent,
farm in Sand
$445 00
1861.
CoNTBA
Cb.
$52 00 10 00 50 52 00 15 00 8 50
12 00 22 00
12 25
Apr. 10.
July
Oct.
By
at
$2
1.
9. 1.
10.
1.
By clothing purchased of J. N., By hats purchased of G. F By board paid J. H., 26 weeks, By clothing of J. N
By repairs No.
1862.
Feb, 10.
Apr.
1.
By taxes No. 164 Fourth street, By taxes farm in Sand Lake .... By interest on $350, uninvested
6 months Commission
for
receiving
in.
11 12
198
1862.
Appendix.
Apr.
1.
Commission on paying out income, 2% per cent on $195.37, Balance due estate.
$3 87 234 64 $445 00
Kenssblaee County,
ss. :
and account contains; to the best of his knowledge and belief, a full and true statement of all his receipts and disbursements as and of all money and guardian, as therein stated other personal property of the ward's which have
that the foregoing inventory
;
come
into deponent's
hands
as guardian, or
have been
account);
and of the value of such, together with a fall and true statement and account of the manner in which he has disposed of the same, and of all the property remaining in his hands at the time of filing said inventory and account and a full and true description of the amount and nature of each investment made by him since his appointment (or since the filing of the last annual inventory and account), and that he does not know of any error or omission in the
;
K.
this
29th
A.
B.,
Appendix.
No. 19.
Petition foe
199
an Inpant.
respectfully shows to this
The
court
petition of C. D.
That your petitioner was heretofore appointed by court the general guardian of the person and estate of the above-named A. B., an infant, and has faithfully discharged his duty as such general guardian.
this
That
said infant
is
now
properly educate
and
maintain- said
acquiring an education.
the
The income
dollars per
exceed
sum of
.dollars per
sum
annum.
Your
may be
authorized to
make
application of the
income of the
that he
may
And
etc.
Dated
May
13, 1882.
C.
D.
200
Appendix.
ss. :
Rensselaer County,
petition
by him subscribed,
is
true of his
own knowland
as to
belief,
to be true. C. D.
Notary Public.
INDEX.
A.
ABATEMENT,
applied to legacies
pa OB
91
91
what
ABSENTEE,
special administrator
upon
estate of
45
family
of,
provided for
46
ACCEPTANCE,
of guardian inferred
136
ACT,
of one co-executor binding
71
ACTION,
special administrator
may
maintain
45 45 57
73
withheld property
executor or administrator
to recover rejected claims
may have
73
79
135
guardian
may
maintain
ACCOUNT.
(See Claims.)
executor or administrator
intermediate,
may
be cited to render
. .
96 96 96
be filed any time. temporary administrator may be compelled to render. may be ordered
executor or administrator to
file
may
98
100
101 101
may be
manner
referred
of
making
may be
contested
101
of guardian regulated
147
148
duty of surrogate as to
how made
150
202
Index.
pase.
ACCOUNT Continued.
vouchers to be
filed
on
150
196
form of
ACCOUNTING,
may
be ordered on petition
96 96
preliminary to execution
98
101
101
on
executor
may be examined on
101
102
102
103
103
103 104
106, 107
how
114
115
149
by guardian, when
of executor, etc
{See
179
Judicial Settlement.)
ACCOUNTS,
deemed
assets
61
ADMINISTRATOR,
de son tort liabilities of
8
8
29 29
cited
when
oath of
letters issued to,
34
may
be revoked
34,
36 36
36
temporary
may
38 38
39
44
duty of
appointment
44
'45
Index.
203
fash.
ADMINISTRATOR Continued.
special,
must qualify
45
45
45
may take possession may maintain actions action may be had against
authorized to
sell
45
45
45
45
may pay
cited
45
46 46 46
46
.*
46
46 46 46
46
surrogate
may
reduce bond
new bond
where
several, joint
46
bond
47 47 47 48
sureties for
each other
individual bonds
when
treated as trustee
successor appointed,
failure to file
letters of,
when
48
50
50,
new bond
revoked unless
new bond
51
54
55 55
may may
resign
successor
may
compel, to account
.
55
55
55 56 57 58 58 59
59
61
'.
may show
when
'.
62
204
Index.
pase.
ADMINISTRATOR Continued.
accountable for claim of decedent discretion in providing sustenance
neglect to set apart for survivor
62
64
66 66
69
oath to inventory
bond prosecuted
any,
may return
inventory
69 69
67,
71
71 71
keep estate funds separate may compromise, when to deposit with bank
to
71
71
power of each
treat fraudulent transfers as void
73
have actions
for debts
73 73 73 73
72,
make
collections
74
74 74
74
74
may
due
74
74 75 75 75 75
against decedent
may
sell at
public
sale, etc
76
76, 77,
may compromise
debts
77 78
78
79 79 79 79 79
79
claims
may
may
may
require vouchers
reject claim
<
80
Index.
205
PAOE
.
ADMINISTRATOR
may
Continued.
80 80 80
81
where negotiations after rejection avoid costs on rejected claim protected in payment of debts, etc
liability of,
on his
own
. .
contract
81
83 83
83
taxes
as to as to
as to
84 84 84
86 86
as to funeral expenses
87 88 88 88
88
duty
of,
as to leases
must prove
claim
of,
his
own
claim
89 89
.,
when
to be presented
verified
89
.'
must be
89 89 89 89
not to settle claim for his own benefit cannot retain outlawed debt
case
of,,
as to debts
to
how compelled
duty
of, as to
pay
distributive share
92
93
when
investments
95
95 96
.-
on investments, when
to account
when ordered
may be cited for judicial settlement may be ordered to account how punished for not accounting may apply for settlement
to
file
97 98
98
98
100
101
101
account
101
101
206
Index.
pack,
101
ADMINISTRATOR Continued.
may
inventory presumptions in favor of must produce vouchers
falsify
102
102
to
102
102
102
allowed bad or doubtful claims, when what allowed to, without vouchers
103
103
on accounting of equity to prevail commissions of no allowance to, except commissions commissions apportioned to several bequest instead of commissions not filing inventory to have no commissions
decree against, enforced by execution decree against, enforced by attachment
103
104
105
106
106
106
116 117 117
punished by indictment
decree against,
how
satisfied
118
119
when, may apply for sale of real property may be required to account in real estate proceedings. to give bond on real estate
'
120
122
125 126
death
to
of,
126 130
132
pay proceeds of
to,
of,
balance due
petition.of,
how
paid
compensation
account
of,
as to real estate
132
form
'
177
179
release of,
form form
182 183
ADMINISTRATION,
when
to
granted
granted
to,
38
39
whom
person entitled
denied,
may have
form
joined
40
41
whom
(See
167
Letters of
Index.
207
paqk.
(See
ADMINISTRATION Continued.
letters
of,
revoked without
ditto.)
petition.
Letters of
Administration,
ADVANCEMENTS,
how charged on
statute as to
personal estate
112 112
maintaining or educating
released for
is
not
113
women
113
113
is real estate
113
ADVERTISEMENT,
77
81
AFFIDAVIT,
for
68
AGENT,
executor
may employ
73
AGREEMENT,
to refer claim
80
ALLEGATIONS,
against will, filed within one year
29
30
ALIEN,
cannot devise real estate
10 10
10
may make
ALLOWANCE,
of personal property to
widow
64
101
made
for
payments on settlement
ANNUITY TABLE,
and rule
188
APPLICATION,
for special guardian, notice of, to
be served
22 22 23
39
for special
guardian
56
137
208
Index.
paob.
APPOINTMENT,
of guardian
134
APPRAISEMENT,
notice
of,
59
notice of,
form of
169
APPRAISERS,
when appointed
executor, etc., to apply for
58
two
58
58
appointed by surrogate.
who may
fees
act as
58
58
58,
duty of oath
property to be shown to
shall
59 59 59 59 59 59
mark
price
may adjourn
discretion of
after first
meeting
64
widow
64
ARTICLES,
not deemed assets for distribution
in inventory not appraised
62 62 76
sold
first
ASSETS,
process for discovery and recovery of
57
60 60
60,
included in inventory
what are
of a partnership not inventoried
stated but not appraised
61
62
62
62 72
75
ASSESSMENTS,
not a preferred debt.
83
ATTACHMENT,
may issue for not accounting when issued to enforce decree
98
117
Index.
209
PAQb.
160
ATTESTATION CLAUSE,
to will,
form of
ATTORNEY-GENERAL,
when
citd
18,
42
ATTORNEY,
may appear AUCTION,
sales
25
by
(See
76
Vendue.)
38
AUTHORITY,
of administrator, local
ANCILLARY LETTERS,
unnecessary,
when
B.
72
BANK,
sums
to be deposited in
108
BANKRUPTCY,
of executor
37
BEDS,
bedsteads and bedding not appraised
63
BEQUEST,
of claim against executor
65
BIBLE,
family, not appraised
63
BILLS,
|
or notes
deemed
assets
61
BOND,
executors
of administrator, to
sureties
32,
36 43
43
whom
executed
penalty
43
43
45,
execution
of special administrator
47
46
surrogate
may
reduce
amount
of, surrogate
may fix
46
49
14
210
Index.
page.
BOND Oontinued.
with new sureties, proceedings dismissed new, failure to file
principal
of,
50
50
50,
when
cited
51
when no
successor
successor appointed,
who may
prosecute.
..'...
55 55
may
prosecute
57 58
69 91
not given
of executor prosecuted
153
BONDS,
deemed
assets
of, in
61
statement
inventory
65
BOOKS,
not appraised
63
BROTHERS,
entitled to administration
39
when
entitled to distribution
109
BURIAL,
expense
of, preferred
claim
(See
Funeral Expenses.)
sale
BURYING GROUNDS,
how exempt from
119
c.
CERTIFICATE,
surrogate will attach to will
28
CHANCELLOR,
former power to appoint guardian
136
CHILDREN,
entitled to administration
39
62,
provisions in favor of
distributions to
63
109
posthumous, right of
s
. .
112
113
advancements
to,
how
reckoned
Index.
211
pa8b 61
.
circulating medium,
deemed assets
CITATION,
to attend probate to issue to
17 17
whom directed
state facts
must
to
17 17
17 17
substance of
whom
issued
when
issued
substance of
17
18 18
how
served
18 18 18
..
how
adult
18 18 18
19
19, 19,
by publication
20 20 20 20
20
how
served on lunatic
idiot
drunkard
infant
20
20
21
when
notice
returnable
surrogate
may
22 23 23 23
25
25
to
whom
29
29
executor must suspend, when served with administrator must suspend, when served with
to issue
to issue
29
30
31
show cause
35
212
Index.
paok.
CITATION Oonimued.
issued on renunciation
42
served on
served,
when
bond
,
42 42
46 50 57
57 66 97 99
to special administrator
to principal of to person withholding property, issued
returnable,
where
on
on
how
served
how
100 100
122 137
proof of service
how made
when
on
to be served
by publication
CLAIMS,
"
62
65
and bad
executor
may
arbitrate
73 75 77 78
79
how
presented
executor
may
reject
79
79
vouchers required on
agreement to refer
suit on,
80 80
rejection
when barred
accompany
offer to refer, to
80
80 80
81
what
referable
enforced by accounting
96 103
103
proof as to same
how proved
not due,
bad, etc
treated
how
how proved
petition to
as to real estate
notice to present
173
of,
form
175
Index.
CLASSIFICATION,
of claims in inventory
213
paqb.
65
CLERK,
in surrogate's,
58
CLOTHING,
not appraised
63
CO-ADMINISTRATORS,
one person in law
(See
71
Administrators.)
71
CO-EXECUTORS,
one person in law not charged by other's note {See Executors.)
72
COLLECTION,
of estate
ft
71
COLLECTIONS,
executor to
make
to
72,
74
73
power of executor
make
COLLECTOR.
COMMISSION,
(See
Administrator, Special.)
to take testimony
may issue
26
104 104
105
105 132
150
COMMITTEE,
to be served,
when
23
COMMON LAW,
right of heir by, not impaired
62
COMPANY,
stock in,
deemed
assets
61
COMPLAINT,
against person withholding property
57
214
Index.
pass.
COMPROMISE,
executors may,
when
71 77
with debtors
of account
101
objections to account
on
102
CONTRACT,
executor personally liable f or
as to real estate,
effect of sale of
.
81 81
how
sold.
.'
129
129
CONTROL,
of trust fund exclusive,
when
10,
72
CONVICT,
denfed administration
41
COSTS,
of proceeding upon non-filing of inventory executor may avoid, on rejected claim
68
80 132
how
COUNSEL FEE,
what, allowed on settlement
105
COUNSEL,
sum
to be allowed to,
on
real estate
133
COUNTY CLERK,
to docket decree
116
COUNTY TREASURER,
entitled to administration
real estate proceeds paid to
39
131
CREDIT,
sale on, administrator liable for
75, 126
13
when
33
39
entitled to administration
upon non-resident ancillary administrator may pay bequest ot claim on executor, not valid
ancillary letters to,
43 44
against
65
Index.
215
page.
CREDITOR Continued.
no
gift valid against
of,
66
79
remedies
79
81
84
remedy
of,
84 89
96
may may
cited to settlement
97 98
106
payment
to,
on settlement
sale of real
108
property
..,
120
how
to attend
extended on distribution
120
131
form of
173 174
175
18ft
CROPS,
produced by cultivation deemed assets
purchaser to hold,
when
60 128
CUSTODY,
of
minor
135
D.
DEBT,
special administrator
may
pay,
when
45
61
62
action
tor,
by administrator
76,
73
74 77
81
'
executor executor
86-
86
may
86
preference
of, to legacies
87
216
Index.
paqe.
DEBT Continued.
receipts to be taken for
88 90
91
care as to
payment
of.
107
not due,
how
treated
107
119
how
paid on distribution
132
pay
186
DECREE,
alleged heir
may
petition} for
'
30
31 31 31
in probate of heirship
in probate of heirship,
is
where recorded
evidence of facts
set aside
52,
how
31
56 56
57 66
106
107
107
114
'
115 115
how
enforced
enforced by execution
115
117 118
how
satisfied
as to real property
when made
123
137
how
enforced
150
151
how
discharged
form of discharge of
182
DEED,
effect of
128
Index.
217
PAOE
.
DETENTION,
of minor, action for
135
DEVISEE,
m ay petition,
how
evicted
probate
13
48
when
131
DISABILITY,
to act as executer,
how removed
decree for
11
DISCHARGE,
of executor, etc.
of decree,
,
56
how made
118
182
form of
DISCRETION,
of surrogate as to judicial settlement as to voluntary removal of guardian of appraisers.
of executor in providing sustenance
56
56
64
64
DISTRIBUTIONS,
statute of
109
Representation on
112
advancements,
how
charged on
113
13]
how made
'
DISTRIBUTIVE SHARE,
payment
of, anticipated
93
DOCKETING,
of decree, effect of
116
DOWER,
legacy for, does not abate
real estate sold, free
91
from
129
how
132
DRUNKARD,
may act as executor, when how served with citation may have special guardian
denied administration
special guardian for
11
20 22
41
100
218
Index.
pass.
DUPLICATES,
of inventory, signed by appraisers
disposition of
66 66
DURANTE ABSENTIA,
letters of
45
E.
ELECTION,
of infant as to guardian
136
ERROR,
decree
may be opened
life
to correct
115
ESTATES,
held for
of another,
deemed
assets
60
71
collection of
funds
of,
to
be kept separate
71
71
72
72
81
134
EVIDENCE,
as to withholding of property
57
EXECUTION,
on decree, how issued
116
EXECUTOR,
powers and duties before probate
6 6
trust
6
, .
6
6
(5
in case of renunciation of one, remaining one to act duty before probate, regulated by statute
shall not dispose of estate
6
7 7 7
7
,
may
de son
of
Index.
219
pAaK 8
.
EXECUTOR Continued.
unauthorized person unauthorized person to account to
liabilities of
8
to appoint
power
to
make
will implies
power
10
who may
serve as
10
10 10
competent
competent convict of infamous crime, not competent drunkard, not competent improvident person, not competent
person in precarious circumstances,
riot
10
10
11
11
competent
11
13 16
dead or incompetent, who may act may employ person to serve citation shall have will recorded
if all
24 28
28
when
29 29 33
33
when
33
33 33 34
when
to
whom
oath of
may be
appointed
34
circumstances precarious,
letter issued to,
when
32, 34,
36
36
may be
when
revoked
may be
36
36
to give bonds,
improvidence of
illiterate
37 37
.'
poverty of
37
when
treated as trustee
48
48,
successor appointed,
failure to
file
49
50 54
55
55
55
220
Index.
page. to account
EXECUTOR Continued.
successor
may compel,
55
55
successor to
56
Is
may show
that property
withheld
57 58
61
61 62
64
65
66
66 69
,
oath to inventory
bond presented
.
any,
may
return inventory
,
69
71 71 71 71
71
-67,
non-resident,
power
of, in State
72
72
72
when
72
73
73
73 73 73 73 73 73
72,
property
for trespass
to
make
collections
74 74
74
to use .diligence
liable for negligence
may
due
74
74 74
75 75
may
sell at
Index.
221
page.
EXECUTOR Continued.
cannot purchase assets
use discretion as to time of sale
75
76
76,
77 78
77,
78 79 79
79
79
may may
require vouchers
79
suit against,
on rejected claim
claim
80 80 80
should
offer to refer
where negotiations after rejection may avoid costs on rejected claim liability of, on his own contract protected in payment of debts, etc
duty
of, as to
80
81
81
taxes
83 83
83
as to as to as to
as to
84 84 84
86
as to funeral expenses
liability of, for funeral
86
86 87
to
in order
88 88 88 88 88 89 89
89
a receipt must prove his own claim claim of, not entitled to preference
to take
when
to
be presented
verified
must be
89
89
not to settle claim for his own benefit cannot retain outlawed debt
care of, in
89 90 90
payment of
debts, etc
. .
222
Index.
paob.
EXECUTOR Continued.
pay legacies may require bond on paying legacy how compelled to pay legacies, etc
to
when
90
91
92 93
93 95 95 96
when
on investments, when
investments
duty
of, as to
when
ordered to account
may be cited for judicial settlement how punished for not accounting may apply for settlement may be ordered to account
to file account, etc
97
98 98 98
100
101
101
.'
.
101
101
,
101
102
102
102
102 102
103
103
103
104
105
106 106
106
116
117 118
119
how
satisfied
duty as to real estate when may apply for sale of real property may be required to account in real estate proceedings
to give
120
.
122
bond on
real estate
125 126
death
of,
Index.
223
PAOII
EXECUTOR Continued.
compensation
renunciation
petition of,
179
'.
182
183
EXECUTRIX,
women capable. EXPENSES, executor may be allowed EXTENSION,
married
in favor of estate
11
traveling
24
75
F.
FAILURE,
to set apart for survivor
66,
67
FATHER,
entitled to administration
39
distribution to
110
appointed guardian
134
FEES,
of witnesses
of appraisers
(See Commissions.)
24
58
FINAL SETTLEMENT.
Accounting.
(See
Judicial
Settlement
FORM,
of will 157
FORMALITY,
guardian
may
not waive
24
void
FRAUD,
of creditors, transfers
in,
73
FREEHOLD,
things annexed
to, assets
60
224
Index.
paoe.
FREEHOLDER,
to sell real estate, to
when appointed
sale
125 130
pay proceeds of
FUNERAL EXPENSES,
executor
may
sell
property to pay
special administrator
may pay
9,
45
81
84 85 85
what
are...
liability of
executor for
86
119
how
paid on distribution
132
FURNITURE,
necessary, set apart for
widow
63
G.
GAMBLER,
professional, incompetent to act as executor
12
GENERAL GUARDIAN,
legacy payable
to give security
to,
when
to
,
93
93
share of infant,
petition for,
when paid
form of
principal,
(See
expend
form of Guardian.)
GIFT,
not valid against creditors
66
GRANDCHILDREN,
entitled to administration
N
39
GROSS SUM,
rule for estimating
188
GUARDIAN,
special,
may be
appointed,
when
22 22
application for
special,
for
23
may
24
.
oath of
34
Index.
225
page.
GUARDIAN Continued.
removal on
defined
relation of, to infant
own
application
56
134
134
134
134 134
by
relation
134 134
135 135
135
not defeated
may
to
maintain actions
estate
manage personal
removal of
135
134, 136
of, inferred
by
whom
appointed
will appoint
acceptance
supreme court
to control
appointed by surrogate
of person of property
136
136
136
woman
137
bow
of
of person,
of,
entitled to control of
by will ward
140
141
power of
for neglect of
142
143 143
penalty
ot,
when
may
not expend capital acts of liberty construed power of, appointed in another State
'
144
144
144
15
226
Index.
Continued.
page.
GUARDIAN
power
of, local
144
145 145 147 147 148
148
non-resident,
may have letters here ancillary, letters of, when he shall have may account, how
must file annual account power of, as to principal may have authority to expend principal
settlement
149
>
how
prepared
150
150
150
150
how
commissions of
150
151
153
by
will
154
155
156
191
form
194 196
199
H.
HALF-BLOOD,
take
same
as
whole blood
112
HEIR,
defined
of testator, at-law
:
15
'17
when
cited
may waive service, when may make himself a party person claiming as, may petition
contest as to heirship
at-law,
23
30
30
31 48
how
evicted
right
of,
not impaired
62
when
131
HOMESTEAD,
exempt from
sale,
how
119
Index.
227
paoii.
HUSBAND,
entitled to administration
40
106
113
payment
entitled
I.
IDIOT,
may not make will how served with citation may have special guardian
special guardian for
1,
10
20
22 100
IGNORANCE,
constitutes incompetency to act as executor
11
ILLEGITIMATE,
heirs and next of kin of.
15
15
.*.
children to take,
letters
when
upon
estate of
43
Ill
estate of,
how
instituted
IMPROVIDENCE,
constitutes incompetency to act as executor
11
136
INCOME,
person entitled
to,
71
INCOMPETENCY,
of executor
36,
37
136
INDEBTEDNESS,
of executor or administrator
74,
75
INFANT,
cannot act as executor
10
11
18,
act as executor
how
20
20
22
may
how
served,
22
41
62
62,
where parent
dies, articles
not assets
provisions in favor of
63
228
Index.
pasb.
INFANTS Continued.
additional provisions
rights of
63
63,
64 93 96
100
legacy
to,
how
paid
duty as to accounting when they are interested how served with citation notice for special guardian to be served on special guardian to be appointed for share of, paid to guardian guardian has custody of
guardianship of, belongs to
detention of, action for
100 100
108
134 134
135
134, 136
guardian
of,
137
how
determined
what
who
to be cited on application of guardian of infani under fourteen guardian of, to take oath
liabilities
.,
of sureties of
of,
by
will
may
relation of guardian
of,
confidential
143
143
guardian
guardian
of,
may
144
144 144 144
construed
guardian
of, in
when.
146
guardian
of, to file
account
account of guardian of, how made commissions of guardian of decree against guardian of, how enforced
guardian
of,
150
'.
150
151
when removed
new
guardian
may
by
resign,
when when
required
152
153 154
guardian
Index.
229
paok.
INFANTS Continued.
successor to guardian of
petition of, for guardian
156
191, 194
account
of,
guardian, form of
196 199
INVENTORY,
property withheld from
statute regarding
57
58
58
5.)
59
62
amount of bequest of
debt, including
65 65 65
etc
classification of claims in
shall
65 66
66
66,
duplicates,
when completed
return to surrogate
66 68 68 68
person committed to
jail for
not returning
68,
68 69
69
69,
'
who may
return
70
70
101
103
106 147
169
form of
of guardian,
form of
196
INVESTMENTS,
duty of executor as to
95
INSURANCE,
of assets
by executor
72
INTERMEDIATE ACCOUNT,
may
be filed any time
96
230
Index.
paob.
INTEREST,
in lands,
deemed
assets
60
assets
deemed
60
101
infant
108
108, 109
INTESTACY,
distribution in case of
109
IRRESPONSIBILITY,
guardian removed for
136
J.
JUDGMENTS,
order of preference of
joint,
83
83 87
when
not collected
JUDICIAL SETTLEMENT,
petition for
'
.'
55
petition for,
interest of
,
97
97
may who
be ordered
98
executor or administrator
to be cited
may
apply for
98,
98
99
on
served
citations on,
how
99
100
100 100
on
served on infants, etc
referred on
how
100
101
account
may be
101
contest of account on
objections
101
101 101 101
executor
may be
interest
on
services
101 101
charged on no allowance for executor's what expenses charged on what objections prefer on
on
102 102
102
Index.
JUDICIAL
231
page.
SETTLEMENT Continued,.
bad or doubtful claims allowed on what allowed on, without vouchers commissions allowed on
counsel fee on
to fix rights
1Q3
by decree on
on
conclusive
decree on,
how
supplemental citation on
share of infant on
108
108
State treasurer
108
decree as to creditors on
108
on
settled
advancements
effect of
on
how
paid
132
when
Accounting.)
148
177
form
of
(See
JURY, may be
123
L.
LANDS,
held
interest in,
to year,
deemed
assets
60 60
LEASES,
for years,
60
to
pay to
61
88
119
pay debts
on
real estate,
when
ordered
124
183
form of
LEGACIES,
articles not assets for
payment
of
62
81
postponed to debts
87
232
Index.
Continued.
page.
LEGACIES
care as to
88 90 90
91
when when
specific, to
be delivered
of,
to
be paid
91
bond on payment
when
91 91 91
when
to abate
abatement of
payment
of,
how
enforced
93
92
;
statute of limitations as to
to minors,
how
paid
93 93
payment
of, anticipated
to State treasurer
interest,
how computed on
when
146
LEGATEE,
served with notice of appraisement
*
59 59
81 89 96
appraisement in presence of
creditor
may
collect of
remedy of
creditor against
may
cited to settlement
98
payment
to,
receipt of,
on settlement form
106
174
LETTERS,
to executor or administrator
may be revoked
34,
34
35
upon
estate of non-resident
1
43
45
LETTERS OF ADMINISTRATION,
married
objections to issue,
11
11
how
tried
12 12
12
Index.
233
Continued.
page.
LETTERS OF ADMINISTRATON
where granted
13
may
to
issue, forthwith
issue,
24
when
33,
whom
issued
33 34
34
how issued
when granted
general
special
38
38 88 38 38
39 39
.
whom
granted
'
39,
41 41 41 41
surrogate
may
refuse
denied to drunkards
to convicts
to aliens
.
'.
41
41 41 41
to
minors
applicant
must
file
renunciation
citation issued
renunciation
citation,
may be revoked
served
41
41
41
defied,
whom whom
on
issue
when to
upon
42 43 43 44
48
.50,
51
estate of illegitimate
of non-resident
special
no power over real estate revoked unless new bond revoked upon petition
petition for revocation
52
52,
52,
55
53 54
56
167
filing
inventory
68,
69
72
284
Index.
page.
LETTERS TESTAMENTARY,
convict cannot take
alien non-resident
10 10
10,
cannot take
objection to issue of
idint
11
cannot take
11 11
11
12
,
12
13
when
to
issued
issued
*
32,
34
32 32
whom
objections to issue
granting
of, staid
32
verified
objection to,
must be
32
32
non-resident entitled to
32
32
bond
revoked upon
qualified
petition for revocation
52,
petition,
where incompetent or
dis-
52 55
54 56
68,
revoked without petition, when decree revoking revoked for not filing inventory
local
69
72
LIABILITY,
of executor for waste, etc of executor on his
74
81
own
contract
LIBRARY,
family, not appraised
63
LIEN,
one executor
may
release
from
71
LIVERY STABLE,
manure
of,
personal property
60
LOOMS,
in
woolen
mill, personal
property
60
LUNATIC,
discharged from committee,
may
act as executor
".
11
100
Index.
235
M.
MAJORITY,
supreme court guardian continues
until
PAOB
136
MALES,
preferred in administration
40
MANURE,
when when
personal property
part of realty
60 60
MARINERS,
"
4
4
when considered
MARRIED WOMAN,
when
entitled to letters
40
113 137
MEETING,
of appraisers
59
59
MEMORANDUM,
executor not chargeable unless, appears
81
MILEAOE,
of witnesses
24
MILL,
looms
in
60
60
60
60 60
MILL-STONES,
part of realty
60
MINOR, may
have special guardian, when under fourteen, how served administration granted to guardian cannot administer
22
20
39,
41
41
when
62
236
Index.
pags.
;
MINOR Continued.
provisions in favor of
additional provisions
rights of
'.
62,
63
63
63,
64
63 96
legacies to,
how
paid
duty as to accounting, when they are interested how served with citation notice for special guardian to be served on
special guardian to be appointed for
100
100
100
134
belongs to
134
135
s .
guardian
of,
by
whom
appointed
.'.
136
guardianship of non-resident
residence of,
how
determined
what
who to
be cited on application of
under fourteen, guardian of guardian of, to take oath guardian of, may apply for sale of real estate
penalty for neglect of
relation of guardian of, confidential
143
143 143 144
'
144
1
in another State,
power of
44
144 146
when
...
146
account of guardian
of,
how made
150 150
150
commissions
of,
guardians of
how
enforced
required
new
guardian
may
resign,
when when
152
153
to account,
when
154
154
191, 194
by
196
199
Index.
MISCONDUCT,
of guardian, cause for removal
237
paob.
152
MONEY,
deemed
assets
67
MORTGAGES,
statement
of, in
inventory
65
84
84
119
when paid
to
out of personalty
pay debts
real estate,
on
when
ordered
124
183
form of
v
MOTHER,
heir or next of kin
15 39
entitled to administration
appointed guardian
distribution to
'.
134
110
N.
NEGLECT,
of special administrator of executor to set apart property
to file inventory, penalty
68,
46
66
69
NEGLIGENCE,
executor liable for
74
NIECE, when
when
entitled to distribution
109
NEPHEW,
entitled to distribution
109
NEWSPAPER,
claims advertised for in
77
NEXT OP
names,
defined
KIN,
etc., to
14
15
may waive
service,
when
23
receive letters,
when
entitled to administration
33 39
59 59
238
Index.
pasb.
may
collect of
81
remedy of
creditor against
89
may
cited
96
98
106
109
payment
distribution to
NON-RESIDENT,
how
cited
19
32
38 43
administration of estate of
ancillary letters
upon
assets
estate of
NOTES,
or bills
deemed
61
how
classified in
inventory
65
72
executor to watch
NOTICE,
on service of citation
of application for special guardian, served
22
on infant
22
23 23
and and
23
59
78
79
of rejection of claim
NUNCUPATIVE WILL,
may be made by how made
letters to issue
soldiers
and mariners
2 3
testimony to be recorded
citation
4
4
17
o.
OATH,
of executors, administrators or guardians taken before
whom
of special administrator of appraisers...
34
45
59
66
Index.
OBJECTIONS,
to sureties, if valid
239
page.
50
,
may be
required on account
101
proper on accounting
102
OFFER,
to refer
claim
80
OMISSION, of name
25
ORDER,
for publication,
to
when granted
...
20 23
omitting to probate
for executor to qualify,
28
33 33 45 50 56 68
who may
apply for
sell
how
for
served
or additional sureties
new
ORNAMENTS,
of
widow not
appraised
63
P.
PAPERS,
of deceased, executor
may
deposit
PARENT,
when
no bar
entitled to distribution
109
PARTITION,
to sale of real estate
]20
PARTNERSHIP,
assets of, not inventoried
62
PAYMENTS,
of debts, order of of legacies, order of
83 83 102 175
charged
y
may
be contested
petition to compel,
form
PENALTY,
for not affixing residence to witness
name
43, 68,
3 44 69
of bond
for not filing inventory
240
Index.
pass.
PERISHABLE ARTICLES,
executor
PERSONAL PROPERTY,
special administrator
when
41
how
shall
distributed
49 58
,
be inventoried
appraisers appointed
58 59
59 59
exhibited to appraisers
60 60 60
63
is
69
71
73
75
converted into
135
141
PETITION,
for probate to be presented
15
25
29
who may
present
29
29
34,
35 35 39 45 50 49 53
show cause
44, 49,
for letters
new
bond,
grounds for
for revocation of letters,
52,
when unnecessary
decree revoking letters
for revocation of letters, for judicial settlement
54
55
must
55 56 56
66
Index.
241
PAOE
,
PETITION Continued.
compromise who may make, for settlement for sale of real estate, what to contain for guardian, by infants of fourteen
for sanction to
77
97
121
137
138
194
form of form of
199
PICTURES,
family, not appraised
63
PLATES,
twelve, not appraised
63
POKE,
not appraised
63
POWER,
of each executor
71
POSTHUMOUS CHILDREN,
rights of
112
PROBATE,
power of executor before
any person interested, may apply for on application for facts to be given
petition for, to
*
. .
6
13 13 15
19
be presented
how
when
served
19,
20
23 25
parties of full
fige,
may
ask immediate
for,
supplementary petition
if
new one
to issue
25
27
facts.
can be admitted to
must learn
27
28 29 29
29
order admitting to
conclusive, until,
may
to
be revoked
of,
revocation
be revoked, when
29 29 29
to be sustained,
when
16
may be
revoked
242
Index.
page.
PROBATE Continued.
petition for revocation
29
who may
of heirship
petitioner
present
29 29
30
must
establish fact
31
PRODUCE,
raised
by
labor,
deemed
assets
61
PROOF,
of service of notice of will, course of executor on learning that,
is
23
contested,
25
PROPERTY, PERSONAL.
(Bee
Personal Property.)
of,
withheld
57
57
58
PROVISIONS,
set apart for
widow, etc
63
63
additional, in favor of
in will, for
widow
76
PUBLICATION,
service
by
parties served
19,
20
99 99
unknown
service
by
.-
non-residents served
by
by mail
in case of
99
PURCHASE-MONEY,
when to be how paid
paid by executor
84
128
Q.
QUALIFICATION,
of executor, order for
33
QUARANTINE,
widow's
64
E.
REAL ESTATE,
who can convey by
will
1
73
46
Index.
243
PAGB
,
no power over
48
will
48 49
119
what
for debts
when
made
119 120
120
121
*
who
'
to
apply for
of,
sale
how extended
what
to contain
proceedings on petition
122
mortgage,
lease,
124 124
1
order of sale of
freeholder appointed to sell
sale of,
sale,
25
12/5
on credit
how made
made
how
confirmed
128
129 129
deed on
title of,
purchaser of
how
sold
129 130
130
on
money on
proceeds,
security
sale,
how
paid
131
133
141
power of guardian
183 186
REALTY/
hop poles part of
water wheels part of
mill-stones part of
60 60 60 60
60
RECEIPT,
to be
taken in
all
cases
of creditor, form
for legacy, form
88 174
.174
244
Index.
page.
RECORD,
of will
28
REFEREE,
may be
appointed on accounting
101 101
123
REJECTION OP CLAIM,
notice of etc
,
79
offer to refer, to
accompany
80 80
negotiations after
RELATION,
confidential
143
RELATIVE,
nearest, appointed guardian
134
RELATIVES,
when
cited
138
RELEASE,
to discharge decree,
form
182
REMEDIES,
as to articles not set apart of creditor
66,
67
79
on rejection
REMOVAL,
of testamentary trustees, of guardian
when
115
135
RENT,
deemed assets, when not deemed assets, when
preferred debt,
61 61
when
,
86
87 88
when not
preferred
duty of executor as to
RENUNCIATION,
of executor
executor
,
33
may
retract
33
33
41 41
presumed, when
applicant must
file
may
be revoked
of executor,
form
164
Index.
245
paok.
REPORT,
of sale,
how made
128
REPRESENTATIVE,
of deceased partner entitled to
personal, personal estate vests in
62
71
on distribution
112
RESALE,
when ordered
128
RESIGNING,
of testamentary trustees 115
RESPONSIBILITY,
of executor for
compromise
77
RETURN,
of inventory, extension of time for
66
REVERSIONER,
rent due to,
when
61
REVOCATION,
of will, petition for
29
29
34,
36
upon
petition
52,
53
without petition
of guardianship,
54
151
when
RIGHTS, of widow
of heir not impaired
62
62
63,
of minors
64
s.
SALE,
public or private
of real property to
petition for leave. petition of creditor for
75
pay debts
(See
Real
Estate.)
77
246
Index.
page.
118
SAUCERS,
twelve, not appraised.
63
SCHOOL BOOKS,
not appraised
63
SECURITY,
executor to give
36,
37
SECURITIES,
classification of, in
inventory
for legacies
65 94 94
115 146
when
to be taken
by surrogate
testamentary trustee
may
be compelled to give
SERVICE,
of citation
18,
21
18 18 18
19 19
19 19
19
19,
by
publication
20 20 20
22
19,
on
20 20
20
21
proof of
23
23 24
25 25 33
of citation, neglect to
if
make
how made
Index.
SERVICE Continued.
of notice of
247
page.
appraisement
59
proof
of,
attached to inventory
59
SERVICES,
commissions only pay for
105
SETTLEMENT,
special administrator
may have
46
177
Judicial Settlement.)
SHEEP,
with
fleeces,
not appraised
63
SISTERS,
entitled to administration
39
90 90
91
105
SPECIAL GUARDIAN,
when
other than infant applies for
to be
23
100
on settlement,
appointed
as to real estate
122
SPINNING WHEELS,
not appraised
62
SPOONS,
twelve, not appraised
63
STATUTE OF LIMITATIONS,
who may
interpose
87 89
STABLE,
livery,
manure
assets
of,
personal property
60
STOCK,
deemed
61
STOVES,
not appraised
62
SUBPOENA,
for witnesses
...
24
248
Index.
page.
SUBSTANCE,
of citation
17
SUCCESSOR,
to executor or administrator
48, 49,
55 55
to account
55
may
bring
73
SURETIES,
required to justify
of special administrator
46,
43 47
49
50,
additional
52
51
51
50,
may
97
SUGAR DISH,
one, not appraised
63
109
real estate
133
SURROGATE.
has exclusive jurisdiction,
will issue citation,
when when
.
.
13
when
19,
19,
17
may
20 20
21
may may
,
when
22
25 36
may enjoin executor from acting may issue special letters, when may authorize special administrator
to
44
to sell
45 45
pay expenses
..".
SWINE,
two, not appraised 63
T.
TABLE,
one; not appraised
63
Index.
TAXES,
when
a preferred debt
i
249
page.
83
TEACUPS,
twelve, not appraised
63
TEAPOT,
one, not appraised.
.
,.
..
63
TEMPORARY ADMINISTRATORS,
may
be compelled to account 96
TESTATOR,
shall subscribe at
end of will
2 2 2
TESTAMENTARY TRUSTEES,
may account may resign may be compelled may be removed
115
115
to give security
115 115
THINGS,
annexed to a freehold, when
assets
60,
60 62 67
when
part of realty
in action,
deemed
assets
TRANSFERS,
in fraud of creditors void
73
116
v
for
73
TRUST COMPANY,
sums
to
be deposited
in
108
TRUSTEE,
executor or administrator,
disagreement, order to
testamentary,
as
48
51
may
account
115 115
may-resign
may may
115
115
250
Index.
page.
TUITION,
of minor, guardian
may
take
135
UNKNOWN PARTIES,
how
served with citation
u.
14,
99
108
UNMARRIED WOMAN,
preferred in administration
40
3
UNWRITTEN WILLS
V.
VENDUE,
sales
by
76
VOUCHERS,
executor msiy require
to be filed with account to be filed as to all itemB except, etc
...
79
100 100
101
proof instead of
conclusive, unless
impeached
102
103
w.
WARD,
guardian maintain action for
135
WARRANT,
to search for withheld property
58
WASTE,
executor chargeable for
74
WATER-WHEELS,
part of realty
60
WEARING,
apparel
63
WIDOW,
receives letters,
when
33 39 62
entitled to administration
rights of
. .
Index.
251
pass.
62,
WIDOW Continued.
provisions in favor of
additional provisions in favor of clothes
of,
63
63
not appraised
of,
63 63 64
ornaments
not appraised
days
guardian of
legacy for dower
to,
64
91
payment
dower dower
to,
on settlement
106
109
129
how
132
WILL,
what
it is
1
1
mnles of eighteen years may bequeath personal estate. only persons of full age, may devise real estate
females of sixteen years
it is
1
1
may
is
2 2 2 2
shall
shall be in writing,
when
acknowledged.
2,
2 2 3
3
how
how
executed
affix
nuncupative or unwritten
omission of witness to
soldiers
may make unwritten mariners may make unwritten nuncupative, how made how proved
to
4 4 4 4 4
4
be recorded on
.
letters to issue
4
.,
5 5
7
\,
10
13
13,
14 14
15
252
Index.
page.
WILL Continued.
subpoena will issue to compel production
of real property,
of
16 17 17
of
whom cited personal property, whom cited real and personal, whom ciled
to,
17 17
34 35
35
when
if
36 36
36
witnesses to be examined
at least
two,
if
living
36 36
36 37
legatees or devisees
may
intervene on probate
commission
may
lost or destroyed,
copy
of,
when
37 37 37 37 38 38 38 38 38 38 28 39
39
.
probate probate
of,
conclusive until
.
39 39
39 39
39
probate probate
39
how
49
49
65
76
135
*
guardian appointed by
Index.
253
page.
WILL
Continued.
154
154 157 160
161
form of
attestation clause of,
form
163
163 165
'.
165
3 3
3
3 3 3
need not sign in presence of testator not excused from testifying to execution of will
attestation clause not necessary.
subpoena for
fees of
. .
24 24 25 26
when examined
living, to
commission
if all
26
26
26
will
must remain on
infirmity shall be
shown
26 26 26
how examined
how examined
Y.
TARN,
not appraised 63