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1275

Cornell University
The Moak

Law

Library

Collection

PURCHASED FOR

The School

of

Law of
IN

Cornell University
14,

And Presented February
HEnORY OF

1893

JUDQE DOUGLASS BOARDMAN
FIRST DEAN OF THE SCHOOL

By
A.

his Wife

and Daughter

M.

BOARDMAN

and

ELLEN

D.

WILLIAMS

KFN5210'm12" "s/T""
^'^^

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uniifflK? JH!?.?,,;!. foWRlef e manual

3 1924 022 809 440

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Cornell University Library

The

original of this

book

is in

the Cornell University Library.

There are no known copyright

restrictions
text.

in

the United States on the use of the

http://www.archive.org/details/cu31924022809440

THE

EXECUTOR'S GUIDE
COMPLETE MANUAL FOR EXECUTORS,
ADMINISTEATGES AND GUAEDIANS,

PULL EXPOSITION OE THEIK EIGHTS, PRIVILEGES, DUTIES

AND

LIABILITIES,

AND 0¥ THE EIGHTS OE WIDOWS

IN THE PEESONAL ESTATE,

AND TO DOWEE.

SECOND EDITION,
EEVISEC AND GREATLY ENLARGED.

EGBERT
OOXraSElOE, ETC.,

H. McCLELLAISr,

AND FOKMEB STnSoeATB OT EBNBSELAEB COUHTT.

ALBANY:
WILLIAM GOULD &
SON,

LAW BOOKSELLERS AND
1873,

PUBLISHERS.

Entered according to Act of Congress in

tlie

year 1873,

ET

ROBERT H. McOLBLLAN,
in the
office

of the Librarian of Congress at

Washington,

Troy. THE AUTHOR. The legal profession. July 20. who will find in it. administrators and guardians. 1862. I iave prepared this work expressly for execu- tors. I have quoted the statutes in explanations of full. when the language explanations only embarass the the mind ia coming to a proper conclusion. . I submit the work to the public. collated properly. that statute is clear. will find ia this work a full collection of the statutes. hoping that it may be of use to a class having great responsibili- ties. concise but full directions for their conduct in the discharge of their responsible duties. believing it will lighten their labors. and have avoided having of the them as much as possible.PREFACE TO FIRST EDITION. for which they are illy paid . to authorities and references ful to which will prove' use- them. observed heretofore. and to the pro- fession.

McCLELLAN. I have added plete what I believe to be the most comI collection of precedents yet published. I have received so many flattering testimonials of the utility of the first edition of this book that in preparing the second edition I have added much matter value. I am especially indebted to N. .. for some carefully prepared precedents and would express here. C. H. March 1st 1873. Esq. Moak. I -wrhich I beUeve will prove of great have incorporated all the leading decisions announced since the issue of the former edition re-written the text where it was rendered necesand sary by legislation or over-ruUng decisions. PREFACE TO SECOND EDITION. my grateful acknowledgments. EOBT. trust that the conciseness and simplicity of the particularly acceptable precedents will make them to the profession. of Albany. Troy.

7 Chapter III. the renunciation of exe- cutors. Proceedings on return of citation and of proving the will. Of granting letters testamentary. Page. i Chapter As to II. Chapter I. howremoved. The duty of an executor in proving the will. 19 Chapter VI. The proceedings on presentation of the petition for proof of the will and the service of the citation. the powers and duties of the executors named before offering the will for proof. 12 Chapter IV. Of wills and manner of execution. and of new trial within one year. letters of administration with the will annexed. Who may appoint an executor. How executors compelled to give bond. Disability. 16 Chapter V.CONTENTS. 30 . and who may serve as such. 23 ' Chapter VII.

Of the collection of the estate .. 82 Chapter XIV. Of the payment of debts and legacies. Chaptee VIII. 48 Chapter X. administration. Of the accounting of executors and administrators . 128 . Letters of administration. Greneral provisions in regard to letters testamentary and of etc. . Eeturn of inventory returning it. com- no Chapter XV. Page. Of the duties of executors and administrators in regard to . Chapter XIII. 36 Chapter IX. how compelled . and of missions. For what cause letters are revoked. lease or sale of the real estate of a deceased person for the payment of his debts. the final settlement and distributions of estates. 53 Chapter XI. the inventory and the rights of the widow and the mi- nor children.Vi CONTENTS. Of the mortgage. compromising debts due 68 the estate and advertising for claims.^ and effect of not 67 Chapter XII.

Gruardians and Wards. Accounts of guardians. 158 . 150 Chapter XVII.CONTENTS. Dower of widotr. Appendix. XVIII. 184 197 . or relieved of their trust Chapter XIX. creditor may compel sell the executor or administrator to the real estate of the deceased to mortgage. how compelled to account and 173 how removed. and how admeasured. Vll Chapter XVI. lease or pay debts. A Page.Chapter.

170 in 16th linfe. 108 in 17tli line for competent read. 148 in 11th. 117 in 8tli line from bottom. computed. . line between who and Tiame. Masbrouek. in two places for rents read rests. On Page 2 in 3d line for assigned read. repre- 112 in 16th line for Ha/rbroueh read. insert momM.BRKATA. for representative read. acquired. sem/ng read scigire. 191 line 4.

Married womenj formerly disabled by law from making a valid will. All persons of the age of twenty-one years. dispose of their real estate . called a testator. except idiots and persons of unsound mind. in the same manner as if unmarried. expressly empowered to devise and bequeath their property. and 1869. may so and males of the age of eighteen years. But these ried statutes. take effect upon his death. and females of the age of sixteen years. and 1849. CHAPTER I. may in like manner dispose of their personal property. gave to a mar- woman no power 1 to dispose by will of pro- . Or Wills and Manners of Execution.EXECUTOR'S ADMINISTRATOR'S GUIDE. before 1860. A will is a disposition of an estate by a person to. are by the statutes of 1848.

see also Woodhech 42 Barb. upon money previously assigned by her. The execution of a will shall be accompanied with certain formalities regulated by statute. nor of the interest accruing after the acts. 5th ed... as the will is not to be proved until after the death of the testator."- subscription shall be made by the by him to testator. §40. Special forms will. It shall be subscribed by the testator. except in the case of soldiers in actual military service. Hulse. or both.. to the intent that.. and was not imposed upon. it is not required in drawing a tes- enough that the intention of the . 24 N. 63. 60. [Ryder y. are S.) Wills shall be in writing. tator is plainly expressed but it is well to follow certain forms of expression which have been long in use.. S. " Every last will and testament of real or personal S. perty acquired before the passage of the acts. v.. 3 R. property. "2 Such witnesses. in the presence of each of the attesting or shall be acknowledged . 372. HaveTis. in the formal parts. it will fully appear that in making it. Y. S. 3 R. at the end of the will. 141). 144). he was aware of the character of the instrument. 5th ed.2 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. shall be executed in the following and attested manner: "1. 66. nor of the proceeds of her own labor. or mariners at sea (2 K. (2-E...

OP WILLS AND MANNER OF EXECUTION. 41. no publication. so made to each of the attesting wit " 3. There shall be at least two attesting witnesses.] to The witnesses names any will shall write opposite to their their respective places of residence testator's . " Buddqn v. at the time of making such subscription. or gives the witnesses. [It does not seem to be necessary that the wit- nesses should sign their names in the presence of the testator. each of whom shall sign his name as a witness at the end of the will. to be his last will and testament. there is v. shall forfeit fifty dollars. in some form. Bagley Blachman. that the instrument signed sufficient his will.. interested in the property devised who shall sue for the same. and every person who shall sign the write name to any will by his direction.] "4. to be recovered by any person or bequeathed. § 41. shall declare the instrument so subscribed. at the request of the testator. to understand or at the time of making acknowledging his is subscription. 6 have been nesses. 2 Lansing. 1 Brad. shall own name as a witness to the will. or at the time of acknowledging the same. . McDonald. [Unless the testator declares. Whohis ever shall neglect to comply with each of these provisions. 352. The testator.

shall not affect the validity of any will nor shall any person. in prospect of battle. It should always be appended. 2). . under such circumstances as to make it appear that he intended such disposition to be his will. be excused or incapacitated on that ac- count from testifying respecting the execution of such will. "Such omission . it a valid unwritten will. 4 EXECUTOE'S AND ADMINISTEATOE'S GUIDE. when executing the will.. that he was in actual service. (For form of will. made by a must be proved. exposing or in immediate danger of death from disease or wounds in such service. liable to the penalty aforesaid. makes the declaration and request to the witnesses. in answer to a question put to him. but it is used to perpetuate the transaction in the assist miads of the witnesses. and to the facts them to recall • when they shall come to be sworn. he declared what disposition he desired to make of his per- sonal property. see Appendix No. that. 1 and Codicil No. An attestation clause is not absolutely necessary. . either of the United States or the State of New York his life. NUNCUPATIVE OE UNWEITTEN WILLS." It is sufficient that the testator. To constitute soldier.

that a master of a vessel lying at anchor in a tide ebbs bay of the ocean. Philadelphia was not at Thackeray Boat Farmer. where the and flows. and . that because he was in tide water he was at sea. 44. and it not necessary. One wit- may establish the will before the surrogate of the county where the deceased resided. who will record the testimony proving the decla- ration made as a will. The 196) question has arisen as to it what (8 being at sea. [It* was held that the Delaware sea. to the person he will issue as executor letters upon named by the testator. Y. A mariner at sea. may make constitutes such a will in the same manner. Mississippi river at Vicksburgh held not at Gwin. if credible. near the land. the point of the decision being. whether in the merchant ser- vice or the service of the government. and it will operate as a valid disposition of personal estate. Eep. has been held N. ness.df carried out suppose it — as it is reasonable to will be — will include mariners on . that he request any other to witness the declaration as his will.] Matter of William This rule. The sea. was at sea in the meaning intended by the statute.OF WILLS AND MANNER OP EXECUTION. and if it he considers it proved.. Gilpin's R. 5 He may make answer is this declaration himself. 524. even. apparently.. river opposite v. 1 Tucker. or in ' to questions put to him by another.

In one English case.b EXECUTOR'S AND ADMINISTRATOR'S GUIDE. having first made a nuncupative will. which was held valid. vessels engaged in the coasting trade. in South America. received a wound and died. under a similar statute. A will may stroying it. be revoked by the testator by de- or by executing a new will expressly revoking the former one. shall die leaving such a will in the even if they river Hudson at any place below Troy. a mariner being on shore at Montevideo. .

appointed in the decline to act. and taking no steps in the matter. Appendix No. CHAPTER As TO THE Powers II. First — by remaining passive. ETC.. 3.. of his decision. The duty of the executors. and Duties of the Executors NAMED BEFORE OFFERING THE WiLL FOR PrOOF. POWERS. before the will is . will and the remaining one or ones acting. BEFORE PROOF OF WILL. There are two ways in which an executor may relieve himself of the trust before the letters are issued to him. any of them have so appointed may or renounce. is In case more than one person will. full power to execute the will. becomes the immediate duty of the person so appointed. Second — by making and filing a renunciation.) (See form and directions. 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 the will. learning the fact of his appointment as an it On executor and the death of the testator. as if all appointed assumed the trust.

that the executor named may sell the effects of the deceased. nor to interfere with such estate in any manner. « No executor named in a will. to the extent necessary to raise money to pay the necessary funeral expenses. S. convert into money perishable articles which could not be kept long enough to be inventoried. 156). He may. For the purpose of preserving the it property. 71 . In regard to what are proper funeral expenses. except to pay funeral charges. have any power any part of the estate of the testator. is regulated by statute. in relation to the property of the deceased.. (2 R. before letters testato dispose of mentary are granted. the executor need not take pfifssession. Where the effects are in charge of persons not interested in the preservation of them..' shall. unless he has good reason to suppose that it is being wasted or neglected — in which case he has power to take it. and he should for his do so own protection. proved. see hereafter'. and that he shall take charge of the estate to preserve it. 3 R. further than preservation. 5th ed.8 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. into his or remove it from the charge of the family of the deceased. doubtless. § 16.. the executor ought to care for them and remove them. if neces- ." is necessary for its From this it follows.. S.

or taking any steps to prove it. which can ik.. but a mistaken exercise of is it for the best way to manifest such respect.. will of the deceaseid should be and deposit The its opened and contents ascertained as soon as practicable after his death. S. In this connection. his responsibility relates back . ETC. (2 R. sary. to regard the wishes of the deceased and take immediate steps to carry them into effect. S. There is in some parts of the state.. POWERS. liabilities . He may take them them the papers of the deceased and seal up. BEFORE PROOF OP WILL.) [When an executor de son tort afterwards takes letters testamentary. a practice of waiting for six weeks after the death of the testator before opening the will. awaiting further authority. This is founded in a sentiment of respect is for the deceased. 81. in a place of security. may be well to State the persons of any unauthorized taking possession of property of the deceased. as regulated by law. 168. 9 and he will be protected in taking steps for that purpose. or the immediate care of his family. for the purpose of learning if tions are contained in it any direc- in regard to his funeral.e only be done'by proving his will and caring for estate which he accumulated it for his family.. 3 R. 5th ed.. § 60.

sion Every person who shall take into his possesassets of any of the any testator or intestate. 1 Tucker. or to his own first act of unauthorized interference. in the proper action. to the death of the decedent.10 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. but shall be responsible as a wrongdoer. 5th ed. for having received. Estate Ellen Farrell. 449. or without authority from the executor. such sum allowed him 3 E. in accounting for the goods or the value thereof on a trial at law(p. taken or interfered with the property or effects of a deceased person. for a " from the deceased. administrator or collector. for the value of any property or effects so taken or received. to every person entitled thereto. 747. without being thereto duly authorized as executor. and shall not be allowed to retain or deduct from such assets for any debt due to hini his lifetime. administrator or be liable to account for the full collector... and for all damages caused by his acts to the estate of the deceased.) "No own person shall be liable to an executor of his wrong." . S. shall value of such assets. or for labor expended on them. or he may have ^17. 110. personally.] " § 60. to the executors or general or special ad- ministrators of such deceased person. and demand payment of a lien so acquired before delivering them up. in retain But he may to any such assets sum due him for care taken of them.

POWERS,
It

ETC.,

BEFORE PROOF OF WILL.

11

may

be remafked that any one performing

the Christian service of burying a deceased person
will be allowed his reasonable funeral expenses out

of the estate of the deceased, as a debt, preferred

above

all

other debts.

12

EXECUTOR'S AND ADMINISTRATOR'S

GtTIDE.

CHAPTER
Who may
.

III.

Appoint an Executor and who may Serve as such. Disability, how Removed.
statutes, as

The

amended by the

act of

1848 and

1849, inresj)ect tothe rights and powers of married

women, provide that "
persons of unsound
their real estate

all

persons except idiots,
infants,

mind and
last will

may

devise

by

and testament," and

that

" every male person of the age of eighteen

years or up^^ards, and every female of the age of
sixteen years
or upwards, of sound
others,

mind and

memory, and no
his or

may

give

and bequeath

her personal estate by

will, in writing."

An

alien cannot take or give real estate

by

devise,

but his will in regard to personal property will be
carried out.

The power
§ 3.

to

make
69

a will involves the

power to

appoint executors, but
(2 R. S.,
J

3 R.

S.,

5th

ed., 154).

"No

person shall be deemed competent to serve as an
executor,

who

at the time the will

is

proved shall

be:
"1. Incapable, in law,
(Except married women).
of

making a contract

"

2.

Under the age of twenty-one

years.

APPOINTMENT OF EXECUTOR.
"
3.

13

An

alien,

not being an inhabitant of this
v.

State.

{McQregor

McGregor, 1 Keyes, 113.)
infa-

"4.

Who
crime.

shall

have been convicted of an

mous
"
5.

Who, upon
by the

proof, shall be

adjudged incom-

petent,

surrogate, to execute the duties of

such trust, by reason of drunkenness, improvidence,
or

want of understanding.

[McGregor

v.

Mc-

Gregor, 1 Keye^, 133.)

" Or one whose circumstances are so precarious
as not to afford adequate security for the adminis-

tration of the estate.

(2 E. S., 70, § 6, 7.")

Married
trices,

women

are capable of acting as execuletters

and of receiving

testamentary as

though they were single wompn ; and their bonds,
given upon the granting of such
letters, shall

have

the same force and effect as though they were not
married.

(Chapter 782, Laws of 1867,

§ 2.)

Before the passage of the act last quoted, letters

could only issue to a married

woman upon
filed

the

consent of her husband in writing,
surrogate,
liable for

with the

and by giving such consent he became
from the minority of the

her acts jointly with her.

The

disability arising
is

person appointed,

at

an end at the arriving of the
of an alien, on his

person appointed at

full age;

becoming naturalized, or becoming an inhabitant of
this State.

;

14

EXECUTOR'S AND ADMINISTRATOR'S GUIDE.

The
idiots

first

subdivision also includes, for example,

and lunatics and habitual drunkards, in
;

charge of committees
case of the lunatics

and the

disability ceases in

and drunkards when they
sound mind,

are discharged from the custody of their committee,

and are

judicially declared to be of

or capable of

managing

their

own
it

affairs.

Upon

the fourth subdivision

may be remarked
objection;

that however guilty or base the executor appointed

may
and

be,

conviction

must precede the

in case of contest before the surrogate, the
(1 Barb.,

record of conviction must be produced.

Gh. B., 47 ; Harrison v. McMahon, 1 Brad., 289

McMahon

v. Harrison, 6

N. Y., 443

;

Emerson

v.

Bowers, 14 N. Y., 449.)

The in(!ompetency mentioned
division arises
,

in the fifth sub-

from drunkenness, improvidence,
of care and foresight as renders the
his
it is

or such a

want

person
affairs
;

appointed a poor manager of
or
is

own
sup-

want

of understanding, which,

posed,

intended to

mean

gross ignorance

of

business, as well as natural incapacity, and, pro-

bably inability to read and write would ordinarily
be a sufficient objection.
is

A

professional gambler

presumptively incompetent.

{McMahon v. Harri-

eon, 6

N. Y., 443, 1 Brad., 289.)
surrogate may, in his discretion, refuse

"Any

the application for letters testamentary, or letters

APPOINTMENT OP BXECUTOE.

15

of administration, of any person unable to read

and write the English language."
of 1867, §5."

Chap. 782, laws

These objections are addressed to the discretion
of the surrogate, and

may

be

made

at

any time

before the issuing of letters, but the decision is prob-

ably open to review before a superior or appellate
tribunal.

:

;

; ;

16

EXECUTOR'S AND ADMINISTRATOR'S GUIDE.

CHAPTER
The Duty
There
is

IV.

of

an Executor

in Proying the Ay ill.

no absolute necessity that application

for the probate of a will be
it

made by an executor

may

be

creditor

made by any person interested. Even a may make the application and procure the
But the
application

necessary citation, in case those more immediately
interested neglect the duty.

should be made, usually, by the one
act as executor,

who

intends to

and he should, by

diligent inquiry,

ascertain, if possible, the

names and residences of

the heirs at law and next of kin bf the testator, so
as to inform the surrogate of the requisite facts.
§ 5.
(S.

L.

;

1837, chap. 460-; 3 R.

S.,

5th

ed.,

146).

"On
by

application to the surrogate, he shall
satisfactory evidence, the following

ascertain,
facts

" 1 If the will relates exclusively to real estate, the names and places of residence of the heirs of
the testator, or

that upon

diligent

inquiry the

same cannot be ascertained
" 2 If the will relates exclusively to personal
estate, the

names and places of residence of the
of kin of the testator, or that

widow and next

diligent" inquiry the

upon same cannot be ascertained

.

; ;

EXECUTOR'S DUTY IN PROVING WILL.
(I

17

3.

If the will relate to both real

and personal

estate, the
heirs,

names and

places of residence of the

widow and next of kin of the testator,
diligent inquiry the

or that
ascer-

upon

same cannot be

tained."

The

diligent inquiry required, is seeking

the

requisite information

from those who, by reason
or intimate ac-

of relationship to the testator,

quaintance,
I

may be expected to know of his family.

would here caution parties not to confound the
and devisees in fhe

terms heirs and next of kin in the statute, with
legatees
will.

The terms heirs
from the
devisee,
will,

and next of and the

Mn imply

blood connection, while the

relation of legatee or devisee arises
testator

and the legatee or

may

be

strangers in blood as well as in fact.

Heirs are distinguished also from next of kin
the
first

taking the real estate by descent, and the
property by distribution.

last taking the personal

Thus the

heirs of a deceased person are

1.

His

children lawfully begotten, if he have any, and the
children of such as shall have died; 2. His father,
if

he be living ; His

3.

His mother,

if

she be living

4.

collateral relatives.

(3 E. S., 41.)

The next of kin
father;
3.

are —

1.

The children
brothers,
is,

;

2.

The

The mother, and

and

sisters,

and the legal representatives (that

the children)

of such as shall have died; 4. His collateral rela-

;

18
tives,

BXECtTTOE'S

AND ADMINISTRATOE'S GUIDE.
sisters' children.

not beyond brothers' and

(2

R.

S.,

96

;

3 R.

S.,

5th

ed., 183.)
illegiti-

The
mate,
2.

heirs at

law and next of kin of an

if

he have no children, are

1.

His mother
(S. L.,

His relatives on the part of his mother.
"

1845, chap. 236.)

And illegitimate children born
(S. L., 1856",

since 1855, in default of lawful issue, are heirs at

law and next of kin of theirmothers."
chap. 547.)

Having ascertained these

ifacts,

they should be
(see form.
will,

embodied in a petition to the surrogate

Appendix No>l§), which, together with the
should be presented to that
officer,

who

will issue

a citation to the proper parties.
If the executor has not the will in his possession,
or if he cannot obtain
it,

the petition should state

in whose possession

it is,

and the surrogate

will

issue a subpoena to the person holding it

and com-

pel him to produce

it.

K there be no executors named in the will, or if
he or they be incompetent, have removed to a
great distance, or are dead, the duties above specified devolve

upon any person interested in the
as above directed.

will,

who may proceed

requiring them. (See order and citation in appendix. some individual of suitable age and and under such circumstances as shall . and attend the probate of the wiU. The Proceedings on Presentation of the Petition FOR Proof of the Will and the Service of the Citation. with discretion. 19 CHAPTER V. stating their places of residence. to appear before him. or an adjoining county. if they can be ascertained. The petition having been presented to the surro- gate.: PROCEEDINGS ON PETITION FOR PROOF. chap. he will issue a citation to the proper persons.) The citation it is di- shall be served rected. as follows on the persons to whom " 1..) citation shall be directed to the proper per- The sons. § 8. as 3 R. at least eight days before the day appointed for taking the proof. S. amended 1840 " and 1863 5th ed. L. at the dwelling-house or other place of residence of such person. 1827. .. by delivering a copy to such person. containing the information required above. 460. at a time and place therein mentioned. (S. as aforesaid. On such as reside in the same county with the surrogate. or by leaving a copy at least eight days. by name. 147.

his committee . whose care or custody he may chap 693. then to any per- son having the care and control of such minor. or leaving at his dwelliag-house or other place of residence. then service shall be the lunatic or made on in L. On such by as reside in any other county in this delivering a copy it personally to such per- son. that the copy came to the hands or knowledge of the person to be served with time for him to attend the probate of the "2. If such citation is directed to a minor under the age of fourteen years. § 1. or if there be none within this state. in will. also to his father. (S. induce a reasonable presumption in the mind of the surrogate. or with whom he shall reside. state. withia this state. 1872. service shall be made on idiot. citations may be served by delivering a copy personally to such persons. in the mannier and under the circumstances above mentioned.20 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. whose name and and residence can be ascertained. there be no committee. or in whose service he shall be employed. or leaving it at his or her . at least fifteen days before the day appointed for taking the proof. or guardian . and also on the person be. If any party to be served be insane or an if idiot. it. a copy thereof shall be delivered to such minor personally.) " 3. On such persons as do not reside in this state. mother..

;

PROCEEDINGS ON PETITION FOR PROOF.

21

dwelling-house or other place of residence, not less

than

fifteen

days nor more than ninety days before

the day appointed for taking proof of any will

and on such persons as do not

reside in this state,

or whose places of residence cannot be ascertained,

by publishing a copy of the
for taking the proof."

citation in the state

paper for six weeks previous to the day appointed

In

all cases

where service

is

made by

publica-

tion, a

copy of said citation shall also be mailed to

each person so served, at his place of residence or
post-office address, if

the same can be ascertained,

at least thirty days before the return-day thereof.

The

statute requires that the proof of the ser-

vice of the citation be

by

affidavit

(S.

L.,

1837,

chap. 460, § 9), but, practically, in case of parties of full age, there can be no doubt that an admission of service signed
their signatures,
service of a copy
sheriff
;

by the

parties, will

on proving

be

sufficient,

without a formal

and a

certificate of service of a

would undoubtedly give the court jurisdic-

tion of the persons so served.

Where, however,

all

the parties, heirs-at-law and

next of kin, are of full age, they
fornlal service, or

may waive

the

any

service,

and by aU uniting
in court

in the petition for proof, or

by appearing

and

filing

a written consent to the course, Ihe sur-

rogate will proceed to take proof of the will and

;

22

EXECUTOR'S AND ADMINISTRATOR'S GUIDE.

issue letters fortliwith.

But a

special or general

guardian

may

not waive any formality, his duty

being, in fact, to see that all the requirements of the

law are complied with.
Should
it

be necessary to travel in making ser-

may be allowed his expenses of such travel, or he may employ a person to make the service, and he may be allowed
vice of the citation, the executor

a reasonable payment made to such person.
It will be well to procure
'VT.iaking

from the surrogate, on

the citation, a subpoena for the witnesses

resident in this state, with the necessary tickets

and the

fees of

such witnesses are the same as in

courts of record, to wit, eight cents per mile for

going to court only, and
attendance.

fifty

cents for each day's

PROCEEDINGS ON RETURN OP CITATION.

23

CHAPTER

VI.

Proceedings on Retuen of Citation and of Proving THE Will, and of new Trial within one

Year.

On

the day appointed for proof,

if

the citation
the parties

shall not

have been duly served on

all

who ought

to receive notice, the surrogate

may
cita-

adjourn the proceedings and issue a further
tion (S. L. 1837, chap.

460

;

3 R. S., 5th ed., 148),

and, as

may sometimes happen, should the name

of

some proper persons have been omitted
be

in the

petition for probate, a supplementary petition
filed at

may

any time, on discovering the omission,
citation issued to bring
is

and a new

them into

court.

If however, the service

complete, the surro-

gate will ascertain

who

of the pa,rties
or,

named

in

the citation are minors,
of 1872,
lunatics

by chap. 693, of Laws

or idiots,
for

and

will appoint a

special guardian

such minors.

(See proof

service of citation in appendix.)

[The

special guardian

in probate proceedings

should be a lawyer, for the special guardian must

appear in person, and no other than an attorney

can appear in the surrogate's court except in his

own

behalf.

Will of Pierre Spicer, 1 Tucker, 90.

24

EXECUTOR'S AND ADMINISTRATOR'S GUIDE.

See order for special guardian and consent in
appendix.]

The
on

special guardian so appointed shall appear

in person before

any further

steps are taken and,

his appearance, the surrogate will cause the

witnesses to be examined before him.

At
bate,

this point, the

party offering the will for profirst,

may

learn for the

that the probate

is

contested.

If this should be so,
.will,

and the executor
be but remotely

or other party offering the
interested in the matter,

it is

suggested that he

turn over the responsibility of the contest to those

more nearly

interested in proving the

will, as

legatees or devisees,

by immediately notifying them
contested, that they

that the probate

is

make

the

proper appearance before the surrogate and take

charge of their interests.
to appear

They

will

have leave

upon

petitions.

(See petitions and order

in

appendix.)
if the

.As counsel will necessarily be
probate
is

employed,

contested,

it is

not neces-

sary to treat further of that branch of the subject
here.

At

least

two of the witnesses,

if so

many

are

living in this state,

and of sound mind, and are not
sickness,

disabled from

age,

or infirmity, from

attending, shall be produced

and examined; and

the death, absence (from the state), insanity, sickness, or infirmity of

any of them

shall be satisfac-

PROCEEDINGS ON RETTTEN OP CITATION.
torily
(S. L.,

25

shown
1837,

to the surrogate taking such proof.
fehap.,

460

;

3 R.

S.,

5th

ed., 148.)

If

any such aged,

sick or infirm witness resides

in the

same county with the

surrogate, the surro-

gate will, without

making unnecessary

delay,

proceed to take the examination of such witness,
at his dwelling-house or other place of residence.

K

he reside in any other county of this

state,

the

surrogate will direct

that his examination be

taken by the surrogate of such county.
If all the witnesses are out of the state, dead, or
insane, or incompetent to
testify,

the surrogate

may
tator

receive proof of the handwriting of the tes-

and of the subscribing witnesses, and of such

other facts and circumstances as would be proper
to prove such will on a trial at law.

[Proof of handwriting cannot be given where
the subscription
is

by mark thus

+

.

So said Sur-

rogate Tucker, Matter of Edward Walsh, 1 Tucker,
132.

We

can not see

why

an habitual signature
as well as the habit-

by mark could not be proved
But

ual forming of certain letters.]
in such case, the surrogate can only record
(S. L.

the will as a will of personal estate.
chap. 460; 3 R..
S.,

1837,

5th

ed., 150.)

And

a com-

mission

may

also issue, as in the

Supreme Court,
and

to take the testimony of witnesses to the will,

other testimony.

'

26
If
will

EXECUTOR'S AND ADMIN ISTRATOE'S GUIDE.
it

shall appear that the testator signed his

in

the presence of at least two witnesses,

publishing the instrument as his last will and
testament;
in their presence, declaring
after signing,
it to

be

such

;

or

if,

he acknowledged to such
it,

witnesses that he had*signed
declaring
it

publishing and

as above; that
;

he requested them_to
;

sign as witnesses

that they did so sign

that at

that time

the
full

testator

was of sound mind and

memory, of
under any

age to execute a will, and not

restraint, the surrogate will enter

an

order that the same be admitted to probate and be

recorded as a will of personal estate.
it to

To

entitle

be recorded as a will of real estate,

it

must

further appear, that the testator

was a

citizen of

the United States; or

if

an

alien,

that he had

taken the proper steps to enable him to take and

convey real estate.

(See depositions on probate, and

order for probate in the appendix.)

[While

it

may

be, that a resident of the

United
it

States shall be presumed, in law, to be a citizen,

will be the safer course to prove that the deceased

was a
raised

citizen,

a presumption of which

may

be

by proving that he exercised some
as that

of the

franchises of a citizen,

he voted.

The

statute requires that this shall appear.]

The
in

surrogate will record the will and proofs

accordance with the order, and will attach a
to

certificate

the will, that the same had been

PROCEEDINGS ON RETURN OP CITATION.

27

duly proved before him, as a will of personal
estate

or of
be,

real

and personal
will,

estate,

as
it

the
to

case

may

and

on demand, deliver he received
it;

the person

from

whom

or,

in

case of his death, insanity, or removal from the
state, to

any devisee named in such
;

will, or to .the

heirs or assigns of such devisee
relate to personal estate only, to

or if the

same

any acting execu-

tor of such will, or administrator with the will an-

nexed, or to a legatee

named
and

therein.

(2 R.

S.,

66

;

3

K

S.,

5th

ed., p. 150.)
certified,

The

will so proved

together with
real estate,

the proofs thereof,

when

it relates to

may and
lie,

should be recorded in the

offices

of the

clerks of the counties in

which such

real estate

may

who

are required to record

and index them, as

they are required to record and index conveyances.
(S.

L. 1846, chap. 182.)
is

This provision, although generally overlooked,

becoming constantly of more importance, as the
titles to real estate are

becoming more compUcated;

and

I think it advisable, in all cases

where the

tes-

tator held
reside, to

land in a county where he did not
it.

take advantage of

Exemplified copies of wills proved out of the
state, devising real estate,
office

may

be recorded in the

of the surrogate of the county where such
estate is situated,

real

and

shall be presumptive

28

EXECUTOR'S AND ADMINISTRATOR'S GUIDE.
all

evidence in
devised.

proceedings relating to the lands so 1864, p. 746.)

(S. L.,

New Hearing
It is provided
seq.),

as

to

Probate within one Year.
statute (2 R.
S.,

by the

61, § 30,

et

that notwithstanding a will of personal pro-

perty may have been admitted-to probate, any of the

next of kin to the

testator,

may at any

time within

one year after ^uch probate, contest the same, or
the validity of such
relative shall
file

will.

For that purpose, such
by

in the office of the surrogate

whom

the will was proved, his allegations in writ-

ing, against the

vaHdity of such

will, or against

the

competency of the proof thereof; upon the

filing

of such allegations, the surrogate shall issue a citation to the executors

who

shall

have taken upon
the adminis-

them the execution of such

will, or to

trators with such will annexed,
tees

and

to all the lega-

named

in such will, residing in this state, or,

to their guardians, if

any of them be minors, or any of them

to their personal representatives, if

be dead, requiring them to g,ppear before him on

some day to be therein specified, not less than thirty,
nor more than sixty days from the date thereof, at
his ofl&ce, to

show cause why the probate of such
(See allegations and

will should not be revoked.

order in appendix.)
'After service of the citation, the executor, or

the surrogate will appoint a special guardian for them. on the hearing. but good faith before notice^ shall be all acts done in valid. and he shajl account for moneys received by him. and testament of the he shall annul and revoke the probate thereof. If any lega- named be miniPi. shall be had. a decision The tees citation shall be personally served. the surrogate shall decide is. . if otherwise.PEOCBBDINGS ON RETURN OF CITATION. same If. at least fourteen days before the return day. except the collection and recovery of iintil moneys and the payment of debts. invalid. or that it not suflBciently proved to have been the last will testator. shall suspend all proceedings in relation to the estate of the testator. and proof will be taken as if no proceedings had been had before on the will. for and to be pubHshed three weeks in a newspaper printed in the county. within three months therefrom. he shall cause notice thereof to be served on the executor named in the letters. . or the adminis- trator with the will annexed. that the will is for any reason. 29 administrator with the will annexed. "Whenever the surrogate shall annul the probate. The power and authority of the execu- tor or administrator with the will annexed shall all thereupon cease. confirm such probate. . he shall His decision may be ap- pealed from at any time.

the is. any competent person named and qualify. L. to tor. the all. Of GRANTiNa Letters Testamentary. — (which If such an affidavit shall be filed. as execu- who shall appear And they may be granted immediately. chap. 24 N. VII. 5th ed. 460. 1837. surrogate will not try the issue... on page see) . (S. the surrogate will issue letters testamentary thereon. (See affidavit objections S.) [If the affidavit shows any intention to file objecof several executors. tions against only one surrogate will suspend action as to V. [If the objector swears that he is a creditor. as to whether he . McGregor. unless some person interested file an affidavit that he intends to interpose objections to competency. the sur- rogate shall stay the granting of letters for thirty days. Bud. 166. § 22. After a will of personal estate shall have been proved. 154.. of the executor under the provisions quoted heretofore. The Renuntion WITH THE Letters of AdministraWill annexed. Y.30 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 3 R. unless the matter shall be sooner disposed of. CHAPTER ciation OP Executors.) and order in ap- pendix. How Executors Compelled to Give Bonds.

In Kings county.) S.) (2 (See petitions S. or the clerk appointed by the surrogate. 15. -Ferris.) But if all the persons named as executors renounce . 171 1863. or taking the oath of office and filing thQ same with the surrogate.clerk or clerks of the surrogate are also autho- rized to administer (3 it. may renounce by two witsatisit. in Appendix. or a commissioner of deeds. [As to rules of adjudication upon tbe objections. 155. county judge. appendix. chap.] And letters will be issued on the executor's qualifying. 31 a creditor. in fact.) Any person named as by an instrument nesses. the surrogate may. and named as an executor shall not appear to qualify is within thirty days after the will shall not have renounced. 3 R. 5th ed.. This oath may be taken before the surrogate. 1 Estate Horatio N. on application of any person interested. 70. but will try the objections. 392. see hereafter in regard to requiring executors to give bonds after letters issued.. § 9. an executor. or he will be deemed to have 5th nounced the appointment.) And any person proved. (See form. and in R.. ed. K.. L.OF GRANTING LETTERS TESTAMENTARY. the. . Tucker. attested and on the same being proved to the he will file faction of the surrogate and record if (See form in Appendix. issue a sum- mons to such executor to appear and qualify within re- a Certain time. in writing. S. S.

then letters of administration with the will if annexed will be granted. upon the de- cease of those having letters. Mattice. 640 .. is who is not a residuary or specific legatee.] Letters testamentary upon a will of a testator . afterwards. or who is not deemed to have renounced after summons. 4 Brad. Gardiner. them To any principal or widow or next of kin .] An at executor who does not renounce. 1 1 Paige. regulations and restrictions as letters of adminis. as will no executors had been named in the — 1.) [A guardian will of an infant. 32 EXECUTOR'S AKD ADMINISTRATOR'S GUIDE. or some one of specific legatee 4. 43 Barb. or after their revocation. or. Robertson v. « or neglect to qualify after summons as above. tract his renunciations at may re- any time before letters are issued to others. 3. 417. either for the protection of when the executor previously acting become incompetent. tration in cases of intestacy (See petitions order etc. Casey v. and letters will issued to him . in appendix. or shall die or letters.. To 2. may be any time appear and qualify. [An executor who has renounced. 13. To the testator — in the To any creditor of the same manner and under the like which see hereafter. and in some cases it is advisable to apply for such the estate. or are legally incompetent. the residuary legatees. testator. not entitled to letters with the annexed in preference to the widow of the Gluett v. . Mc Goech.

. or that his circumstances are so precarious as not to afford adequate security for his due administration of the is estate. 1863. in Appendix. 694. or that he has removed or about to remove from this state. Wood V. 426. 2 Barb. that he should be required to give security. point is. ch. and when there fund is is no ground ger. [As to incompetency. complaint shall be made to the surrogate of the county. after letters testamentary shall have been granted to any person named as executor. 299 . the surrogate shall proceed to inquire into such complaint. (See petitions etc. an executor has no property except an unliquidated demand. merely because he does not own property to the full value of the estate. 33 domiciled without the state.. Cock. for supposing that the trust in dan- Mandeville v. and was about to remove from the held. it is . 8 Paige 475. The main whether. the circumstances doubtful whether the trust being considered. that the person so appointed as executor.) see above. 4 Paige. may also be issued by the surrogate of any county in which there (See S.) If. has become incompetent by law to serve as such. 12. L. Wood.OF GRANTING LETTERS TESTAMENTARY. at the time of his death. by any person interested in the estate. may be any property effects. Holmes v. An executor should not be required to give security. Where state. p. Mandeville.

on the return day. if the executor be in the county. is legally incompetent. to be administered as directed. authority as executor. that he gate shall. [The as a general rule. the surro- by order. or. 148. Brook. 2 Barb. Eolmes v. stating the causes of complaint clearly plicitly. it if he shall have absconded from the it may be served by leaving If. and ex- and thereupon the surrogate will issue a to be personally served at least six days summons. costs of the application. there be no acting executor of will. in the manner above set forth. be on oath.] it If such person neglect to give a bond. and his rights and If.. 1 Brad. after such removal. should. the estate. Cock. is fund safe in his hands. it shall appear that the complaint is sustained. at his place of residence. before the return day. within not exceeding five days. be charged on the fund. the sum- mons shall appear to have been duly served. such the surrogate shall grant letters of ad- ministration with the will annexed. and on hearing the proofs and allegations of the parties. if granted.34 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. supersede the letters testa- mentary so issued to him. the surrogate shall require the executor to give a bond with sureties like those required of administrators.. 426. .] This complaint should. that is. or if appear. Gottrell v. ch. county. undoubtedly. shall thereupon cease.

ch. and extend state. those interested might consider him as trustee instead as a wrong doer. both as administrator and trustee. 25 Wen. Lewis. MMiobel.. Gilchrist v..l among legatees. ch. the administrators with the shall observe annexed and perform the will. 21 from the Supreme Court. S. Letters testamentary and of administration. 66.) real estate for But he cannot act about the sell and dispose of the purpose of division re!a. 45. S. "Wen. 9 Paige.. Phillips. are local in their character. 224.) will [But if the administrator with the assumes to act as trustee as to real annexed of estate. without further authority (GonJdin Y.. 3 R. 32.. 2 Edw.. had been named executors in the 72 . Y.OP GRANTING LETTERS TESTAMENTARY. affirmed on another ground. 357. 430 . or do any estate.. powers and duties shall be the same will. as if they (2 R. Sup. 7 Johns. generally. and directed him the conveyance of the property. Bae. in place the executor appointed and who declined to act. was authorized to execute a trust power given to the executor named and to execute who declined to act. only to assets and property within 'the little Doo- V.] .. And it being doubtful whether the administrator with the will annexed. 374 . and their rights. the court appointed the ad- ministrator trustee. 5th. 27 N. and have him removed for neglect of the duties proper to the trustee. 157.Egerton. D(mimick 4 Sand. Y. R. 35 And will in all cases... Boome v. Ct.

S. upon the estate of either an intestate or testator. tate .. is local. lie is said to die intestate.) § 23. and letters of administration (2 with the will annexed. 73 . state. K S. Griffith v. have no charge over the real estate of their intestate [Hillman v.. Lewis. When a person dies. Administrators. 432).. Y.: 36 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. in certain cases. 278 Beecher.. v. 10 Barb. ch. in their representative capacity. in the following cases 1. Where an intestate at or immediately pre- vious to his death.. 45. Letters of Administration. was an inhabitant of the county . and their authority extending only as to assets within the (Doolittle. CHAPTER VIII.) letters of administra- There are three forms of tion : general letters upon the estate of an intesspecial letters of collection. chattels and credits of persons dying intestate. 7 Johns. " The surrogate of each county shall have sole and exclusive power within the county for which he may be appointed. 3 R. to grant letters of administration of the goods. 5th ed. and letters of administration are granted on his estate. 16 N. . leaving no will. St&phms. 158.

4. in whatever place such death may have happened. 2 Brad. [If it is alleged. Bulhley Redmond. 37 of such surrogate. personal property or evidences of debt) therein. Where an intestate. shall die in the county of such surrogate. Where an intestate. Where an intestate. shall die out of the state leaving assets in the county of such surrogate. not leaying assets therein. surrogate must examine the persons applyalso and may examine other persons and compel their attendance. and the value of his personal estate. the presumption it will be that he revoked V.] . but assets of such intestate shall thereafter. should die out of the state. 3. by destroying it. not being an inhabitant of this state. there his papers.LETTERS OF ADMINISTRATION. and a will is traced last to the possession of the deceased. not being an inhabitant of this state. The ing. that there is a will. 2. and manner of his death. must be proof of a search among if it and be not found. that^the deceased left no will. 281. of the time. must produce proof of the surrogate. come into the county of such surrogate.. and in no other county. place." for general letters of adto the satisfaction The person applying ministration. leaving assets (that is. not being an inhabitant of this state. in opposition to the application for letters of administration.

Usually.) Administration.. after diligent inquiry. to the children . this proof is all included in the petition which applicant. shall be granted to the relatives of the deceased.. in the following order " First. if . to the estate. will accept the same. and the names and places of residence of the next of kin. is presented for letters by the The left petition must also state whether the deceased a widow. second. 38 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. seventh. third.. administration shall be granted . titled any of the persons so en- be minors. § 27. 158. 782. amended chap. be entitled to the preference. sixth. 3 R. to the sisters . to the widow . fifth.: . [Where a person brothers. . any of them. if they. then to the creditors of the deceased. (2 and what relation the petitioner has (See forms in Appendix. to the father fourth to the mother . 5th ed. S. will. Laws of 1867. to the grand-children of kin eighth. 74 . with her name. who would be entitled to succeed to his qr personal estate.) S. to the brothers . or that these facts cannot. in case of intestacy. it is dies leaving a father and error to grant letters to a creditor . to their guardians if none of the said relatives or guardians will accept the same. R. be ascertained. to any other of the next who would be entitled to share in the distriIf bution of the estate. however. and the first creditors applying otherwise competent.

to those of the half blood . S. males are preferred to females. 35 Barb. 159. at the time of his decease. any other person or persons legally competent but in the city of New York the public administrator shall have pre- ference. (2 R. apply for letters. And in the case of a married woman dying intestate. 64." several persons. her husband shall . Smith. 24 N. and Id. after the next of kin. be entitled to administration in preference to persons. if S. and shall give bond as other . 39 upon the renunciation of the father only. over creditors and all other persons . unmarried women.. according to law. next after creditors... and in the other counties. then to . Laihnyp V. 3 R.] If no creditor apply. to such as are married . and where several persons.. relative of the whole blood.LETTERS OF ADMINISTRATION. of the Where same degree of kindred. all " This section shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin. in the same degree and equally entitled. apply. the surrogate may most appoint such as in his discretion he thinks fit. over all other persons. 75. 417. 5th ed. §29. as such... the county treasurer shall have preference. Y. otherwise competent. shall be solely entitled to administration the estate of his wife.) "A on husband.

or to some person appointed by the foreign administrator to receive them. then creditors or other proper persons may do so. In the case of persons. But and if none of the persons above specified apply.40 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. to relatives apply- and in case such do not apply. filing his or her consent in writing. or another person. second. 75 . admin- istration shall be granted ing. second. And any person entitled to letters. joined in the ad- ministration (2 E. not inhabitants of this state. New in York. shall be entitled in preference to creditors. then. this consent shall [When have been acted on. 5th ed. state. . as administrator for the debts of his wife. may by receive letters. 160) . in the city of trator.. after the proper citation. not otherwise entitled. persons. may have S. example.ith him The consent may be embodied in the petition. as. to all some person who may have been legally appointed administrator in any other state. but shall be liable.. only to the extent of the assets received by him. joined with her. a competent person. competent person required joined w. who. to the public adminisother counties. dying and leaving assets in this . on produc- ing his letters granted in such other state. a widow may have hel" father. for S.. or brother. 3 E. a son or a daughter may have any or her. first.

. 160.) " No letters of administration shall be granted to any person convicted of an infamous crime. the statute. nor to shall be any one who judged incompetent. or want of understanding.) And if any person who would otherwise be such letters shall be granted entitled. 782.] Where a married woman the same is entitled to letters if may be granted to her as she were unmarried. be a minor. the duties of such trust.) S.159. the same as they would be to the (2 R.] to the degree of drunkenness incapacitating the applicant. by the surrogate. 3 R. of making a contract. 41 and letters issued. * * [The surrogate cannot exclude a person otherwise entitled to fied in letters.. 1 Red field. . S. 1 Barb. if of full age. person so entitled S. Laws of 1867. to execute. (Chap. ed. 5th ed. by reason of drunkenness.. improvidence.LETTERS OF ADMINISTRATION.. 75 . 3 R. 1 Tucker. ch. except for the causes speciCoope v. Kechele. the consent cannot be revoked. see Elmer v. nor to a person not a citizen of the 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 incapable. 5th § 32. 45. Estate of Elijah -D Williams. As 472. to his guardian. Lowerre. 8. by law. (Page 75...

the applicant must produce and file. S. (L. 1867. week for six weeks. once a state paper. 782. . at least six days before the return- day thereof. or by leaving a copy at their residences.) "Any surrogate may. § 5. 4 Brad. a renun- manner heretofore pre- scribed in speaking of renunciations (see by executors. in the . with the surrogate. Casey v. refuse the application for letters testamentary. or it may be published.42 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. having a surrogate prior right or the must issue a citation to such persons. [One who has renounced ciation at may revoke letters his renun- any time before are actually granted. on such in this state in the as reside in any other county at least forty as reside same manner. or whose residences cannot be ascertained. 13. Qardiner. requiring them to show cause why administration should . thap. as against those out of the state." But before the issuing of ciation.] The citation must be served on such as reside in the county. or -letters of administration of any person unable to read and write the English language. in his discretion. personally. Appendix).. of all persons to administration. days before the return day and on such out of the state. not be granted to such applicant. at least forty days before its return. form. or whose residences cannot be ascertained. executed in the letters. personally.

) On the application.) The bond surrogate. . in Appendix. (See petitions. order etc. letters will issue to the applicant. In all 43 cases of publication. in return. with two or more be approved by the less and in a penalty of not than twice the value of the personal estate of which the de- ceased died possessed. or on filing the renunciation of persons having the prior right. that the intestate left kindred entitled to his estate. is executed to the people of the sureties. as far as can be ascertained. or if on the they or return day of the citation to such persons.. on the attorney general of it all cases does not appear in the application. and filing the same with the bond required. a copy must be mailed to those whose residences can be ascertained. if the person applying has the first right. before on his taking an oath or afiirmaofiicer any authorized to administer oaths. day of the twenty A like citation its must be served at where least days before the state. or is one of several equally entitled as a class. to state. in Appendix. to the surrogate. specifying names and residences. therefore.' LETTERS OF ADMINISTRATION. some of them do not take ' letters or show cause why the applicant should not have them. tion. at least thirty days before the return citation. or other written proof. (See oath.

and he may also require the sureties to jusall cases. Before taking person appointed collector shall office. think proper. when.. Appendix. For these purposes. extend only to the collection and preservation of the estate (personal) of the deceased.. The execution of the bond must. and. he may maintain actions as administrator. 160. or of administration in cases of intestacy . a delay is duced in granting such such letters. in be acknowledged or proved before the surrogate or some person authorized of deeds.) Special Letters of Administration may issue in the discretion of the surrogate.) His duties. and shall give a bond with See same S. to take acknowledgment (See form. chattels. 5th ed. |the letters.. The surrogate may examine such persons as he may tify. in case of a contest relative to the proof of a will. when appointed. or where by reason of absence necessarily pro- from this state of any executor named in the will or for any other causes. or relative to granting letters testamentary or administration with the will annexed.44 BXECUTOE'S AND ADMINISTRATOK'S GUIDE. take the oath of sureties the tion. 76 . and he has authority to collect the goods. S. at such reasonable expense as the surrogate shall allow. as in case of general administra-- (2 R. under the directions of the . forms in Appendix. personal estate and debts of the deceased^ and to secure the same. as to the value of the personal estate. 3 R.

is that he will make a true and perfect inventory of such of the assets of the deceased as shall come into his possession or knowledge. when- ever required by the said surrogate. and the delivery and account may be enforced by an order of the surrogate and by an attachment to be issued by him. as in other cases of administration. condition of the bond of such special adis also The ministrator (who called a collector). and return the same. office within three months. he 45 may sell such of the goods of the de- ceased as shall be deemed necessary for the preservation and benefit of the estate. him before his appointment. that the sureties of a special administrator. or to such other person as shall be authorized by the surrogate to receive the same. and will faithfully deliver up the same to the person or persons who shall be appointed executors or administrators of the deceased. Y. [It has been held. are liable for moneys received by Oottsherger v. 19 N. 150. after the shall same have been appraised. Taylor. to the granting the letters". surrogate. or any other court of competent authority. received money and things by him as such collector. in action.LETTERS OP ADMINISTRATION. of the surrogate that he will faithfully and truly account for all property. ..] The condition of the bond expresses fully his liability.

double the penalty of the bond. The special administrator shall be appointed only after notice of two days. in writing. or with such banking associations as the shall direct. and no order shall be made for such withdrawal. By chapter 71 of Laws of 1864. surrogate In the county of New York. and if they shall not appear to be worth. and place of their jus- On the day fixed the sureties may be fully examined. except on the order of the surrogate. shall have been given to the attorneys of the parties who have appeared in the case of the names of the persons who are proposed as sureties of the special administrator. These moneys shall not be withdrawn. collectively. it is provided. and the time tifications. made on notice to all par- . no letters shall issue.46 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. except upon the order of the surrogate to be presented to the depositary. within ten days after receipt of moneys as such. deposit them with some person rity who shall give adequate secu- by a bond in a penalty to be fixed by the surrogate with two sufficient sureties to be approved by him. that every special administrator shall. he shall deposit such moneys. except upon notice to the attorneys of all parties who have appeared in the estate. in an incorporated trust company. No sale or transfer of personal property shall be made by the special administrator.

LETTERS OP ADMINISTRATION. ties 47 who have appeared by attorney. for service of notice of motions in civil actions. and shall be served on the attorneys in the manner provided by law. at ten days before the application is made. The time for the notice shall be ten days. when • service is by mail. The time. will require to be twenty days. Such administrator received by cipal. The least notice of the apphcation for a special ad- ministrator shall be given in the same manner. shall account for all interest him in the same manner as for prin- .

48 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. shall have been granted.. the shall proceed and complete the execution of the will or the administration. General Provisions in Regard to Letters Testamentary AND OF Administration. and letters testamentary.. 78 . or the power and authority of all of them shall be revoked according to law. after granting any letters of adminis- tration on the ground of intestacy. etc. CHAPTER IX. 3 R. 44. §. letters of administration or letters of administration with the will annexed. or in case that letters testamentary or of ad- ministration shall be revoked or annulled according t© law. shall become lunatic.) " In case to any one of several executors or administrators letters whom testamentary or of administration die. convict of an infamous offense. S. shall issue. 162. as aforesaid. (2 R. § 46. S.. as the case may require. For what reasons Letters are revoked. or become incapable. any will shall be subsequently proved. with respect to any one executor or adminremaining executors or administrators istrator. or of . "If. 5th ed." If all such executors or administrators shall die. according to law. as in the first instance. or otherwise be- come incapable of executing the trust reposed in him .

S. a revocation of such first letters of adminis- tration shall be made by the surrogate .. or if he shall have ab4 . or that for any other cause they are insufficient (as when|the estate is discovered to be larger than at first supposed. § 35). 229.. L. 1862. such person may make relief. L. that they have removed or are about to remove from this state. for § 26. at least six days before the return day thereof. chap. be thereupon issued.." . 496 S. If the surrogate 'shall receive satisfactory evidence that the matter requires investigation. chap. 1837. made and served on such acts. *.) When any person inte- rested in the estate of the deceased shall discover that the sureties of any executor or administrator are becoming insolvent. requiring him to appear before such surrogate at a time and place to be therein specified. IN REGARD TO LETTERS TESTAMENTARY. 3R. 49 administration with the will annexed. to show cause why he should not give further citation shall be served personally sureties or be superseded in the administra. application to the sur- rogate who granted the letters testamentary or of administration. and until the same be istrator.tion which on the executor or administrator. shall valid * § 25.163. (S. first adminbe his * done in good faith. 5thed. he shall issue a citation to such executor or administrator.

all 1 Tucker. 163. Wm. . L. (S. S. the surrogate will not try an issue upon that question. 229 8 R.] If on the return day on hearing the proofs and allegations of the parties. chap. S. 535.. will be revoked. he will order the executor or administrator to give further sureties within five days." who granted letters of who wiU thereupon give (§ 30). and if he neglect to comply with the order his letters 1837. or can not be found. [The executor. may be served by leaving a copy at his last place of residence. within not less than six days. L. to the surrogate administration for relief. 460 . the surrogate shall decide that the sureties are for any cause insufficient. K Merchant. in the usual form. 1862. to cited show cause why he should not be superseded. 1837. issue a Citation to the executor or adminis- trator to appear before him and new sureties. 5th ed. 17. it sconded. L.] " When either or of the sureties of any exe- cutor or administrator shall desire to be released from responsibility on account of the future defaults acts or of such administrator. 50 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. also may be enjoined by the surrogate from fur- ther action until the matter in controversy shall have been settled. chap. administrator... they may make application. or guardian. Est.) [Where the petitioner swears to an interest. S.

but by mistake. Samds. Y. shall not be liable on their bond. whose letters are not revoked. the surrogate may thereupon make an order that the surety or sureties who applied for relief in the premises. REGARD TO LETTERS TESTAMENTARY. § 34.. 1 Barb. see also Kerr v.IN § 31. or letters of guardianship have been granted on. the person to whom shall the same were granted and also whenever it appear that an administrator or guardian has be- come incompetent by law to act as suchj by reason to revoke of drunkenness. not fraudulently. when issued on false representations. 325 ch. 272. for any subsequent act. ch. 302 . will have full power to do any act necessary in the administration of the es- tate (§ 33). 3 Edw. 51 "If such executor or administrator shall sureties to the satisfaction of the surro- give new gate. his letters will be revoked (§ 32). or by reason of false representations. Kerr. and any remaining executor or administrator. the surrogate shall have want of underpower such letters. Wanmaker.] .. default or misconduct of such executor or administrator. . 41 N. improvidence or standing. that letters of administration." If such executor or administrator neglect to give new sureties. " Whenever it shall appear to the surro- gate.. [The revocation may be made. even when they were made Paley v. made by . Proctor v.

neglect or refuse to appear in pursuance thereof. administrator or collector. 79 3 R. § 47. or non-resident executor or administrator shall have been duly served with a and shall. 359. in his discretion. main valid and on any will afterwards appearing. .) The surrogate of the county of letters of New York.52 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. letters with the will annexed. Whenever an absent citation to account. and lawful acts done. 1846. § 3. or guardian. chap. S. to the persons interested and may After make such terms and conditions for the security of the estate as in his judgment are required. for upon their own apphcation and on notice good cause shown. revoke (S.) .. or appoint a successor to such trustee or guardian. R. L. S. 1870. the letters to such executor or administrator. L.) " All sales made in good faith. such revocation the surrogate may issue letters of administration. dhap. 5th all ed. may revoke the an executor. or of collection.." . either by administrators before notice of a will. or who may be removed or shall re- who may become incapable. (2 (S. or by any subsequent revocation or superseding of the authority of such executors or administrators. shall not be impeached. or by executors or administrators superseded. or of a testamentary trustee. the surrogate may. 165.. without reasonable cause. 288.

common prudence. ap- point two disinterested appraisers. R. 5th See order in Appendix. S. and imperatively directed is to take highly by statute. shall. it a very proper rule to appoint only those who ..) The ap- pointment made by the surrogate.. There are very few cases in which with the most it is consistent an inventory. upon the application of any executor or administrator. 53 CHAPTER Of the Ditties of X. and he usually consults the desires of the parties as to appoint. Executors and Administrators IN Regard to the Inventory and the Rights of the Widow and Minor Children. 62.. 168. as often as occasion may require. . whom to The duty of the appraisers being to fix a value to charge the executor or administrator. is appraise the pro- perty of a deceased person. Ch. although too often neglected... The duty of executors and administrators an inventory. to neglect taking It may not be necessary in all cases < (2 Johns. to estimate" and ed.) The surrogate granting letters. S. important.DUTIES IN REGARD TO THE INVENTORY. 82 . is &c. as between him and the next of kin. to^Ze it. (2 R. 3 R. legatees.

82.. he may well spend some time in arranging it in classes be- fore meeting. town it * is Appendix. as well as to learn the extent and details of the property for himself Thus. honestly and impartially appraise the personal property which shall be exhibited to them.) And by law. in other classes. §3. 5th ed." three of the most public places of the (See form notices. to truly. It being the duty of the executor or administra- tor to exhibit the property to the appraisers. furniture. on the legatees and next of kin... they may adjourn from time to time. . stock on the farm. or more inventories may be made S. 3 R. &c. in *. After the first meeting. The appraisers shall.. for the same time. and it shall also be posted. he may arrange the notes in one class. to facilitate their labor. farming implements.) "A notice of such appraisement shall be served five days previous thereto. before proceeding to execute their duties. as may be necessary. Appendix). although not required to attach proof of such service and posting to the inventory filed with the surrogate. residing in the county where such property shall be. if neces- Two sary. very proper.54 EXECUTOR'S AND ADMINISTRATOR'S GUIDE.S. (2R. could act as jurors in a trial at law in which any of those parties may be inteTested. take and subscribe an oath (see form inventory. bonds and mortgages in another. 169.

) § 6.. legatees or creditors of the testator or intestate as shall attend.) § 5. articles respectively. in a term for years. and shall set cle separately down each arti- with the value thereof. and shall be included in the inventory thereof: 1. 55 If the executor or administrator has reason to suppose that any person has goods of the deceased and proposes plication. The interest which may remain in the de- ceased at the time of his death. 1870. after the expiration of any estate for years therein. (S. which shall be exhibited to them. in dollars opposite to the and cents distinctly. in the presence of such of the next of kin. The and following property shall. who will issue a subpoena to the person in whose hands the goods are supposed to be. to -detain them. . in figures. 394. Leases for years . be deemed assets. shall go to the executors or administra- tors. L. proceed to estimate and appraise the property.DUTIES IN REGARD TO THE INVENTORY. he may make an ap- by petition under oath. to the surrogate. 2. chap. lands held by the deceased for the from year to year. and estates held by him life of another person. to appear and be examined before him. granted by him or any other person. stating the facts. (See form inventory in Ap- pendix. to be applied and distributed as part of the personal estate of their testator or intestate. " The appraisers shall.

g. Y. Y. perty.. 18 N. for payment of debts. term of years.] 5. E converso manure accumulated on a farm from the produce thereof. mill-stones and bol|ing apparatus. The crops growing on the land of the deis. accumulations of a livery stable. 28. or to any building for the purpose of trade or manufacture. Looms in a woolen mill are personal estate. and not fixed into the wall of a house so as essential to its support. Manure. 2 Hill. labor and cultivation. poles used on the land are part of the 11 N.. soil. The interest in lands devised to an executor tlie for a 4. 123. 10 Paige. to be [Hop realty. EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 142.. 10 Barb. not the produce of lands. Rent reserved to the deceased. Every kind of produce raised annually by not gathered.. 169. 15 is e. ceased at the time of his death (that crops which are annually produced by and cultivation.56 3. is a part of the realty. fruits). Water wheels. the personal pro- Wend. 158. and as not crops the spontaneous products of the grass 6. are part of the realty. Things annexed to the freehold.. excepting grass growing and fruits 7. is Cotton machinery 157. . which had accrued at the time of his death. personal property.

and to in August.. to recover Fay v. 747. furniture. and the tenant the privilege to gather winter crops. But if he dies hefore the rent becomes due. the rent goes to the heirs as incident to the reversion. 9 Goods. notes. his executors or administrators may recover the rent. or accounts. wares. or intestate are not assets. 57 [Rents accrued and collected after the decease of the testator. Where a tenant for having demised premises. and the executor cannot maintain an action it. the rent shall be apportioned between the executors or administrators.. are not assets to be inventoried by . whether incorporated or not. money and bank bills or other cir- culating medium. Where a had lease ended in April. 64.. merchandise. 295. Debts secured by mortgage. DUTIES IN REGAED TO THE INVENTORY. [Assets of a partnership in the hands of a sur- viving partner. S. Wadsworfh life v. not hereinafter excepted.] 8.. 35 Barb. provisions and every other species of per- sonal property and effects. things in action and stock in any company. 1 Brad. Alcott. Kohler Knapp. 241. pay the rent in wheat and the land- lord died in June.. dies on or after the day the rent becomes due. and the reversioner. T. V. § 22. held thatthe rent due in August 6 went to the executors. bills.Bbdloran. bonds. cattle. 1 R. utensils. "Where a lessor dies before the rent becomes due.

or in the family of such deceased . the payment of debts or legacies). tained balance. without being appraised. All the spinning wheels. and it is sufficient. Brad. or to any building shall not go to the executor. the representative of the deceased partner. but shall de- scend with the freehold. 1. family pictures. Thompson Thompson. the following articles shall not be deemed assets (for the purpose of distribution. as amended by chap.J § 7. Things annexed to the freehold.58 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 782 of Laws of 1867. to state as an interest in an unascerv. shall not be impaired by the general terms of that section. He is only entitled to a balance on an accounting. except such fixtures as are mentioned in the fourth subdivision of the last section. as to the partnership interest in the it inventory. merated in the preceding sixth the which by common law would descend to him. weaving looms and stoves put 2. leaving a widow. 24. The family bible. or a minor child or children. and school books used by. § 9.) When a man having a family shall die. up and kept for use by his family. but shall be included and stated in the inventory of the estate. § 8. to the heirs or devisees. The right of an heir to any property not enusection. 1. or a widow shall die leaving a minor child or children. (Page 83.

shall be and remain the sole personal property of such widow. bedsteads utensils. necessary cooking ornaments proper chairs. or for the use of such widow and child or children. chap. two swine. amended by chap. 170. before the decease of such person. 1842. or for the use of . one tea pot and six spoons. and the pork of such swine. the clothes of a for her station. the cloth- and bedding. one sugar dish. beds. 157. of laws of 1867.. six plates. §2. All sheep to the number of ten. in accordance with law for the benefit of a widow and a miaor or minors. one cow. All necessary wearing apparel. By § 13 of chap. 3 E. L. as (S. six and forks.DUTIES IN REGARD TO THE INVENTORY. leava widow or minor child or children. 5th ed. laws of 1867. one milk pot. S.. 3.) " ing Where a man having a family shall die. all articles it is pro- vided that and property set apart. with their fleeces. or a widow minor child or children. and the yarn and cloth manufactured from the same.. 782. 59 fifty which were kept and used as part of the family hbrary. there shall die leaving a shall be inventoried by the appraisers and set apart for the use of the widow. after such minor or minors shall have arrived at age. and books not exceeding in value dollars. 4. 782. person. six knives ing of the family. six tea cups and saucers. widow and her one table.

S.] appraisal by .60 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. such cMld or children. § H.) "The inventory shall contain a particular statement of all bonds. direct them to do so.. or set fifty dollars in value. the surrogate will. appoint other appraisers to perform the duty. Y.. said section. 31 Clayton v. S. or on the final settlement. he will order that sum or so much as the appraisers neglect to set apart. they having a right to the provision as against next of kin. on application of any party aggrieved.. 2 Brad. notes or other securities for the payment of money. 8 N. and if they neglect to set apart articles at apart less than one hundred and all. legatees or creditors. 170. to be paid to the widow or minors. or if neces- sary. provisions or other personal property. 84. (2 R. specifying to the deceased. The appraisers shall use their discretion in this case. Warden. 3 R. not whether they shall set apart any or not. in the discretion of said appraisers. as to what articles they shall set apart. [See Sheldon v. 5th ed.. to the value of not exceeding one hundred and fifty dollars. in addition to the personal pro- perty now exempt from 1. (above quoted) ne- cessary household furniture. to such executor or administra- the names of the debtor in each . mortgages. in the manner scribed now pre- by the ninth section. Bliss. belonging which are known tor.

2 Paige 149. doubtful or bad. " The inventory all shall also contain an account of bills. or against any . {Deck&ry. the date." It may oftentimes occur. and if none shall have come to his hands. moneys. whether in specie or bank or other circulating medium. the indorsements thereon. the any. and sum which in the judgment of the appraisers may be collectable on each security. but he should state in the inventory the amount which came originally into his »possession. must be inventoried to be collected as other claims and are deemed by him. a debt or demand of the tes- any executor named. or other neces- sary charges. that before the appraisal. which shall have come into the hands of the executor or administrator. § 12. the 61 sum if originally payable." It should also class the claims inventoried as good.) Where by tator against the will. in his account what he may have paid Claims of the deceased against the executor or administrator. for funeral expenses. belonging to the deceased. the fact shall be so stated in such inventory. as they estimate them. Miller. and as money in his hands from the time of the inventory. security. and charge out. the executor or administrator may have paid out some of the moneys which came into his hands.DUTIES IN REQAKD TO THE INVENTOEY. surrogate's fees. with their dates.

Appenoffi- and which may be administered by any cer competent to adniinister an. or annexed to the inventory (see form. a-nd shall. shall be paid in the same manner and proportion (2 as other specific legacies. and if not necessary for that purpose.) This is a statutory application of the principle.. Upon the completion of the inventory. which shall be indorsed upon. if necessary. In addition to the provisions in favor of the widow and minor children from the personal estate . oath. 84. not exceedshall for reasona- ing. 62 EXECUTOB'S AND ADMINISTRATOR'S GUIDE. dupli- cates shall be made and signed by the appraisers one of which shall be retained by the executor or administrator. the dis- charge or bequest shall not be valid as against creditors of the deceased. and the other shall be returned to the surrogate within three months from the date of the letters.. but shall be construed only as a specific bequest of such debt or demand. and the amount thereof shall be included id the inventory of the credits and effects of the deceased. the executor or administrator shall take and subscribe an oath prescribed by law. or in such further time. discharged or bequeathed. dix). S. as against creditors.four months as the surrogate ble cause allow. E. that no gift is valid. On the return of the inventory. is other person. be applied in the payment of his debts .

S. and in the meantime she shall have her reasonable sustenance out of the estate of her husband.. that "she may tarry in the chief house of her husband forty days after his death. whether her dower be sooner assigned or not. items of mourning cloth- ing for the widow and family may be included ." This sustenance is to be provided out of the per- sonal property of the husband. In providing this sustenance. infant (But see Johnson 11 Paige. S. and through the executor or administrator. bare necessaries only could be allowed. 5th ed. if one be appointed prior to the expiration of the forty days. the executor or administrator must exercise judgment and discretion in the same manner as if in paying funeral expenses.. for impossible to separate the children. provided by § 17 (1 742. the estate be abundant to pay debts without doubt. to the widow. according to the circumstances and tion in life sta- of the family.. all Thus. 83). 3 E. it is 63 R. and is to be given.DUTIES IN REGABD TO THE INVENTORY. in the charges for sustenance while if the estate be involved. . of her husband. without being liable to any rent for the same.265. and the question should arise as against creditors. and necesit is sarily. . to the children dependent on her .) widow from her v. Corhett.

according or to law issue show cause why an attachment should not against him. on application of a party interestedas legatee. by the day appointed. usually in from six to ten days. to appear before him and return an inventory. S. after personal service of such summons.... or within such fur- ther time. allow. order. there to remain until . 172. S. 64 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. or obtain further time to do so.. such executor or administrator shall not.) (See petition. for reasonable cause. or creditor. the surrogate shall issue an attachment against him. the surrogate will issue a summons to the executor or administrator. in Appendix). XI. How Compelled it. 85 etc. . The surrogate may issue such a summons without an 3 R.. If. not exceeding four months. (2 R. as the surrogate shall. requiring him. and Effect of not Returning If the inventory shall not be returned and filed in the ofl&ce of the surrogate within three months from the issuing of the letters. next of kin. and commit him to the common jfiil of the county. return such inventory on oath. 5th ed. CHAPTER Return of Inyentort . application.

wherever the same may di- be found.. chap. demand and receive' the goods and effects of the deceased.) [The costs of the proceedings may.. if after being committed to prison. The bond given by the former executor or administrator may be prosecuted. the surrogate may etc. (See order for revocation. under the rection of the surrogate. And thereupon the surrogate shall grant letters of administration of the goods. authority and control over the personal estate of the de- ceased. Ap- pendix. Such letters shall supersede all former letters and shall deprive the formerexecutor or administrator of all power. in the same manner as original letters of adminis- tration or letters testamentary.) If the summons cannot be served personally by reason of the executor or administrator absconding or concealing himself. executor or administrator. such executor or administrator shall neglect for thirty days to make and return such inventory. and shall entitle the p'erson appointed by such letters to take. or.RETURN OF IXVENTORT. by the new executor or . lie shall 65 return such inventory. chattels and effects of the deceased to the persons entitled thereto (other than such executor or administrator). revoke the letters before granted to such executor or administrator. (See form. 782. L. personally. be charged against the S.] 1867. in the dis- cretion of the surrogate. in Appendix.

Whenever personal any inventory that property. The making and . or have any power over the per- sonal estate of the deceased . so returning an inventory. cessor. 5th ed. all or administrator. 86 . and shall file the new inventory within two months S. on the neglect of the others. by the acts or omissions of such executor or administrator. but the executor or administrator.. 3 K. and those so neglecting shall not thereafter interfere with the administration. shall have the whole administration until the delinquent shall return and verify an inventory according to law. S. to the extent of any injury sustained by the estate of the deceased. will be discharged on delivering the property in his hands to his suc- Any trators. imprisoned in these proceedings.. he shall cause the same to be appraised. one or more of the executors or adminis- named in the letters. 173). after discovery of the property (2 E. after- ward come into the "possession or knowledge of an executor or administrator.. may return an inventory. and to the full value of all the property of the deceased received and not duly administered by such executor or administrator.66 EXECUTOR'S AND ADMINISTBATOB'S GUIDE. in the same manner as before directed. full administrator. not mentioned in shall have been made. The executor on oath.

return of this inventory. the party contesting must show that they are good. . administrator. the burden of proof istrator. the burden of proof. for. or he must show that they are worthless or bad. and items must be accounted for at their • apparent value. which see. and the items composing on and parties con- testing final settlement of the accounts. and bring it to the knowledgS of the executor or. in attempting to surcharge as to the value of items included therein. Where no inventory i§ is made.: KETURN OF INVENTORY. a book account must be accounted for as it stands. to is upon the executor or adminthat the whole estate is dis- show. he must show that he accounts all for its full value . accounted or if the value of an item puted. As for instance. however. if demanded. becomes obvious from the following advantages accruing to the executor or administrator The inventory estate fixes the pfima facie value of the it. The necessity of taking an inventory. 67 tlie may be enforced in same manner as in case of the first one. or items omitted. have it. unless the exe- cutor or administrator shows that he has been unable to collect it. But if the inventory shows that certain demands are either bad or doubtful. The subject is treated of further in the chapter on final settlement and accounting.

. CHAPTER XII. 4 Brad. . 46. release or gift of the decedent's goods. 151). 4 Paige. 21. Hall. act of all ( Gardner Miller. 41 N. {Kellett v. 2 Barb. but one person and the act of one in refer- ence to the sale. may the release a portion of mortgaged premises from lien. Claims. without the concurrence of his co-executors. 102) and they may be required by the sur- rogate to deposit %he funds of the estate with a savings bank. and either executor or administrator.) may retain [Burt v. Of the Collection of the Estate Compeomising Debts due the Estate. Bwrt. so as to be earning interest.. 19 Johns. or administrators.68 BXECUTOE'S AND ADMINISTEATOE'S QITIDE. Several co-executors or co-admiaistrators are in law. are V. Y. possession of the assets. and Adveetising for . they are liable for losses . They should keep the estate funds separate from other funds. if they mingle them with their own. deemed the 188). as against his associates.. while the estate is in process of settle- ment. . or give a satisfaction piece [Stuyvesant v. ch. One. or trust company. delivery.) {Lockhart v.. Bathbone. Public Administrator.

. vested with all testator chant's wherever situated. 240. 29 How. 474 Peterson v.. call in he neglect to moneys loaned on per- sonal security by the decedent. Mer. the probate. 201. 27 How. 69 Letters testamentary. and a loss accrue... col- which might have been avoided by an early lection.. note) . etc.. S.. all S. 15. 113.. (Wil- liams on Exrs. (without action). or cutor is and consequently the exethe personal estate of his [Middlehrooik v. dispose of his testator's personal property in this state.OF THE COLLECTION OF THE ESTATE. or of administration are local in their character. when necessary. with- out taking out ancillary letters here. (2 R. into money. 5th ed. Bank. and contract.) Having perfected the inventory and learned the extent and details of his trust. can. and the authority given by them state is coextensive only with the limits of the (2 where issued Kent Com. 430. But letters an executor who has obtaiiied probate and in another state. other actions upon may be maintained by and against exe- . same time carefully watching the notes. title For the of an executor arises from the will.) " Actions of account. Ghemical Bank. 3 R. and not letters. he will. 43. the executor or administrate^ will proceed to convert the property which may not be producing at the interest. be chargeable for the loss.) §2. to protect the estate for if by collections.

§ 5. shall have actions of trespass against the executor or administrator of in his lifetime. shall have wasted. or converted to his own use.. taken or carried away. or committed any . or his personal representatives. may be treated as void by executors or administrators. who. L. They may also maintain actions for trespass committed on the real estate of the deceased in his lifetime. the goods of their testa- in his lifetime. own use. the goods or chattels of any such person. received the property of the deceased. * * * [All transfers made by any person in fraud of the rights of creditors. and they may re- cover full value of any person. Administrators shall have actions to demand to their intestate . Executors and administrators shall have actions of trespass against any pers^ who shall have wasted. in the same manner § 4. to Wihom the was hold'en or bound. have 1858.] § 3. 506. . any testator or intestate. 70 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. or converted to his tor or intestate. as executors. Any person.. destroyed. who shall S. taken or carried away.trespass on the real estate of any such person. in all cases in which the same may have been maintained by or against their respective testator. destroyed. cutors. and recover the debts due and and the personal property and effects of their intestate shall answer and be accountable intestate to others.

446. Buggies v. Sherman 14 Johns. they are liable. or in his or as administrator. v.) to collect or They are..] . estate of have wasted or converted to his own use any goods. either of right. Joy. or they become personally responsible. 13 N. 17 Wen. 361. 11 . and when such a debt is lost by reason of their neglect. 83. and that on a certain day. suit. They are bound to to endeavor to make collections from solvent persons in other states. Shultz v. Y. [They ligence in are liable only for gross or collusive neg- making collections. may sue in any and may be sued In bringing any except the justices' court.. shall own wrong. 197. and if necessary procure some proper person to be appointed administrator there. the complaint should set forth the cause of action." Executors and administrators of the courts of in the state.OF THE COLLECTION OP THE ESTATE. 11 Wend.. White v. 71 The executors and administrators of every person. 11 How. letters {Beaxih were issued by a certain King. shall be chargeablek in the same manner as their testator or intestate would have been if living. bound endeavor to collect within a reasonable time. surrogate y. Sheldon Hoy. then allege the death of the testator or' intestate.. Pulver. chattels or any deceased person. They are bound to use the same his diligence which a prudent man would use in own affairs. § 6. who as executor.

while the time is extended eighteen months.) Or his indebtednes may be settled in the surrogates' court. share in part. They may retain a legacy or distributive whole or in a legd.) his But an executor or administrator cannot sue due to the estate co-executor or co-administrator. is The legatee or distributee not entitled to his share.-. ch. against debtors. in favor of credi- tors estate. 11 Paige. and the time which elapses between the death of the testator or intestate. provides as follows " But avail- the statute of limitations shall not be made . Kearney. but on the final settlement. : [S. Lawrence. [Smith v.tee.72 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 533. 594. in favor of the estate of a deceased person. Miller. so long as Jbe retains in his own hands is a part of the funds out of which payment to be made. by the court. on the application of his co-executor or co-administrator. 1868.. may be directed . or seven years in all. to the estate. or a court of equity. 206 11 Barb. to recover a debt . [Decker V.) The statute gives one year extension of the statute of limitations. 149. the estate executor or administrator. in satisfaction of a debt due from or distributee. as justice and such disposition of the fund and equity may require. and the granting of and against the letters. debtor to the may be charged with his indebtedness. L. . 2 Barb. [Smith v. chap. 2 Paige. 546. upon simple contract debts .

ch. Kmg\. they were held liable to the next 8 Johns. but he shall be considered a trustee for the person interested in the estate. 459. Campbell v. security.. 148 Van Epps . that for the purpose of converting the personal estate into money. 173).. Johmmi. 3 E. at the time of the death of the testator or intestate. 45 Barb. when made in good faith and with ordinary prudence. 87 . Scmrill. debt or claim (against decedent) provided tbe same shall be presented at the first accounting. on a credit of not exceeding one year with approved security. and that he shall not be responsible for any loss happening by such sale.. without lost.. to become the purchaser of any part of the assets.] statute provides -(2 The R. cannot be allowed either openly or by mean^ of another person.] An executor or administrator.. 5th ed. {Williams 801. EIng. V. See also Scomll v. ch. 552 . 517. 1 Sand. 73 able as a defence to such. the executor or administrator may sell at public or private sale. S. whereby purchase but see money was of kin. and provided the same was not barred by the statute. .OF THE COLLECTION OP THE ESTATE. and shall account for of the utmost extent of advantage the subject so purchased. made by him JEJxrs. S.. OrcuU ArmSjZ Paige.. and except ia the city of New York. [Where an administrator sold leasehold property on credit.

become quite common latterly to insert in wills a provision authorizing the executor to compromise debts due to the very useful and proper provision estate. and in all cases the administrator. so as to meet the market. 1 Brad. S. or in the sale of the stock of a manufacturer like may be manner delayed. and it is a where. the mil contains no such provision the executor. 4 Kent Com. Where sales. 80 .. 438. to make a com- promise of a claim must obtain authority for that purpose from the surrogate.74 V. or not specifically bequeathed. 237. and the time vendue should be fixed to secure a on such a day as will be most likely good attendance of bidders. (S. a public notice should be for the given.. for their subsistence .) . as is debts. . shall be first sold . chap.) Articles not necessary for the support and subsistence of the family of the deceased. EXECUTOR'S AND ADMINISTRATOR'S GUIDE. for the articles to be sold. 1847. however. it may be prudent to delay the sale of live stock during winter. for example. part of the hay and grain inventoried. 5th ed.. 3 R. and articles so bequeathed shall not be sold until the residue has been applied to the of the personal estate payment of the auction. expending in the meantime. Tan Epps. Thus.. Ames v. Downing. 9 Paige. U. and a good demand. are made at quite usual. 174. L. or The executor It has administrator should use good judgment in the matter.

[Before the statute. and that he fears he will not be able to make better terms Or secure more on the claim. at tor or administrator 75 common law. 179. Y. if their conduct and honest. The tlement so made will protect the executor or administrator.OF THE COLLECTION OF THE ESTATE. The them to obtain the sanction of the judgment of the and this surrogate. that nothing can be col- by course of law from the debtor.] To obtain this he must present to the surrogate it for a petition showing the facts which render the interest of his trust to make a compromise. but that he will pay so much to be released. Suydam. unless on the" final settlement it is shown that he acted negligently. 21 N. as that the debtor has failed and will pay in settle- ment lected so much per cent . for the but might be held responsible consequences act enables of a serious error in judgment. them additional protection. and the surrogate may set- to compromise. Ghcmteau v. . an execu- might compromise a claim. in the matter fraudulently or At is the expiration of six months from the grant- ing of letters unless the executor or administrator acquainted with the claims against the estate. affords is fair in addition to their own. or compound the claim on terms expressed in the order. or such other facts as the case authorize may him present..

The surrogate directs what paper or papers the in. 413.76 EXECUTOR'S AND ADMINISTKATOR'S aUIDB. to pay claims of which he was before ignorant.) The claims may be presented by any way which deals fairly letter.) There are few cases beside those stated above. acting on his own supposed knowBut cre- ledge. in which it will be prudent to omit this. be paid virtually by him personally. he may be compelled. 47 Barb. order and notice. and if he pays out the estate.. in any event. Avnes. for the power to accept or reject cannot be delegated. or in with the executor or . he will be protected against those who so to present them. must be to present to the executor or administrator personally. is and willing to risk the presentation of claims of whicli he may be ignorant. notwithstanding. Appendix. not to an attorney. if he shall distribute the whole estate among ditors who shall have presented claims under the fail notice. that the debts must. advertisement shall be inserted and it shall be published for at least six months (see form. he should obtain the direction of the surrogate to advertise for claims. as the is compensation of an executor or administrator too small to warrant all any risk. or unless he is so inter- ested in the estate as residuary legatee or next of kin. . The them notice to present claims. {Hardy v.

and the claimant need not produce vouchers. The remedies of the meantime. 11 Paige.) In respect to creditors of the or administrator. it is again for allowance under the statute. he bound to exercise the utmost care. and the law will afford him all reasonable means for so doing. and not a creditor. it is tantamount to a formal admis- sion of its justice upon presentment under notice. {Johnson v. 6 Hill. where the names of the is ces- tui que trusts are not given in the deed. and not estate. And it where the executor or administrator admits the validity of the claim. by paying interest on from time to time. and the estate whicli he represents. 389. is estate. before he accepts a claim as entitled to payment. He cannot cre- be coerced to pay debts short of a year from the time of granting ditor. the executor a trustee.) virtually presented Where a claim has been and acknowledged by the exenot necessary to present it cutor or administrator before notice to creditors to present clainis. are not absolutely suspended . {QamevoortY. 77 administrator. he may prosecute an action. however. or make an affidavit unless requested. or illegal act in regard . 265. in the letters. Corbett. unless at the cost and expense of the he can show that the executor or administrator has been guilty of some laches. Nelson.OF THE COLLECTION OF THE ESTATE. And like all trustees. but he cost must do so at his own and expense.

the matter will proceed as an action in the supreme court.. to the adjustment of the claim. and and if is the claim be disputed and rejected by him.. not legally 414. 2 Barb. 16 How. he should ex- pressly reject putting his rejection on the ground it. and the report of the referee may be appealed from as in similar proceedings begun in that court. ch. Ghapman. If the executor or administrator doubt the justice of any claim it. not referred as above. so presented. and upon fihng such agreement and approval of of the surrogate in the office of the county clerk. the claimant will be barred from commencing a suit against the executor or administrator unless he commences the same . .. that no payments have been made thereon. in Appendix). Appendix) of the is claimant that the claim justly due. is that the claim. and also affidavit form. And more surro- he may enter into an agreement with the claimant to refer the matter in controversy to one or disinterested persons to be approved by the gate (see form of agreement etc.) The executor or administrator may require by law satisfactory vouchers in support of any claim an pre- sented under this notice. (Buchhurst v. and that there are no assets against to the the same (unless stated in the account) knowledge of the claimant. such as copies of papers on which (see it is founded. 407.) {Kidd v. or some part of due.78 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. Hunt.

[Qorham v. 3 Hill. 36. 1 Brad.) pre- [Where the executor... McClure. of Alex- ander Kuder. or within six months . or referees. he will be protected in having made payment of legacies. protect the executor or administrator from he should accompany his rejection of the it. Whitmore v. 47 Barb. after the same or some part of it became due and the executor or administra- tor to may p»ove the facts of such refusal and neglect suit within six commence a months in bar to an action begun afterwards. 9 How. it seems that the offer be to refer to one or more to be approved by the surrogate.. rejected it.] suit shall In case any be brought upon a claim which shall not have' been presented to the exe- cutor or administrator within six months from the first publication of the advertisement. but afterwards entertained nego- tiations in reference to a settlement.) To costs. it was held and the that his previous rejection was waived.. 16 How. 434. when the claim was sented. Foose. Bipley. any debts or distribution among the next .OF THE COLLECTION OP THE ESTATE. statutory bar to an action could not be interposed.) And where the parties cannot agree upon the should referee. i Reynolds v. 79 within six months from such dispute or rejection. 159 . or of kin. Calanan v. Den. 192.. claim with an offer to refer The offer need not be in writing {Lansing v. Collins. (Matter of Est. Swartz. 313. 206.

them personally and not against the and . S. (2 specially ed.. for contracts made that for the funeral expenses of the deceased. collect it of the next of kin or legatees who may have received assets from the estate. made by executors Or administrators. is liable for obligations contracted by the executor or administrator. 201. 815). K S. has been settled in Ferris Myrick (41 N. 113 . No executor or adnainistrator shall be chargeable upon any special promise to answer in dam- ages or to pay the debts of the testator or intestate out of his own estate.* But any creditor who may have neglected to present his claim under the notice. on proving such advertisement. unless the agreement for that purpose or some memorandum or note thereof be in writing (expressing a consideration). The question as to who v. and signed by such executor or administrator. before such suit was commenced. is which holds that the executor or administrator. 3 K.. liable personally.80 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. 5th Liahility of the Executor as to obligations contracted hy him. and all causes of actions arising upon contracts are against estate. Y. may^ notwithstanding. or by some other person by him' thereunto authorized. and not the estate..)..

.RETURN OP mVENTORY. . 81 that is. and not the goods of the Such causes of action cannot be united with causes of actions arising upon the contracts of the deceased. own goods. the judgment must be de hanis projpriis against his estate.

S. also the liabilities of the estate. unless is by the an earlier or different time fixed. Wilcox v..: 82 EXECUTOB'S AND ADMINISTRATOR'S GUIDE.) "Every executor and administrator shall proceed with diligence to shall pay the debts of the deceased. 3 R. Taxes assessed upon the estate of the deceased previous to his death. 74. At to the expiration of one year from the issuing is of letters. S. [Taxes assessed on real estate subsequently to the death of the deceased. are not to be paid by the executor or administrator. Smith. lega- and among the next Legacies are directed by law to be paid in one year from the granting of will. 5th ed. 2. the executor or administrator presumed know not only the assets in hand. Of the Payment of Debts and Legacies. having advertised for claims. Debts entitled to a preference under the laws of the Ilriited States. but. CHAPTER XIII. letters. 316.. . § 27. (2 R... and to pay the same according the following order of classes 1. 87. 26 Barb. and he may proceed distribute to pay debts and of kin. cies. but debts are in all cases to be paid in preference to legacies.

Y. in which the same equally. Hepburn v.. i^eecZ. WaZc?7'ora. bills notes. bonds.. In case of unpaid purchase money of real estate agreed to be paid by the ancestor or testator. 83 tes- An is assessment confirmed at the time of the tator's decease. 207. 587..the may. The creditors of an insolvent firm in case of the death of one of . sealed instruments. or in other words. 446. unless will. Holhrooh. Hepburn. 2 Brad. V. Judgments docketed. Seahm-y v. But where the real and personal estate are thrown into one fund. Where a creditor has additional security.4Brad. thereof respectively. 3 Brad. he should be compelled to exhaust that security and only come in against the personal estate for the ciency. SotZseyv. all other debts. All recognizances.PAYMENT OF DEBTS AND LEGACIES. 4. [Mortgages cannot be paid out of the personal estate. 47. such payment is provided for in the WaldronY. and decrees enrolled according to the priority against the deceased . although a lien upon the real estate also a debt to be paid out of the personal estate. apply personal property to pay a mortgage on the realty. the heir or devisee has a right to have the same paid Wright out of the personal estate of the decedent.. and unliquidated demands and ac- counts. Bowen. defi- 9 Paige. 32 N. parties are interested for the benefit of. the executor estate.114.] 3.

to his station in life. them. cannot collect their debts against the separate estate of the decedent until his individual liabilities shall have been paid in full. the . expenses incurred in burying the deceased according.] to be paid as But reasonable funeral expenses are in preference to any debts. but expenses of administration. And a charge for a monument at the grave. and are charged not debts. [When the decedent dies away from home. a charge only for a plain and inexpensive funeral will be allowed. and will be allowed. Keeler. monument or tomb- And the expense in this case must necessarily locality. 6 Paige. estate is is also proper in this case. what it are reasonable funeral expenses? In answer may be said. Matthews. as it will vary according to the be greater in a city than in the country.84 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 19. But where the so involved as that the funeral expenses cessarily reduce the must ne- payments to creditors. that as between the executor or administrator and legatees or next of kin. Wilder v. 3 Paige. 167. as deter- mined by the custom of the place of are reasonable charges his residence. as a digest of the decisions on the subject. The question often arises. The executor or administrator should exercise caution in the matter. and that without a stone. Payne v.

or the obtaining a judgment thereon against the executor or administrator. entitle such debt to any preference over others of class. for the time unexpired. upon leases held by the testator or intestate at the time of his death. 1 Brad. Easier v. over ..) " No pre- ference shall be given in the payment of any debt class. over other debts of the same specified in the third class except those (which are to be paid according to priority) . 174.. § 30. nor shall the commencement of a suit for the recovery of any debt.PAYMENT OP DEBTS AND LEGACIES.] [Tombstones were allowed as part of the funeral expenses. for the widow and may (3 be allowed as part of the funeral ex- Wood's Estate. Moderate expense for mourning family.] E.. 5th ed. 84 . 314. Preference may be given by the surrogate to rents due or accruing. p. S.. penses. 1 Ashmead. E. after deducting a rebate of legal interest upon the sum paid.te was insolvent Fairman's Appeal. in Connecticut. § 28. even when the esta. 248. 85 necessary expense of. the same § 29. are proper funeral expenses. 205. notifying his family and removing his body to his late home. Easier. nor shall a debt due and payable be entitled to preference over debts not due . 30 Conn. Debts not due" may be paid by an exe- cutor or administrator according to the class to which they may belong.

in paid pro rata^ except in the third which the judgments or decrees are to be paid according to their priority. § 31. Warren In v. 4 Brad.. and if the estate can not pay any class in full. the executor or administrator should take a receipt for such payment. Smith. whether of debts. clasfe. lega- cies or expenses. 3 Wend. [The executor or administrator will not be protected in paying an outlawed debt. that there are debts of a prior class unsatisfied.. to retain and use' on his final settlement. the debts of that class will be class. nor will his promise revive such a debt. The statute of limitations may be interposed by the executor or any person interested. will. "In any suit against an executor or ad- ministrator.. Poff. Ap- pendix. 372). the defendant for that purpose. 503." (Hofoey v.) So it appears.86 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. or that there . that eaxjh of the foregoing classes in full before must be paid any debts of a succeed- ing class can be paid. does not revive a debt barred by the statute of limitations. for A provision in the the payment of all just debts. debts of the fourth whenever it shall be made to appear to his satisfaction that such pre- ference will benefit the estate. 260. 1 Barb.of such testator or intestate. given • may show under a notice with his plea.] all cases of payments. (See form.

grants an order lies that an execution issue." on an accounting. But the plaintiff may. 639. 1850. Voor- 19 Abb.. he must prove the same and have it allowed by the surro- . iSt. Y. issue to sell real estate of [An execution cannot a deceased person. 31 N. and as shall be a just proportion to the other debts of the same class with that on which the suit is brought. Mount v." No execution shall issue until against an executor or administrator. L:. or unless on an order of the surrogate who appointed him.. 53. the surrogate after hearing.. Mitchell. leave of the surrogate. there appear to be no assets in the hands of the executor. nor afterwards. the surrogate cannot grant an order that execution hees. as in other cases. p. within one year after the death of the testator or intestate. no appeal from the If. Matter of Mott. issue. John v. 356. an account of his administration shall have been ren- dered and settled. S.PAYMENT OP DEBTS AND LEGACIES. without. take judgment for the whole or part of his debt (so levied of future much as he proves). to be assets. When order. are unpaid debts of the 87 same class witli that on which the suit is brought. 1 Tucker. Statutory provisions reviewed. 344.] To entitle an executor or administrator to pay himself a claim due from the deceased. and judgment shall be rendered only for such part of the assets in his hands as shall remain after satisfying the debts of £he prior class.

) An executor or administrator who makes a claim against the estate. S. Van Horn v. is in for less than due. ch. Fonda." . on the final accounting. Fortune. Dvdly v. of it to himself. all creditors e. may up the Vreat v. Oriswold. for the purpose of obtaining a set ofi" in equity.. of the statute. chap. 31 or buys it Barb. to the proper persons. Nor will he be permitted to buy up claims against creditors of the estate. Appedix. L. 519. K he compounds a claim.. such as he may require from others.. EXECUTOR'S AND ADMINISTRATOR'S GUIDE. and it is not entitled to any preference over others of the same class. under § 35. 3 R. unless so verified. whatever the force of the Glarh v. 388. 3 Wend. 175. 88 . Sogers. 24.. This proof may be made on the return of a kin and or. S.. Sogers v.. 1837. § 37. when the proper persons must necessarily be cited. 152 Terry v. provided . See forms. S. 503. (2 R. directed (i. Dayton. he cannot take the benefit 5 Johns. to the legatees next of who have presented claims) j most usual.. proof. 2 Brad. He cannot retain moneys for a debt due to himself barred by the statute of limitations in the lifetime of the testator. But the statute of limitait is not a defence to the claim. Clark.. mustsupportitbya sworn voucher. 460.88 gate. tions is 2 Brad. 5th ed. interested And on set the hearing any person statute. 8 Paige. 116. and it is error for the surrogate to allow it. as is all citation for that purpose..

. but where the estate manifestly abun- dant. barred at the time of the decedent's death. L. specifying that life. 1 Tucker. and was not S. and distribute the estate without the delay incident to advertising. are bequeathed necessarily consumed in the life. retain out of a legacy a [The executor may debt due the testator from the legatee. and without any directions to the executor to hold them in trust for the remainder-man. such arti- cles only. chap. [Specific legacies may be delivered as soon as it shall be clear that it will not be necessary to dis- pose of them to pay debts.PAYMENT OP DEBTS AND presented at the first LEGACIES. making payin when he cannot pay estate to should be careful not to pay even 'pro rata. 42. 694. the executor or administrator may pay all debts and even legacies. as to render caution is necessary. the executor is authorized to deliver the same to the person entitled to a life estate therein . taking from such person an inventory and receipt. belong to the first taker for and that . 1868. to a legatee for with a limitation over. so as to leave not much enough of the pay his expenses and charges.J Est. Chris. Stamler.] The executor ment of debts or full. or administrator in legacies. it 89 accounting. If specific articles not using. So much has been written upon the supposition that the estate is so involved.

S. 177.. with ditioned. Tkihham. 90 . until after the expiration of one year from the time of granting letters testamentary or of administration. under which is such legacy paid. may two sufficient sureties. 5th ed. 3 R. then that such legatee shall refund the whole of such legacy with interesi. that . they are to be delivered to the legatee who is entitled to them in remainder. 90 EXECUTOR'S AND ADMINISTRATOR'S GUIDE-. no other assets to pay..) " In case a legacy is directed to be sooner paid. Spear v. § 44... Appendix. and the costs and charges legacies. that then the legatee shall refund the legacy so paid. 212. R. or not sufficient. or such ratable proportion thereof with the other legatees. Ch. " No legacies shall be paid by any executor or administrator. (See form. 2 Barb.) (Id. unless the same are directed by the will to be sooner paid (2 R.) . con- if. S. shall be revoked. as may be necessary for the payment of said debts and the proportional parts of such other be any. to the exe- cutor or administrator entitled thereto. and there shall be no other assets to pay other legacies. the executor or administrator require a bond. afterwards.] As before remarked. any debts against the deceased and which there shall be shall duly appear... if there incurred by reason of the payment to such legatee and that if the probate of the will. or the will declared void.

legacy will be entitled to a preference of payment over 1 the general legacies. as for headstones at a parent's grave. 1 Edwards Ch. A legacy of piety. 6 Paige. The applies rule as to abatement of general as only to such are mere gratuities. 1 P. 298. if there and there be not sufl&cient assets. will not be sub- ject to abatement. unless the testator clearly expresses his intention that they shall be so. made in equal [Specific legacies are not subject to abatement. as of rehnquishment of any right. then abateshall be ment of the general legacies proportions. 411. 6 Paige. 540. 543. whenever directed by the surrogate. as hereinbefore provided. R. which are mere bounties. P. Where the legacy is given for a debt. or for the interest. • 91 After the expiration of one year from the granting of any letters testamentary or of administration. such. LEGACIES. and also suit. owing to the legatee. or her dower by a widow. the executors or administrators shall dis- charge the will specific legacies bequeathed by any be assets..PAYMENT OP DEBTS AND § 45." The surrogate will direct the payment as above . legacies.. and pay the general if legacies. Williams. 1 Kuss's Ch.] Such payments gate. Williams. 127. 278. by a on the bond of such executor or administrator. in the may be enforced by the surroas the return of same manner an in- ventory.

fifty dollars. Appendix. for the reason that a legacy given after the appointment. made no part of the estate of the minor on which the amount of such former security was based. . 92 feXECUTOR'S AND ADMINISTRATOR'S GUIDE. under the direc- tion of the surrogate. or the sur- rogate do not direct such shall be invested in payment. for the faithful' application and accouilting for such legacy. to be approved by the surrogate. " If the legacy be of the value of fifty dol- lars or more. for the benefit of such minor. to the support and education of such minor. if therefor in the supreme court. permanent under for the direction of the surrogate^ in the name and the benefit of such minor." The security required in this section is in addi- tion to the security given on the appointment of the general guardian.) "In case any legatee is a minor. " If there be no such guardian. the legacy securities. on the presentation of a petition. (See forms. to the use . stating the facts is which show that the legacy payable. the same may. upon annual interest and the interest may be applied. § 47. and . or an action may be commenced § 46. under the direction of the surrogate^ be paid to the general guardian of a minor.. under the value of may be paid to his father. § 48. obviously. his legacy. who shall be required to give security to the minor.

93 "It shall be is the duty of the surrogate. there be more than sufficient assets to pay the debts of the testator or intestate.PAYMENT OF DEBTS AND LEGACIES. (2 R. " On such minor coming of age. keep in his office the securities so taken. and the surrogate and his sureties shall be liable to account for the §51. to where there no guardian of such minor. and when neces- and reinvest the same. and the ties... by any entitled to legatee or by any of the next of kin share in the distribution of the estate. S. interest or other and the re- moneys that may have 'been same. 5th ed. such exe.. he shall be entitled to receive the securities so taken. to collect the principal . § 50. and his sureties shall. the said securities and moneys shall go to his executors or administrators.) " If. 3 E. S. after the expiration of one year from the granting of letters testamentary or administration. offer of a bond with sufficient sure- as in the next section prescribed. and. to be applied and distributed according to law and the surrogate . in like manner. if after reasonable demand made. § 49. receive and apply the interest sary. be liable to account to such executor or administrator. ceived . or . and also to reinvest any interest that may not be necessarily expended as aforesaid. 114 ." § 9. and to collect. " In case of the death of such minor before coming of age. cutor or administrator shall refuse to pay the legacy bequeathed by the will to such legatee. 202.

a bond to the executor or administrator shall be filed with the clerk of the court (the county clerk) with such sureties as the court or any judge thereof shall approve. as for the may be necessary costs payment of the said debts and the and charges incurred by a recovery against such executor or administrator in any suit therefor. or such ratable part or proportion thereof with the other legatees or representatives of the deceased. he shall be liable to an action. or their personal representatives. with the other legatees or representatives of the deceased as may be necessary. " Previous to the commencement of the action. at the' suit of such legatee or next of kin. the share of any such person entitled.94 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. § 11. conditioned that if any debt owing by the testator or intestate shall after- wards be recovered or duly made to appe^ar for the assets other payment of which there shall be no than the said share or legacy. § 10. that shall thereafter no sufficient assets remain to pay any other legacy shall which may. in double the sum of such share or legacy. " When given by a legatee the bond shall if be further conditioned.to distribution. that then such person shall refund the legacy or share that may be recovered in such action.for the payment of the proportional part of such other legacy." .be due. that then such person refund such ratable part or proportion thereof.

ceeding. that there are not sufficient assets to all the legacies.. [The statute of limitations. or tional part. '' Upon the application of a creditor the pay- ment of any debt or proportional part thereof may be so decreed at any time after six months shall have elapsed from the granting of letters testa- mentary or of administration. or any other court.: PAYMENT OF DEBTS AND LEGACIES. quere. legacies and distributive shares against the executor or administrator of a deceased person in the following cases 1. But § 18. shall have power to decree the payment of debts. and if it shall appear that more than six years have elapsed since the same became payable. payment of such its legacy or distributive share. 116. And if it appear on the of such action. in a proceeding to compel the payment of a legacy. Remington. pay then a judgment may be taken for the proportionate part. 2. just propor- miy be so decreed at any time after ."] it is a bar to the pro- Smith V. may be interposed in the surrogate's.) " The surrogate having juris- diction. 42 Barb. 75. 95 A like on filing action may be brought by the guardian of a minor entitled to a legacy or distributive share a like bond and also a bond to the minor to account for the sum recovered on such legacy trial or share. "Upon the application of a legatee or relative entitled to a distributive share. (p.

) Payment of a legacy or a distributive share. forms Appendix. 3 E. and such payment may be enforced by action upon the (See bond filed by the executor or administrator. 98 . S. or a part thereof. such letters. 5th ed. (2 K S. or to a distributive share of the estate of a deceased person. may be obtained in certain cases against any executor or administrator. " If it appear to the surrogate that thAe at least one third more of assets in the hands of . § 83. an order will he made for payment. and will cite the executor or administrator to show cause why pajnuent should and if not be decreed is .) "Any person entitled to any legacy. on the return day no cause shown. at any time pi^evious to the expiration of one year from the granting of letters testamentary or of administration. after giving reasonable notice to the executor or administrator to be allowed to receive such portion of such legacy or share as may is be necessary for his support. of the city of New York.: 96 EXECUTOR'S AND ADMINISTRATOR'S GUIDE..." The surrogate will act' in these cases upon the presentation of a petition stating the facts which confer jurisdiction. one year shall have elapsed from the granting of . may apply to the surrogate either in per- son or by his guardian. 185. except the public administrator. under the following sections § 82..

when estate is in question. 422. then known. and a E. {King v. Y. upon factory bonds being executed for the return of such portion with interest. as to title. In making permanent investments. An the executor or administrator. in his discretion.. or the bonds of the state or the United States. loss he shall bear 7 it. always exercise the care which a prudent could use in his man real own affairs. that if the security.. legacies and claims against the estate.) . Ch.PAYMENT OF DEBTS AND LEGACIES.' or as to the security offered by a bank. When real securities He should are not to be had. 40 N. (4 Edwd. Tallot.) And the rule is established in equity. than will be cient to pay all debts. sucli 97 suffi- executor or administrator. he should obtain the approval of the surrogate as to the investment. but he should invest them in good securities. they can only loan on real estate. allow suph portion of the legacy or distributive share to be advanced as may be necessary for the satis- support of the person entitled thereto. he may. loan be made on personal accrue. should not suffer of the estate to be unproductive for an money unreasonable time in his hands." Of Investments. if a deposit is made of the fund. whenever required.

without the application of any one. S. where infants only are concerned. Smith v. if he has reason to apprehend that the interests of the infants require his action. § 52. to call executors or administrators to an account. CHAPTER XIV. Of the Accounting of Executors and Administrators. 5th ed. upon the application of bail. 92 . or any person who is or has been his of the legal representatives of such person. beyond the eighteen nionths allowed by law. THE Final Settlement and Distribution OF Estates. a'nd of Commissions. Lawrence. as creditor.. 261. 178. L.98 EXECUTOR'S AND ADMINISTRATOR'S GUIDB. 11 Paige. . p.. to render be cited his pro- an account of and show cause why S. or next of kin. 1859. 211. 3 R. When eighteen months from the granting of letters shall have elapsed. S. (Chap. legatee. and who shall not have been paid.) And the surrogate will cite an administrator. may cause the executor or administrator to by the surrogate ceedings. after a reasonable time has elapsed.) [It is probably the duty of the surrogate. (2 R.. any person interested in the estate of the deceased. he should not be ordered to pay the claim or share of such person..

from the time of hearing. tion of the surrogate. Appendix. such order may be served personally. or by publication in the state paper and a paper pubfor three hshed in the county. which order shall be served ing to the executor or administrator by showoriginal. Or. once a week months.. if may be enforced by attachment. will make an on' order that the executor or adminis- trator render such account. at least. order. S. within thirty days. etc.. 460 2 E. . L. on tlie receipt of a petition veri- by oath. showing the interest of the petitioner. and his bond successor. 3 E. S. at least sixty days before the day of hearing.) in the discre- The costs of the proceeding may. him the and at the same time leav- ing a copy thereof. See petition. 99 The fied surrogate. and new ' letters granted. In case of publication a copy of the order must be served by mail at least thirty days before the day appointed for hearing. or. if the party cannot be found or after being he neglect for thirty days committed to jail. (S. may be prosecuted by his under the direction of the surrogate.. Obedience to such order or. 179. be charged upon the executor .. by leaving such copy with his some suitable person at the place of his residence. ch. 1837. if the executor or administrator reside out of the state. 178. to render his account. 5th ed. 92 .FINAL SETTLEMENT AND COMMISSIONS. or home.. his letters may be revoked. in case of his absence from wife.

personally. Oratacap v. the exe- cutor or administrator petitioner to call may deny the right of the him to an account. and may say he is not a creditor. or one of the next of kin. (S. alleged that the petitioner in the estate. and the executor was ordered to account. as above.. is satisfied that the petitioner not interested. on hearing the proofs.. interested in the estate. Deguerre. In some counties. course may be pursued safely. on being cited to account. he will be entitled to an inventory and accounts. 24. 1 Barb. Bcmfanti v. 3 Brad.. suiEcient to authorize such order. he . 782.) 1867. it had assigned his interest was held that the surrogate could not try the question whether the assignment was valid... A for is mere appearance of i^equire interest in the applicant an order to an inventory and account. etc. Ch. if the creditor swears positively to a debt due to him from the an order for estate.100 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 429. Fhyfe. On the return of the order or citation. Thmnson. chap. 1 Brad.] is And if the surrogate. [When the executor. citation in the and to serve the manner directed for the service of It is believed that either the order. a legatee. or administrator. Kep. TJiomson v. L. gate to it is the practice for the surro- make an order that the executor or admi- nistrator be cited to account. § 8. As a general rule. 485.

chap. will dismiss the application with costs .pre- be unknown. M..FINAL SETTLEMENT AND COMMISSIONS. 3 E. p. 1867. The executor or him cited. or if after contest he is ordered to render an account. 14. however. legatees.. (Page 93. the accounting appHcation of another party. instead of contesting the right of the petitioner to have ordered to account. next of kin. or whose residences may . 782.) " The citation shall be served personally on those to whom it shall be directed. or administrator. 5th ed. § 60. settlement § is (S. 101 if but he finds that the petitioner is interested iie will order the executor or administrator to render an account. 93. § 61. 180 and §70.. 182. may apply for a He may make an application for a final* settlement of his account at any time after the expiration of one yearfrom the date of his appointment. and attend the (2 p. S. L.S. and the surrogate issues a citation directed' to the creditors.) on the On making such application. so that both proceedings may be carried on together. will be adjourned. at least fifteen days before the return thereof. E. 95. and all persons interested in the estate of the de- ceased.. either personally fifteen days . living in the county of the surrogate.) The application for such a final a petition stating the facts (see form Appendix). to appear on a certain day. and upon those living out of the county. final settlement. final settlement of his accounts.

is undoubtedly sufficient in any of the proceedings in the surrogate's court. the citation shall be published as aforesaid. § 62. In case of the publication of the of it a copy should also be mailed to each party to be office served at his place of residence or post dress. where any creditors or other persons interested in the estate of the deceased may reside. six months. " If there be any such creditors.. at least thirty ad- days before the return day thereof.t least forty days before the return thereof. L. residing out of the United States and out of the provinces of Canada. signed by them. 1863. as the surrogate upon due inquiry into the facts. viously. (S. the citation shall be published once in each week for three months. in the state paper." citation.102 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. unless such citation be personally served on such creditors or other persons interested a. 362.) full An admission of service of any parties of age. shall direct. or' by publishing the same in a newspaper printed in the county at least four weeks before the return thereof. and if there be any such creditors. or other persons interested residing in any other state of the United States. . chap. or other persons interested. or in either of the provinces of Canada. on proving the signatures to the satisfaction of the surrogate. and in such other newspapers printed in any other counties.

of witnesses. an auditor. see Appendix. examine the account.. and they and the executor or administrator. 180. and make report subject the surrogate.. the executor or administrator files his account and " any creditors. 5th ed. S. to take testimony. legatees or other persons interested in the estate of the deceased. On for the return day... if is interested in the final settle- ment.PINAL SETTLEMENT AND COMMISSIONS. 3 R. to hear and determine all disputed claims. the surrogate will appoint a special guardian them. in the preis sence of the person in whose charge he placed. and if an adjournment is not necessary.. to compel the attendance . to the confirmations of The referee shall have the same . 5th ed. 94. may attend the settlement of such ac- count and contest the same. as next of kin or otherwise. the publication and mailing is sufficient. if there be any minors inter- ested.. S. the surrogate may appoint a referee. service of the citation may be made on his he have any . § 64 . the surrogate may city refer it to S. out of the county. to be issued by the surrogate (2 R. 103 Where a minor guardian. R.) [On the coming in of the account." 63 3 R. S. 2. This relates only to service on the minor in the county. In the surrogate's court of the and county of New York. shall have process. 180. For form of account and objections. if he have no guardian service should be made on the minor.

S. 5th ed.. and the § 55. 3 R. and also touching any property or come effects of the deceased which have disposition thereof.compensations. as appointed by the Supreme Court. § 56.] The surrogate. § 6. and dicted . 355.. 1870. and direct payment by the executor or administrator in the decree. touching such payments. into his hands. is item of expenditure. i. and such executor or administrator may be examined on oath. in the whole. 179. he may be allowed any dollars. five exceed Imndred dollars.. " On the settlement of an account of an executor or administrator. on proof of the amount of the claims of the creditors who appear. which vouchers shall be deposited and remain with the surrogate.. § 54. 92 . " The surrogate may make allowance to any executor or administrator. and for all funeral charges and just necessary expenses. S. if such item supported by his own oath. not exceeding twenty for which no voucher is produced. specifying when and if to whom such payment was made. for pa3anents in behalf of any one estate. every executor or administrator shall produce vouchers for all debts and legacies paid. positively to the fact of payment.104 EXBCUTOE'S AND ADMINISTRATOE'S GUIDE.) «In rendering such account. for the property of .eferees powers and . L. S. (2 R. such oath be uncontra- but such allowances shall not. chap. will enter them in his minutes as proved.

. 142. or neglects to pay regular accounts of investments. the deceased. by the day or in gross. Tinhham.. the commissions being the pay for their . 211. against the executor. and of the interest received on such funds. " No profit shall be m'ade by executors or administrators tain by the increase. 11 Paige. but can only charge' the legal commissions and their just ex- penses . without their fault. perished oj- 105 lost without the fault of such executor or administrator. payable periodically. or that the estate was of less value than stated in the inven- tory. Emmett.] Jacot^.24. although it is of. of any part of the estate but they shall account for such increase." [The inventory is not conclusive evidence. is chargable with interest. 24 How. 2 Barb. had been kept invested upon Spear v. He is not "precluded from showing that assets in- ventoried. did not belong to the estate. Ch.FINAL SETTLEMENT AND COMMISSIONS. Where the executor or administrator mixes up the trust funds with his own. and shall be allowed for such decrease on the settlement of their accounts. nor shall they sus- any loss by the decrease.. and prima fade evidence against him on the accounting before the surrogate. he as if the trust fund interest. Executors and administrators cannojt charge for their services. § 57. Sjss&roMC^ V. Eep. of what the assets consist their value. fias6r(wtc^.

perty charged as was lost . As has been seen above. when from home on the business of the estate. Thus. The executor or adminisfor must then produce the vouchers such payments. specify- ing in trator wtat instances. 265. and specify what was omitted. . or that not so much was paid as charged. any person interested may contest the account. (2 Brad. he cannot charge for the hire of drives his own.) - The contestant may further allege. which are conclusive evidence of pay- ments unless successfully impeached by the contestant. services. for board. or he allege may that when the inventory is accounted for. through default of or that claims of the executor or administrator the deceased. The contestant may allege that the executor or administrator has not accounted for all that has been received by him. charged as bad and not collectable. (1 Brad. specifying the articles not accounted for. trator In these cases. and the executor or adminis- may introduce counter proofs.. the contestant has the burden of proof.106 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. He cannot charge when he dines at home or with a friend. or fare paid in a public conveyance.. 165. although he may charge for board actually paid.) Or the contestant may allege that certain payments charged in the account were not made. the inventory was not complete. that the prolost. although he may- a horse when he charge for such hire when actually paid.

with proof thereof 2 Brad.. and the payment of sums over that amount are supported by vouchers. thathe has actually taken the benefit of an insolvent act . 1 Brad. Appendix.. But where there estate is is no inventory. the executor or administrator charging it as bad. under twenty dollars. is full and and the items of disbursements. 265 . as doubtful or bad.presumes that an executor or administrator does his duty. the contestant must show that he knew they were collectable and neglected the collection but where the claim was inventoried as good. to charge the administrator. 107 were good.. must prove it to be so. 220. The law. for a default. that the debtor This proof may had been commonly reputed to be insolvent for a length of time. to the satisfaction of the surrogate and when the claims charged as bad and not collectable were inventoried. the contestant and to charge him must prove the default . [Where the the executor affidavit annexed to the account of clear as to payments. it is for the party who it. ob- jects to the account to falsify and sustain in the form of distinct and specific allegations. FINAL SETTLEMENT AND COMMISSIONS. (See form objections.) be.J Metzger v. do not exceed in the aggregate five hundred dollars. and the . the whole considered good and collectable. or that executions have been returned unsatisfied against him. Metzger.

must prove the fact. Badeau. the real nature of their transactions and the amount for which they should be held liable.] The hearing may be adjourned from time time. the surrogate's court is governed by principles of eq^uity. Upson v. the surrogate decrees the amount of the commissions upon the are competent estate. to and the surrogate may appoint one or more auditors to hear the matter and make a report. the surrogate shall allow to for his services. S. The proof being closed. which upon the aggregate sum received and paid out by all the executors or administrators. unimpeded by tech- nical rules. [In adjusting the accounts of executors and administrators. subject to his confirmation.. {Vdlentine y. to show the fairness of their dealings. 93. 13.) The commissions and are regulated the distribution of (2 R.) as follows On the settlement of the and if account of an executor or administrator. 430. of amended : by chap. as them by statute. 2 Barb.: 108 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. Valentme. all and it is at flmes. him and there be more than one.. ch. executor or administrator charging any of the claims as bad. respectively over shall apportion among them above his or their expenses For receiving and paying out all sums of money . competent for them. 3 Brad. as well as of law. 362 " Laws of 1863..

entitled. and there shall be more than one executor or administrator. at the rate of five dollars per cent. each and every of such executors or administrators shall be entitled to and shall be allowed. at the rate of two dollars and fifty cents all per cent. shall amount in value to not less than one hundred thousand dollars. provided however. ex- ceeding one thousand dollars and not amounting to ten thousand dollars. compensation or then. as shall appear just and reasonable. dollars. at the For sums above ten thousand rate of one 'dollar per cent. over and above all debts and liabilities. to which he would have been this act if by the provisions of whole amount he had been sole executor or adminis- trator . and that if there shall* be more . 109 not exceeding one thousand dollars. But if the personal estate of the testator. what would be by* the provisions thereof. For receiving and for pajdng out any sums. instead of apportioning the hereinbefore mentioned. the full amount of compensation. And in all cases such allowance shall be made for their actual and necessary expenses. that the of the compensation of such executor or administrators' shall not exceed. or in- testate. among such executors administrators. paid to three executors or three administrators. of the testator or intestate.FINAL SETTLEMENT AND COMMISSIONS.

than three executors or administrators. receipts k) the estate as accounted for..110 EXECUTOR'S AND ADMINISTEAT-OE'S GUIDE. : may be expressed all more shortly thus Five per cent on . acting as trustee under the will in receiving and paying out "the income of an investment. will be entitled only to . when the executor or administrator transfers stocks.) but (Burtis v. he may be allowed commissions on the as amount of them money. Ch. and there on each settlement. 1 Barb. or other property. and one per cent on up to nine above ten thou- sand dollars.) .the percentage ascertained b'y adding such {Drake v. such sums for counsel fee thereon. R. articles specifi- Commissions are not allowed on cally bequeathed. the executors or administrators in equal shares. as to said surrogate shall seem reasonable". not exceeding the sum of ten dollars for each day engaged therein. all on sums above one thousand thousand. shall be divided all among them. sums up to one thousand dollars two' and a half per cent dollars. 77. 430. then what could be the compensation of three executors or three administrators. or bonds and mortgages. 5 N. Dodge. Y. And an executor or administrator with the will annexed. shall also be allowed. to a legatee or one of the next of kin. in payment of a general legacy or distributive share.. Price." The rule as to commissions. and preparing therefor. notes.

1 At there the final settlement. An executor cannot receive for his services. any statute commissions. debts not yet due. however meri- or extraordinary. * * * re- In such order. § 72. his services may be. that part of the estate yet remains uncollected. or .. which shall not have been and the assignment of any mortgages. * * * * jf surrogate that any part of the estate remains to be make a. beyond com- missions. legatees. the surrogate may. who shall have sold. put of the general estate. S. or may remain unpaid. Matter of Bcmh of "Niagara. Westerfield Brad.95.. Commissions but are paid are not charged upon the legacies. to and among the creditors. 6 Paige. Ill [An is attorney performing professional services. bonds. more than the torious. ' entitled also to his bill of costs. for : which cases the statute provides as follows (2 E. 41 N. in writing of the parties. Whenever an account j^ shall be rendered. decree for the payment and distribution of what shall so remain. Y. widow and paid or distributed. Westerfield. to the deceased. he shall next of kin. Collier V. Munn. 198. notes. appeared.] v. according to their spective rights. it may sometimes occur. upon the assent. direct the delivery of any personal property. shall appear to the and finally settled.FINAL SETTLEMENT AND COMMISSIONS. 143..) § 71. 213.

The provisions of a will may be declared null it and void. Having settled the account and decreed the com- missions. to be retained for the purpose of being applied to the payment of such claim when due. § 74. or may be directed by the surrobe. or the proportions sufficient to satisfy to it may be entitled. tained. to drawn only on the order of the surrogate. or upon which a which suit is then pending.112 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. If upon the representation of an executor it administrator. and the legatees or next of kin. shall among the claiins. to among those entitled payment or distribution. to be ascertained by the appraisement and oath of such persons as the surroga^ shall appoint for that purpose. ftiay be left in the The sum so re- hands of the executor or administrator. Decree Ap- pendix. gate to be deposited in some safe bank. on final accounting. and although the . the court will direct the distribution of the balance remaining. or of being distributed according to law. that shall appear to the any claim is exists against the estate of the deceased. or when recovered. other demands not yet due. he shall allow a sum such claim. surrogate. See form. which not then due. if creditors who have proved their there be any. where was revoked will by a subsequent marriage. in lieu of so much money as such-property or securities may be worth. or otherwise.

to be sooner paid. either is by the or by law but where a bequest given to a widow in lieu of dower.. made for its support. 2 Johns. Ann Davis. after deducting debts and other legacies. intesta- from the death of the {Lwptcm V.FINAL SETTLEMENT AND COMMISSIONS. and no other provision terest will be allowed tor. tate of intestacy may be declared. she will be entitled to interest thereon from the death of the testator. Butter. The statute providing that no legacy shall be paid until after the expiration of one year from granting letters testamentary. and to pay over the is income. 193. 1 Tucker. Ch. unless the same. • 113 Es- had been proved.] If there be enough of the estate. if there be no will. 3 Brad. Interest will be computed on legacies time when they became . and it if after paying them there remains a surplus. the creditors will be paid in full. Lupton. and she accepts the same. provided a sufficient amount re- mains. stand in the way of this principle.. is directed.) And where a legacy is is given to a minor child. 628. or. [Seymour v. . by the will. does not {Cooke v.) a Where tors to be sum of money is bequeathed to execu- put out at interest. the provision is made entitled to interest on the same from the death of the testator. among the next from the will of kin. 107. the person for whom. payable. will be distributed according to the will.

5th ed. the surplus of his personal estate remaining after payment of debts . (2 R. 472.: 114 EXECUTOR'S AND ADMINISTRATOR'S Meeker. fixed by the will for payment. and the holding sv/p. 12 N.. Graig v. [Matter of Finh's estate. the sur- plus remaining after the cies if payment of debts and lega- not bequeathed. 19 Abb. 96. Bradner v.. 3 R. 42 Barb. Craig. are not uniform.. 183. but the point was not before the court.. 209. 105. from the time they are legally payable. 533 . and where the deceased left a will. was obiter dictvm. from tes- the period of one year from the issue of letters tamentary.. Faulkner. shall be distributed to the . See Ca/mpbell v. S..) Interest runs on a legacy from the period of one year from the death of the testator.. Interest begins to run on general legacies. 172. as follows § 75. Kep. S. seems to hold that interest runs on legacies.) " Where the deceased shall have died intestate.. v. is when no time Williamson v. Cowd/rey. 293 Campbell 31 How. (JtriDE. Distribution. Y. unless a particular time is specified for payment. Cowdrey. 6 Paige. Williamson.) The rulings as to the time when interest begins to run. The is statute of distribution in case of intestacy. 2 Barb. . Ch.

she shall receive in addition *to her moiety two thousand dollars. and the other moiety shall be distributed to the next of kin of the deceased entitled under the provisions of this section. of the whole surplus shall be allotted to the widow. but if there be a brother or nephew or as niece. "In case there be no widow and no . "Kthe deceased leave a widow.: FINAL SETTLEMENT AND COMMISSIONS. nephew or whole sur- widow shall be entitled to the sister. niece. then the whole sur- "K there plus shall be distributed equally to and among the children. 115 widow. 5. and to the whole of the residue where it does not exceed two thousand dollars . the parent. " If there be no children nor any legal representatives of them. plus . and no debrother or sister. any of them shall have died before the deceased. if the residue exceed that sum. then one moiety (that is one half). and all the residue by equal portions among the children and such persons as if legally represent such children. scendant. and the remainder shall be distributed to the brothers and 4. children and such as legally represent them. " One third part thereof to the widow. sisters and their representatives. children or next of kin of the deceased in the manner following 1. and no descendant or parent. 3. the widow shall be entitled to a moiety of the surplus above provided. be no widow.

and shall be entitled to letters of administration in exclusion of all other persons. and no father. descendant. and no child. and no chUd or descendant. brother. the moiety not widow dis- tributed to the shall be distributed in equal sisters. the mother. and the whole if there be no widow. 8. if there be a widow. if And if the deceased shall have been illegitimate. and have left a mother. and shall leave a widow and a mother. such mother shall take the whole. And . father. the whole surplus shall be distributed in like manner to the mother and to the brothers and sisters. in pursuance of the provisions of this chapter. " If the deceased leave a mother. child. or shares to his mother and brothers and the representatives of such brothers and sisters and if there be no widow. shall take a moiety.. sisters.'^ if there be a widow. 116 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. or the representatives of such brothers and 7. or representa- tives of a brother or sister. " If the deceased leave a father. and thS whole there be no widow. 6. "If the deceased shall leave no children. in equal degree to the deceased. and no representatives of a then the whole surplus shall be distributed to the next of kin. the father shall take a moiety. and no representatives of them. and no child or descendant or widow. sister. and the legal representatives.

. 11. collaterals. 250 . leaving child- and his brother C. Pett. and sisters children. 10. own right. entitled to share in his estate. 25. leaving only grand- children ren. " When such descendants. '' whom they would have been entitled. it was held in Pett V. that a brother's grandchildren. intestate's brother the A. same order. be dead. 1 Salk. the grandchildren. and be entitled to ministration in the 9. Kep. No regresentation shall be and admitted among children.. 1.PINAL SETTLEMENT if the AJSTD COMMISSIONS. or next of kin shall be of unequal degrees of kindred. Wms. according to their respective stocks so that those who take in their shares.. be dead. could not share with if another brother's children. . the surplus shall be apportioned among those entitled thereto. their shares shall be equal. if living." re- collaterals after brothers' sisters' [As the statute of distributions says that no presentative shall be admitted after brothers among P. " Where the descendants of next of kin of the deceased. be Uving. the relatives the deceased had letters of ad- of the decease(^ on the part of the mother shall take in the same manner as if been legitimate. and his brother B. shall receive equal and those who take by representation shall which the parent receive the shares to represent. 117 mother of such deceased be dead. . and therefore. shall be all in equal degree to the deceased.

all leaving children. in their own right. or per stirpes. sentatives of the aunt. and the representation is not carried down to the repre2 Kent. or per capita. descending lineal line. and a son of a deceased aunt.. 425. But one brother remain alive. does not extend as but they are- all next of hm. proceeds on ad infinitwm. and cannot take. such children take per their parent stirpes. when the distributees take equally. they will divide the estate equally among them. those children repre&entatvm. leaving children. the brothers and sisters of the de- ceased. 1299. E«presentation in the It would take per cajpita. are all dead. brother or sister. A will have no share.118 of EXECUTOR'S AND ADMINISTRATOR'S GUIDE. the uncle takes the whole. for it cannot take hy far. So that next of kin take per stirpes. or by repre- . but his next of kin and an uncle. One half of the personal estate will go to the children of B. Williams on Exrs. and in that character. entitled to his estate. by his mother's side. Distribution is also made per capita. and the other half to C.. when they take by way if ^f representa- tion. Com. in numbers. has also been decided that if the intestate leave no wife. or what would have been entitled to if living. leaving children. But if all the brothers and sisters and their children be dead. and others have died. Thus. notwithstanding the families may if be unequal. or child. 424.

and such advancement be equal or superior to the to the preceding rules. the value thereof shall be reckoned with that part of the surplus of the personal estate which shall re- main if to be distributed among the children . as all Brothers. by tlement or portion of real or personal estate. then such child and his des(?endants shall be excluded from any share in the distribution of such surplus. all children. and representatives of such relatives shall take in the same manner as the representatives of the whole blood. sentation.PINAL SETTLEMENT AND COMMISSIONS. but born thereafter.] 12. 13. as his share of amount which. " But if such advancement be not equal to . they take each an equal share. "If any child of such deceased person set- shall have been advanced by the deceased. 2 Barb. grandchildren." § 76. all Where they stand in equal degrees. Ch. 208. § 77. shall take in the same manner as if they had been born in the lifetime of the deceased. shall takeequally with those of the whole blood in the same degree. R. and had survived him. only 119 when they stand in unequal de- grees of kindred to the deceased. according would be distributed to ^uch such surplus and advancement. "Relatives of the halfblood. "Descendants and next of kin of the deceased begotten before his death. child. See also Matter of Burr..

680. and Kenny v. 8 Mass. such amount. suffi- make all the shares qf the children. shall be entitled to receive so cient to much only as shall be all. and is a bar to claim on final settlement . and the husband of any such deceased married woman. any real estate. is less when the amount than the distribu- would be. 143. to § 79. even received for such release tive share § 78. . within the meaning of the sections . shall apply to the personal estates of married women leaving descendants then surviving . operates as a release. v. shall be entitled to the same dis- tributive share in the personal estate of his wife. of the intes- descend to the heirs. to be equal as near as can be estimated.. in said surplus and advancement. given in consideration of an advancement. Quarles.] The maintaining or educating or the giving to a chUd. Tucker. similar to ours. has been held in two cases. to which a widow is entitled in the personal estate. of money view to a portion or settlement in shall not be deemed an last ad- vancement.120 EXECUTOR'S AND ADMINISTRATOR'S GUIDE." [Under a Massachusetts it statute. or his descendants. The preceding provisions respecting the distribution of estates. that a release to the father of claims on distributive share in expectancy. such child. Quarles 4 Mass. without a life. two nor shall those sections apply in any case shall be where there tate..

or he may secu- same to be invested in permanent as hereinbefore provided in respect to lega- cies to minors. S. 3 Lansing 526. and the repeal of section 30. and subject same is obligations. 2 R. 75. widow or next of kin to a deceased and no one shall appear to claim the per- sonal estate of the deceased. The at decree of the surrogate may be appealed from any time within three months. § 80. have deprived the husband of all claims to the estate of his deceased wife. in which case he will take one third. it is held that the amendment of 1 8 6 7.PINAL SETTLKMBNT AND COMMISSIONS. the surrogate may direct the same to be paidto the general guardian of such minor. except when she leaves descendants. granted to any per- son not the person. and until reversed . § 81. § and no more. 121 by the provisions of this chapter. 782. 11 of laws of 1867.. Where a distributive share is to be paid to a minor. for the benefit of those who may thereafter appear to be entitled to the same. . which would be distributed as aforesaid. But this case has been over- ruled in the court of Appeals. When administration of. and to applied to his support and education direct the rities. within two years after such letters were granted. with the like authority to apply the to the interest. of her husband. (As amended by chap. shall be paid into the treasury of this state. the surplus of such estate. Underwood.) In Barnes Y.

The executor settle- may. That such executor or administrator has all been charged the interest for moneys received in his account.. with debts collected by him and not with stated in the account.. 94. and with interest on such items. which he legally accountable. or administrator. as to which his duties are unaltered by his previous final settlement.122 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. V.. 3 E. "That the moneys were all stated in such account as collectable collected. EarhrousJc. 2. N. 6 1. S. on appeal. 216.) is [The decree conclusive.] in such account for " That the charges made moneys paid " to creditors. notwithstanding the ment. (2 E. to legatees. the final settlement and decree is con- clusive as to the following facts against all persons who have been duly cited. 5th ed. for by him and embraced was 3. S. " That the allowances in such account for tha . be charged with assets received by him and not stated in the account. that were on the debts stated in the account. to the next of kin and for necessary expenses are correct. Y. 181. Bank of Poughkeepsie. at the time of the set- tlement thereof. after the settle- ment. § 65. 4. assets.. only as to the points stated in the statute and only upon those persons properly served with the citation. discovered for He may the also be charged first.

§ 66. and on the hearing. S. . For this purpose. the proceedas ings will be conducted in the same manner on the final settlement of the accounts of an executor or administrator. The for surrogate will make the same allowances to executors. as above.. a citation may all issue on his application. (L. manner administrators and guardians. at the instance of his successor. or superseded. as amended by chap. commissions and expenses as title 2. 6. S. 782.FINAL SETTLEMENT AND COMMISSIONS.." § 1. chap. now required to Or such a trustee may voluntarily apply for a settlement and may have his account settled from time to time. and the charges therein for the increase in such value were correctly made. of R. 123 decrease in the value of any assets. or finally settled in the same manner as accounts of executors. and the proceedings will be the same as in case of final settlement and an accounting by executors. 115 of Laws letters of 1866. (Part 2. 1867. chap. ap- pointed by such surrogates are account. he be cited by the surrogate.) The surrogate's to court. in the same as executors. shall have power and jurisdiction compel testamentary trustees and guardians to render accounts of their proceedings.) When may testamentary or of administration to such trustee shall be revoked.

(Chap. L. for the pajmaent of money by an executor. § 63.) After any decree is made by a surrogate. in case one of two or more executors is guilty of misconduct in relation to the estate. shall on application. 337. interfere and compel him to place the choses in action in his possession. 461. administrator or guardian.. and may direct the mode in which he shall. 34 N. amended by chap. up'on the application of a new executor or administrator .) It seems that'the surrogate may also. chap. to account. and if such new per- executor or administrator neglect to application. S. the surrogate And may cite an executor or administrator. 4-60. in such custody as to enable his coexecutors to obtain access to the same. L. Y.) The Decree may the he made a lien on the Real Estate of Executor or administrator and collected hy Execution. in like manner. Laws of 1837. . 1837. (S. and the surrogate wiU if hold him to an account in the same manner as eighteen months had elapsed. be- longing to the estate. 229. {Wood v. Brown.124 EXECUTOR'S AND ADMINISTBATOR'S GUIDE. after a reasonable time make such any other son interested may make it. 1862. cooperate with his coexecutors in discharging his duties or execution under the will.. whose letters have T)een revoked. he make out a certificate.

process or decrees of the surrogate's courts. shall thenceforth be a Hen on all the lands. stating the 125 and in names of the the decree parties against is favor of whom made. and their places of residence. the same and shall be entered on the docket of the court. Laws of 1837. in which he shall state the amount of debt and decree. and returned surrogate shall unsatisfied. 460. to enforce the order. in the same manner as though the same was a judgment obtained in said court. (Chap. and execution shall be issued thereon. profession or occupation of the parties respectively. may Issue. to the person in such decree is made for the purpose of being prosecuted. adminiswhose favor trator or guardian. tenements and real estate of every person against whom such decree shall be entered. § 65.) Process of at- tachment or other compulsory process authorized by law. with the trade. costs directed to be paid by such § 64. may be issued by the surro- gate of one county. assign the bond given by such executor. the on application. Attachment § 66. On such certificate being filed with any clerk of the Supreme Court (a county clerk). to the officers required by law . If such execution be issued.FINAL SETTLEMENT AND COMMISSIONS.

if no satisfactory reason be rendered for the non-payment. any other county of the when it may be necessary to serve th6 same and the officer receiving the same shall have power and authority to arrest the person or persons against whom said process may may be issued. Y. administrator to the common jail to remain d^charged by the order of the same surro- until gate.. verified by the should payment not be then made.. first demand by the of payment be made upon the executor or adminisservice of a surro- trator personally. commanding him to attach the person of the delinquent and bring him before his court. See forms attach- ment etc. 126 EXECUTOR'S ANB ADMINISTRATOR'S GUIDE. 324 . will issue an attachment under his seal.. and to convey the person or persons so arrested to the county and place where the writ § 67. * be made returnable to the county where the same * *. to serve such process in state.) % . 1 Tucker 92. be returnable. in Appendix. On the return. Est. or may commit the delinquent executor. . the sur- rogate upon proof by verified petition of the neglect or refusal to pay. the surro- gate. accompanied copy of the decree or order gate . of John Woodhead. 11 N. directed to the sheriff" of the county in which the delinquent resides. may must For the purpose of a ob- taining the attatchment. All attachments and other compulsory proshall cess which may be issued by any surrogate. [Seaman v. Duryea. issue.

- now required as to a conveyance of filing and such surrogate. shall indorse such discharge on the margin of the record of such decree or order. certificate of the surrogate. a on filing with the same the discharge. office of any county by the filing of the certificate of the surro- gate. L. 782.. he Discharged. as to the decree.) Any decree or of moneys. When the decree has been docketed in the clerk.FINAL SETTLEMENT AND COMMISSIONS. 127 The Decree may § 9. is and acknowledged. of. on such release. as real estate. or proven. chap. 1867. (S. of the clerk shall enter the discharge upon his docket. then clerk.) . (See form release in Appendix. order of a surrogate for the' payment may be discharged by filing with him a release the amount executed by the person to whom such money is directed to be paid.

discover that the personal estate his debts.. 187.5th ed. and the statute prescribes the manner of it converting into money. Lease or Sale of the Eeal Estate of a deceased Person for the Payment OF HIS Debts. Executors or administrators may apply by peti- tion to the surrogate for leave to mortgage.128 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. at any time within three years after the granting of letters. or to sell his interest in any land held under a contract . if necessary..) title But real estate.. Of the Mortgage. 40 j 3 R. for the purchase thereof. L. (2 R. to be applied. is when they shall insufficient to pay But before making this application. CHAPTER XV. § (S. 100.. nor unless application for such sale shall be made to the surrogate .. lease or sell the Teal estate of the deceased. an heirs or devisee's to ' which has been divested. or so much thereof as may be necessary to pay his debts. to the payment of his debts. S. shall not be sold for debts unless letters testamentary or ofadministration upon the estate of said deceased shall have been applied for within four years after his death. chap. they an inventory according to law. must file /837. 60.) is The real estate of tlie testator or intestate also. g.

see (For form peti- Appendix. 8 Paige 12. S. in the petition of that fact held to answer the purpose of an inventory. " The amount of personal property which has to the come hands of the executor or administrator. " or intestate... " And siich petition shall be verified by the oath of the party presenting the same. held insufficient. with the value of the respective portions or lots. and 5. 1€0 .: . of the total of the inventory.) . L. 187.. Hill [A statement Swp. 5th ed.] 2. 3 R. and the total of the debts. same can be ascertained. (2 E. " The appHcation thereof The debts outstanding against the testator 3. the names of the any occupants. cupied. Butler v. (S.." tion. Emmet t. S. 848. to grant such letters. Where there was no personal estate. and whether oc- and if occupied.) " The petition shall set forth 1. 1869. as far as the 4. "A description of all the real estate of which the testator or intestate died siezed. 260. 129 within three years after the granting of such letters provided the surrogate of any county in this state had jurisdiction chap. or not. " The names and ages of the devisees if and of the heirs of the deceased. OP REAL ESTATE FOR PAYMENT OF DEBTS. a sworn statement. & D.) § 2.

Eep. § 41 it is . as widow. heirs or devisees. 460. and applying the same to the payment of his debts (S. K it shall appear from the petition that the per- sonal estate of the deceased. 161. and that insufficient for that purpose. should be fully stated in the petition.130 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 2 Barb.. to the time of making such show cause why the necessary authority should not be given to the executors or administrators appljring therefor. the same shall be served personally. chap. 189). Fitch V. S.join in should the petition. [All the executors. or the reason why they do not do so. appear before him at a time and place therein specified.. or satisfactory evidence is offered that the executor or administrator has proceeded with reasonable diligence in converting the same into money.. on any person in the occupation of the premises. wherever may be situated. has been applied to the payment of his debts. (See order to show cause in Appendix. Wiibeck. and on such of the per- sons interested. nor more than ten weeks from order. resid- ing in the county of the surrogate. lease or as sell so much of the real estate may be necessary. L. the surrogate will make an order. 1837. to mortgage.) A copy of this order which a mortgage.Ch. Or administrators. and that there are debts unpaid. that all persons interested. at least fourteen . . not less than six. 5th ed. of lease or sale is desired. applicable to that purpose. 3 R.

or by publishing the same. CorwinY. that upon the minors personally. days before the day therein appointed cause. the surrogate's urisdiction not made out. If such devisees do not reside in the state. and if the minors be under fourteen years of age. 36. Merritt. the order to show cause shall be served upon them in the same - manner L. in a newspaper printed in the county. then a copy shall also be delivered to the parent. in the state paper. then a copy of such order may be served personally forty days before the day for showing cause. or cannot be found therein. once in each week for four weeks in succession.] If such personal service can not be made. or if such widow. for six . was published as j directed is by the statute. chap. the order shall be published once in each week. 341. 3 Barb. is 1863.. imme- diately previous to the return day. as -citations to altered proof of a will (S. In the case of minors interested. or to the person in whose care the minor shall be. [If it does riot affirmatively appear that the order directing all persons to show cause. for 131 showing which service may be made personally. but reside in the state. or guardian* of the minors. or by leaving a copy at their residences with some person of suitable age or discretion.. heirs or devisees do not reside in such county.OF REAL ESTATE FOR PAYMENT OF DEBTS. It shall also be published for four weeks. § 6).

person interested may contest the applica- and show that the executors or administra- tors have not proceeded with reasonable diligence in converting the personal estate into money and is paying the debts sufficient to . pay the debts and they may contest the validity and legality of any debts.I 132 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. or a personal weeks service of forty days It is may be made in lieu thereof. to the parties intended to be served by the publications. so barred. and their attendance may be and will adjourn from time to time. in the state paper. and witnesses may be examined by either party. will proceed all parties. sion of And the admis- any such claims. The executors or administrators may be examined on oath. be represented as existing against the deceased and may set up the statute of limitations in bar of such claims. by any executor to revive or administrator. shall not be deemed . believed. or that such personal estate . as compelled in the same manner as in case of proving wills. successively. if the service of the order tp is show cause complete. The surrogate wUl. Any tion. and on his appearance. appoint a special guardian for all minors. . demands or claims which may . that in all cases of publication. a copy of the order should be mailed at least thirty days before the day of showing cause. to hear the allegations and proofs of may be necessary.

to the them end that the proceeds all may be equitably distributed among ^. or which shall have been determined to be valid by the shall circuit. the creditors. in the same manner there as in any other court. until. on such hear- ing. 3 R.OP REAL ESTATE FOB PAYMENT OF DEBTS. and the vouchers supporting the same shall be ofiice. so as in any of the deceased. (Page 102.The demands which the surrogate. except tising . " That the executors or administrators have . shall adjudge to be valid and subsisting against the estate of the deceased. upon due examination. shall be entered by him in the book of his proceedings. that in all these proceedings. S. and prove them before the surrogate.) " The surrogate shall make no order for the mortgaging. 189. so far or administrators to notify as they are able. he shall be satisfied. 5th ed. the same.. fully and at large. It will be observed. may by adver- but it is clearly the duty of the executors personally. or which have been recovered against the executors or administrators trial of by the judgment of a court upon a the merits. at which they present and prove their claims.. . 1. leasing or sale of the real property of the deceased. Creditors 133 way to affect the real estate may attend and present their claims. is no provision for notifying creditors of the hearing before the surrogate. filed in his § 14.

.) The place when so satisfied. are justly due and owing. payment of such debts can be any part thereof. surrogate. " That the debts. 2 Barb. shall.. § 15. " That the personal estate of the deceased debts. is insufficient for the payment of such and that the whole of such estate. or expressly charged on the real estate of the deceased . . or if it shall appear that such moneys can be so raised. in the first inquire for the and ascertain whether sufficient moneys by de-.J 3 E. . S. for the purpose of satisfying is which the application made. and that they are not secured by judgment or mortgage upon. 161. Rep. 134 EXECUTOR'S AST) ADMINISTRATOR'S GUIDE. 189. if such debts be secured by a mortgage or charge on a portion of such es- tate. fully complied title (as set with the preceding provisions of this forth above) 2.. and raised mortgaging or leasing the real property of the ceased. he shall direct such mortgage or lease to be made for that purpose. then..(Page 102. Ch. that the remedies of the creditor by virtue of such mortgage or charge have been ex- hausted 8. ed. which could have been applied to the payment of the debts of the deceased But see has been duly applied for that purpose. or. advantageously to the interest of such estate. Witbeck. Mtch 5th v." § 41 hereafter.. [The order expenses for sale must not be made to pay of administration.

OF REAL ESTATE FOR PAYMENT OF DEBTS. 3 R. much of the real seized. S. shall be as valid and effectual. § 17. by mortgage or advantageously to the estate. executed under the authority of the surrogate as aforesaid. The surrogate may.) No such lease shall be for a longer time than until the youngest person interested in the real estate leased shall become twenty-one years of age. although the whole of the personal property of the deceased which has come to the hands of the executor or administrator.. (See order for sale in Appendix.. (S. (Page 103. before making any such order have satisfactory evidence that the executor or administrator has proceeded with reasonable diligence in converting the personal property of the deceased into money. § 16. 5tlied. But the shall surrogate.) S. 190. immediately previous to his death. . If it shall appear to the surrogate that the raised moneys required can not be lease. § 18.) 1837. order such mortgage. and applying the same to the payment of debts. 460. § 4. 135 189. and of the same effect... he shall from time to time order a sale of so estate. ch. whereof the testator or intestate died as shall be suf&cient to paly the debts which the . A lease or mortgage. as if executed by the testator or intestate. 5th ed. L. lease or sale to be made. in his discretion. 3 E. has not been applied to the payment of debts.

§ 19. § 21. so situated that a part thereof can not be sold without manifest prejudice to the heirs or devisees. have been sold or devisees. a bond to the people of this . although more than may be necessary to pay auch if debts. specify the lands to be sold. Before granting any order for the mort- gaging or leasing any real estate. it pay may be ordered. unsold. If such real estate consist of houses or lots. and not charged'in such devise with the payment of debts. may be ordered to be sold. hands. be sold under any order of a surrogate. accordingly. shall be ordered to be in and no case shall land devised expressly charged with the payment of debts. the surrogate shall order that the part descended to heirs be sold before that so devised . appears that any part of such real estate has been devised. lots or pieces shall be sold. then the lands by the sold heirs remaining in their first . and if it appear that any lands devised or descended. direct the order in The order shall and the surrogate may therein which several If it tracts. surrogate shall have entered in his books as vaUd and subsisting. or of a farm. § 20.136 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. the surrogate shall require from the executor or administrator applying for the same. and a sale of the to whole real estate shall appear necessary such debts. then the whole or a part thereof.

and with sureties as above directed. conditioned that such executors or administrators will . and such will deliver all securities taken sale. § 22. Ch.. pay all the moneys arising from such sale.] In case the executors or administrators neglect or refuse within a reasonable time to execute any such bond. on granting the order. within twenty days shall after the same have been received and taken by them. Rep. in a penalty double the amount to be raised by such mortgage or lease. state. the surrogate shall require a bond in like manner. 2 Barb. after deducting the expenses thereof. in a penalty double the value of the real estate" ordered to be sold.) are very large. and for the accounting for such moneys.OF REAL ESTATE FOR PAYMENT OP DEBTS. to be approved by the surrogate. to by them on the surrogate. Before granting any order for the sale of any real estate. in Appendix. Cock. security to is [Where the proceeds a limited amount beyond the fund sufficient. preferring in such ap- . or make such sales. 137 with sufficient sureties. conditioned for the faithful application of the moneys arising from such mortgage or lease to the payment of the debts established before the surrogate. Holmes v. 426. (See bond. the surrogate may appoint a disin- terested freeholder to execute such mortgage or lease. whenever required by such surrogate or by any court of competent authority.

although the order for sale described the property as a single parcel. and shall be published in a newspaper. Delaplaine v. there be one. and be subject to the same A notice of the sale prior to shall be posted for six weeks such sale. Y. at public vendue. to pay the expenses . and if there be none. Lawrence. 3 N..) (See*notice The sale shall be made in the county where the premises are situated. by setting forth the number of the lots. in Appendix.] the purchaser should be required to pay on And his bid. creditors. and shall possess like powers. in which notice the land and tenements to be sold shall be described with common certainty. and in all cases the im- provements thereon shall be stated. in three of the most public sale shall be if places in the town or ward where the had. at least. sell in separate parcels. between the hour of nine in the morning and sunset. then in the state paper. [The administrator may. if he deems it beneficial to the estate. responsibilities. if the premises cannot be so described they shall be described in some other appropriate manner. 801. and the name or number of the township or town in which they are situated . pointment a person nominated by the Such freeholder shall give a bond in the same manner as executors or administrators.138 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. printed in the same county. for six weeks successively. a sum sufficient.

and the guardian of any minor heir or devisee of the deceased. may be obtained. (see report in rogate. on oath. and a mortgage of the premises sold. or the freeholder appointed. Appendix. and all such sales shall be void . of a 139 the new sale in case he should fail to sale should fulfil terms and a new be necessary. shall not directly or indirectly purchase. The executor or administrator. or be interested in the purchase of any part of the real estate sold. as shaU seem best calculated price. within twenty days. of which notice shall be given. The executor or administrator making such sales. the par- any other person on oath he shall be of opinion that the proceedings were unfair. may purchase for the benefit The executor or administrator may give such length of credit.OP REAL ESTATE FOK PAYMENT OP DEBTS. bid. shall after sale. and ties or may examine . not exceeding three years. to p:^duce the highest and as shall have been directed or shall be approved by the surrogate. on the security of a bond of the purchaser. or that the sum bid was disproportionate to the value. at least ten and that a sum exceeding such per cent. exclusive of the expenses of a new sale. and the . he shall vacate such sale and direct another. but a guardian of his ward. to. the sur- make return of his proceedings.) who and if shall ex- amine the proceedings. for not more than three fourths of the purchase money.

that a greater sum. or by the person the sale. and vacate V. 16 Barb. § 31... in part.) " Such conveyances shall thereto the purchaser upon be executed by the executors so appointed or administrators. although sown by the or his tenant. and they shall be deemed to convey all the estate. conducted as the sale oij sale shall be in all respects the first order. 301.] But if it shall appear that the sale was legally made and fairly conducted. when sold. Jewett v. 193. all widow of siich testator or (See deed in Appendix. the original order au- thorizing a sale. cannot be obtained. he will make sale. as above specified. [It is competent for the surrogate. and the order confirming the same and directing the conveyance . Keenholtz. to confirm it the sale in part. which shall convey the pro- perty free from any claim of dower. 3 N. (See order in Appendix.] (Page 103. an order confirming such and direct convey- ances to be executed.) [The purchaser the land will hold the crops growing on heirs. free and discharged from claims for dower of the intestate. right and interest in the premises of the testator or intestate at the time of his death. by the surrogate to taiin make They shall con- and set forth at large. Delaplaine Lawrence.) .140 EXECTTTOR'S AND ADMINISTRATOR'S GUIDE. and that the sum bid was not disproportionate to the value of the property sold or if disproportionate. Y.

that the same could be impeached or inyalidated. 141 "Every sale and conveyance made pursuant title. or invalidated. and of the acts amending the same. defect. under title any of the provisions of the fourth of chapter six. under . so sold. second part of the Kevised Statutes. under any of the provisions of the fourth title. existing at the time of the upon the lands death of the testator or intestate. for any omission or defect in any petition of any executor or administrator. or in addition the?eto.OP REAL ESTATE FOE PAYMENT OF DEBTS. (Chap. by reason of any omission. error. and of the acts amending the same shall be invalidated. 81. or irregularity. mortgage or otherwise. shall be deemed and held to be as valid and effect- ual.) Every sale here- tofore made or hereafter to be made. at any such made in good faith. or by any allegation of want of jurisdiction. to the provisions of this all shall be subject to charges by judgment. of chapter six. § 36. No such sale. of part second. in the proceedings before the surrogate. on the part of such surrogate except in the manner and for the causes. of the Revised Statutes. as if made by sale order of a court having original general jurisdiction. nor in any wise impeached. and the title of any purchaser. in case such sale had been made pursuant to the order of the court of original general jurisdiction." § 1. shall not be impeached. Laws of 1850. § 2.

has been or shall be had. nor by reason of any omission to serve upon any minor. deed or return. title the provisions of such the same. necessary to the real estate. and chap. provided tially and acts amending such petition shall substanfiled. seized. of Laws of 1869. part second of the Revised Statutes proyided such order shall have been duly served on the general guardian of the minor. nor by reason . or the guardian appointed in such proceeding . has been. of executors or administrators after the filing of nor by reason that any such petition. personally. or is a debt.. nor in any wise im- peached by reason that any such petition was or shall be presented by less than the whole number . tioning. petitioning . or by re- publication. and that there are personal estate recourse is .f such sale be invalidated. 92 of Laws of 'l872. nor by reason that any fur- ther proceeding. by less than the whole number of the executors or administrators. or made by less than the peti- whole number of executors or administrators. (or some of it) whereof the deceased died. which the and that is insufl&cient to discharge. a copy of the order to fifth show cause section of the fourth title of chapter six. 142 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. heir or quired by the devisee. show that an inventory has been debts. 260. sale.) Nor shall an. (As amended by chap. any bond re- quired by law. notice. or shall be given. § 3.

after the presenting of any petition. although such publication may not have days . and the giving notice of the order to show cause why the authonor rity or direction applied for. to another house. sale.OF REAL ESTATE FOR PAYMENT OF DEBTS. office or other buUding. after such proceedings were taken. and before the order confirming such after a lapse of five years sale. 143 of any irregularity in any mattef or proceeding. shall be it presumed that guardians have all beeii duly appointed for minor devisees of the real estate sought to be sold in such proceeding. sold under or by virtue of any ordgr of a surrogate's court. office. such presumption to be rebutted only office by record evidence in such showing affirmatively that such guardian or guardians were not appointed . have been removed from the house. and the full period of twenty-five years has elapsed since said sale. that no- thing in this act contained shall be construed to affect in any manner any suit or proceeding already for the commenced recovery of any lands or the proceeds thereofy. before whom such proceedings were taken. been for the full period of forty-two and in all cases where the records of the ofiice of the sur- rogate. provided. or other building in which such proceedings were taken. should not be granted. . from the time of such sale where the notice of such for six has been pub- hshed such weeks successively before the day of sale.

by attachment or suit on the bond filed. that the provisions of if this act said title have been complied with. § 1. as had not been passed.) " Whenever an order has been or shall be mad^p by . to be collected and applied. or administrators shall.. L. such sale. ch. to make any order for the sale of the real property of a deceased person. 40 Barb. the law presumes that it was properly made. This act' shall not be construed as authorduties izing any surrogate. and the surrogate may compel such payment and delivery in the same manner. or to confirm tion. § 4. 162 .] Wood v. immedi- within twenty or securities. the surrogate any moneys received on such and any securities taken by them shall be delivered in like manner to him. The executors ately. (S.144 BXECUTOE'S AND ADMINISTRATOR'S GUIDK. 5th ed. hands of such executors or adminis- 1850. if as such real estate had been originally personal estate in the trators. to make the cirder. under the order of a surrogate. upon due examina- he shall be satisfied. 417. or ofl&cer performing the ofl&ce of the of surrogate. days after receiving such moneys pay to sale. 3 R.. [This act throws upon the party seeking to im- peach a sale of real estate. S. unless. Mb Ghesney. the whole burden of proof. 193.. fails to and if he show a want of jurisdiction in the surro- gate.

with the will annexed.. removal or disqualification and it shall be lawful for the surrogate of the county. or shall be otherwise disqualified from executing the same while the same order remains unexecuted in whole or in part. to authorize the ad- ministrator." The compensation trator. and the surrogate. unadministered of said deceased. OF REAL ESTATE FOR PAYMENT OF DEBTS. from the . lease o* sale of any real estate. together 10 with his expenses. or other persons named therein shall die or be removed. the proceedings in relation thereto shall be in no wise affected by such death. give the like security as would be required on the granting for an original order for the mortgage. to execute said order in the same manner and with the or other person like effect as if the said order cutor. by whom have been said order was made. for each two dollars a day day actually spent in the business. had been executed by the exeoriginally administrator therein . and the executor or administrator. 145 a surrogate for the mortgage^ lease or sale of the real estate of any deceased person. lease or conveyance. chattels and credits issued. to whom letters of administration shall on the goods. or other of the executor or adminis- person appointed to execute the is mortgage. or otherwise.. as in the case of an original order. before receiving such authority. or a disinterested freeholder. named provided that the administrator or other person so to be authorized shall.

by an instrument under ledged or proved. will pay the charges and any expenses of the executor.) whole pur- [He shall set apart. or other persons claiming under them. if necessary to satisfy their claims. in lieu of her dower. to such claim- ant during At her decease. as shall be dpemed. and filed duly acknow- with^the surrogate. such consent. Westlake. (See annuity table and rule. a reasonable satisfaction of such claim. 281. if the shall consent to accept such widow sum seal. securities on annual interest in his name shall which interest shall be paid life. Appendix. law applicable to annuities. by the payment upon the of such sum. moneys and from the first collection of the securities taken. deducting the expense 14 N. in gross.] Highie v. so paid to him. then the surrogate shall set apart one-third of the purchase satisfy such claim. such sum be collected and distributed if among the creditors. to the devisees or heirs of the testator or intestate. or not so ne- cessary. And he shall cause the same to be invested in permanent of oflSce.146 EXECUTOR'S AND ADMINISTRATOR'S GUIDE.. one-third of the first chase money. money to re- (See notice to widow and lease of dower in the Appendix. Y. after reasonable notice for file that purpose. without of sale. administrator or such other person appointed. But if she shall not.) . He shall next satisfy claim of dower which the widow of the testator or intestate may have upon principle of the lands so sold.

. and place of making and on the day ap- pointed will take proof as to claims not previously proved before him. the time distribution of the moneys. upon the settlement of their accounts. If. chap. {Livingston v. may attend and contest any claim presented on any. there shall not be sufficient to pay all the debts of the testator or intestate..OF REAL ESTATE FOR PAYMENT OP DEBTS. and any person interested as creditor. after paying the expenses of the sale. 400) the surrogate shall pay any sum which may have after apply- been found due to the executors or administrators. 147 The surrogate will tlien advertise for six weeks in a county paper. legal grounds. 1863. . beyond the assets which came to his hands. ing thereon the proceeds of the personal estate of the testator or intestate from the residue. 318 and by L. If the executor or administrator. he shall have the right to be reimbursed on the sale of the real estate. then the balance of the proceeds shall be divided by the surrogate among the creditors as pro rata . and he shall pay debts not yet due. Johns. and satisfying the widow's claim of dower. after paying dower. shall may be compelled to attend and give have paid debts in the course of administration. Ch. being considered the equitable assignee of the claims so paid by him. . and witnesses evidence. deducting a rebate of legal interest . 3 S. NewhirTc. other debts. heir or devisee.

make such for the order for the investment of the interest and is and payment of the principal thereof as the Supreme Court authorized or required by law to make in anala gous cases.. . after paying debts and expenses. time of the credit unex- Any moneys which securities shall become due upon the sale.. 150 . entitled to the lands. shall be collected by the and shall be distributed by him among creditors in the same manner all as directed above. in other words.148 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. for the upon such debts. or. pired. brought into the surrogate's as the proceeds of the sale of real estate. 1850. § 2. And if. and the reversionary interest belongs to another person. the surrogate will pay and distribute it among the heirs or devisees. (S. 3 E. or belong to any person who has a temporary in- terest in the said moneys. there be any surplus. exclusive of buildings thereon. L. S. upon virtue of this act. shall be secured which shall be worth at least double the amount of such investment.) " Whenever any portion of the surplus moneys office. the surrogate's court shall thereof. among those who have been § 1.. shall belong to a minor. " The investments that shall be made by by mortgage unincumbered real estate within this state. 195. if they had not been sold for the payment of debts. ch. which shall have been taken on the surrogate. 5th ed.

658. • The surrogate. or Judgment Sale in certam Oases. on application of a creditor. Whenever there remain any surplus moneys. (Chap. within thirty days after the sale. and he shall keep the securities as he now is required by law and to keep other securities belonging to his office. of which any de- ceased person died seized. and by the the same proceedings. by virtue of any mort- gage or other lien. and to the person or persons en- titled thereto. Laws of 1867). and the surrogate's receipt shall discharge the party receiving the surplus. given by. under the order of the surrogate. such person during his the person or corpora- tion holding such surplus. as moneys arose from the sale of the real estate of the deceased for the payment of debts." Surplus Moneys an Mortgage. in the 149 name of office of the surrogate. or obtained against life. shall pay out the money in the if same manner.OP REAL ESTATE FOB PAYMENT OF DEBTS. the interest and principal shall be distributed by and under the direction of the surrogate. . in con- formity to the order under which the investment shall be made. shall pay it to the sur- rogate of the county havingjurisdictionof the estate of such deceased person. shall to he paid to the Surrogate. arising from the sale of any lands or real estate. or the personal representatives of the deceased.

any creditor whose debt is not secured by a judgment. or upon the order of the surrogate creditor. upon the the duty of the creditor to compel them do so.150 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. LeASE OR SeLL THE EeAL Estate op the Deceased to Pay Debts. on his final settlement. mortgage on the real estate. it shall appear that on the application of a there are not sufficient assets to pay the debts of the deceased. before he has any right to call heir-at-law or devisee to pay a judgment against . by a judg- ment and to creditor for an order to sell the real estate of a deceased person. CHAPTEE XVI. it is They are all bound to account. A Creditor mat Compel the Executor or Administrator TO MbRTGAGE. or other express charge for may apply to the surrogate an order. lease or seU the real estate of the deceased for the payment of his debts. after an executor or administrator shall have rendered an account. If. either voluntarily. that the executor or administrator show cause why he should not be required to mortgage. is not enough to authorize an application to the surrogate. [But the rendering of an account by one of several executors or administrators.

and fence to his claim..) Such order shall be served personally on the executor or administrator to whom . and it may be made by one who has obtained judg- ment against an executor or administrator for a debt against the deceased. Sanford v.OF MORTGAGE. amended 1843 and 1847. 12 Barb. after a trial at law upon the merits.. TO PAY DEBTS.. 40 Barb. ETG. L. of such debt before the surrogate. Wood v. ch. although ministrators have not united in the ad- making or return- ing an inventory. McGhesney. 196.] . ed.. (See petitions orders etc. 3 E. and such judgment... § 72. to any debt. as before directed. any legal de- But if no cause be shown to the contrary. 5th in Appendix. notwithstanding the lapse of three years from the granting of letters. the all surrogate will make a general order that interested persons appli- show cause. it shall be directed at least fourteen days before the ^day therein ap- pointed for showing cause and on that day the contest the right of executor or administrator the applicant. 1837. Granger. This application may be made. on . The same The rule would apply way. 151 the executor or administrator. 460. may t may show in bar. 414. is prima facie evidence (S. 392.. sought to be recovered in this surrogate may make the order of sale upon all the petition of the creditor. S.

and the proceeds shall be returned to the surrogate in like cases. heirs or devisees and he will cause special guardians. application the like bond shall be executed . he shall mortgage. and distributions shall be made in the same manner. in the same man- ner as if such order had been granted on his own . quoted above. . in all respects. lease or sell so much of the real es- tate as shall be necessary to pay the debts esta- blished before him. and all persons interested as widow. lease or sell as directed therein. if the surrogate be satisfied of the matters specified in the 17th section. cation of the executor or administratorj which shall be served on persons occupying the premises in question.162 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. Upon such order being granted and served on the executor or administrator. for to be appointed in the interested. same manner minors On the return day of such general order. he will order such executor or administrator to mortgage. in re- gard to the application by an executor or administrator. the like notice shall be given. If the executor or administrator neglect or refuse to serve and publish the notice required. leasing or sale an order . and the same proceed- ings had. or to do any other effect act necessary to authorize or carry into for the mortgaging. as before directed on the application of an executor or administrator.

(See forms.) No suit shall be brought against the heirs. after notice that such application has been made may discontinue. or devisees of any real estate. amended 1847.. The interest of the deceased in a contract for the purchase of lands. it will be stayed on proof that an application to mortgage. ETC.. may same be sold on the application of the executor or administrator. if he had died seized of such for and the same proceedings may be had R.. who shall proceed in the same manner as directed in respect such executor or administrator.) . that. 199. his suit. 5th ed. the expiration of the three years or the plaintiflf. or held the contract by assignment. Ill. whether he was original purchaser. ' lease or sell such real estate had been made before . the surrogate may to appoint a disinterested freeholder. 3 R. them with the debts of the testator or within three years from the time of granting letters testa- mentary. (2 S. 153 of the real property of the deceased. Appendix. or of administration upon the estate of the testator or intestate.. in order to charge intestate. a suit shall be brought. and will be entitled to distribution. TO PAY DEBTS. S. and in the same manner as lands.OF MORTGAGE. in the cases. purpose as are directed above in respect to lands. or a creditor. on establishing his claim before the surrogate. as other creditors. And if after the expira- tion of that time.

of the purchase of such lands. and may be made subto payments due and unpaid. and against other covenants and agreements of the deceased to the vendor. and will. or if shall not. But if there be no payments unpaid. nO bond shall be required of the purchaser. or become due. shall thereupon who have all the rights which the de- . against all demands. and the heirs or devisees entitled.be necessary as above. by the executor or ad- ministrator. In either case. sales shall be Such made subject to all payments thereafter to ject to all become due. on account all agreement or liability of the deceased. costs. until the purchaser shall execute by the a bond. the surrogate will direct an assignment. or or agreement contained by reason of any covenant. by reason of any covenant in such contract. fully and amply indemnify the executors or administrators of the deceased. conditioned that such purchaser will make all pay- ments unpaid for such land. the sale will not be confirmed surrogate. of the contract. or thereafter to be- come due on account of such contract. When it the bond shall have been executed. with sureties to be approved by such surrogate.154 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. charges and expenses. of such land in relation thereto.to the purchaser. in a penalty double the whole amount of such payments yet to be paid on such contract.

S. contract and the lands contracted If a part of the lands so contracted for. arising from such sale shall be paid to the surrogate. 5th ed. and shall then proceed to distribute the bal- . may be sold advantageously. during the of the widow. according to the contract. 3 R. and shall be disposed of in the as directed in regard to proceeds of but the claim of dower shall only exlife tend to the annual interest. if living.OF MORTGAGE. in relation to for.. the surrogate to be soldi may order such part only and in that case the purchaser shall not be required to execute any bond. The moneys same manner lands sold . which shall remain after paying sums of money due from the deceased. TO PAY DEBTS...) " The surrogate shall apply the residue of the arising moneys from such all sale. 200. 155 the ceased would have had. ETC. S. at the time of such sale. 112 . in the first instance. to the payment of sums of money then due from the deceased to the vendor of the lands so contracted.. (2 R. upon one-third of the surplus of the moneys arising from such all sale.. for the land so contracted for and sold. and so that the proceeds of all such part will satisfy and discharge the pay- ments to be made for such land. on account of such contract (when the lands are sold subject only to payments thereafter to become due). § 73.

Upon payment being made in full on a contract for the purchase of land. if he had lived . a portion of which shall have been sold according to the preceding provisions. § 75. and any dedd that shall be executed to them. the executors or administrators of the deceased shall have the same right to enforce the performance of the contract which the deceased would have had. § 74. " Where a portion only of the land so con- tracted is sold. the executor or administrator shall execute a conveyance therefor to the purchaser. surplus after payment of debts and expenses. in proportion to their respective rights in the premises sold. on the perfecting of the " title to such land pur- suant to the contract. ance among the creditors of the deceased in the manner hereinbefore provided and if there be any . which which shall transfer to him all the right of the deall ceased to the portion so sold. or the person claiming under them. the same shall be distributed among the persons who to the interest of the de- would have been entitled ceased in the lands sold if such sale had not been made. . shall be in trust. or by the person entitled to the interest of the deceased in the land sold at the time of the sale.156 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. and shall be acquired the right or admin- by the executor istrator.

OF 1M0ETGAGE. TO PAY DEBTS." . and as to such part. 157 and for the benefit of the persons entitled to the interest of the deceased. ETC. if there be any. except for such part of the land so conveyed as shall have been sold to a purchaser according to the preceding provisions . subject to the dower of the widow. the said deed shall enure to the benefit of the purchaser..

or for less time. above referred to.) "Every father (whether of full age or a minor) of a child likely to be born. by the Su- surrogate. (Page 150. dispose of the custody and tuition of such child during its minority.. if living." Under the statute of 1862. the minority of both males and females alike ceasing at that age. ch. as to the time when the consent in writing of the mother shall be given. 3 R. father. They stand in place of the father. persons under the age of twenty-one years. may by his deed or last will duly executed (with the consent of the niother of such child. 5th ed. S. or by the §1. 172. or of any living child under the age of twenty-one years and unmarried. to any any person or persons in posses- sion or remainder. 243. CHAPTER XVII. that is.. Guardians are appointed to care for the persons and estates of minors. They may be appointed by the preme Court. signified in writ- ing. and are amply empowered by the statute. and protected in the honest exercise of their duties. S. Guardians and Wards. 1862.. . § 6). the question must necessarily arise.158 EXBCUTOE'S AND ADMINISTRATOR'S GUIDE. L.

such consent should. The whole tation. 159 When the guardianship is created by the deed of the father.GUAEDIANS AND WARDS. be § 2. from the time shall take effect. appointed by will. will. and shall be valid and effectual against every other person claiming the custody or tuition of such minor. as guardian in socage or otherwise. however. the guardian as to is Where. it " Every such disposition. . or neously with the execution of the senting the same for proof. that the proper course would be for the mother. or the. it is thought. it and when she the petitioner for may case be incorporated in the petition for the proof thereof. be endorsed upon that instrument. shall vest in the person or per- sons to whom it shall be made. is full of difficulties. difficulties upon pre- The first course presents not easily obviated. father and It is therefore suggested mother may be separated. for the father may make his will far from home. all the rights and all powers and subject him or them to the duties and obligations of a guardian of such minor. if she assents to the testamentary disposition of her children. to file suclji consent with the surrogate is proving the such proof. safe. undoubtedly. and the section referred to will require judicial interpie- The course suggested above -will. a question arises whether the consent should be made simultawill.

are liable to be re- incompetency. and may bring such actions in relation thereto. and shall recover damages iu such actions. and may maintain all " 118. as transacting some business relating to the person or estate of the ward. whom the custody of any minor is so disposed of. improvi- dence or other good cause." The guardians moved for so appointed. " He shall also take the custody and manage- ment of the personal estate of such minor. whether ac- they will accept the trust. upon petition. EXECUTOR'S AND ADMINISTRATQE'S GUIDE. may take the custody and tuition of such minor. they must continue until discharged by Accept- the Supreme Court. appoint a guardian for a minor. or assuming direction of the some control or ward or his estate. ance may be inferred from the acts of the guardian. by the Supreme Court. Any person to proper actions for the wrongful taking or detention of the minor. The Supreme Court will. or the lapse of time.160 § 3. as a guar- dian in socage might by law. with. order them It is optional. will. the persons appointed by the deed of the father. irresponsibility. also compel them to account from time to give and when' advisable. or however. and the profits of his real estate during the time for which such disposition shall have been made. for the benefit of his ward. security. but once having cepted it. which can to time. and control him in the .

S. in a proper is The Supreme Court can case. 5th ed. as in case of a testamentary guardian count. (Page 150 for . exercise of his duties. continues until the majority of the infant. of the age of fourteen years. by a deed or will (with the consent of the mother of such child. We § 4. Rep. Ch. him from [The guardian appointed by the Supreme Court. appointment of such guardian as the minor ..) " If no guardian any such minor shall have been appointed by the father. and discharge will audit his final achis trust. if Hving). may nominate." [The residence of a minor.. 243. and remove him . 1 Matter of Johns. William Nicoll. to 161 make account when him to necessary. 3 E.. a guardian for a minor whose father living the surrogate has no power in such a case. every such minor. may apply by petition to the surrogate of the s'uch county where the residence of for the minor may be. 25.] appoint. subject to the approbation of the surrogate. will compel suitable provision for his ward. then of 11 .. when he arrives at the age of fourteen years. if but one survive. and is not controlled by the election of the infant. GUARDIANS AND WARDS. is determined by the residence of the parent . will consider the proceedings in relation ^to the appointment by the surrogate.. for cause.

and the annual value of the rents and profits of his real (See form. may apply to the surrogate of the county where such minor shall reside. " If such minor be under the age of fourteen years. and shall direct such notice of the hearing to be given to the relatives of the minor. that parent.) The notice so given. think reasonable. or other person in his behalf. until he shall arrive at the age of fourteen years. 1 The petition should state the age and residence of the minor. stating the amount of the personal property of the minor. he will . There should also be appended a consent of the if person nominated to serve affidavit of appointed. shall be served on such relatives only as the surrogate shall direct. on due inquiry. Appendix. ter Brown v. some person acquainted with the is that the petition true. and should be signed by the minor. Tucker. 214. Lynch. and if the surrogate is satisfied on the application. and the name and residence of the person nominated as guardian. for the appointment of a guardian of the minor.. the surrogate shall assign a hearing thereof. any relative.] Mat- of Hughes infant. residing in the county. 38.162 EXECUTOR'S AND ADMINISTBATOE'S GUIDE. as he shall. and until another guardian shall be appointed. 2 Brad. estate. Upon the making of any such day for the application.) § 5. and an facts." (See notice in Appendix.

Appendix.. S. the surrogate shall require of such person a bond to the minor. 3 R. " Before appointing any person guardian of a minor. to be . and ascertain the amount of his per- sonal property and the value of the rents and profits of his real estate is .. and where a person other than the petitioner is proposed. and proceed {Wilcox v. Wilcox. name.) "The ancj 5). age and residence of the minor any.GUARDIANS AND WARDS. of the petitioner . 178.) The if petition. should state the . it should have a consent (See form. person to appear before him and may compel any § 8. also the name. and the annual value of the rents and profits of his real estate . in this case. and residence of the person proposed It should be verified by the afl&davit of the petitioner. assign the hearing for the 163 same day. 5th ed.) to be appointed. 244. Barb. the relationship. with sufficient security. relationship as guardian. and for that purpose (where the petition not satisfactory as to these points). § 7. under either of the preceding sections (§§4 shall have the same power is possessed to allow and appoint guardians as by the Supreme Court.. surrogate to whom the application may be made. and in all cases he shall inquire into the circumstances of the minor. testify in relation thereto. 22 with the appointment. of his per- the amount and sonal property. (Page 151. appended.

164 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. application thereof. may be prosecuted in the name of the ward. approved by him. and shall be responsible as such. and of the value of the rents and profits of the real estate." guard- But any minor who may have had a guardian . shall be retained by the surrogate case of among the papers of his office. according to law. thereunto required. whenever the surrogate " Every guardian so appointed by a surro- gate. and that he all will render a true and just account of money and property received by him. Appendix.) The bond so taken. under the age of fourteen years. in discharge the duty of a guardian to such minor. in a penalty double the amount of the personal estate. althoughfull age. respects. until first another guardian be appointed. and every person so appointed guardian of a minor. and of the and of his guardianship. direct. notwithstanding the said minor may arrive at the age of fourteen years. he may not have arrived at by his next shall friend or guardian. conditioned that all things. in all thereof. " (See form. or such ian be discharged according to law. and in any breach of the condition thereof. shall continue guardian of such minor. to any court having cognizance when § 9. such person will faithfully. shall have the same power as a testamentary guardian. § 10.

on arriving at that age. if he do so permit him. and guardians appointed by the Supreme Court or the surrogate. petition the surrogate for the allowance of another guardian. and on proof of the facts. but he will be allowed the expenditures necessary to edu- cate him for future usefulness. there are virtually but two guardians. is Though a father bound to support liable for necessaries furnished to his child. viz guardians ap- pointed by the will or deed of the father. 152. (7Zar^. the surrogate will make a new appointment accordingly. under the supervision of the court. subject. nurture and education of his ward. \_GlaTkY. We may here remark that.GUARDIANS AND WARDS. 165 appointed by the surrogate before he arrived at the age of fourteen years. and his support while so educating him. are mentioned in the • statutes and in the books upon the . he will not be allowed for his support in such idleness. withis out his consent. 8 Paige. although guardians in socage and other guardians. because he . may. and his duty is to attend to the proper care. in a manner suitable to his condition in life. to the same extent as a father. and the powers and duties of each of them are the same. He shall not permit him to re- main in idleness. is The guardian trol entitled to the custody and con- of the person of his ward. if able to earn his support by his own industry.

the court will interfere and remove him. is him and is entitled to his services.166 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. when necessary.) This power and duty in regard to the real is estate. and if he willfully neglect to do so. Tallmadge.] In case the guardian abuse the' power he has over the person of the ward. {Field v. if necessary. Shieffelm. 154. 118. 561. 150. if possible.. Ch.. he sonal property as he may sell such per- may think perishable. or occupy it himself. In relation to the personal estate. Oenet v. and the receipt and expendi- ture of the income for the necessary care. education and clothihg of his ward . and for the purpose of such collection. to expend the surplus for his ward as above. 4 Watts & Serg. the power of the guardian. profits to lease it and receive the rents and paying the taxes thereof. He can lease only for a period end{Field v. Schiffelin.. 1 Johns. he will be accountable for the fair value of the rents and profits. 7 Johns. yet a guardian . and consequently his duty. extends only to the collection and investment of it in good. 7 Johns. Ch. permanent securities. nurture.) . not so liable. Gole v. and after aiid for the ne- cessary repairs. ing with the minority of his ward.. Ward. and for the interest of the minor.) It is his duty to lease it. or invest ( it and suffer it to accumulate for his benefit.

or in common. or of such a part of the said estate. as in the opin- ion of the court shall be incapable of division. 167 sell He estate. such court may direct and authorize the general guardian of such infant to agree to a division thereof. time it may become necessary for of his ward.. if sale. it it is and the satisfied of the propriety or necessity of the will allow it. is that the real estate held jointly or in common . it shall appear to the Supreme by due proof. And whenever Court. or advisable for the reason that the same that is unproductive in proportion to depreciating in value . It is a sufficient ground for this last proceeding. and direct the least price at which may be sold. or court. or on the report of a referee appointed for the purpose. or as shall be most for the interest of the infant. to be sold. its value. or to a sale thereof. has no power to mortgage or the real but may make. and that the interest of such infant requires that partition of such estate should be made.GUARDIANS AND WARDS. that any infant holds real estate in joint tenancy. or in any other manner which would authorize his being made a party to a suit in partition. an application to the Supreme Court (the infant if over fourteen years of age joining therein) that a special guardian be appointed to sell the real estate at any the support. etc. as guardian.

belonging to his ward and the inheritance and not'make or destruction of such (the real estate) of his ward.. 3 R. and every general guardian. when he comes condition. But now. or. 1. shall safely keep the things that he may have shall in his custody. 245.) "Every guardian in socage. or with such other moneys be- longing to his ward as shall be in his hands.. sale things. S. or such inheritance. L. 5th ed. 172. at to his full age.. chap. the is above provision as to survivorship take effect July § 20. until the majority of such youngest child. 1860. and consequently there can be no partition or sale in such a case without the con- sent of such survivor. § 11. and before July 1. But by 1862. 1862. 1862. to which it must otherwise be subjected. 1860. S. by Session Laws after April 9. whether testamentary or appointed. is entitled to the whole of the rents and profits of the real estate of the deceased. during the minority of the youngest child.16^ EXECUTOR'S AND ADMINISTRATOR'S GUIDE. suffer any waste. S. and that the value of the estate small in comparison with the expense of a partition suit. 152 . butshall keep up and sus- tain the houses. ch.. the survivor of a husband or wife dying intestate. and shall deliver the same to his ward. is with adults. to (2 R. gardens and other appurtenances to the lands of his ward. by and with the issues and profits thereof. 20. repealed. in as good order and .

Com. he himself will have to bear it. If he compromise a claim against his ward. profits of by him.) He cannot substitute himself for his ward in any beneficial transaction. least. and shall forfeit to the ward thrice the sum at which the damages shall be taxed by the jury. he shall lose the custody of the same. inevita- ble decay and injury only excepted for the issues .. and a loss accrue. beyond his fees. and the guardian can not in any way derive benefit from the funds or property of the ward. If he purchase land in a sale interested. although such in- sufficiency is a good ground for an application to the Supreme Court for a sale. although if he do so put himself in place of his ward. his . where the income of the estate of his ward is insufficient. 229. only. sale or destruction of the inheritance of his ward. and he and shall answer to his ward real estate received § 21. it will be for the benefit of his ward (2 Kents.GUARDIANS AND WARDS. by a lawful account. where his ward is and take the conveyance to himself. " If any guardian shall make or suffer any waste. or purchase a debt against him at a discount." But the guardian shall not be held to repair from his own moneys. and of such ward. as 169 such guardian received the same. The relation of the guardian to his ward is one of confidence.

. money is of his ward reasonable time (and he usually allowed six months).. he so elect. v. and in case of gross iieglect he will be charged compound interest is interest. the benefit of the purchase. to meet the neglect to invest the profits.. except under the direc- . on coming of age. may. 1 Brad. running to it. he will be held accountable for it whether be collected or not . Bait. or his money If he after a with compound interest. annual rents. claim If he settle a debt note. such as the collection of his commissions are for such services. he will be allowed a reasonable sum for his board. N. 76 . on coming of age. 8 Barb.. if the ward does not earn enough to remunerate him. Talbot. but only the income. if ward. [The proper rate of six _per cent with rent. If the guardian use the trade. Y. his If he have ward in his own family.J He may expense not employ an agent or attorney. if he take the note to himself as guardian. he must pay interest.170 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. adding to the principal at each King 77 . at the . A guardian may not expend the capital of his ward..of his ward. to do those acts which he rents.) (Bait v. otherwise. 48. 345. ought &c. to take either the profits of the trade. 40. the moneys of his ward in ward may elect. see also 2 "Wend. to do himself. due to his ward and a promissory himself.

Laws. which upon the petition of the guardian. a legacy or distributive share to his ward . 414. 171 tion of the Supreme Court. Parker.. wisely considering this in the highest degree important. 414. bound only to fidelity and ordinary diligence and trust.) A guardian appointed in another state. 8 Barb. autho- guardian to expend so much as may be di- rected.. White V. • GUARDIANS AND WARDS. in the absence of fraud. will be liberally construed. will. in this and give the proper And a guard- ian appointed in this state. he state must be appointed security. however. [Their rights and powers are strictly local. 48. real pro- Nor have they any authority over the for such property is perty of their wards. 156 Story Conf.. Morrill v. if considered necessary and advisable rize the for the interest of the minor. like an executor or administrator. A guardian. acting within the scope is of his powers. Story Ibid. but. can not receive of an executor or administrator in this state.. to acquire the right. Dickey. prudence in the execution of his and his acts. and cannot be exercised in other states. 417. in support and educationj especially educa- tion. 1 Johns. Ch. .] # . has no power over the real estate of his ward situated in another state. situate in other countries governed by the law rei sitce.

When a distributive share is to be paid to a it minor. of fifty dollars or under.172 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. was estimated especially in view of the legacy. unless that so previously given. to be approved by the surrogate. A general guardian has the same powers in rela- tion to the collection of a legacy or distributive share by actions or proceedings before the surrogate. that a legacy to a minor. that his ward would have if of full age. who must first give security to ttie the minor. for the use may be paid to his father. . and this secu- rity is additional to that previously given on the appointment. but when the legacy exceeds that sum. for faithful application of such legacy . may be under the direction of the surrogate. the same paid. may direct that be paid . the surrogate into court. to the general guardian. and benefit of sijch minor . "We have already seen. and invested under his orders or he may direct that it be paid to the general guardian.

are liable to account personally to their wards. or appointed by the Supreme Court. after such appointment. will may be compelled applica- by the Supreme Court. on their coming of age. and of the amount of property re- ceived by him and remaining in his hands. shall. will conjfirm or facts. and. 1837. or to do so tion. and those appointed by the father by deed. in .. Testamentary guardians. compel the attendance of parties- and witnesses. How Compelled to Account. S. AND HOW Removed. and his receipts and expenditures.. 247. or Relieved of their Trust. of his guardianship. L. modify it according to the § 57. and the manner and nature of such investment. Accounts of Guardians. THEIR ACCOUNTS AND REMOVAL.) " Every general guardian appointed by the surrogate. 173 CHAPTER XVIII. 46oV 3 R. so long as any part of the estate or the income or proceeds thereof remain in his hands or under his control. (S.GUARDIANS. or in- vested by him. which on appoint a referee to hear and state the It will account. an inventory and account. on receiving the report of the referee.. file in the office of the surrogate appointing him. ch. 5th ed. annually. under oath.

and him ings.L. ch. or in case any guardian shall neglect to file such inventory and account for three months after the same should have been filed.174 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. on good cause being shown. Appen-. 5th ed. S. 244. §60. that the interest of the ward requires that a more full and satisfactory account should be given. on such examination. to account before the surrogate in the same manner may be cited who appointed him as administrators. And. upon the application of any ward." dix. (See form. and creditor.1837.. 5th ed. 3 R. all such accounts during the preceeding year. 3 E.. all costs which may have accrued in consequence of such neglect. S. or that such guardian should be removed.. 248. and. Any guardian appointed by any surrogate. form of debtor.) " If.. 152. to show cause why he should not be removed. may be compelled to account in the same mariner as an administrator.. 460.) It is the duty of the surrogate to examine.). the surrogate shall be satisfied in any case. or any relative of such ward. §11. (S. upon a ward's arriving at . S. such surrocite gate shall proceed against such guardiaij. and. (2 R. in the- month filed of February of each year.." filing in his office But such surrogate may discontinue such proceedon such guardian an account and and inventory on payment of satisfactory to said surrogate.

and be served directed (four- manner and at the time herein removal of a guardian. and should charge the guardian with the whole of the personal property received by him. and time (three months). citation shall be issued in the by such surrogate. Appeals from the final order of the surro- gate on the settlement of a guardian's account. and every guardian who shall be superseded in his trust by another guardian. 175 full age. the parties rogate. to attend the settlement of his accounts.GtrARDUNS. The guardian shall file his account in full. teen days. personally) in the case of proceedings for the § 13. THEIR ACCOUNTS AND REMOVAL. may be made to the Supreme Court. may apply to the surrogate who appointed him.) § 12. for a citation to his ward. in the same manner and with the same effect. as in case of administrators. which should give dates and names of parties to whom payments may have been made. which. he sliall be entitled to compel sucli v.. Every guardian of a ward who shall have arrived at full age. and with received or for which he is liable. [Seaman Duryea. may voluntarily appear before the surwill be and proceedings had the same as on the return of the citation. or to such new guardian." Instead of procuring a citation in these cases. account without showing any cause. 11 N. 324. for all interest funds unin- . Y.

to a allowance for such services. 39 Barb. as the sums may demand. [It was held Morgan v. which are regulated by the some rule tors as the allowance for expenses of execu- and administrators and his commissions. receipts and disbursements for each . on ment. the guardian may charge five per cent or two and a half per cent. for the benefit of his ward. the Court of Chancery. Morgan. 213. 6 Paige. as where he repairs on the real estate. Matter of the Bank of Niagara. decided that he was entitled to the costs of suits prosecuted by him on behalf of the for receiving estate. that offi- a guardian performing services outside of his cial duties. and paying out to moneys. are the same as allowed to executors.176 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. bestowsettle- personally made fair ing his personal labor. receipt of such It should also contain the reasonable ex- penses of the guardian. sums above ten thousand annual account. on his year.] i The commissions wit five per cent . And in the case of an attorney who had per- formed services for his ward. one thousand up all to ten thousand dollars. and one per cent on dollars. he was entitled. tlie vested after six months from funds. : on all sums up to one thousand dollars two and a half per cent on sums above dollars.. as well And in making his as on settlement.

j 246. and verify the whole by ing will be conducted. 1867. ' may be discharged by the surrogate. is not such a paying out of the trust fund as entitles the guardian to commissions for paying out the same : nor is he entitled to charge a com- mission for collecting or receiving back of the principal of the fund which he has so invested. But an investment. 265. and be contested in the same manner. 177 [See Matter of Kellogg. (Page 153. §23). or is about to remove from the 5th fied ed. S. THEIR ACCOUNTS AND REMOVAL.. on the filing of a release acknowledgeii or proved. state (S. 3 K. or reinvestment of the fund from time to time.460.] He should also file all vouchers received by him his oath . ch.) " On the application of any ward. complaining of . may The decree when paid. 782. 7 Paige. or of the surety of a guardian. chap.. L. or of any relative in his behalf. 1837. and the accountan ac- iii all respects. manner provided § 9. L. in (S.. like counting by executors or administrators.) for proof of deed.. Ibid. or that the guardian has removed. the surrogate. to the surrogate who ap- pointed any guardian. 267.QUAEDUNS. or of any miscon- duct in relation to his duties as guardian. upon being satis- by proof of the probable truth of such com12 . § 14.the incom- petency of such guardian. or his wasting the real or personal estate of his ward. §45.

] § 15. Gardner. Kettletas v. Matter of Cooper. or such guardian shall have absconded or concealed himself. the surrogate. Matter of Mary ONeil.. " In case a woman marries. Gross intemperance of the guardian. after being appointed * * * guardian. See forms. who fooled it away. shall have power to revoke the appointment. 488. to show cause why he should not be his guardianship. cause. plaint. 2 Paige. to appear before him at the day and place therein specified. 1 Tucker." S. at least if fourteen days before the return thereof. L. or one of sureties. on the application of any party interested. Matter of Mary Elgin. may be served by leaving a copy thereof at the last place of residence of such guardian (or if the guardian has removed from the state. 97. 1 Tucker. in having trusted his ward's money to his brother-in-law. citation may be served by publishing the same in . chap. is cause for removal. shall issue a citation to such guardian. so that such citation it can not be personally served. Ap- Such citation shall be served personally on the guardian to whom it may be directed. the .178 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. § 34. 34. 1 is also good Paige. pendix. 460. his removed from [The insolvency of the guardian. 34. 1837. The guardian was removed for misconduct. But this power will be used with care.

and on such other days he shall appoint. § 25. 5th ed. § 47 §•16. " Whenever shall be made to appear to any surrogate that the sureties of any guardian removed are becoming insolvent. 3 R. at the day appointed as for showing cause.. 246. 5th ed. L." (S. GUARDIANS.) The surrogate. 1837. remove the said guardian from his trust. proceed and appoint a the surro- gate may new guardian. manner as if no guardian had been ap- An appeal a guardian.) 460. he may.. 1837. 179 the state paper for four weeks. (S. 460. it S... ch. and he shall be satisfied that the matter requires investigation. ch. may be had from any order removing or appointing one.) L. and shall grant suhpenas to compel the attendance of witnesses to any person applying and if satisfied of the incompetency or misconduct is of such guardian (or that he has removed or ahout to remove from this state). S. Upon such removal being made.. in the same pointed. . . shill proceed to inquire into the alleged complaint. or refusing to make a removal. by an order to be duly entered in his minutes. 3 E. or that for any other cause they are insufficient. that they have or are about to remove from the state. 246. §46.. but no appeal will affect such order until the same be reversed.. within six months from the making of such order. THEIR ACCOUNTS AND REMOVAL. § 17.

to give further time. he shall issue a citation to such guardian. on the application of the new guardian. to be prescribed § 48. and the guardian so removed may be required to account immediately.. he shall proceed to hear the proofs and allegations. or by leaving at his place of resito be served. the surrogate may make an order requiring such guardian to give further sureties. 180 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. to show cause be re- why he should not give further from' his guardianship . or moved which citation shall be served in the same manner as the citation mentioned in the last preceding section (personally fourteen days. within six months from the making of the order. remove such guardian from his trust. by an order to be duly entered in his minutes. or at such other time as the surrogate shall appoint. within a reasonable surrogate. " On the return of the citation. . sureties. the surrogate may. requiring him to appear before such surrogate at the time and place therein to be specified." Any person interested may appeal from any order in these proceedings. and it if shall satisfactorily appear that the sureties are for any cause insufficient. in the usual form. dence) is required by that 'section § 47. or any relative of the ward. by the "If such guardian neglect sureties to the satisfaction of the surrogate within the time prescribed. the ward.

and place to be therein and show cause why the guardian should not be be at liberty to resign his trust. the marriage of his ward.GUARDIAN MAY RESIGN. is situated. citation shall be served The to the by delivering a copy ward.. verifying the same by his own (See forms of Appendix. in the county of the . " Such surrogate. there be any of the age of surrogate. may men- thereupon issue a citation to the ward. oath or otherwise. discretion. 3 R.) S.) (S. 181 CHAPTER XVIII. A Guardian mat for good Cause shown. chap. requiring him to appear at a time tioned. 460.. his from age or removal.. ac- tual or contemplated. in discretion. Notice of the proceedings shall also be if given to the next of kin of the ward. He may show bility. to a distance from where the property of his ward. he should resign and on presenting the petition to the surrogate. or any other cause which would render it for the interest of the infant that . 1837. his 5th ed. 247. arising for such cause. his physical disaillness. if a female. setting forth the reasons application is why the made. at least ten days before the return day thereof. be per- mitted BY THE Surrogate to Resign his Trust. L. §52.

. which may be in the hands or under the control of the guardian. just and true account in writing of all his receipts and payments on account of the ward. moneys. in respects. and shall verify the same by his own oath and such other evidence as shall tory to the surrogate. conducted himself honestly in the execution of his trust . and of all books. and order deliver over all that the former guardian the books. and proof of the service of the notice. papers. to such new guardian. choses in action and other property of the ward. papers. true and interest of the full account. who shall be deso. and take dupUcate receipts for the same. § 53. § 55. to appoint a new guardian for such ward. the surrogate shall appoint some discreet and competent person to appear and attend mises. sirous to do Any other person. "On the return of the citation. in the mode prescribed by law. that he has rendered a just. be'^ satisfac- " If the surrogate shall be satisfied that the all guardian has. and that the ward would not be prejudiced by allowing the guardian to resign his trust. choses in action.182 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. to the interests of the ward in the preto who shall consent in writing such appointment. he may thereupon proceed. or other property of the ward. § 54. " The guardian to the surrogate a full. may also appear on behalf of the shall then proceed to render ward. moneys.

has been permitted to resign his thereupon discharged from his trust. the sureties of the former guardian shall remain liable in the same manner and order to the same extent as though such had not been made. 183 "On delivering one of the said receipts to office. before he was permitted to resign the same . to be filed in his the surrogate may enter an order that the former guardian. and in relation to all such matters. § 56. in relation to all matters connected with his trust.GUARDIAN MAY RESIGN." . But nothing therein contained shall pre- clude the ward or his new guardian from haying a further account from such former guardian. on his own application. and that he is any further custody or care of the ward or of estate. the surrogate.

740. Co. he was seized of an estate of inheritance time during the marriage. the estate which the widow of a de- ceased person takes in the lands of her husband. I. [Dower thus : spoken of by the ancient authorities .. 3 R. S. or citizen of the who may hereafter marry a United States. and next to life liberty. shall be entitled to state. naanner as (§ 9). if she be an inhabitant of this state at the is time of his death.. 6.Dal. 115. Litt. and how Admeasured.. held sacred. 31.) . L. if a United States. of Widow. is and dower. within this citizen of the the same extent as (S. That dower and a legal. ch. favored in a high degree by law. to dower. life estate in one-third of the lands whereof at anyS. Kennedy v.184 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. Also any woman. 417. 1845. Nedrmjo. There be three things favored of law life. an equitable and moral right.. being an who has heretofore married.] And the widow of an alien entitled to hold real estate... liberty. CHAPTER Dower Dower being a is XIX.) is (1 R. 124. entitled to dower in the same if such alien had been a native citizen alien. 5th ed.

. during her life. general rule given is. the wife not uniting in the conveyance completing the exchange. Thus. and the and expenses of sale.. 537. deemed to have elected dower in the lands received in exchange. she shall not be entitled to dower in both.) And where a person mortgages his lands before his marriage. 31 .. In case of divorce dissolving the marriage con-. but shall be entitled to dower as against every other person.. his widow shall not be entitled to dower.. she shall not be (1 endowed. 42 Barb. 5th ed. the titled to widow costs will be enafter pay- dower in any surplus remaining ment of the mortgage. S. his widow will not be entitled to dower. and if she shall not commence proceedings to recover her dower in the lands given in exchange. as against all and if the lands so mortgaged be sold under such mortgage. 7 Barb. The quoted. 740 3 R. tract. within one year after the death of her husband. for adultery of the wife. but shall make her election . she shall be to take her (1 R. S. but shall be other persons . as against the mortgagee or those claiming under him. 741. When a husband alone executes a mortgage for purchase money. entitled.) . R. 185 statute above by the however. S.DOWER OP WIDOW. and shall be entitled to the interest or in- come of one-third of such surplus. as against the mortgagee or those claiming under him. subject to some restrictions. 633 . if a husband exchanges lands...

] Where widow is entitled to dower in her hus- band's lands. 12. dower. in lieu of dower. she will take the settlement. by consenting to receive a settlement. not the commencement of proceedings for the recovery of dower.186 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 10. Nor a letter to the executors. that she rejected the provisions of the will. 1 Tucker. she shall have one year the death of her husband to elect whether. by unit- A wife may cut off her inchoate during the marriage. . and that she did thereby " elect to claim dower. she will be to deemed have accepted the settlement. John Walkyds a estate. If such settlement be made without her made to after or a testamentary provision be her. as a jointure or provision in lieu of a dower. and is not bound to elect whether to take a settlement or tetamentary provisions in Heu thereof. within one year after her husband's death. contemplated by the and is not evidence of the election of a widow to take dower instead of a testamentary is provision. or the testament(Id. or the provision of the will. and if she do not com- mence proceedings for the recovery of her dower in the lands within one year. [A petition filed by a is widow. for admeasurement of dower. as statute. before ing in the conveyance of land with her husband her marriage.) ary provision in lieu thereof. either in lands or money. or her dower in the lands . assent. or." such an election.

and in default of any testaimentary disposition. the time during which such disability continues shall not form any part of the said term of twenty years. to the Supreme Court or to the County Court of the county where the lands are situated. she 187 may demand lier dower at any time within twenty years after such death . or heirs or persons claiming j under them. either by an action in the Supreme Court. And in case of recovery of her dower. not exceeding six years.. shall be entitled to receive damages for withholding it. or by special proceedipgs upon the The dower interest of a petition of the widow. in the Superior Court. it would go to her administrator. S. if at the time of such death.^ 33. to the extent of one-third part of the annual value of the mesne profits of the land.DO WEE OF WIDOW. or insane. widow may be ascertained and admeasured. or imprisoned on a criminal charge or conviction. the proceedings may be had in the Court of Common Pleas of that city.. 3 R. for 3.) (1 E. 5th ed. A widow may bequeath the crop in the ground of the landholden by her in dower (§25. when the premises are situated in that city. . she be under the age of twenty-one years. but. 742 . When the lands are situated in the city of New York.- and in the city of Buffalo. or to the surrogate of the same county. 743).

The 1.. notwithstanding a partition suit has been mises.188 EXBCUTOE'S AND ADMINISTRATOR'S GUJDE. all. superior to that of the heirs of . whereis the lands in which dower demanded. and in different counties.488. the lands lie for any day... or. shall be served at least twenty days previous to its presentation. (§ statutory provisions are as follows : 2 R. Where. entitled to In re Achsah Sipperly.) "Any to widow who band. Surrogate's Court is The all to be preferred. 3 R. " A copy of such petition. is lie in one county. after which suit she is is Her admeasurement. Barb. she the fruits of her diligence. with notice of the when it time and place will be presented. upon the heirs of her husband.. 5th ed. then upon the owners of such lands claiming a free- . 44. from the fact the court always open and notice may be given however. S. dower is demanded in the proceedings must be had in the Supreme Court. 791. 370. specifying therein the lands to which she claims dower. shall not S. to commenced a party. if they are not the owners of the lands subject to dower. (to have her dower assigned her within forty days after the decease of her hus- may apply for admeasurement of her dower the courts specified above). her deceased husband and if she can secure adis measurement before decree of sale." [She may apply by petition.] § 2. of the pretitle.

where such heirs or owners are minors. by publishing the same. petition." After the expiration of forty days from the death of any husband.) § 3. at the last residence of such party or guardian. § 4. the service of may be upon the if tenant in actual occupation of the lands. whether the infant reside in the state or not. of real estate. may . on any party of age or upon the guardians of minors . or there be no tenant. Appendix. " Where such heirs or owners are minors and have no general guardians (within this state). and all notices in the sub- sequent proceedings shall be served on the guardian so appointed. and the notice of application. be served personally. or by leaving the same with any person of proper age. for the sole purpose of appearing for and taking care of the interests of such infants in the proceedings. " Such notice full may . or the guard- ian of any infant heir or owner.- (See form. in some newspaper printed in the county where such lands are situated. on application of the widow. or their guardians. and notice. the heirs or owners. the court or surrogate.DOWER OF WIDOW. and if any such heir or owner be a resident out of such notice this state. shall appoint some discreet and substantial free- holder a guardian of such infants. in case of his temporary absence. for three weeks successively. 189 hold estate therein.

S. twenty days previous to its presentation. or the owners of any lands subject to dower.. or any of them. to make make de- mand of her dower. or by an application for shall not admeasurement . although no notice to that effect shall . the court to the same shall be parties. 5th § 9. the heirs of the hus- band of such widow. 791. to may apply.190 EXECUTOR'S AND ADMINISTRATOR'S GUIDE.) (2 R. or the guardian of such heir or owner. 488 . if such widow after make such demand within one year have been given her husband's death. require widow having a claim of dower in euch real estate. said widow's for the admeasure- ment of the fied dower of the lands of her speci- husband. to the same courts which the widow might apply. upon hearing admeasurement be made of such . by petition. vice of such notice and if she shall not her demand for her dower withjn the time specified in such -notice.. A copy of the with a notice of the time shall be served and place of presenting the same. claiming a freehold interest therein. within ninety days after ser. order that whom of the made may. or of such part thereof as shall be in4he said petition. personally on such widow. petition. ed. (Id. or by a widow or by the guardians of such heir or owner.) - "Upon application being made. by commencing an action. tlie by a notice in writing. or.. either by any heir or owner. 3 R. S.

;

DOWER OP WIDOW.
widow's dower, of
all

191

the lands of her husband, or

of such part thereof as shall have been specified in

the application."

The
which,

proofs on this hearing are, the seizing or

ownership of the husband, in the lands specified

when no

opposition

is

made.

Is

evidenced

by possession with claims of title, and the marriage
of the deceased with the widow.

[Long continued cohabitation,
the alleged husband, the

until the -death of

woman
prima

being receivedfacie evidence

and treated as

his wife, is

that a marriage had taken place.

Young

v. Foster,

U N. Y., 114.]
Where, however, the application
is

contested, it
title

will be necessary to prove in fuU the

of the

husband.
§ 10. "

Such court or surrogate

shall thereupon

appoint three reputable and disinterested freeholders,

commissioners for the purpose of making such

admeasurement, by an order which shall specify
the lands of which dower
is

to be admeasured,

and

the time at which the commissioners shall report."

And

the commissioners, before entering upon their

duties, shall subscribe an oath (or affirmation) that

they will

faithfully, honestly

and impartially

dis-

charge the trust reposed in them by such appoint-

ment.
If any or either of the persons so appointed shall
die, resign or refuse to serve, others

may

be ap-

192

EXECUTOR'S AND ADMINISTEATOK'S GUIDE.

pointed in their places by the court or surrogate,

and they
§ 13.

shall take the

same

oath.

"

The commissioners so appointed shall exe:

cute their duties as follows
1.

"

They

shall, if it

be practicable, and in their

judgment

for the best interests of all the parties
off,

concerned, admeasure and lay
possible, the

as speedily as

one third part of the lands embraced

in the order for their appointment, as the dower of

such widow, designating such part with
stones,

posts,

or

other permanent, monuments.
p. 960.)

(As

amended, 1869,
2. " In

making such admeasurement, they

shall

take into view any permanent improvements made

upon the lands embraced in the said order by any
heir,

guardian of minors or other owners, since the

death of the husband of such widow, or since the
alienation thereof
cable, shall

by such husband, and

if practi-

award such improvements within that

part of the lands not alloted to such widows, and
if

not practicable so to award the same, they shall
a deduction from the lands allotted to such
to the benefit she will derive
shall

make

widow, proportionate

from such part of the said improvements as
be included in the portion assigned to her.
3.

"

They shall make a

full

and ample report of
and

their proceedings, with the quantity, courses

distances of the land admeasu<red

and

allotted

by

DOWER OF WIDOW.

193

them, to the widow, with a description of the posts,
stones

and other permanent monuments
their charges,

thereof,
it

and the items of

and in case

be

not practicable, nor in their judgment, for the best
interest of all parties concerned, to

admeasure and

lay off the one-third part of the lands and premises

embraced in the order

for their

appointment, and

designate such part, with posts, stones or other

permanent monuments, then they
also

so report

;

and

make

full

and ample report

of- all

the facts of

the case, to the court by which they were appointed, at the time specified in the order for their

appointment. (As amended
4. "

S. L.,

1869, chap. 433.)

They may employ a surveyor with necessary
them
in such admeasurement.

assistants,^ to aid

(See form, report, Appendix.)
§ 14.

"

The

court or surrogate appointing such

commissioners, may, upon their application, or that
of either party, enlarge the time for
report,

making

their

and may, by

order,

compel such report, or

discharge the commissioners neglecting to

make the

same, and appoint others in their places."

Upon

the coming in of the report, the court or

surrogate,

may,

for

good cause shown, as manifest

injustice to either party, or for

any cause which

would

vitiate a report of

a referee in the Supreme

Court, or a verdict of a jury, set aside the report

made, and appoint new commissioners, who shall
13

194

BXECUTOE'S AND ADMINISTRATOR'S GUIDE.
if

proceed as

appointed in the

first

instance, or the

report and admeasurement

may

be confirmed.

But

(chap. 433,

Laws

of 1869, §16), in case the
it is

said commissioners shall report, that
ticable, or in their

not pracinterests

judgment, for the best

of

all

the parties concerned, that the one-third part

of the land or premises embraced in the order for
their appointment, be

admeasured and

laid

off,

with

posts, stones or other

permanent monuments,

then the saidcourt or surrogate may, upon competent evidence being adduced, as to the net rental

value of such lands, or premises, order and decree
that a

sum equal

to one-third part of such net

rented value, be annually, or oftener, paid over to

such widow, during the term of her natural
as

life,

and

for

her dower, iu such lands or premises,
for,

and such widow may sue
premises, and the

recover and

collect,

such sum, of and from the owner of such lands or

payment thereof

shall be a charge

upon such lands or premises, during the natural
life

of such widow.

If at

any time,

it shall

appear

to.

the Supreme Court, or to the County Court, of

the county in which such lands or premises are
situated, or to the surrogate of the

same county,

upon the application of any party interested, that
the net rental value thereof has materially increased,
or diminished, such court or surrogate may, upon

a hearing of

all

proper parties, in interest, of which

DOWER OF WIDOW.

195

they shall have had due and proper notice, order

and decree that such sum be correspondingly
creased or diminished.

in-

An appeal may be brought to the Supreme Court,
within thirty days from th6 confirmation of the
report of 'the commissioners, and unless
it is

so

brought, the admeasurement shall be binding and
conclusive, as to the location

and extent of the

said

widow's right of dower, on the parties who. applied
for the same,

and on

all parties to

whom

notice

shall

have. been given.

But no person
dower

shall

be

precluded thereby from controverting the right and
title

of such

widow

to the

so admeasured,

and the widow

may

bring an action of ejectment,

when

she will be obliged to show the seizin of her

husband, her marriage and his death, and the defendants

may controvert

those facts, and

show any

other facts which could cut off the right of the

widow to "her dower. Upon receiving or recovering
the same during her natural

possession of the

land so admeasured to her, such widow
life;

may

hold

subject to the

payment of all taxes and charges accruing thereon
subsequent to her taking possession,

and may

occupy or lease the same.
[She

may

bequeath the crops in the ground at
(1

her decease.

R.

S.,

743.)

Or, in default of a

196

EXECUTOR'S AND ADMINISTRATOR'S (JUIDE.

testamentary disposition, they
administrator.]

would go

to her

The

costs

and expenses of the admeasurement,

taxed by the surrogate, or a judge of the court in

which the proceedings are had, shall be paid equally,
one-half by the widow, and one-half by the adverse
party.

APPENDIX.
No.
1.

WILL.

The

last will and testament of James Richards of the town of Schodack in the county of Rensselaer, and

state of ]S"ew
I,

York

:

James Richards of the town of Schodack,

in the

county of Rensselaer,
will

make and
:

publish this

my last

and testament as follows

I give and bequeath to

my

beloved wife Mary, the

sum

of one thousand dollars, to be received and acI

cepted by her in lieu of dower.

give to
;

my

son

James
five

or his heirs five

hundred

dollars

I give to

my

daughter Mary wife of William Jones, or her

heirs,'

hundred

dollars.

I give and devise to
forever, all

my

son Henry and his heirs

my

farm situate
reside,

in said

town of Schodack

on which I now

with the appurtenances, con-

taining about one hundred acres.

All the

rest,

residue and remainder of
give, devise

and personal, I
I appoint

and bequeath

my estate real to my childthis

ren or their heirs, to be divided equally between them.

my

son

Henry executor of

my

will,

revoking any former will by

me made, and

I authorize

and empower

my

said executor in settlement of

my

198
estate

EXECUTOR'S AND ADMINISTRATOR'S GTHDE.

and of any debts due me, to compromise such
and
if

debts,

he thinks

it

advantageous to
than the

my

estate

to accept in

satisfaction less

full

amount

thereof.

In witness whereof I have hereunto set
seal
this

my

hand and

twenty-second 'day of February, A. D.

1862.

Jambs Eichakds,

[l. s.]

The foregoing instrument was, at the date thereof, subscribed by James Richards in our presence, and at the same time he declared the said instrument to be
his last will

and testament, and requested us

to sign

our names as witnesses, which

we do

in his presence,

and

in presence of each other.

AB,
Troy, Rensselaer Co.,
E".

Y.

CD,
Troy, Rensselaer Co., H. Y.

Attestation clause

when

subscription

is

acknowledg&d.

declared to us by

The foregoing instrument was at the date thereof James Richards, the testator, therein
last will

mentioned, to be his
at the

and testament; and he
to us,

same time acknowledged

and each of

us,

that he

had signed the same, and we

at his request,

and in his presence, and in the presence of each other,
signed our names as witnesses.

AB,
Residing in Schodack, Rens. Co.,
N".

Y.

CD,
Residing in Schodack, Reus. Co., N. Y.

APPENDIX — FORMS.

199

No.

2.

CODICIL.

Whereas,

I,

James Richards, of the town of Scho-

dack, in the county of Rensselaer, have
last will

made my

and testament, bearing date the twenty-second
in

day of February, 1862, and bequeathed
dollars.

and by which I have given
five

to

my

daughter Mary

hundred
and

!N"ow, therefor, I do,

by this instrument, which

I hereby declare to be a codicil to

my last

will

testament, and to be taken as a part thereof, order and
direct that only the

sum of two hundred
Mary, in
full

dollars

be

paid to

my

said daughter

of the legacy

given and bequeathed to her in
testament.

my

said last will

and
and

And

it is

my

desire that this codicil be

annexed

to

and be made a part of

my

last will

testament.

In witness whereof I have hereunto

set

my

hand

and

seal this first

day of March, A.D. 1862.

Jambs Richards,

[l. s.J

The foregoing instrument was

at the date thereof sub-

scribed by James Richards in our presence, and he at the

same time declared said instrument
his last will

to be a codicil to
to sign

and testament, and requested us

our names as witnesses, which

we do

in his presence,

and in the presence of each

other.

AB,
Troy, Rens. Co.,
IST.

Y.

CD,
Troy, Rens. Co., N. Y.

200

EXECUTOR'S AND ADMINISTRATOR'S GUIDE,

No.

3.

EENUNOIATION OF EXECUTOR.
Surrogate's- Court, Rensselaer County
In the matter of the
ment.
of
last will
.

and

testa-

Thomas Williams, deceased.
I,

Henry Williams, of the town of Brunswick

in

said county of Kensselaer, one of the executors ap-

pointed in and by the last will and testament of Thomas
"Williams, late of said town, deceased, do thereby re

nounce the said appointment, and

all

right and claim

to letters testamentary of the said will, or to act as exfecutor thereof.

Henry Williams.
Dated Troy, February
Signed
in the

20, 1862.

presence of

John

Stiles,

James Johnson.

the witnesses, or
deeds.

The signing may be proved by an affidavit of one of by acknowledgment as in the case of

wife of John Boyd of the town of Brunswick aforesaid. deceased that said "Williams died from disease. purporting to be the last will and testament of the said deceased. respectfully is that he one of the executors named in the last will and testament of Thomas Williams. at the time of bis which was the place of his residence death .. and bearing date the 25th day of December. your petitioner verily believes to be such last will and testament. William Jones. To Moses The shows "Warren. Henry Boyd. in the state of Wisconsin. and James Jones whose place of residence is unknown.: . In the matter of proving the and testament of last will Thomas Williams. of the town of Brunswick : in said county of Eensselaer. in the county of Kenosha. 201 No. and Sarah and his grandchildren. your petitioner. 4. Esq. it relates to both personal and And your petitioner further shows that the said deceased left him surviving. and . his widow Mary Williams. at said town of Brunswick. Surrogate of the County of Rensselaer petition of Henry "Williams. 1859. Jones and Sarah Jones of the town of Randall. and that real estate. APPENDIX — FORMS. on or about the first day of January last. PETITION FOR PROOF OF WILL. that the instrument presented herewith. his children. deceased.

whicli can not.}'"' Henry Williams being duly sworn. February (Signed). K Y. who are all and the only heirs-at-law and next . Dated Troy. 22. / Gboege Day. . this 22d 1 day of February. of Deeds. foregoing petition by him subscribed is true. Com. 1862. Troy. 1862. Sworn before me. be ascertained.202 EXECUTOE'S AND ADMINISTRATOR'S GITIDB. Henry "Williams. Your petitioner therefore prays that a citation may issue to the said heirs at law and next of kin to the deceased. to attend the probate of said last will and testament according to law. r. Hbnkt "Williams. after diligent inquiry. State of ISTew York: says that the Bensselaer County. (Signed).of kin of the said deceased. requiring them to appear in this court at such day as shall seem meet.

To Mary Brunswick "WilUams. town of . that a citation issue to the proper persons.. probate of said .. deceased. in . Ordered. and Sarah Boyd. at ten o'clock. court held in and for the county . on the a. at the . requiring them to appear in this court. 5. 203 No.of . pursuant to the prayer of the said petition. Surrogate. duly verified. and state of ... will. On reading and filing the petition of . of the town of in the county of Rensselaer. day of to attend the 1872. No. Present — Hon will Surrogate.m. deceased. In the matter of the of .187. propounding for probate a paper purporting to be the last will and testament of late of the . At a Surrogate's of the . CITATION TO ATTEND PROOF OF WILL. day of .APPENDIX — FOEMS. 6.. on the . ORDER FOR CITATION. .

ss Henry Williams of the town of Brunswick. Surrogate. Rensselaer county. and James Jones. for probate therein. estate. [l. of this town of Randall. and which late of the not after diligent inquiry be ascertained.] we have caused the seal of office of our said surrogate to be hereto affixed. in the state pi Wisconsin. You and each of you are cited aud required to appear at the office of our surrogate in the city of Troy. in the county of Rensselaer. being duly sworn. of that day. an executor named relates to and which both real and personal In testimony whereof.. town of Brunswick. heirs at law and next of kin of Henry Williams. ip the county of Rensselaer. to attend the probate of the will of said deceased. A. that on the day . in the county of Ke- nosha. Moses Wakrbn. which will then be offered.: 204 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. by Henry Williams. 7. Surrogate of the county of Rensselaer. Jones^j N"ew York.m. Henry and Sarah Jones. can- whose place of residence is unknown. "William Jones. in said first county. deceased. Witness. at ten o'clock.s. Moses Warren.D. on the tenth day of April. the twenty-second day of February. a.. says. PEOOF Of SEKVICE OF CITATION. No. 1862. 1862.

Sworn before me dayof April. Kenosha county. with John Jones. Kenosha county. Henry Jones and Sarah Jones. 1862. whom they reside. in said county. each securely folded and enclosed in an envelope. 205 of April. a copy of said cita- tion for each of said minors. and leaving with each a copy thereof. and at the same time by delivering to said John Jones.. .APPENDIX — FORMS. he served the same on Wil- liam Jones. 1862. That at least thirty days before the tenth day of April. be served the same on Henry Jones and Sarah Jones. having therein a proper stamp for the prepayment of the proper postage. at said town of Brunswick.] Henry Williams. by deliv- ering to each a copy thereof. therein named. directed to each of them respectively at Randall. 1862. he served the within citation on therein Mary Williams and Sarah Boyd. in presence of their father. in the town of Eandall. by depositing copies thereof in the post office in the city of Troy. Com'r of Deeds. [That at least fifteen days before the tenth day of April. therein named. named by delivering to. Troy IST. this 10th ") 1872. Wis. who are minors. J Jambs Lansins. Wis. T.

ORDER APPOlNTINa SPECIAL GUARDIAN. In the matter of proving the last will and testament. do hereby con- sent that I be appointed by the surrogate of the county of Eensselaer. In the matter of proving the and testament. At a Surrogate's Court. H. 1862. April Wm. special guardian of "Henry Jones and Sarah Jones. last will deceased. late of the town of Brunswick. 8. in said county. Tabob. of Henry Williams I. of the city of Troy. Dated Troy. Rensselaer county. 9. deceased. 10th.206 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. CONSENT TO BE APPOINTED SPECIAL GUAEDIAN FOE MINORS. for the sole purpose of taking care of the interest of said infants in the matter of proving the last will and testament of said deceased. No. Tabor. Surrogate's court. The citation in this matter having been returned duly served. deceased. "William H. (or published' and served) according to . No. infant heirs-at-law and next of kin of Henry Williams. of .

and next of kin of said deceased. that A B. hereby. and E F. Surrogate of the county of The petition of . law. C D. respectfully shows. No. and he is . appointed special guardian of said infants. Ordered. except by the leave of said court. and it 207 appearing by affidavit. . proceedings for the proof of in this court. which are now pending titioner is not That your pe- said deceased. Surrogate's Court.APPENDIX — FORMS.. one of the heirs-at-Iaw or next of kin of and therefore has no standing in this court in such proceeding. of the city of Troy. PETITION FOR LEAVE TO INTERVENE ON PROOF OF WILL. 10. Surrogate. that be. Rensselaer County. . are infants.of proving the will of deceased. of the in said county. That your petitioner of is a legatee named in the will deceased. To Moses Warren Rensselaer : Esq.'the interests of said infants in the matter of last will proving the and testament ^f said deceased. named in said citation. In the matter . for the sole purpose of taking care of . heirs-at-law.

Surrogate. At a Surrogate's of the court held in and for the county . 18. and he therefore prays leave to intervene in therein. interest. No. at the . from which appears that said petitioner is a legatee named in the will of said deceased. In the matter of proving the will of . 11. in of . On reading and filing the petition of it . etc. : being duly sworn. deceased... said proceedings and appear to the etid that he may care for his own Dated Dec. dayof Present — . (Signed). Sworn before me. Tour cially petitioner's interest would be affected benefi- by the proof of said will..208 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. (Signed). OKDER THATPARTY MAY INTERVENE. . says that the foregoing petition by him subscribed is true.. 1772. and not being one . ss. on the .187. Eensselaer county.

do each depose and say. and bearing date the 1862. . Eensselaer county. purporting to be the last will and testament of the said Henry Williams. being severally sworn in open court. In the matter of proving the and testament of last will Henry Williams. No.deceased. ss.: APPENDIX — FORMS. 12. in his lifetime. and move in the matter as he shall he advised. (Signed). he so subscribed his name 14 . DEPOSITION ON PKOOP OP WILL. is interested in the proof of said Ordered that said have leave to inter- vene in these proceedings. deceased. that he knew Henry Williams. Surrogate. Surrogate's court. of the heire-at-law or next of kin. l3. and appear therein. it 209 and appearing that said petitioner will.. in the said county. deceased.te of the town of Brunswick. now produced and shown day of to these . of the town of Brunswick. and saw said Henry at the Williams subscribe his name end of the instru- ment in writing. and was present. at the time That the said Henry Williams. Eensselaer county. deceased. of said. A B and C D. deponents. in said county.

names as witnesses to the execution and that thereupon these deponents subscribed as witnesses at the their names end of the said instru- ment. CD. and not under any restraint to the knowledge of the deponents. 1861. this \ J day of March. in the presence of the said Henry Williams. 13. do swear that I will faithfully and honestly discharge the duties of executor of the last will and testament of Thomas Williams. N. Rensselaer county. ss. AB. this 10th ^ day of April. State of New York. deceased. And said the deponents further say that at the time the his Henry Williams subscribed citizen of the name as aforesaid he was a United all States. No. Henry Williams. James Lansing. Henry Williams.. . OATH OP EXECUTOK. of fiiU age. in respects competent to devise real estate. of Deeds. and requested these deponents to subscribe their thereof. declared the said instrument to be his last will and testament. Moses Wakbbn. of sound mind and memory. Subscribed and sworn before me. 1872. Com'r. Troy. (Signed). Subscribed and sworn before me.: 210 EXECUTOR'S AND ADMINISTBATOB'S GUIDE. Y. I. | Surrogate. as aforesaid.

APPENDIX — FOEMS. . deceased. was of full age for making a will. Q H. It is ordered. Present — Hon last will. deceased. of . Surrogate. heirs at law and next . Surrogate. No. and that the same with the proofst hereof be recorded and admitted to probate as a will of real and personal estate. was duly executed to pass real and personal estate. and all not under restraint and in devise real estate. 211 OKDEE ADMITTING WILLS TO PROBATE. 14. that . . and C D. and next of kin appearing in person and A F.. and infants. respects competent to adjudged. At a Surrogate's court. was of sound mind and memory. A B.such proof. of in said county deceased. On reading and filing due proof of the service of the citation issued in this matter. day of heirs-at-law 1870. bearing date the . held etc. that the said paper purporting to be the last will and testament of the said . and A R. and upon due proof of late of the the execution of the paper propounded as the last will andtestanientof . of kin of said deceased appearing by special guardian it their appearing by . In the matter of proving the and testament. the said will was duly executed that the testator at the time of executing the same. . and declared.

. 16. . Present — Hon last will Surrogate. held etc. TO THE GRANTING OF LETTERS TESTAMENTARY. AFFIDAVIT OF INTENTION TO FILE OBJECTIONS. No. exe- named . At the Surrogate's court. . OEDEK FOE ISSUE OP LETTERS TESTAMENTARY. of The cutor last will and testament this day. 15. AB. on and A B. County of Rensselar In the matter of the goods and chattels of Henry Williams Rensselaer county. having been admitted to probate. In the matter of proving the and testament. therein having taken the oath required by law ordered that letters testamentary issue to said Surrogate. deceased. No.. Surrogate's court. of the town of Brunswick in said county. being duly sworn.: : 212 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. says will of : that he is a legatee named in the Henry Williams late of said town of Brnns- . ss A B. .

17. To the Surrogate of the county of Eensselaer : The undersigned. deceased. Surrogate's court. AB. a legatee (or creditor). 213 wick. deceased. for the following reasons First. That the said C D trust. is incompetent to dis- charge the duties of such by reason of habitual intemperance in the use of alcoholic liquors. in which as executor. objects to the granting of letters tes- tamentary to C D. Rensselaer county : In the matter of tte goods and chattels of Henry Williams. executor named is in said will. of the above named deceased. OBJECTIONS TO THE ISSUE OE LETTEES. Second. whicli has been admitted to probate by the surrogate of said county. that deponent intends to CD file is named objections against the granting of letters testamentary to said T> as executor. That the said C D incompetent to execute the duties of such trust as an executor of said will by reason of improvidence. Sworn before me. C and he is advised and believes that there are just and substantial objections to the granting of such letters to said C D. etc. No. .: APPENDIX— FORMS.

April 10. a Surrogate's court. That the said C D is unable to read and write the English language. executor named in the will of said deceased. held Present — Hon will . the crime of Fifth. Sixth.. 1872. to wit. Ordered. to answer concerning the matter. That the said has been convicted of an infamous crime. not being an Fourth. Dated. .214 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. No. That the said C D's circumstances are so pre- carious as not to afford adequate security for his proper administration of the estate of the deceased. at ten o'clock in the forenoon. 1862. Sufrogaie. 18. OKDEE FOR At CITAJTION ON PILING OBJECTIONS. to the granting of letters testamentary to . (Signed). That the said inhabitant of this state. In the matter of the of On reading and filing the objections of . Surrogate. . C C P D is an alien. Third.. etc. that the said appear before the surrogate at his office in the city of Troy on the day of . A B.

duly That one C D is named. and has not renounced. deceased. In the matter of the goods and chattels of John Doe. 19. notwithstanding that more than thirty days have elapsed since said will was admitted Wherefore. respectfully shows. as an exe- cutor in said will. and has hitherto neglected to take the oath required by law. having. day of 1872. 13. To the Surrogate of the county of Eensselaer petition of The John A B. Surrogate's court. . AB. 215 No. who .: APPENDIX — FORMS. or that he be deemed to have renounced the appoint- ment as executor in said will. PETITION THAT THE EXECUTOR NAMED BE SUMMONED TO ACCEPT OE RENOUNCE. Dated Dec. prays that a summons C D requiring him according to law. to appear and qualify. first made his last will and testament. as your petitioner is informed and believes. . which was on the proved in this court. a creditor of the above named ^ayof deceased). and receive letters testamentary. (or. died on or about the 1872. Rensselaer county. that your petitioner' is one of the legatees named in the will of Doe. as such executor. deceased. your petitioner issue to said to probate as aforesaid. 1872. within a certain time in said summons limited.

IST. named as executor of the and testament of Greeting . Surrogate.next. "I / Jambs Lansing. or before the . Troy.. Y.. you will renounced the appointment as such executor. or to have in default thereof. The people of the state of I^ew York last will To [l. ss ' : -A B. of in said county. .: : 216 EXECtTTOR'S AISJ) ADMINISTRATOR'S GUIDE.] A B. appear before our surrogate of our county on. 1872.. says that the foregoing petition by him subscribed this is true. of Deeds. surrogate. being duly sworn. deceased. Com'r. SUMMONS TO EXECUTOK. atten o'clock in the forenoon. Witness said court. You are hereby summoned. 13th Dec. day of personally. 1872. as executor of the last will and testabe ment of the deemed said deceased. at the office of the surrogate in the . day of .. No. this . AB. Sworn before me. . Rensselaer county. 20. and the se^l of our . and receive letters testa- mentary thereon. to take the oath of office.. s. to be and of.

ORDEB THAT EXECUTOR BE DEEMED TO HAVE BENOUNCED. due proof of the due service thereof. ^ Surrogate.: : APPENDIX— FORMS. tlie will deceased. 21. a legatee. on and the said A B. . No. . ordered and adjudged that the said A B. and. At a surrogate's court. 22. A B having neglected to appear. . Moses Warren.. APPLICATION TO BEMOVE AN EXECUTOB AFTEB QUALIFICATION. executor named in the will of Said deceased. has. To Hon. Surrogate Rensselaer of the County of The petition of . named in the will of deceased respectfully shows . . . matter. On filing the summons heretofore issued in this . In the matter of of . upon the petition of returnable here this day. . held etc. and is to be deemed have re- nounced the appointment as executor as aforesaid. Present — Hon. and It is take the oath as required in said summons. 217 No. by reason of to such neglect. Surrogate.

(Signed). (Sighed). as your petitioner is informed and believes. says. or for such other relief in the premises as the nature of the case may require. as by the record thereof. to a very considerable amount. executor in said will. on the . And your petitioner further . your petitioner. bs . will . was duly proved in the surrogate's court of the said county of Rensselafer. 1871. fore- going petition. and has possessed himself of the personal property of said deceased. . day of 1862. Sworn etc. and said has taken upon himself the administration of the estate of said deceased. more fully appear. to which among other things. that the said is in such precarious circumstances as not to ajSbrd adequate security for his due administration of the said estate (or other cause of complaint). by the . he bequeathed dollars. by him subscribed. Dated December 13th.. and letters testamentary were thereupon issuedto the said surrogate of said county. Rensselaer county. a legacy of and apThat pointed said will . . that the said may be superseded . Your petitioner therefore prays. That duly in lately died.218 EXECtI TOE'S said AND ADMINISTRATOR'S GUIDE. says that the is true. : being duly sworn. having first made and published his last will and testament.

9). deceased. showing that that the said and praying be superseded as such executor. Present — Hon for . ORDER FOR CITATION TO EXECUTOR TO SHOW CAUSE WHY HE SHOULD NOT BE SUPERSEDED. . such executor and to abide such T)rder as • shall be made in the premises. on the day of to next. . 219 No. Surrogate. the application . Ordered that a requiring citation issue to the said ..APPENDIX — FOBMS. . at ten o'clock in the forenoon. (as in iN'o. At etc. In the matter of against etc. duly verified. On reading and filing the petition of {giving cause). . oi. of . . Surrogate. . him to appear in this court. . 23. citation executor. as show cause why he should not be superseded.

. against etc. on and testament of . etc. deceased. deceased. . 9). mentary. . In the matter of the application for citation of. and are hereby superseded. . OEDBR SUPERSEDINa EXECUTORS. No. Surrogate. by reason of {slate reasons). that the letters testa. Surrogate. of . and due proof of the service thereof on ahd having heard the proofs and allegations of the petitioner and said and . On filing the citation heretofore issued in this matter. 24. Present — Hon executor. At. heretofore issued to the said the last will be. (as in case l^o. It is ordered and adjudged. it appearing to the court that the said tent has become incompe- by law to serve as such executor. ..220 EXECITTOE'S AND ADMINISTEATOB'S GUIDE.

To the surrogate of the County of Eensselaer A B. named in said supposed will. late of the town of l^assau. In the matter of the of will. . and within one year from the exhibiting hereof. deceased. and letters testamentary thereon. ALLEGATIONS TO CONTEST PEOB ATE. were after- wards issued by said surrogate to D J B. WITHIN ONE YEAK. And the said A B further First. alleges _ That the said John Doe did not sign That the witnesses That the said said sup- posed will. alleges that heretofore on or about the day of . nor did the said John Doe request the witnesses thereto to sign the same as witnesses. John Doe deceased. 221 No. 25. to said supposed will did not sign the same. as and for the last will and testament of said John Doe. will was not published as by law required. bate deceased. Surrogate's court. E F. 1871. C D. one of the next of kin of John Doe.: APPENDIX — FORMS. in said county. And A B. Third. Second. that executrix. are named as legatees in said will and reside in the state of New York. a certain instrument in writing was admitted to pro- by the surrogate of the county of Rensselaer.

and was incapable of making a Fifth. On reading and filing the allegations of A B. and the (legatees resident in this state).222 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. deceased. requiring them to ap- pear before the surrogate at a time and place to be - therein fixed. That the proof heretofore presented to surrogate. John Doe. was uncertain and not competent to establish the due execution thereof. Proctor for said A B. claim- ing that (setting forth the main allegations). to show cause why the probate of the said supposed will should not be revoked. and the competency of the said John Doe. . At. may said be issued to the said D J B. 1872. The above need not be verified. of the said supposed the said John Doe was not of valid will. No. Fourth. said The A B therefore prays that a citation executrix. Dated Dec. AB. said sound mind and memory. hut of unsound mind and memory.. (Signed). Surrogate. (as in ITo. X Y. 9). That at the time of the execution will. Present — Hon In the matter of the of will . 26. etc. 20. OEDBE FOR CITATION ON FILING ALLEGATIONS.

deceased. Surrogate.therein. 9). as the last will and testament of the said deceased. In the matter of the paper purporting to be the will of John Doe. on the of . was not of sound mind. of said will should not be revoked.- — Hon . (as in ISo. admitted to probate in this court. A B having heretofore filed allegations against the probate of the above mentioned paper. to show cause why the probate Surrogate.. that a citation issue to the will of said deceased. OKDER FOR REVOCATION OF PROBATE. and a citation having been issued to the executor and legatees named . Ordered. at the time of the making of the instrument in writing. day 1872. (or that said will was not duly executed). requir- ing them to appear in this court. and to legatees 223 D. . At.APPENDIX — FORMS. deceased. executor of » named therein. on the of . and appearing that the said John Doe. Present etc. No. resident in this state. 27. . and proofs having been offered in the matter it and the surrogate having deliberated therein. day 1871.

. served on for three executor. .. of etc. Mart Murpht. (Signed). I. and be published weeks successively. Surrogate's court..224 EZECTJTOE'S AND ADMINISTEATOR'S GUIDE It is ordered. Signed in presence of.. deceased.. In the matter of the goods. James Murphy. deceased. No. Surrogate. Jones. be and the same and revoked. deceased. in this case must be proved or ac- . that the probate heretofore granted by this court. do hereby renounce all right and claim to administration of the goods. 28. 1862. in a newspaper printed in the said county of Rensselaer. chattels and credits of said intestate. on the said instru- ment as. Eensselaer county. Dated Troy. adjudged and decreed. It is further hereby annulled ordered that notice of this order be . late of said city. John Styles.. and for the last will and testament of the is said John Doe. Mary Murphy of the city of Troy. widow of James Murphy. in the county of Eensselaer. OE NEXT OF KIN. Henry The execution knowledged. intestate. EENUNCIATION BY WIDOW. January 20.

and his children. was possessed of certain personal property. that said deceased at the time of his death. an inhabitant of the county of Rensselaer. 225 No. last will and testament.. And your petitioner prays that administration on estate the. James Doe. Troy.: APPENDIX — FOEMS. shows city. (Signed). the value whereof does not exceed the sum of one thousand dollars. kin . February 20. Surrogate's court. his only next of . all resiinformed and believes surviving his that the said deceased left dent in the city of Troy. 15 Sakah Roe. and Mary Boe wife of Richard E. . PETITION FOB. of etc. in : said county. John Doe. ADMINISTRATION. on or about the 10th at the city of day of January. said may be Roe granted to your petitioner of said city of Troy. county Esq. respectfully. without leaving any Troy aforesaid. within the state of New York. aforesaid. county of Eensselaer: In the matter of the goods. 29. and that he was at or immediately previous to his death. jointly with Richard Dated. Surrogate of Eensselaer The of said petition of Sarah Doe of the city of Troy. . That John Doe. late died from disease. deceased. 1862.oe. as your petitioner has been him widow your petitioner. J To Moses Warren. 1862.

State of New York. RiCHAKD Rob. 1862. chattels. I.: 226 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. says: That she has heard the foregoing petition read. this 20th "I day of February. and credits of John Doe deceased. Rensselaer county. this 2. that I will honestly and faithfully discharge the duties of the administrator of the goods. OATH OF ADMINISTRATOK. Sworn before me. ss Sarah Roe being duly sworn. 30. No. Sworn before me. \ i Rensselaer county. Sarah Roe. do solemnly swear. Surrogate. according to law. . 1862. and that the same is true. Richard Roe.0th "» day of February. J This oath may be taken before any officer authorized to administer oaths. J Moses Wabeen.

s. Know all men by these presents are held and firmly : that we. deceased. s. s. fall force. [l. .J [l. shall faithfully execute the trust reposed in him as such.APPENDIX — FORMS. The condition of this obligation is such. (Signed). by these presents. money of the United States. that if the all above bounden John Doe.] Thomas Sealed and delivered in the presence of \ i ITokbs. well and truly to be made. and also. then otherwise to remain in this obligation to be void. chattels. of the city of bound unto the people of the State of ISTew York. to which payment. and credits of Eiehard Eoe. to be paid to the said people. Sealed with our and dated this 22d day of February. executors and administrators. Eiehard Eoe and Thomas I^okes. BOND OF ADMINISTEATOR. our and each of our. John Doe. 31. we bind ourselves. Moses Warren. 227 No. in the current sum of two thousand dollars. John Doe. 1862. jointly and severally. ElCHARD EoB. administrator of and singular the goods. late of the city of Troy. Troy. touching the administration of the ^estate committed to him. seals.. that he obey all orders of the surrogate of the county of Eensselaer.J [l. firmly heirs.

N. deceased. PETITION FOE ADMINISTRATION WITH WILL AN- NEXED. No. per- sonally appeared fTohn Doe. Eichard ISTokes. Rensselaer county. of the town of Brunswick said county respectfully shows: in . before me. 32. To the Surrogate of the county of Rensselaer The petition of A B. Y. Richard Hbartt. 1862. } On this 22d day of February. ss Richard Roe and Thomas I^okes.: : : 228 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. of Deeds. Troy. do that he is city of Troy. Com'r. Troy. and acknowledged that they executed the same. Rensselaer county. each depose and say dollars worth the sum of two thousand all over above debts due from. of Deeds. Richard Heaktt. of the being each duly sworn. to Eoe and Thomas severally me known to he the individuals described in and who executed the foregoing bond. or liabilites incurred by him. Surrogate's Court Rensselaer county In the matter of the goods and chattels of Johnj^Doe. State of New York. Ccrni'r. Y. N.

sole executor. 1872. may issue to Mm. Dated.: APPENDIX — FORMS. Your will. by him subscribed. That said will was duly admitted to probate in the court of the surrogate of Eensselaer county. Rensselaer county. A. on or about the 1872. Surrogate. That the above named John Doe died of Brunswick. 1872. 13.' the upon the personal estate of said John Doe. B. being duly sworn. 1872. as by reference thereto more fully appear. as sum of two thousand your petitioner is is informed and believes.. day of December. of said town. Dec. dated June 10.. is true. That said C D died before the said John Doe. petitioner the residuary legatee named in said and prays that letters of administration with the will annexed of the said deceased. tion. says that the foregoing peti-. on the day of will . having in the 229 town :.. } . value of which will not exceed the dollars. Sworn before me this 13th. in and by which he appointed C D. 1860. and by reason of his death. A. . no one remains to administer deceased. day of made his last will and testament.B. ss A B.

1870. That said deceased. of the town of Brunswick. and the probate of the same has been. a creditor of). was an inhabitant time of his decease. or is J D.. (or that Jane Doe. deceased. his last will and testament. claiming be the widow of said deceased.: : 230 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. as a will of real and personal estate. chattels and credits of the to such said deceased to said surrogate. named in said will is absent from this and as your petitioner so absent for informed and believes. Eensselaer county In the matter of the goods and chattels of John Doe. Surrogate's court. late of the said town of Brunswick. • To the Surrogate of the county of Eensselaer The petition of A D. which occurred on the of day . is said to have made in his life time. which has been offered for probate before the surrogate of said coudty. No. dated on the day of . a legatee named in the will of. will remain some . said county. the sole executor state. time). respectfully shows : in That your petitioner is is one of the next of kin of or is (or. and to is contested.1872. of at the which town said John Doe. 33. deceased. John Doe. and her right administration is contested. PETITION FOR APPOINTMENT OP COLLECTOR. applies for adminis- tration upon the goods.

AB. FOK ADMINISTEATION "WITH THE WILL ANNEXED. or depreciation (giving the reason). A. says that the foregoing petition. 9). that the last will and testament of the above deceased. by him subscribed. as your peti- informed and believes. Dated. Moses "Warren. 231 is so situated as to be liable to waste and damage. The value of such personal tioner is property. is true. (as in case No.. . December 14.: APPENDIX — FORMS. and your petitioner is advised that a special collector should be appointed to collect. etc. In the matter of the estate of . Present — deceased. It appearing by the petition of . . will not exceed the dollars. A B being duly sworn. Surrogate. 1872. Bensselaer county.. Surrogate. sum of Wherefore your petitioner prays that letters of administration for the collection of the estate of said deceased may issue to him. No. That the personal property of said deceased. At etc. Sworn before me. 34. . ss. OKDEB. and care for the same. B.

. with the the said . issue to the said petitioner as aforesaid. Surrogate. . and with the condition required by law. deceased. On reading and filing the petition of it A B. thereupon issued to said will. It is ordered that letters of administration upon the vsdll goods. At etc. 9). executor named in and that the said executor has since died to the probable value of . In the matter of the estate of . of deceased. leaving some of the personal estate of the said deceased.232 EXECUTOR'S AND ADMINISTKATOB'S GtVlDK in this court on the was duly proved . That the said the residuary legatee named in said will. day of 1870. annexed. . from which . in the penal sum of dollars. chattels and credits. 35. and filed in this court a bond. and he having taken the oath required by law. and that letters testamentary were . dolis administered . OKDBR FOE CITATION TO WIDOW AND NEXT OE KIN. with sureties approved by the surrogate.' No. a crediappears that tor of the said deceased. Surrogate. (as in case No. amounting lars. Present — Hon.

personally. of our county of at his office. . on the of 1872. to next of kin of said deceased. . on or about the • leaving certa.». APPENDIX — FORMS. 36. this county. to take upon you. requiring them to appear in this court. to . at ten o'clock in the forenoon. the administration of the goods. The people of the widow. petitioner as aforesaid. of .] New York. . Tou are hereby cited. No. on the day of .. his next of kin. to be and appear . 233 being an inhabitant of the town of day of .in perdol- sonal esjate of the probable value of lars. Surrogate. the said . It is ordered that a citation issue to said widow and 1872. and [L. and that the said deceased widow.. A B. died last. CITATION TO WIDOW AND NEXT OF state of KIN. next of kin late of the town of in the county of deceased. left Mm surviving his and his children (naming them). chattels and credits of said de- ceased. before our surrogate. take upon them the administration of the goods chattels and credits of the said deceased. or to show cause why the same should not be . . . or either of you. s. or show cause why such administration should not be granted to said A B. in the of .

'. with two sufficient sureties.*. . been issued to the widow and next of kin of said deceased. granted to has applied therefor.. 9). who Witness.. At etc. Surrogate. 37.. Surrogate. being at the time of .. a creditor of said deecased. ORDER FOR LETTERS OF ADMINISTRATION.234 EXECUTOR'S AND ADMINISTRATOR'S GUIDB. said A B having filed in this court her bond in the form re- quired by law. 1872.. In the matter of the goods and chattels of . in the penal sum of dollars. No. and praying and the that letters of administration of the goods. John Doe. On reading and filing the petition of A B. Present — Hon . has diedintestate. by which it appears that the said his death . an inhabitant of the town of in this county possessed of personal property of the pro- bable value of dollars. approved by the surrogate. court. . and the seal of our of . (as in case No. chattels and credits of said deceased may be granted to her . this surrogate. widow of said deceased (or of citation having A B. creditor of said deceased. and they having failed to apply for letters of administration). .

in the county of .18. until about the . chattels and credits of deceased. said as his wife. chattels 235 it is ordered. . and credits of the said deceased be issued to Surrogate... and that there were during that time born issue of herself to her. and state respectfully shows: . at aforesaid. To Hon. and lived and cohabited with the .. . . . Surrogate of the county of of the town of . The of petition of .: APPENDIX— FORMS. Surrogate's court. . Israel Lawton." That your petitioner was married to at state of . in the county of .. the said A B...^ PETITION FOR KEVOCATION OF LETTERS OF ADMINISTRATION GRANTED ON FALSE REPRESENTATION AND FOR NEW LETTERS. . and on or about the day of 1835. and having taken the oath required by law. after their said . No. day of . county of Albany In the matter of the administration of the goods. the and her said husband. Albany. . 38. that letters of administration of the goods.

setting forth the death of the said verified by her . marriage. whose maiden name as who. as your petitioner . oath. . on or about the *" » day of .. believes. left your petitioner is and their said children. as nearly as your petitioner can ascertain. . movements afterwards.1871. after which..' 236 EXECUTOR'S AND ADMINISTRATOR'S : GITIDE. 1869. about the month of to. as his wife. but your petitioner knew nothing ? of his decease. until . the said of said ' . the said . about the day of That themarriage between the said and your petitioner. That on or about the 18. under the name of . came Albany. passed under the name . the city of 1865. and commenced was living with a . presented a petition to Hon. at said city of Albany. and lived and cohabited with the That said . surrogate of the county of Albany. (giving names. (giving hisas fully as possible). claimed to have been married to That in said city of Albany. woman. was not dissolved during the day of . the said day of ^ . remained some tory of his years. the following children to wit ages and residences). the said . informed and believes. and went.. your petitioner is in- formed and him. . as your petitioner has recently ascertained. to where he That . die^. lifetime of the said That on or about the 1869.

knew such facts. and still has possession of the same. letters of administration of the goods. That said petition does not that your petitioner was living or dead. 237 he died intes- as aforesaid.APPENDIX— forms: . the property. and your petitioner cannot state the amount received by her. his widow. that tate.) knew the That such petition presented by the said prayed that the said . and leaving the said state . chattels and credit of the said . in said court. unless she has since disposed of them.^^ . him surviv- ing. at the time she presented not necessary to and verified her said petition.. without having any child or children. or that she had ever . and assets of the said as your petitioner is informed and believes. might be appointed and such pro- administratrix of the goods.. although as your petitioner well informed and be- lieves. were duly granted and issued by the-^t. chattels and credits of the said deceased. surrogate to the said . 1869. been the wife of the said does it nor state<that the aforesaid children' of your pe. titioner.. (It is aver or prove. That your petitioner has made diligent search and . that on or . hut wholly fails to disclose such is facts. aiid the said thereupon took possession of the goods. e¥-ftt the said or any of them are living. has filed no inventory of . under the name of . about the . chattels and credits of the said ceedings were ^feL ther^¥« had day of . that the former petitioner facts alleged. That said .

estimated and ascertained the amount said and value of the personal property. and has not foun^ any. cre- may be granted to your . day of . day of (Signed). shall ifteem meet and agreeable to law and equity.238 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. and alias so as aforesaid issued by the said surrogate of the county of Albany. Dated. entitled to his estate. chattels . Tour at or petitioner further shows that the said intestate. your peaforesaid. inquiry for a will of the said deceased. And that your petitioner may have such other or further rule. Wherefore. this . and that the same does not dollars. or had ever made one. And your petitioner prays that upon such revo- cation. alms requiring het to show cause why such letters of administration should not be revoked. died possessed. . order. That the said deceased titioner. That a citation issue to the said . your petitioner prays that ministration of credits of said all. to the best of her ability. residing widow. bearing date on the 1869. was an inha/ bitant of the county of Albany. j oin tly with of the city of Albany. as administrator. be revoked . as administra-trix. chattels and . letters of ad- and singular the goods. or obtained any information that he left. petitioner. . . his left him surviving. and relief as to the court. administration dits of the said upon the goods. . 1871. of which the exceed in value the sum of deceased. immediately previous to his death. and his children as aforesaid. That your petitioner has.

who being by me duly sworn. At a surrogate's court held in and for the county of Albany. . ' \ „ V ss } . In the matter of the estate of . by her subscribed. and that the same is true of her own know- ledge. (Signed). and knows the contents thereof. OEDER FOE CITATION ON THE FOEEGOING PETITION. filing the petition and allegations of' . Surrogate. in the Albany. that she has heard read the forego- ing petition. at the City Hall.. before me in personally came . and to be true. deposes and says. claiming to be the widow of . on the day of 1871. county. Surrogate. On this day of 1871. 239 State of Few York. except to the matters which are therein stated as to those matters she on information and believes it belief. city of Present Israel Lawton. deceased.: APPENDIX — FORMS. the petitioner named the foregoing petition. No. 39. On reading and .

1869. and appear before our surrogate of our . at ten o'clock in the forenoon said letters of administration so show cause why the granted to her should not be revoked. 40.1872. On motion . other- be revoked.then and there to show cause why the letters of administration granted to you on the day of . CITATION TO ADMINISTRATEIX TO WHY To SHOW CAUSE LETTERS SHOULD NOT BE REVOKED. requiring her to appear in this court on day of to . and credits. wise called . granted by the surrogate of as administratrix of . per- You are hereby cited. issue to said .atthe surrogate's office in the of . county of the in our surrogate's court. summoned and sonally. otherwise . of . of it of counsel for the said is ordered. on day of .240 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. on the day of . to the goods.Surrogate. of the city of greeting: required. 1869. . m. ^ No. 1872. of that day. Albany county. deceased. that a citation. to b6. at ten o'clockA. praying that the late of the letters of administration heretofore. as administratrix of the . to wit. . chattels.

1872. to be hereunto affixed.alias as administratrix of the goods. the day Surrogate. Surrogate. OKDEK FOE EEVOCATION OF LETTERS. day . and credits of and on the return of the 16 citation herealias tofore isBuejd. No. At a Surrogate's court. 41. chattels said deceased . granted ministration upon the by the surrogate of Albany county. the . Witness of surrogate. to revoke the letters of adestate of said deceased. This matter coming on to be heard on the petition and allegations of otherwise called . In testimony whereof. on the of ..] office of our said surrogate. of the city of deceased. . 241 should not be revoked. we have caused the seal of [l. In the matter of the estate of deceased. requiring the said . . s. chattels and credits of .to . held. widow of late . goods. etc. Present — Hon . I .APPENDIX — FORMS. 1869.

said . GtTIDB. and upon hearing the proofs of the for parties and counsel them respectively..242 EXECUTOE'S AND ADMINISTEATOE'S . day of 1872. gate of the county Albany. town of . was lawfully mar. having appeared by . and^lived^iM cohabited with is him . decree that the said ried to the said at the . decide and . called . otherwise . otherwise called in the . ing been produced and and the said who filed the allegations herein. at the city of Albany. that the said died intestate. alias having appeared by . him surviving 186. county of . and due delibera- tion being therefore had* It is adjudged.. on or about the 186. doth adjudge. and the surroof. his widow. in the state of op orubout the of . and .. . such allegations. cita- hav. . Esq. by virtue of the power and authority in him vested. . leaving day of the said . day of alias ... to show cause why the said letters of administration should not be revoked. 18. her proctor and counsel in opposition. decided and decreed. That on or about the . and due proof of the personal service of the said tion ie the said alias filed.. . . and the said matter havingbeen heard on several days and adjourned to this day.. that the marriage aforesaid not proved to said have been dissolved during the lifetime of the . her proctor and counsel in support of the said . to appear in this court on. the .

] set his hand and aflBxed first the seal of this court. Surrogate. And the said surrogate doth further order and decree that the letters of administration so as aforesaid granted and issued to the said . . and that a revocation issue out of and under the seal of this court. issue to the said . the said . and cre. chattels and credits of the said deceased. day of 1869. . in due form. . granted on or by reason of the made by the said alias in her said petition. 243 presented her petition to the surrogate of the county of Albany. said . and the same are hereby revoked. deceased. the day and year above written. be. alias . In testimony whereof. chattels and credits of said deceased. otherwise called deceased. chattels dits of said . as administratrix of the goods. aa^y^dministratrix of the goods. the goods.APPENDIX — FORMS. and annulled. on the day of 1869. the surrogate of the county of Albany. that such letters were false representations . praying that administration of the goods. chattels and credits of said i otherwise called .s. has hereunto [l. upon her taking the required oath. and claiming that she. was the widow of said deceased surrogate on the : that thereupon. and filing the bond with sureties as required by law. granted letters of administratio'n to said alias . . . . It is further ordered that letters of administration of .

38. with the appraisers. To the legatees and next of kin of John Doe.: : 244 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 1862. will attend at the late dwelling house of the deceased. On the application of . In the matter of the estate of . that the subscriber. deceased 'ss Eensselaer county. of be appointed appraisers of the per- sonal estate Of the deceased. of the . etc. No. . on the 28th day of Tebruary. in the city of Troy. Surrogate. duly appointed. at ten o'clock in . of the . . 39. Surrogate. last will and testament of the said de- ceased. Take notice. Present — Hop . in the said county. At. of and . OEDEE FOE APPOINTMENT OF APPEAISEES. deceased. It is ordered that . No. NOTICE OF APPEAISEMENT. executor of the .

etc. having first taken and subscribed the oath required by law and hereto annexed. whose names are hereunto signed. and. 40. We. . State of New * York. honestly and impartially appraise the personal property of (Eichard Eoe). > v ss • Kensselaer county. to estimate and appraise the personal property . that we have estimated and- appraised the property in the annexed inventory contained exhibited to us. No. 1862. which shall be exhibited to me. with the aid of the said appraisers. 1862. Eebruary 22d. Administrator.of the said deceased. . accord- ing to the best of my knowledge and ability. tlie 245 forenoon of that day. Appraisers. Dated. J I do solemnly swear that I will truly. John Doe. this 28th day of February. (Signed). John Dob. INVENTORY.APPENDIX— FOEMS. do certify. ability. deceased. appointed by the surrogate of the county of Rensselaer. take an inventory thereof. and we sign duplicate inven- Dated. according to the best of our knowledge and tories thereof.

Justice of the Peace.. Eichard Eoe. Justice of the Peace. etc. this 28th -> day of February. One weaving loom. . . (John Doe) and (Richard Roe) appraisers appointed by the surrogate of Rensselaer county. to wit One spinning wheel. 1862. 28th \ day of February. 1862. / I do solemnly swear. with the aid of may be). according to law.. for the widow (or minor children). deceased. etc. / John Kirby. made by administrator (or as the case of the said deceased. (Continue the list set apart by law). this Sworn before me. duly qualified. (Signed). Sworn before me. 1862.: 246 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. Three stoves kept for the use of the family. (the same as the oath above to be signed by the other appraiser and sworn to in the same manner). on the 28th day of February. A true and perfect inventory of all and singular the goods. and after service of notice as the law directs. | Hbnkt Kiebt. The following being set apart. chattels and credits of Richard Roe. articles are stated but not appraised. State of New York. \ Rensselaer county.

$100 00 60 00 75 00 the like articles). $15 00 75 00 3 50 split for use. no endorsement. $100 00 15 00 Account against James Jones. cut and Cash. One bay mare. to wit Note. 5 00 25 00 this to the (And amount of $150). dated Aug. 1. 1 black horse.. 24-7 The following for the use of the articles are appraised and set apart widow in (or the use of the widow and minor children). (And thus through The following accounts and notes are considered collectable. . 10.: : : APPENDIX — POEMS. 1857. to wit. The following are considered doubtful. endorsed interest for two years. One cord wood. in pursuance of the statute. $16 00 (And so through the doubtful). for $100. 1 sorrel horse. (And thus through the good items). dated Feb. good and Note. The following articles are in addition to those above enumerated. 1860. 20s. now worth. Thomas Nokes. One half barrel flour. addition to those enumerated above. John Myers. to wit 40 sheep. to wit One mahogany bureau.

(Signed). 1862. (John Doe). bank this deponent.. being duly sworn. does de- pose and say. and of this deponent. that the annexed (or foregoing) inventory is in all respects just and true. 28th. Appraisers.' : 248 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. following are considered bad. . that it contains a true statement of all the personal property of the said deceased.' Sworn before me. to wit The (Here state the bad items in detail). Justice of the Peace. Jennings. which has come to the all ' knowledge of moneys. 41. (or administrator. etc. and particularly of bills. etc. No. this 1st \ J day of March. C. all to the said just claims of said deceased against (Signed). . of Eichard Roe. 1862. R. deceased. or anfiled : when State of New York. . and other circulating medium belonging deceased. \ c ss J Rensselaer county.). Feb. Dated. executor. The nexed following affidavit to the inventory is to be endorsed on.

surrogate of the county of Eensselaer petition of : C D. of the town of Urunswick aforesaid. December. 14th. PETITION THAT EXECUTOR OR ADMINISTRATOR BE COMPELLED TO RETURN INVENTORY'. . in the office of the said surrogate^ as he was required by law to do. named That named letters of administration upon the estate of said will deceased. duly granted and issued to J D. your petitioner prays that a summons issue to the said J D. of the ahove or a legatee deceased. and that notwithstanding that more than of such three months nave elapsed since the issue the said letters. a creditor (or one of the next of kin in the will of).: APPENDIX — FOBMS. 1872. 249 No. respectfully shows That your petitioner of. or show cause why an attachment should not issue against him. appear as executor as aforesaid. CD. (or letters testamentary said deceased) upon the of were on the first day of September. Dated. 42. deceased. re- quiring him to before said surrogate and return an inventory according to law. Eensselaer county In the matter of the gooda and chattels of A To the The is B. J D has not filed an inventory of the personal estate of the said deceased. of the town of Brunswick in : said county. Wherefore. Surrogate's court. 1872.

It is ordered that a summons issue to said C D. county deceased. OEDEK FOE SUMMONS. Rensselaer county. Sworn. that he a creditor. requiring him . deceased. file and said D has omitted to make and an inventory of the per- sonal estate of the said deceased. that C D. true. (or admin- istrator of the goods. tion. On or. CD. At. is executor of the will of said'deceased. says that the foregoing is peti- by him subscribed. late of the town of in said. ss C D. exeto cutor (or administrator) as aforesaid. and credits of said de- ceased) that more than three months have elapsed since the granting of letters to said (or C D. showing in the will of . (or.a legatee of) named one of the next of kin . as executor administrator) as aforesaid. etc. TO EXECUTOE OE ADMINISTEATOE TO FILE INVENTOEY. chattels.: 250 EXECUTOR'S AND ADMINISTBATOB'S GUIDE. Present In — Hon . being duly sworn. tlie matter of the estate of . etc. reading and filing the petition of is A B. 43. Surrogate. No.

executor of the last will and testament of in the county of . s. in the . Tou are hereby summoned and of required to appear .appear before the surrogate.. then and there to return an inventory of the personal property. de- show cause why an attachment should not issue against you. at ten o'clock in the forenoon. 1872.] the state of N"ew York to C D. at his office in the city of Troy. The people of [l. 44. according to law. at on the day of next. chattels and credits of said ceased. Surrogate. or to show cause why an attachment should not be issued against him.. then and there to return an inventory of the goods. surrogate and the seal of our said court this day of . on the day of . . accord- ing to law. .APPENDIX — FORMS. goods. deceased. or to . Surrogate. . 251 . . before the surrogate of the county of his office. late of . No. chattels and credits of the said deceased. "Witness * . SUMMONS TO BETUKN INVENTOEY.

directed to the sheriflFof the county of . Surrogate. . attach- ment should not It is ordered and adjudged. is or be thence discharged by due course of law. returnable on the day of . to A summons having been issued . 45. and it further ordered. At. 1872. or show cause why an attachment should not issue against him. . Present — Hon 1 Surrogate. ORDEE FOR COMMITMENT. executor of the will of said an inventory of the goods. No. requiring his heirs to appear on this day and file said deceased.from this court reA B. and the said A B. chattels and credits of deceased. In the matter of the estate of . that an attachment issue against him. there to remain until such inventory. that the said A B be com. deceased. not having appeared (or having appeared and refused to return such invent(*y). mitted to the common jail h& of the county shall return of. and no cause being shown why an issue against him. etc. turnable this day.252 EXECUTOR'S AND ADMINISTRATOR'S GUIDE.

it was ordered that C D. in said county. the said C J) having refused to return such inventory. on . executor of the until will of said deceased. the day of 1873. in under your hand.No.s. common jail. 253 . said said court. by a certain order made in our Surrogate's court of . ATTACHMENT. or until he shall be . of the manner which you shall . in the matter of the estate of . an inventory of the goods. on the day of . chattels and credits of said deceased. • The People of [l. our county of said county. to the . or be thence discharged by due course of law.: APPENDIX — F0EM9. be committed to the the county of . although required so to do by an order and summons of our body of the bailiwick. as by the said order remaining of record. of . thence discharged by due course of law to and you are make and return to our said surrogate's court. in a certain proceeding pending in our said court. if he shall be found in your and him safely keep in your custody until he shall return such inventory. of he shall return to our surrogate's court of said county. at the before our surrogate of . a certificate. in our said surrogate's court more fully appear^.] the State of Uew York. that you take the C D. deceased. 1872. Ifow therefore we command you. 46. sheriff of the county of greeting Whereas.

we have be caused this writ to be Bubscribed by our said surrogate. An C D. etc. etc. and have you then and there In testimony whereof. intestate. Surrogate. Title. . At. common jail of the county of until he should return an inventory of . Indorsement.. for not returning an inventory etc. Attachment against C D. No. Present — Hon ..254 EXECUTOR'S AND ADMINISTEATOR'S GUIDE this writ.1872. OEDEE FOE EEVOCATION OF LETTEE.' and the seal of said court to affixed. 47. deceased. „Surrogate. Surrogate. of . deceased. have executed this writ. In tte matter of the estate of . of said deceased. com- mitting him to the .. of the goods. this day of . attachment having heretofore issued against executor of the will of the said deceased. executor.

the goods. late whereas of the . 255 and appearing by the certificate of the sheriff' of said county indorsed on thirty days said attachment. late . and that a revocation under the with issue. seal of this court forth- . of .. REVOCATION OF LETTERS. executor of the of last will and testament of all A B. as executor of the last will and testament of A B.'. No. greeting day of . and the said neglected to return such inventory It is ordered C D having and adjudged. by the : surrogate of the county of And the said CD neglected to return an inventory of the goods. chattels and credits of said deceased it . and others whom Whereas. and a summons was issued thereupon by said surrogate. of the deceased. that more than was comstill have elapsed since the said C D mitted to his custody. on the application of .s. on the and testament of said deceased..: : APPENDIX — FORMS. testamentary were duly issued to the said C D. Surrogate. within the time required by law. chattels and credits of said deceased. To [l. 1870.. deceased. on the letters it may concern.] D. be revoked. that the to the said letters testa- mentary heretofore granted last will C D. 48.

omitted inventory by the day therein appointed. executor. .] Moses Warren. A. and such proceedings were thereupon had.. that the said summons could not be served personally upon the said his C D. and whereas the said summons was duly served on and the said the said to return C D. during still which time he has neglected. therefore. requiring the said CD to appear before said surrogate. we. to desist and refrain from any further intermeddling with the estate of the said deceased. by (or. testamentary issued as aforetlje and do command said C D. or show cause why an attachment should : not issue against him And whereas it clearly appears to our said surrogate. . . such personally).D.256 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. and of the tute in such case made and provided. reason of absconding or concealing himself. seal of said court this first and the day of May. and return such inventory. surrogate of our said county. have revoked letters and do revoke said said . and neglects to return such inventory.s. has been imprisoned for thirty days and upwards in the common jail of said all county. that in pursuance of sta- an order of our said surrogate's court. to the sheriff of the county of by virtue of which the said C D. known. D. "Witness. 1872. [l. that an attachment for not returning such inventory was duly issued against the said D. on a day now past. be it Now. Surrogate.

Ordered. chattels and credits of of . for six months. once a week. At. ORDER TO ADVERTISE FOR CLAIMS. NOTICE TO THE CREDITORS TO PRESENT CLAIMS. Surrogate. In the matter of the estate of A B. notice 17 is hereby . A B.. surrogate of the county of Eensselaer. with the vouchers thereof. It appearing that more than six months have elapsed since the issue of letters of administration upon the goods. deceased. on or before the day of next. against said deceased. Present — Hon . that said administrator publish a notice. Now on the application of C D. . 49. re- quiring all persons having claims. Esq. to the said administrator. etc. deceased. . late of the administrator. 50. in the . 257 No. to present the same. No.APPENDIX — FORMS. Surrogate. In pursuance of an order of Moses "Warren.

AFFIDAVIT TO ANNEX TO CLAIM. that no payments have been made thereon. that they are required to exhibit the same. (Signed). to the subscriber. Troy. 1862. Edward Murphy. this first day of March 1862. deceased. at his residence in the said town of Brunswick. to the knowledge of this deponent. 51. K T. deceased. in the county of llensselaer aforesaid. according to law. Dated. doth depose and say that that the foregoing claim against the estate of Kyran Cleary. J of Deeds.. on or before the first day of September.oe) late of the town of Brunswick in the said county. - ss : Edward Murphy of the city of Troy. George Dat. executor of the will of the said deceased. and that there are no offsets against the same (other than those stated in the foregoing account). all given. Executor. Rensselaer county. to persons having claims against (Richard E. (Signed). with vouchers thereof. being sworn. this is justly due and owing to deponent. Sworn to.258 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. 1862. No. . before me. . Com'r. February 28.

PETITION FOR PROOF OF DEBT. No. Moses Warren. 1872.. To the The Surrogate of the county of petition of : of the of . that said will letters was duly proved. 1. 1872.in said county. and testamentary issued to . deceased. Dated. C D. Executor. 15... respectfully shows : That your petitioner in the last will . AB has lately presented a elaim to the executor of the last will and testament of the town of a copy whereof is . and testament of late of in said county. 259 No. 53. Dated. DUE TO AN EXECUTOR OR ADMINISTRATOR. is one of the executors named . 52. Nov. named in the ford- I hereby approve of the referees going agreement. C D. for attached hereto. the justice of it is which claim is doubted* by the said executor. late of . AG-EBBMENT TO REPBR CLAIM. A B. Surrogate. Whereas. deceased. thereupon agreed that the matter in controversy be referred to .APPENT)IX— FORMS. (Signed). as referees to hear and determine the same. l^ov.

dated on that day. by which amounts it appears that said personal estate. and and the widow. amount of about . with interest and delivered the same your petitioner. day of . time of the death of said to he was indebted dollars. day of your petitioner on the last. or any other defense thereto. day of to 1869. from the 1869. and none have been exhibited hibited to the (or. and your petitioner has made and returned an inventory of the personal estate of the said deceased. of petitioner. That C D. the said . That no payment has been made on said note. or order. the due thereon. applica- ble to the payment of debts.260 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. nor are there any offsets against the same. to your sum of day of with interest . dol- on the . Your petitioner further shows. his promissory note in writing. reside in the of . that he has advertised. whereby. is and still remains peti- wholly unpaid. is coexecutor with your is . the sum of . but said note was not paid at maturity. legacies and expenses That at the to about dollars.. claims have been exdollars). made your lars. your petitioner in the sum of : arising out of the following facts that' on the . for claims against said estate. . he promised to pay petitioner. and and are the children and all legatees named in the will of said deceased. dollars. for value' received. and there tioner. to the knowledge and belief of your petitioner. 1869. pursuant to law.

and may be permitted to retain the amount thereof out of the assets in his hands. ss. Surrogate. December 1. On reading and filing the petition of . 1872. CITATION. Sworn. Dated. as executor of the will of said deceased. pursuant to the statute. (Signed). deceased. showing that . except as to the matters which are therein stated on information and belief. . at a time and place therein to be stated. In the matter of the estate of . requiring them to attend the proof of said debt. : being duly sworn. prays that the debt to your petitioner may be proved in this court. and as to those matters he believes it to be true. by him subscribed. therefore. says that the foreis going petition.APPENDIX — FORMS. directed to the persons above named. OEDEE FOE At. etc. Present — Hon ' . 54. etc. No. 261 due Tour that he petitioner. Rensselaer county. and he prays that a citation issue. true of his own knowledge.

county of. . 55. which sum the said . No. To of the surrogate of the county petition of '. next. he has a claim against the estate of the said deceased. . The of the : . of. and to the legatees named in said will requiring them to appear in the court on the day of petition.. said Ordered. as prayed for in said Surrogate. in his lifetime. PETITION BY A CEEDITOR FOE PAYMENT OF DEBT. respectfully is shows That your petitioner a creditor of said deceased. that a citation issue to the executor of the -will of said deceased. Surrogate court. A In the matter of the of .. wares to said deto and merchandise the value of dollars. goods. and praying that the same be proved before surrogate.262 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. as follows: upon a claim for That your petitioner sold and delivered ceased. estate 1 deceased. dollars.

and there are no same. that the foregoing petition. and there due to your petitioner the sum with interest thereon. . by him subscribed. deceased. except as to the matters which are therein stated . and your petitioner duly presented his claim. from . and your petitioner after the expiration of one year from the granting of such letters. day of 1869. the last will and testament of said deceased was duly proved in issued to this court. (Signed). says. .eing duly sworn. which was not disputed. who has duly returned an inventory of the personal estate of said deceased. Eensselaer county. ss b. to the knowledge of your is petitioner. 6. in piration of 263 pay at the ex- Ms lifetime promised. is true of his own know- ledge. or for such other order as shall be agreeable to law and equity. your for the petitioner prays that an order be made payment of said claim. of the dollars. 1872. and refused pay the same. to months. That said executor advertised for the presentation of claims against the estate of said deceased. Dated. and letters testamentary were exectutor named therein. Dec. That on or about the day of 1871.: APPENDIX — FORMS. demanded payment of his said claim from the said executor to who has hitherto neglected thereof. that said did not pay the same in his lifetime. or any part "Wherefore. nor have any payments been made thereon effects against the since.

. Surrogate. him to show cause why he should not be ordered to pay the claim of the said petitioner. since letters and that more than one year has elapsed of administration were issued to the said Ordered.. . that a citation issue to the said administrator. (Signed). ORDEE FOR CITATION TO ADMINISTRATOR. . of said deceased . that said claim was not disputed. Present. At. belief. 56. Surrogate. etc. requiring .264 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. on information and believes it and as to those matters he to be true. In the matter of tbe estate of . administrator. showing that he a ereditot of said deceased . No. that he has presented his claim to etc. On reading and filing the petition of is . deceased. — Hon . Sworn. etc.

That the bate. was duly issued by said surrogate. 1872. That said executor an inventory in the (or said administratrix). whereby said appears that the personal estate of deceased amounts to the sum of dollars. 1872. deceased. 57. your petitioner prays that a citation may issue to said executor (or.: : APPENDIX — FORMS. on the 15th day of Sep- tember. and owing dollars. executor named (or. respectfully in shows a creditor of said That your petitioner late of said is John Doe. Surrogate's court. has ofiice of said surrogate. deceased. to Mary filed it Doe. said county. at this time. "Wherefore. town of Brunswick. PETITION FOR PAYMENT OP DEBT BEFORE LAPSE OF SIX MONTHS. J D. of said town of Brunswick). 265 No. letters of administration upon the estate of said deceased. your petitioner. and the to amount justly due. from is the estate of said deceased. requir- . of the town of Brunswick. that on the 15th day of September. # In the matter of the goods and chattels of John Doe. Rensselaer county. said administratrix). will of said deceased was admitted to pro- and letters testamentary were issued thereon to therein. To the Surrogate of the county of Rensse*laer The petition of A B.

in and by the ceased. after the decease of said John Doe. deceased. seals. as and C D and E F. well each of our be made. No. A. Add verification. and before the expiration of one year from the granting of letters testamentary to the said J D. . 58. de- day of 1870. a legacy was bequeathed to the said A B. presents. Know principal men by these presents. and firmly bound unto J D as executor of the will of John Doe. December 14th. ing him (or her). in dred dollars.266 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. and state of l^ew York.D. petitioner's debt. we bind our and and administrators j ointly and severally. 1' Whereas. of one hunwill. are held. and the said' J D has at the request of . payable by the terms of said . of the city of Troy. to show cause. A B. in the all county of Kensselaer. firmly by these Sealed with our and dated this "I 14th day of December. late of the town of Brunswick. executors which payment. BOND ON PAYMENT OF LEGACY BEFOKE EXPIEATION OP YEAR. should not why payment of your be decreed. for in the sum of and truly to heirs. dated the will of said John Doe. 1872. AB. 1872. Dated. dollars. executor named therein. that we.

then the said AB refund the whole of such legacy wi€h interest to the said J D. executor. etc.). or not sufficient.APPENDIX — FORMS. CD. April 10. or the administrator entitled thereto. (or for taxes assessed . 1862. of John Jones.S. Now this obligation is such " that. with the other legatees. and the proportional parts of such other legacies. Troy. A B.S. then this obligation to be void. and which there shall be no other assets to assets to pay. (or administrator.J [L.S. and there shall pay other shall legacies. if any debts against the be no other deceased shall duly appear." then the said AB refund the legacy so paid. etc. of Henry Jones. as may costs be necessary for the payment of said debts. Received. (ten dollars and fifty cents) all in full of fore- going account (or in payment of demands due me from the estate of said deceased). RECEIPT OF CREDITOR. or such ratable proportion thereof. 59. deceased. and the and charges incurred by reason of the payment . the said 267 the conditiou of A B. paid said legacy. Add acknowledgment. to such legatee will shall and that if the probate of the said will be revoked. [L.. or the shall declared void.] No. E F.] [L. otherwise to remain in full force and effect.

. in which he gave and bequeathed me the sum of (five dollars) : itfow. county : In the matter of the goods and chattels of A B. 60.. respectfully shows a legatee That your petitioner last will is named in the and testament of A B. The deceased. petition of C D. Schodack. Surrogate's court. 1862. deceased.'. March (Signed). James Eichards. I hereby acknowledge the receipt of said sum so bequeathed to me. in the city of Troy on the estate of said deceased. of John Richards. pre- vious to his death). lately made of to his last will and testament. Whereas.: 268 EXECUTOR'S AND ADMINISTRATOR'S GUIDE.1862. (Signed). 1. there- fore. Dated. EECEIPT FOE LEGACY. Rensselaer. in the county of Eensselaer.. . ' Mart Williams. late of the town of Schoday dack. of the town of . Perry. dated hundred the. late of the town of . executor named in said will. No. in said county. Amos S. - PETITION FOE OEDEE TO ACCOUNT.

the funeral expenses. applied to account and requested him and pay the legacy so bequeathed to your petitioner. a legacy of elapsed since the issue of said letters. since the expiration of eighteen issue of letters as aforesaid. but not- withstanding. and that such further or other proceedings may be had as may be requisite to enforce the payment of your petitioner's legacy. That said will was admitted to probate. executor has not accounted nor Wherefore. an executor September. That in and by dollars was" bequeathed to your petitioner payable in testator. the expenses of administration and the legacies bequeathed in Baid will. for his proceedings as such executor. and letters testamentary were thereon issued to J D. . to pay all. as informed and believes. by said sur- rogate. and debts of the said testator. C D. on the first day of and more than eighteen months have said will. as by inventory thereof • file in the office of said surrogate will fully appear. one year from the decease of the That said testator left a large personal estate amount- ing on to dollars. and as shall be just and equitable. Your petitioner months from the to said executor has. 269 is in said county deceased (or a creditor of the above deceased). named therein. such paid said legacy.APPENDIX — FORMS. and that such personal your petitioner is estate was amply sufficient. (Signed). and that he may be required to account ac- cording to law. your petitioner prays that said executor may be required to pay the aforesaid legacy to your petitioner. . 1872.

the executor of the said be and appear before the surrogate of . being duly sworn. true. On reading and filing the petition of .270 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. The above may be changed of a creditor petitioning. . Sworn before me. G-EO. deceased. one of the legatees named in the will of late of the . the county of of . that will.te Surrogate. Scott Notary Public. Y. tition. Rensselaer county. so as to apply to the case No. E". Ordered. ORDER THAT EXECUTOR ACCOUNT. CD. etc. personally. . ss: C D. In the matter of the of . deceased. Present — Hon est3. Rensselaer county. etc. 61.. says that the foregoing peis by him subscribed. town of . at his office in the on the day of .. At.

county Esq. to render an account of his proceedings. and under the seal of this court. Surrogate of Eensselaer The shows petition of (Eichard Eoe). of the town of Bruns- wick. No. 62. that your petitioner has returned to the surrogate of said county. chattels and credits). and that more than one year has elapsed since letters testamentary (or of administration). in pursu- ance of the order of said surrogate). respectfully : that your petitioner was duly appointed and and testament qualified. at ten o'clock in the forenoon.. county of Eensselaer ^ To Moses Warren. as such executor.: : APPENDIX — FORMS. In Surrogate's court. Surrogate. an inventory of the personal estate of said deceased (and has advertised for claims.show cause why an attachment should not issue against him. and. therefore. deceased. were issued to your petitioner by the surrogate aforesaid . (or as as the executor of the last will administrator of all and singular the goods. late of said town of Bruns- wick. prays that a citation may issue out of. or . . 271 next. in the county of Eensselaer aforesaid. PETITION FOR FINAL SETTLEMENT. by the surrogate of the county of Eensselaer. to . of Henry Jones. Your petitioner is now desirous of rendering an account of his proceedings as such executor (administrator) as aforesaid.

(Signed). requiring them to appear as in said citation directed. and testa- tamentof having . No. direete. deceased. late of deceased.272 be all EXECUTOR'S AND ADMINISTRATOR'S GUIDE. Richard Roe. Surrogate. 1862. In the matter of the estate of .. ' . legatees (next of kin). and of all persons interested in the estate of said de". requiring thfem to appear on the next. this 30th day of April. Richard Roe. to attend such final settlement. that a citation issue to the creditors. and more than one year having elapsed since the issue of letters to him. at ten o'clock in the forenoon. ORDER FOR CITATION TO ATTEND FINAL SETTLEMENT. 63. At. and persons interested in the estate of the said-deceased. and attend the final settlement of the accounts of your petitioner as such executor (administrator) as aforesaid.. Surrogate. Dated.day ceased. praying for a final settlement of his accounts as such executor.d to the creditors. filed his petition. . Present — Hon . the executor of the last will . Ordered. etc. legatees.

in account with the estateof G. Troy 3. D. testamentary. De. &c $16..50 By paid J. Ce.00 fil- appraisers By paid surrogate on ing inventory 50 $28. executor (or administrator). interest from E. savings bank 15. and E.10 $571 60 1860. [This form may be adapted to any estate or any amounts.00 By By expenses to and at to obtain letters.. By paid surrogate letters. D. 64. ACCOUNT OF EXECUTOR OR ADMINISTRATOR.00 Carried forward 18 . of inventory file $550.00 E... R.. Contra. not included in inventory > 6. witness to 2.] A. deceased. 6. 2. F..APPENDIX — FORMS. 1862. 1. July 1. 273 No. To amount on Jan.00 paid C.50 deposit not inventoried To received. B. witness to will By paid E wills 9. H.00 To received.

Brought forward July 20. or annexed to the account. loss $85 25 By on sale of inven- toried articles 16.50 Jan. being duly sworn.75 Showing balance sions. of the town of Eensselaer. says : in the county of is That he execu- . printing same.50 $108. By paid funeral charges By paid support of widow and family for 1861. for commisdistribu- debts and tionsof 462 25 The following claims have been presented the estate of said deceased against Edward Murphy James Jones (Stating $150 00 16 00 them in full). By paid.50 20. Eensselaer county. 4. 10. 3.00 By expenses to Troy three times.50 By paid.00 40. The following affidavit is to be included in. ss.: : 274 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 40 days. &c 75 6. A B.50 29. $28.. . surrogate's order to advertise for claims.

person. just his is and true . that the sums under twenty charged in said account.APPENDIX — FORMS. to the prejudice of any of the parties interested in the estate of the said deceased. and in all respects to the best of that the foregoing (or annexed) account. he further says. for his use and that he does not know of any error or omission in the said account. late of said town of .. . day of this .) A B. 1862 :i . or for which he has not been able to produce vouchers or other evidences of payment. contains a full and true account of all his receipts and disbursements. (Signed.. on account of the estate of said deceased. that the same according knowledge and belief. have actually been paid and disbursed by him as charged. by his order or authority. which have ministrator. deceased. tor of the last will 275 (or administrator and testament of of all and singular the goods. or to the estate of the said de- come into his.hands as such ad- which have been received by any other . and of all sums of money and property belonging ceased. And dollars. Sworn before me. chattels and credits of) C D. for which no vouchers or other evidence of payment are herewith filed.

particulars First. (And so in detail). Dec. and was barred by the statute of limitations. etc. Second. a claim' against the said executor. . for a debt owing to the deceased in his it life time. C D. Second. James Lansing. 1872. That does not include the proper sum re- ceived or chargeable against said executor for interest. That the item of . next of kin of the above named deceased (or legatees named in the will of said de- ceased. That the said account following. adminis- trator of the estate of said deceased. At. No. allege that the said account is erroneous. In the matter of the estate deceased. is further erroneous in the That the item of is dollars. for said Contestants. for funeral expenses extfavagant.: 276 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. A B. paid to in that the pretended claim was not due.) contesting the account filed by A B. 65. ALLEGATIONS ON CONTEST OF ACCOUNT. 1. First. and E F. Dated. That it does not include an item of dollars. and not according to the station of the deceased. and that the same should be surcharged by the following items.

. a newspaper. and on the said last men- tioned day.. Upon the named in the of gate on the application will of . . day of then next. by James Lansing. at the Surrogate's office. of .DOWBR OF WIDOW.. the surrogate appointed of the city of . deceased. At a Surrogate's court held in and for the county of in the . and per- sons interested in the estate of said deceased. 66. and of personal service of the same. legatees. executor late of the in said county. all issued a citation to the creditors. and in the . DECREE ON FINAL SETTLEMENT. Surrogate. and of service by mail on . and. In the matter of the estate of . 1872.. 277 No. his counsel. of . Present — Hon . and and' . the surro- day of . printed in said county for four weeks. deceased. to attend the final settlement of the account of said executor. and filed due proof of the publication of said citation in the state paper for three months. requiring them to appear before him on the . the said executor appeared iu' person. is an infant. on the day of . last past. and it appearing that said . on . .

the surrogate. as aforesaid filed his account as such. and by his counsel. the sur- rogate proceeded to settle the said account according to a summary statement hereto annexed. and with ten dollars expenses of this proceeding. that charged as the said as executor. adjudged . be sum of fifteen hundred dollars. And now having heard the proofs and allegations of the parties. and decreed. and for expenses of administration fifty with the sum of sixty- cents commissions. and the appeared as such special guardian. . and further claimed that said account should be surcharged by the dollars. appearing in person. received sum by said executor as interest. proceeded to ex- amine the same. the sum of twenty .278 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. counsel for him in this proceeding. It is therefore or/iered. and take testimony thereon. Troy. and sundry items of in the same. . and the above named . . and maturely considered the same. not stated in his account. forming a part of this decree. and to be recorded therewith. to this day. and the issue being so joined. It is further ordered. . . and the matter was adjourned from time to time. duly verified. and with the further sum of two hundred dollars interest. The said executor. that he pay to . That he be (sredited with the sum of three hundred and fifty dollars paid by him seven dollars and for debts of his testator. objected to said account. special guardian for said to appear and take care of said his interest in this matter. in all the sum stated in his account with the of seventeen hundred dollars.

and thirty-two tee dollars to residuary lega- named it in said will.: APPENDIX — FORMS. . that. to wit. $1700 00 . for the faithful application of the same. . the day Witness. that the said has given bonds approved by the surrogate. the above legacy to said the general guardian of said . counsel for the said twenty dollars. we have caused the seal of our said court to be hereunto affixed. . hundred dollars. That he pay to . six .s. in the Foregoing Decree. and that he distribute the balance remaining in his hands. . may pay . 279 and to . The executor his account with is charged by "^$1500 00 His account shall be surcharged by the sum 200 00 of interest received by him Carried forward. In testimony whereof. and year first above written. and the remainder. hundred six dollars. And cutor to is further ordered. dollars. it iappearing that above named. is an infant. Surroga te. and to for his legacy. on receiving proof. to be subscribed by our surrogate. the sum of twelve hundred and thirty-two dollars and as follows fifty cents. the ^id exe. Summary Statement Referred to. [l. .] and the same surrogate. two hundred . for his legacy.

was ordered and directed to pay to the undersigned. and release him from all claims' . No. the sum of dollars. deceased. $1700 00 ex- He is credited with debts and penses of administration paid 360 00 With commissions With his expenses on this accounting 67 50 10 00 20 00 He He shall shall pay his counsel pay counsel for 20 00 467 50 $1233 50 Showing for distribution the sum of .280 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. a legatee named in said will. county : In the matter of the estate of . executor of named deceased. Surrogate's court. by a decree of the surrogate of the county of . in this matter. 67. now I do hereby acknowledge the receipt of the said sum from s^i'i . Surrogate. Brought forward. entered on the day of the will of the above 18T3. Whereas. • EELEASE FOE DISCHAEGE OF DECEEE.

of) A B.. 1873 Rensselaer county.. therefor. of the will of (or of the goods. to enter this as a discharge of said decree. . Surrogate's court. (Signed). "Warden. late . Witness my hand. PETITION FOK MOETGAGE. . To Moses The deceased. 281 and request the surrogate of said county. 1873. before to to me known be the same person described in. 68. Rensselaer county In the matter of the of estate A B. : Justice of the Peace.: : DOWEE OF WIDOW. ss On this day me personally came of . executor (or administrator) etc. this day of (Signed). Esq. and who executed the foregoing instrument and acknowledged that he exe- cuted the same for the usee and purposes therein mentioned. No. LEASE OR SALE OF KEAL ESTATE. Surrogate of the county of Rensselaer: petition of C D.

are minors of the . are children and heirs at law of the said A B. as near as the to the same can be . and which are not secured by judgment or mortgage. and occupied or not occupied spect to each of the several lots or parcels say. real That the deceased died seized of the following estate. and applying the same to the payment of debts. And your petitioner verily believes and that he has states the fact to be. situated in the county of Rensselaer aforesaid. according to law.00.which are justly due and owing. and A B. of the town of Brunswick. of the age of twenty-one years and upwards. sum respectively affixed to each lot or as stated in re. in the county of Rensselaer. that S B. which remain unpaid and. ascertained. which has come to the hands of your to the petitioner. and E B. the widow. of the town of Brunswick. and has covered the same to he insufficient to pay the debts of the deceased. ^ That the amount of the personal property of the deceased. or expressly charged on the real estate of the deceased. amount sum of $1. And that J B. shows. deceased. C B. is And your petitioner further shows. deceased.00.050. amounts ' sum of $578. valued at the parcel. A B. that your petitioner filed h3>s made dis- and said an inventory of the personal property of the deceased. All (stating fully that is to by metes and bounds). proceeded with reasonable diligence in converting the personal property of said deceased into money.282 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. and K B. That the outstanding debts of the deceased.

age of fourteen years and upwards. to mortgage. or eiell. may are minors. to the best of the knowledge. that the is above petition.APPENDIX — FORMS. Tour petitioner therefore prays that authority be granted to him by the said surrogate (pursuant to the statutes of the state of 'New York in such case made and provided). . before me. etc. being duly sworn. Surrogate.1862. C D. i C D. true. Subscribed and sworn this \ J day of . and are also children and heirs at law of the deceased. so shall be ne- And your petitioner will ever pray. lease much of the real estate of the deceased as cessary to pay the debts of the deceased. by him subscribed. and under fourteen years of age. CD. 1 Eensselaer county. "Warren. State of New York. (Signed). information or belief of the deponent. and 283 LB and M B. M. deposes and says.

At. In the matter of the of . Ordered. On reading and filing the petition of C D. to show cause why authority should not be given to said executor to sell mortgage. pay his and. appear before the surrogate of the county of at his office ia the . it is further ordered. as shall be necessary to debts .' of . praying that authority may be given to him by said surrogate. that persons interested ip the said estate . etc. late of the town of deceased. OEDER TO SHOW CAUSE.284 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. as shall be necessary to pay his debts. that all persons hav- ing claims against the said deceased. the exe- cutor of the last will and testament of . deceased. . Surrogate. lease or so much of the real estate of the said deceased. . No. 69. lease or sell so much all of the real estate of the said de- ceased. to mortgage. on the day of next. may exhibit and prove the same at the time and place aforesaid. Surrogate. Present — Hon real estate . A B.

285 No. or the said deceased. that . of the of be.Surrogate. . and it being suggested that said . deceased. l An order having heretofore been made in this matter. and he is hereby appointed special guardian of said minors for the sole purpose of appear- ing for. At etc. 70. In the matter of the of . deceased. filing and on reading and said order on others. the real estate of . Surrogate. executor of the will of said deceased. . that all persons interested in the . Present — Hon real estate . are minors. OilDER FOE APPOINTMENT OF SPECIAL GUAEDIAN.APPENDIX — FORMS. show cause on this day to why authority should not be given C D. to mortsell. lease. and Ordered. among . town of . and taking care of their interests in this prosell ceeding to mortgage. lease or the real estate of said deceased. gage.estate of late of the . and • . proof of the due service of .

lawful money . all shall deliver securities taken by him on such sale to the said surrogate. we bind heirs. to be paid to the said people to the which payment well and truly ourselves. is now pending before the surrogate of the county of Eensselaer. or any part pay the money arising from such and sale.' 286 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. after deducting the expenses thereof. all in case the said surrogate shall grant an order of thereof. of the United States. are held and firmly hound unto the people of the state of !N"ew York. in the county of Rensselaer. within twenty da^s after the same shall have . by these Sealed with our . to pay his debts. that the said John Doe. jointly and severally. in the sum of (double the value of the real estate to be sold). AB and C D. as executor of the will of said deceased. shall of said real estate. our to be made. Know all men by these presents will of city of : Tifat we. firmly presents. No. is now Therefore the condition of this obligation if such. of the Troy. on the petition of the above bounden John Doe. . executors and each of our and administrators. 1872. 71. seals. sale. BOND ON SALE OF EEAL ESTATE. Whereas an estate of application for authority to sell the real . deceased.D. and dated this \ J tenth day of September. A. John Doe. executor of the deceased.

APPENDIX — FORMS. lease or much of the real estate of the said deceased as shall be necessary to pay the debts of the deceased. Add acknowledgment and justification of sureties.S. then to be void. and which are .S. At. ORDER FOR SALE OF REAL ESTATE. In the matter of the real estate of . and such proceedings having been therefore had.s. of deceased. C D.. having lately presented his petition to the surrogate of the county of sell so for authority to mortgage. deceased. No. etc. 287 this obligation been received and taken by him. Present — Hon .] JohS Doe. that the said surrogate is satisfied that the said executor has fally complied with the several provisions of the statutes. C D. full force and virtue.] [L. A B.. that the debts outstanding against the deceased as far as the same can be ascertained. Surrogate. the executor of the last will and testament of .] [L. 72. otherwise to remain in (Signed).. [l.

and the said executor having. is duly acknowledged. Surrogate. and by a mortgage upon the premises sold. to the said surrrogate to the end that the said surrogate fairness may examine the said proceedings. that the moneys required to be raised. and that the whole of said perbeen applied tb the applied' to sonal estate. and whereas it has been made appear to said surrogate. and subsisting. the following described real estate of the said deceased to wit: (describe the several parcels). It is ordered and adjudged. And it is further ordered that before any shall deed or deeds of the premises sold be executed. not exceeding three years. decaased amounts to the sum of that the personal estate of the said deceased is insuflacient to pay his debts. by a bond of the purchaser. . with two sureties executed a bond in the manner required by law which approved and that filed. . and shall secure the moneys for which credit may be given. and are not secured' by judgment. the said executor 'make a return of the proceedings had on and the this order. and the legality of the said sale. mortgage or other on the real estate of the said dollars. ad- vantageously to the said estate. lien. for not more than of the purchase money. cannot be raised by mortgage or lease.288 valid EXECUTOR'S AJSTD ADMINISTRATOR'S GUIDE. It is further ordered that the several parcels be sold in the order in which they are above described and that on such sale the said executor be authorized to give such length of credit. at the said executor sell public vendue. which could have payment of "the debts of the deceased has been to that purpose . as shall seem three-fourths best calculated to produce the highest price.

Rensselaer. the following described real estate. 289 No. Dec. of deceased. NOTICE OF SALE. . bearing date the day of 19 . APPENDIX — FOEMS. the subscriber. upon said premises are a farm house. Surrogate. execu- . late of the . pub- vendue on the day of of at the front door of the court house in the at ten o'clock in the forenoon of that day. In pursuance of an order of the surrogate of the county of Rensselaer. 72. and the ordinary farm buildings. I. Dated. deceased will sell at . In pursuance of a decretal order of the surrogate of the county of Rensselaer. county In the matter of the real estate of A B. EEPOKT OE SALE. to wit (describe the parcels).. the undersigned. Surrogate's court. 73. Executor's sale of Real Estate. late of of . the executor of the last will and testament of the lic . 1. 1872. 1872. No.

I caused notice of the time and place thereof. OilDEK At. to be regularly published. Surrogate. the whole of the premises in said order de. at the front door of the court house. was made. On reading and filing the return of . at 10 o'clock. etc. a newspaper printed in said county. Executor.of in said county.290 EXECtTTOR'S AND ADMINISTRATOR'S GUIDE. on the 1872.. thereof. Nov. In the matter of the of deceased. did . and like notices to be posted for six weeks in .. and fairly conducted. Present — Hon real estate . And I further report. for six weeks. late of tor of the last will and testament of John Doe. sell at public vendue. 74.. most public places in the town of legally and further. the . that said sale. Dated. in said county. which was the highest sum of sum bid . CONMEMING SALE. and that a greater sum could not be obtained for said premises. the of . 1872. . (Signed). in the city of Troy. that before the said sale. No. 20. for the same. A B..late of the executor of the will of . to dollars. once a week. successively in .for the scribed. Addjurat. in the forenoon.

be made and executed by . that the it is and hereby confirmed. the said executor. to the said upon his complying with the terms of sale. in this last. to one dollars. and the proofs accompanyit ing the same. 1872. party of the . it is it was bid on sale be. 291 deceased. and that a said premises. DEED ON SALE. matter bearing date the day of and in pursuance of the statute in such case. in obedience to the former order of this court. . on the day of . Surrogate. and appearing therefrom that the said executor. for the public vendue. that a conveyance of the premises so sold. on his part to be performed. did. sell at made . is therefore ordered. upon the terms and conditions particularly mentioned in said return . No. part and of the of . and fairly conducted. and provided. . and it appearing to the surrogate. one thousand eight hundred and seventy as executor of the last vdll between testa- and ment of in the county first . the lands sum of and tenements in the said order mentioned. that the said sale was legally made. late of the of deceased.APPENDIX — FOBMS. 75.. of . This indenture. made this day of . than greater sum cannot be obtained for said sale. and further ordered.

whereas. party of the .. in obedience to said order. sell atpublic vendue the whole of the premises in said order mentioned. •• in the county of . surrogate of said county. in the words and figures following. on his part to be performed.. . gate's office in the of on the day of ."thi8 infirst part. his and heirs and assigns forever the lands and tenements' in : said order mentioned. sale). therefore. And. sell part. and which said is order in the words and figures following. to wit (insert order at length). for and in consideration of the sum of dollars.: 292 • EXECUTOR'S AND ADMINISTRATOR'S GUIDE. to the said party of the second part for the dol]. has in all things. held . described as follows (description) . a certain decretal order was fiiade for the sale •of the real estate of the said deceased.ars. bargain unto the said party of the second part. that the said party of the as executor as aforesaid.. (insert order confirming And. one thousand eight hundred and :. whereas. complied with the terms of the said sale. the said party of the second part. seventy . and for the county of at the surro. and by these presents does grant. sum of and did thereupon make return of his proceedand there was thereupon made an order to wit : ings in the premises to the surrogate of said county of . ... party of the second part in whereas at a surrogate's court. before. the said first part did on the day of 187. has granted. to him in hand paid bargained by the party of the second and sold. N^ow.. denture witnesses...

the said party of the first part.. interest. his heirs and assigns forever. AB. right title. as executor as aforesaid. remainders'. the said deceased had. benefit party of the second part. all and profits and the estate. and the reversion way and reversions. issues also. the day in this indenture first above written. [L. before to to me known who be the executor of the last will and testament of deceased. to have and to hold the same to the said party of the and behoof of the said second part. or in any appertaining. Justice of the Peace. his heirs and assigns forever. as such executor. . re- mainder and thereof. together with all 293 and singular the hereditaments and appurtenances thereunto belonging. 187. and the person described in and exe- cuted the foregoing conveyance. at the time of his death in and to the said premises . . and acknowledged that he executed the same. s. In witness whereof. .: APPENDIX — FORMS. rents. claim and demand which of.. ss On this day me personally came of . to the sole and only proper use.] Rensselaer county. has hereunto set his hand and seal. for the uses and purposes therein mentioned.

No. a reasonable your claim for dower. real estate G-EOSS. Executor of the will of said deceased. whether you will accept such sum in gross.294 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 1872. applicable to ansatisfaction of nuities. widow of said deceased : Toil are hereby notified and required to elect. 1872. so to elect before the surrogate of the county of Rensselaer. NOTICE TO * WIDOW TO ELECT. - CONSENT OF WIDOW TO ACCEPT A SUM IN In the matter of the of deceased. at his office in Troy. in lieu of your dower . in which the undersigned is entitled . . as shall be deemed upon the principles of law. AB. No. Whereas. 77. November 20. 1 In the matter of the of real estate To . and you are notified. in the lands of the above deceased. certain lands and tenements of the above named deceased. on the (the day of . 76. Dated. day for distribution of proceeds).

and purposes therein menL. that I. . Y. upon the principles of law applicable to annuities. therefore. as the 295 widow of said deceased. before A B.S. to me known to be the same who executed the foregoing person described in and instrument. Know all men by these presents. and which said lands and tenements are bounded and described as follows : (description as in order for sale). Com'r of Deeds. to accept in lieu of do by these presents. ss On this me personally day of came. a reasonable satisfaction. [L. N. A B. to dower. consent dower. Troy. this day of 1872. A B. . such sum for in gross. as shall be deemed. And whereas. in the lands my and tenements aforesaid.: APPENDIX — FORMS.' and seal. W.] Rensselaer county. have been recently sold by virtue of an order of the surrogate of county. in this matter. I have hereto set my hand . the widow of the said deceased. In witness whereof. Rhodes. and acknowledged that she executed the said instrument for the uses tioned. my said dower. the moneys arising from the said sale have been brought into the said surrogate's court for distribution : now. 1872.

78. No. ANNUITY TABLE AND EULE. .296 EXECUTOR'S AND ADMINISTRATOR'S GUIDE.

the number of years purchase set opposite her age. one year. . In the matter of the estate of . and you have $321. Otsego county. do hereby certify that on the 187. and she is entitled this is dower in real estate worth $1500. deceased. day of this a decree was 1 . one-third of at six $500 . I. surrogate of the county of Otsego. Example.. per cent. No.15 as the gross value of her dower right. by occupation a " seamstress. $30 multiply this by 10. 79." a . table. made by me in matter in favor of in residing in the town of said county. E. CERTIFICATE OF DECREE TO BE DOCKETED. Surrogate's court..705.APPENDIX— FORMS. G. Suppose a widow's age to is is forty. Card. 297 life and the product is the gross value of the estate of such person. interest on |500.

Witness iaj hand and [l. of the sum of and cents for the debt. due to the said from the said de- sum of twenty -five dollars for her costs and disbursements. deceased against in the residing town of rail . . as aforesaid. To the sheriff of the county of Greeting: of 187. and the dollars and cents. Surrogate. chattels and credits of said ceased.this day of 1872. as administrator of the . in said county. goods. . EXECUTION ON DECKEE OF gURKOGATE TO BE DOCKETED. Whereas. on the 4ay surrogate of the county of and the surrogate's court of said county. of . s.298 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. by occude.. at the village of . in said county. pation a road employee. administrator.. creditor of late of the town of . 80. directing the payment of the said of the said to the said dollars . (Signed). . No. .] seal of office. making in the whole the sum of' ceased.

by occupation a rail road employee. he made out a names of the parties against and in favor of whom the decree their respective occupations was made and in... the cents.. . by such decree.. duly mad« a decree for. day of entered and docketed in the : book required by and whereas. for her costs and expenses and in the proceeding before said surrogate. and whereas on . of the town in said county.. the same was.APPENDIX — FORMS. and personal property of the said in . out ofthe goods. and places of residence which he stated the amount of such debt and directed to be paid said filed costs. on said 187. . to of stress. and the sum of dollars and the cents. cents for a debt due to the said from the said deceased. day of such certificate was . 299 and directing the payment in by residing in said county. wit on the day of certificate stating the 187. there law is for the docketing ofjudgments now acutally due on said and decree. sum of dollars with interest thereon are therefore from the day of 187. the adadministrator of the goodsj chattels and credits of deceased. to .. with the clerk ofthe county of and ... by occupation a seamdollars of the sum of and . to Tou. and after such decree was made by said surrogate. com- manded and required dollars. chattels .. make said sum of and cents. making in the whole sum of dollars cents.

attorney. if sufficient your county.. Attorney. Levy and from the your fees collect dollars with.. and thereof cannbt be found in your county. day of and poundage and return 187... Attorney. .interest .. . . then out of the real property in your county of which the said belonging to him on the said 187. was seized and .^ 300 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. against Execution .. (Signed). and that you return exec ution with your proceedings thereon to the clerk of the county of Otsego.. in sixty days after the receipt of the same.•. . besides this execution in sixty days after its receipt by you to the clerk of the county of (Signed). Dated. to Otsego county. Indorsement on above. or any time thereafter in whose hands soever the same this may be. day of the day on which the said decree was docketed at in your county.

and thereupon the surrogate duly made a certificate of said decree..APPENDIX — FORMS.. late of in said county. deceased. . In the matter of the estate of . deceased. sum of and cents. on the . for her costs of the proceedings. and thereupon an execution was . and the oflice same certificate was duly filed in . PETITION FOE ASSIGNMENT OF BOND OF ADMINISTKATOR. The petition of in said county of . in favor of . . requiring and directing the said to to pay your petitioner the sum of cents. and the further dollars. Surrogate's court. of the clerk of the county of and was docketed in the book required by law to be kept for the docketing of . judgments. for the dollars. 81. . 301 No. on day of . of the town of . 187. chattels and credits of the town of . your petitioner against administrator of the . respectfully shows : That heretofore a decree was made in the this court.. goods. county of . day of 187. as required by the law. and debt due from said deceased to your petitioner.

that she in the foregoing petition. of her own know- ledge. wholly unsatisfied. which exe- cution has been duly returned by said sheriff. (Signed). ss. J . will ever pray. annexed. and knows the contents and that the same is true..: 302 EXECUTOR'S AND ADMINISTEATOE'S GUIDE. etc. chattels and credits of said . .187. and thereof. . and to be true. therefore. day of this -j . except as to the matters which are therein stated as to those matters. duly issued upon such decree certified as aforesaid to the sherijff of the county of . prays that by the said . being duly sworn. says.. Rensselaer county. him of letters of administration of the goods. leave to refer to such certificate copies whereof are hereto certified Your petitioner. she on information and believes it belief. may be assigned by said surrogate to your petitioner.. Your petitioner begs and execution. is the petitioner named that "she has read the same. And your petitioner Dated. your petitioner's claims against the said may be enforced and collected. . that . (Signed). Sworn before me. to the end. the bond given to upon the granting deceased.

APPENDIX — FORMS. to pay to the said dollars . . in her on the directing day of .. at the surrogate's . . In the matter of the estate of . . ORDEE ASSIGNING BOND OF ADMINISTRATOR. showing. to the sheriff" of the county of which said execution has been returned wholly unsatisfied. deceased... At a Surrogate's court. chattels and credits of ceased. that heretofore a decree was made . of counsel for the petitioner.. 303 No.. — Hon Surrogate. held in and for the county of office .. 187.. was on the day of office . of . on the Present 187.. cents. Now. de- the sum of and dollars . on the day of .* .. on motion it Esq. reading and filing the petition of . and the further sum of and cents... by of said sheriff". in this court administrator of . costs of the proceedings that a certificate of said decree. 82. 187. On favor. the goods. duly docketed in the of thfe county clerk. of the county of and that an execution was duly issued thereon .

. LEASE. Said claim justly due to your petitioner. as administrator of the goods. . or order. given . chattels . no payments have been made thereon. as - upon the appointment of the said . and credits of deceased. upon a promissory 1870. that the bond. county of. dated . be. and payable is made by him day of your petitioner. day of 186. and the sameis hereby assigned . . the ninety days after date. (Signed). with sureties. No. 83. ordered.. 304 is EXECUTOR'S AND ADMINISTRATOR'S GUIDE.. by the and said . dated and filed in the office of the surrogate of this county. Your of the petitioner a creditor of late of deceased. intestate: said intestate died indebted to your petitioner in the sum of note. Surrogate's court. as principal. PETITION OF CKEDITOR FOR ORDER THAT ADMINISTRATOR BE ORDERED TO MORTGAGE. to the said petitioner. of the of respectfully is shows as follows: . OR SELL REAL ESTATE.. Surrogate. To Hon of surrogate of the county The petition of . : dollars to and interest. on the .

which said account has been settled before the said surrogate. for the 20 the real estate of his debts. to still and the same is remain in full your petitioner informed and believes. sums re- and occupied or not is occupied as hereafter stated as to each . . prays that the surrogate will grant an order for the said . . The said intestate died seized of the following de- scribed parcels of real estate. 1870. were duly . Your petitioner. valued at the spectively affixed to each parcel. upon such settlement. and there are no offsetts against 305 the same to the knowis ledge of your petitioner. and reside in the of. that (describe value). admin- istrator as aforesaid. therefore.APPENDIX — FORMS. Letters of administration of the goods. and it appears from the said account. mortgage upon. is . the rendered an account of his proceed- ings as such administrator. and the same not secured by judgment. chattels and credits of the said deceased. payment of and . On said the day of last past. lease or the said deceased. and and are the heirs at law of said all deceased. that there are not sufficient assets to pay the debts of the said deceased. issued by the surrogate of the county of on the of the force as day of . or expressly charged on the real estate of the said deceased. to say each parcel and names of occupants and the widow. to show cause why he should not sell be required to mortgage.

(Signed). In the matter of the real estate of On of reading and filing the petition of . intestate. OKDEE THAT ADMINISTKATOK SHOW CAUSE.306 EXECUTOR'S AND ADMINISTEATOB'S GUIDE. etc. etc. and as to those matters he believes it to be true. county. a creditor of . late of the deceased. . according to law. ss: being duly sworn. says that the fore- going petition. No. At. Sworn. Dated. is true of his own knowledge. 84. December 1. that such other or further proceedings. accept as to the matters which are therein stated on information and belief. as may tend to the relief of your petitioner and the payment of his claim aforesaid. may be thereupon had. (Signed). 1872. Present — Hon Surrogate. by him subscribed. .

OKDEK THAT PEKSONS INTEKESTED SHOW CAUSE. At. . intestate. No. chattels and credits of said deceased. . lease or sell the real estate of said deceased. etc. An order having been heretofore made. Present — Hon real estate . intestate. personally be and appear before the surrogate of the county of of . r dered.APPENDIX — FORMS. show cause why he should not be required payment of his debts. the administrator of the goods. deceased. goods. In the matter of the of . 85. at his office. administrator of the . at ten o'clock in the forenoon. . then and there to to mortgage. in the on the day of next. of late of the . requiring . a creditor of of . late of the deceased. chattels and credits of of . and appear before our . on the appli. for the Surrogate. cation of of the . surrogate of the county of on this day. 307 that . deceased. personally to be. Surrogate.

Surrogate. No. . to mort- show cause why he should not he required payment of his gage. that persons having claims against said deceased. . and the said administrator having appeared. and prove such claims at the time aforesaid. and having shown no cause to the contrary. may appear and exhibit.308 to EXECUTOE'S AND ADMINISTRATOR'S GUIDE. at ten o'clock in the forenoon. at his office in the of . 86. At. ORDER FOR SALE ON THE APPLICATION OF A CREDITOR. An order having been heretofore made by the surro- gate of the plication of . dehts. lease or sell. Present Title. . be necessary to pay his debts. . that all persons interested in the estate of said deceased. to the so much of the real estate of the said as shall deceased. (as in — Hon 84). before said surrogate. Surrogate. etc. appear before the surrogate of the county of . all It is further ordered. on the day of 1872. No. then and there to show cause why authority should not be given said administrator to mortgage. Ordered. lease or for the sell the real estate of the said deceased. on the apof of of the . .

deceased. to appear before him on this day. estate of said intestate. heirs-at-law. . ^ . being satisfied. and the said administrator. deceased. requiring the adnainistrator of the goods. that the said administrator has fully complied with the provisions of the statute. intestate. concerning the power and duties of executors and administrators in relation to the sale and disposition of the real estate of the testator. directing all persons interested in the estate . for the lease or sell the real debts. having been thereupon had. in due form of law. and . in person and by his proctor. and thereupon. 309 . and . and shown no cause to the contrary. appeared. to show cause why authority should not of the real estate of the said be given or sell to the said administrator to mortgage. or . the of said said surrogate having made a fur- ther order. late of the of . petitioner.APPENDIX — FORMS. lease so much . of due publication of said order. deceased. a creditor of . and of the due service thereof. chattels and credits of said intestate. and the said administrator having appeared this day. as shall be necessary to pay his debts. and the surrogate. to appear before the said surrogate. having also with the said . on the widow and heirs-at- law of the said deceased. on every person in occupation of the premises is of which a sale desired. to show cause why payment of his he should not be required to mortgage. and the proper proceedings. hav- ing appeared. on the day of last. and on reading and filing satisfactory proof by affidavit. upon due examination.

and the said istrator as aforesaid. intestate. by mortgage or advantageously to the estate of . and having inquired whether sufficient moneys for the payment of such lease of debts aforesaid. and satisfactory evidence having been given. for the purpose of satisfying. or sell. to and that the personal estate of the said deceased is insufficient for the pay- ment of such debts. which said bond is filed with . and applying the same to the payment of debts . and that the same amount and cents. can be raised by mortgage or the property of the deceased. said surrogate. the said deceased. are justly due and owing. that is to say.. with sufficient sureties. or any part thereof. the real estate cation is made to mortgage. that the said administrator has proceeded with reasonable diligence in converting the personal property of the said deceased into money. and that they are not secured by judgment. admin- having executed a bond to the people of this state. dollars. of the said deceased.310 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. or expressly charged on the real estate of the said deceased. approved by the surrogate.. real estate. ». or mortgage. and it appearing that the moneys required cannot be raised lease. (Description). the following described enable him whereof the said intestate died seized. that the debt of the said and other debts presented and proved before the said surrogate. it is ordered that the said sell administrator aforesaid. . which applilease. to to pay the debts aforesaid. in the penalty and with the conditions prescribed by the statute. and which the and said surrogate has adjudged estate of the said de- vahd and subsisting against the ceased.

311 And itis further may ordered. 87. And it is further ordered.] of this court. OEDBR THAT EXECUTOE OR ADMINISTRATOR MAKE AND PILE BOND FOR SALE. is of the value of dollars. not exceeding three years. the said surrogate has hereunto affixed his name. and the seal [l. for not more than one half of the purchase rfeal estate. that the said administrator give to the purchaser at such sale. money of such purchased by him. and a mortgage upon the premises to him sold. At. that the real estate of the deceased. it is for the payment of the debts of the . No.s. the day and year written. a credit. of any of the said real estate. . to be secured by a bond of said purchaser. that the said of all sales administrator make returns made by virtue of this order. first above Surrogate.APPENDIX — FOEMS. etc. and that it is necessary to have the same sold said deceased. In testimony whereof. In the matter of the of real estate It appearing by the records of this court.

a creditor of the above named still deceased. these proceedings by the order of this . has refused of the said de- and refuses to execute the bond required in court. it is ordered that sale. and credits of said deceased.... that chattels administrator of the goods.. ordered. showing that etc. Surrogate. on his bond required by law. In the matter of the real estate of . and nominating to a disinterested freeholder.. deceksed. Present — Hon . execute a bond to the people of' this 8tate. . At. in conjunction with two sufficient sureties to be approved by the surrogate. 88.. make such sale. Surrogate.^n dollars. be appointed to filing the make such .312 EXECUTOR'S AND ADMINISTRATOB'S GUIDE. OKDER APPOINTING FEEEHOLDER TO MAKE SALE.. On filing the petition duly verified of . etc. .... the administrator. No. conditioned as the penal sum of required by law. ceased.

C D. that he was sixteen (16) years of age on the 15th day of May last . of the town of Lansingburgh aforesaid. subject to the approbation of the surrogate. 1862. (Signed).: APPENDIX — FORMS. and prays his appointment accordingly. Surrogate of Rensselaer The in the petition of A B. 89. county Esq. Dated. be suchguardian. that your petitioner is entitled to certain property and estate. a minor over fourteen years of county of Rensselaer aforesaid. in no way related to your petitioner). it is necessary that some proper person should be appointed the guardian of his person and estate during his minority. respectfully : shows That your petitioner is a resident of the county is of Rensselaer.. 14 To Moses Warren. the maternal uncle of your petitioner to (or. Tour peti- tioner therefore nominates. And your petitioner. of the town of Lansingburgh. No. &c. April 15th. and that to protect and preserve the legal rights of your petitioner. A B. . and age . 313 FOEMS IN RELATION TO GUARDIANS AND WARDS. PETITION FOR GUARDIAN OF MINOR OVER YEARS OF AGE.

1862. of the town of Lansingburgh. consent to be appointed the guardian of the person and estate of the above named minor. Affidavit as to Property Rensselaer county. is being duly sworn.: . Rensselaer county. that the value of the personal estate of said minor does not exceed the sum of five hundred dollars. is true. to he Appointed. Sworn before me. during his minority. Dated. Consent of 'Person I. the foregoing petitioner.) and {hat the annual rents and profits of the . and knows to the the contents thereof. which does not exceed in value the sum of hun- dred dollars. says that he has read the forgoing petition. says that he acquainted with the property and estate of the above that the named minor five same consists of personal property only. this day of .} Chas. Lansing. and that the same best of his knowledge and belief. ss : A B. being duly sworn. in said county. ss E F. C D of the town of Lansingburgh. AB. 314 EXECUTOR'S AND ADMINISTBATOR'S GUIDE. Justice of the Peace. (that the same consists of real and personal estate. April 15. J.1862. CD.. .

Chas. Justice of the Peace. and and on reading and filing the consent of said said to be so appointed: And the . etc. OKDERS FOR LETTERS OF GUARDIANSHIP. before me. over the age of fourteen years and under the age of twenty-one. a minor. At. J. fifty dollars. reading and filing the petition of A B. In the matter of the person and estate of A On B. real estate of said minor. of the it town of appears. i Lansing. Present — Hon . is possessed of cer- and asking for the appointment of as the guEtrdian of his person estate . that the said in said county. and has no testamentary guardian and tain property. \ 1862. EF. No. Sworn this 15th day of April. 315 do not exceed the sum of or thereabouts. from which AB is a minor. 90. Surrogate.APPENDIX — FORMS.

Surrogate of the county : The petition of Sarah Dean. and that he seized of certain real estate. that said minor is entitled to personal property hundred dollars. filed having Ms bond in due form of law to said minor with a penalty and sureties approved by the surrogate.. and that letters of guardianship issue accordingly. and is under fourteen years of age . of the eity of Troy. Surrogate.. It is ordered that said be appointed the guardian of the person and estate of said minor until he shall arrive at the age of twenty-one years. respectfully showeth that your petitioner is the mother of James Dean. . BY MOTHER. . in the county of Eensselaer. MINOR UNDER FOURTEEN YEARS. To of } Esq. that said James last was ten years of age on the 14th day of to the value of about four August past . 316 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 91. and to protect it is and to preserve the legal rights of said minor. a imnor that said minor resides in the county of Rensselaer. No. the annual rents and profits whereof do not exceed the sum of fifty dollars. as your petitioner is also is informed and verily believes. PETITION FOE GUARDIAN. necessary that some proper person should be duly appointed the guardian of his person and estate.

as she is informed and verily believes. Dated. A. shall arrive at the age of fourteen and until another guardian shall be appointed. I. county of Rens- selaer. A. this 15th \ J day of April. this 15th day of April. until years. D. therefore. D. Moses "Warkbn. Surrogate. 317 you will ap- Your point petitioner. being duly sworn. 1862. Sakah Dean. State of New York. Sarah Dean. the guardian of the person and estate of said minor. Consent. John Dean. John Dean of the city of Troy. Sworn before me. "I Rensselaer county. A. prays that John Dean of the he city of Troy. . 1862. named minor Dated. in the county of Rensselaer.APPENDIX — FORMS. that the matters set fprth in the foregoing petition are true. > Sarah Dean of the city of Troy. 1862. the above petitioner. D. do hereby consent to be appointedthe guardian of the person and estate of the above diiring his minority. And your petitioner will ever pray. this 15th day of April. deposes and says.

PETITION FOR GUAEDIAN. as the case may be) of James Dean. and is his maternal aunt.. Your point petitioner. that the said minor resides in the county of age. as appears by the affidavits hereunto annexed). therfefore. the annual rents profits and whereof do not exceed the sum of dollars (if the statements are not according to the per- sonal knowledge of the petitioner say. this state. a minor. of respect- in the county of shows : That your petitioner is the maternal uncle (or the friend. No. and was and is under fourteen years of years of age on the last past. that the in minors his . it is necessary that some proper person should be duly appointed the guardian of his person and estate. and to protect the legal rights of said minor. BY RELATIVE. 92. as day is of your petitioner relatives of said in- formed and believes. prays that you will ap- of the of . that said minor entitled to personal property of the value of about dollars. and age. NOT ENTITLED. and that he is also seized of certain real estate in. said county of are his brother of full mother.318 EXECUTOR'S AND ADMINISTEATOR'S GUIDE. Surrogate of the county : The fully peitjton of of the . To of jEsq.

as to those matters he believes it to be true. as guard- and it appearing therefrom that . In the matter of . AND lOR NOTICE. and until another guardian shall be appointed. and. No. affidavits as to property if necessary. Surrogate. in the county of 319 the guardian of the person and estate of said minor.: APPENDIX — FORMS. Sworn. On reading and filing the petition of . this day of (Signed). etc. Present — Hon . Add and Consent of Ouardian-io be appointed as in No. 91. by him subscribed. At. (Signed). praying for the appointment of ian of said minor. Dated. etc. says that the foreis going petition. 88 . except as to the matters which are therein stated on information and belief. . OKDER FIXING HEAEING. 93. . 1872. a minor. true of his own knowledge. until he shall arrive at the age of fourteen years. county. being duly sworn.

. Surrogate's court. To . A. No. and of said minor.M. (Signed). . of the time and place of such hearing. . mother. . are relatives of said minor. that the day of . . the at ten o'clock in the forenoon. Petitioner. NOTICE OF HEAKING TO EELATIVES. be assigned for hearing the said office in matter at the surrogate's of . Surrogate. at his office in as the time and place of hearing the said matter. that a petition has been presented to . a minor. resident in this county : ordered. the surrogate of the county of for the appointment of . .320 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. a guardian of the person and estate of said minor. Take notice. and that at least six days' notice in writing. In the matter county. 94. be given by said petitioner to said relatives. has assigned the . and that the said surrogate day of . at ten o'clock. and -. (Signed)..

and the . OKDER FOR APPOINTMENT.. and it appearing that certain relatives of said minor reside in said county . years. to be so appointed. In the matter of . said having filed his bond to said minor with a penalty. now on reading and filing proof of the due service of notice of the hearing in this matter. until he shall arrive at the age of fourteen 21 . and none of them appearing . A petition of of of the above . 95. At. Present — Hon . Ordered. etc. on and such relatives. Surrogate. that said . be ap- pointed the guardian of the person and estate of said minor. appearing. . accompanied with the consent of . 321 No. condition and sureties approved by the surrogate. and the surrogate being satisfied of the propriety of the application).APPENDIX — FORMS. deceased. (or. having been heretofore presented to the surrogate. he shall arrive at the age of fourteen shall and until another guardian be appointed. asking for the appointment as guardian of the person until and estate named minor.

BOND OP GUAKDIAN. according to law. to which payment well and jointly truly to be made. John Dean. are held and firmly city of Troy. "1 Sealed with our this 15th and dated day of April. and of his guardianship. above boundea John Dean. afore- bound unto James Dean of the said. executors and administrators. J The condition of this obligation is such. shall in all things. 96. and severally.. and until another guardian shall issue. his certain dollars. and of the application thereof.822' EXECUTOR'S AND ADMINISTRATOR'S GUIDE. a minor. to be paid to the said attorney. we bind ourselves. and and true account of all moneys and in all respects. be appointed and that an appointment . that we. Know in all ' men by Stiles these presents. by these presents. in the sum of two thousand five hundred James Dean. executors. years. discharge-the duties of a guardian to the above named James Dean. Surrogate. that if the faithfully. Samuel and John Dae. when thereunto . administrators or assigns. shall render a just a minor. firmly seals. to property received by him. any re- court having cognizance thereof. 1862. our and each of our heirs. No. of the city of Troy the county of Rensselaer.

John L. \ J day of April. and severally ac- knowledged that they executed the same. Justice of the Peace.] Samuel Stiles. John L. John Dean. . 1862. or liabilities incurred by him. 323 quired. depose and say. Rensselaer county. 1862. Samuel Stiles and John and Doe. ss Samuel Stiles and John Doe of the city of Troy in said county. State of ISTew York.. Indorsed. and each for himself says. Sealed and. On this 15th day of April. [l. s. Stiles. [l. Samuel Sworn before me this 15th John Dob. delivered in presence of Moses "Warren. that he is worth the sum of two thousand five hundred dollars. to me known who executed the to be the persons described in foregoing bond. s. s.J John Dob. ' 1 Vss: J Eensselaer County.: APPENDIX — FORMS.] [l. before me per- sonally appeared John Dean. Justice of the Peace. then this obligation to be void. Flagg. Surrogate.' otherwise to remain in full force and virtue. being severally sworn. Approved. . Flagg. over and above all debts due from.

Troy.. bond and mortgage. $350 00 * of C D. interest one year. 1861. 310 50 Ten shares Central Rail Road stock par value $1000. 214 00 R. bond and mortgage.50. 830 00 lot ISo. $14. 164 Fulton at. Dr. valued 800 00 2. a minor. at. 97. John La Fountain. Eensselaer county In the matter of : A B. $300. Thompson. executor. INVBNTOKY. House and street. ETC. interest sixmonths $10.000 00 Farm in Sand Lake valued $4. Inventory. $200.. D. No. deceased.324 EXCEUTOE'S AND ADMINISTRATOE'S GUIDE.504 50 . A just and true inventory of the estate and effects of the above named minor on the 1st day of April. GUAKDIANS' ANNUAL ACCOUNT. actually worth. AND Surrogate's court. 1862: Cash received of etc.

.K. 325 Account.. in Sand Lake. Cr. 26 weeks at $2.. 30 00 rent To 3 quarters' house. April 10. ' J K. a minor. Dr.. board paid 26 weeksi H.. 180 00 March 1. Feb.... $14 00 Oct. To interest on Thomp21 00 son mortgage.. By clothing purchased of J. To dividend Central Rail Eoad. 1861... 10 00 9. Oct. H. 3 per cent... By board paid J. $129 50 .. 50 J. guardian. April To interest on La Fountain mortgage. 52 00 15 00 10. 200 00 $445 00 Contra. $52 00 July 1. 1. N.... clothing of J. 1. Carried forward. 1. F. 1. 164 Fourth street. 1862. 1861. in account with A B. To 1 years' rent farm.APPENDIX — FORMS.. By By By hats purchased of G.

Feb. uninvested 6 months. $129 50 By repairs 'So. says that the above real is a just and true inventory of the whole estate and personal and effects of the above named and minor. of the city of Troy.. 12 00 taxes farm in Sand 22 00 Lake. 1861.. and of the manner and nature of such invest- ment. April 1. K. 164 8 60 Fourth 1862. By By taxes 164 Fourth street. 11 12 Commission on paying out income 2| per cent on 195. and a just and true account of his guardianship. 10. Brought forward.37.. ss J. 1. and also his expenditures on account of the said . 12 25 Commission for receiv- ing income 2 J percent on $445. By interest on |350.: 326 EXECUTOR'S AND ADMINISTEATOR'S GtTIDE. street. 3 87 Balance due estate. of the amount of property received by and remaining in his hands. being duly sworn.. 234 64 $445 00 Rensselaer county. so far as the same have come to his knowledge. invested by him on account of the said minor. Oct.

by reason of habitual intem(or.: .... 1862. minor and this court). use of alcoholic liquors. Surrogate. a relative of said minor) . perance in the.. To the Surrogate of The petition of the county of : of the of respectfully shows day of That on or about the 187. as aforesaid. M. said that the has wasted and continues to waste. 98. entered upon his trust and assumed control of the person and estate of said minor. W. the said has become incompetent and an unsuitable person to perform the duties of such guardian.*. And your petitioner further shows that since his ap. that the said surrogate of said county. and misapply the estate of said minors. No. (since his last annual account to J K. PETITION TO KEMOVE A GUARDIAN. or other cause) that your petitioner is one of the sureties of said as such guardian (or. pointment. APPENDIX — FORMS. this Sworn before me. one was duly appointed by the a minor. the guardian of the person and estate of . 327 his estate. 2d ) i day of April..

. ... and that a citation issue to the said to the end that he maybe 1872... Dated. being duly sworn No. In the matter of the person and estate of . etc : Present — Hon . county ss: etc.328 BXECUTOE'S AND ADMINISTRATOR'S GUIDE. OKDBE FOE CITATION THEKEIN. 99.^ . Surrogate. has become incompefor his tent by reason of intemperance and praying Ordered that a requiring removal. On reading and filing the petition of .. his Surrogate. one of the sureties of person and estate of the above forth that. re- moved as such guardian this and his appointment revoked. prays that an examination may be had in the premises.. a minor.. At a Surrogate's court. the said the guardian of the setting named minor. citation issue to the said him to appear in this court to show cause why he should not be removed from guardianship. . . Your petitioner. therefore. . day of (Signed).

At a Surrogate's court. with proof of the due service the guardian of the above the said named minor and ing. returnable this day. In the matter of the person and estate of . Present — Hon . 100. 329 No. a minor.' On filing the citation heretofore issued thereof on in this matter. and that his appointment heretofore made Surrogate. and the surrogate being satisfied. ordered that the said office be removed from the of guardian of the person and estate of said minors. be revoked. . Surrogate.APPENDIX — FORMS. after hearing the proof and allegation of the parties of the truth of the matters stated in the petition of It is in this matter. (or. the said not appear- having appeared. etc. OKDER FOR REVOCATION.

therefore. Add verification. this day of (Signed). Dated. . one was appointed by ian of the person this court the guard- and estate of said minor. PETITION THAT GUAKDIAN GIVE NEW SUEETIES. No. (or has this state . or has became insolvent. . 101. as sureties in his bond filed in this court to said is That your petitioner one of informed and believes that said sureties is becoming. or be removed from his guardianship. that removed. has increased very value since appointment of such guardian). That your petitioner minor. for the reason that the estate of said minor. prays that much in Your your honor will inves- tigate the matter to the end that the said should give further sureties. about the day of 1869. The petition of of the town of respectfully shows: . of said is a relative of a : of That on of . and on such appointment uijiited and with said minor.330 EXECUTOR'S AND ADMINISTBATOR'S GUIDE. 1870. : To the surrogate of the county of. or. . petitioner. or is about to remove from the said sureties are insufficient. as your petitioner is informed and verily believes.

APPENDIX — FORMS. 331 No. Present — Hon . . and of estate On reading and filing the petition of . OKPEK FOR CITATION TO GIVE FURTHER SURETIES. At a Surrogate's court. is about to . remove from this Ordered requiring that a citation issue to the said him show cause why he should not give further sureties. . in behalf of said minor. held. or be removed from to appear in this court. one of the sureties of said minor. to his guardianship. etc. In tlie matter of the person. Surrogate. 102. . ETC. setting forth that . the guardian of state. Surrogate.

and the said . with due proof of the service thereof on said .. No. approved by the surrogate. a minor. Present— Hon . it appearing that one of his sureties has . Surrogate. . removed from this state. that said give further sureties... 103. and . Surrogate. . At a Surrogate's court. In the matter of the person and estate of . having appeared. Ordered. to said minor vrithin days from this date.. OKDEE FOE ADDITIONAL SUEETIES. . in a bond in the penalty of $ . the guardian of the person and estate of said minor.332 EXECUTOR'S AND ADMINISTEATOB'S GUIDE. etc.. On the return of the citation issued to .

. OKDEK REMOVIN& GUAEDIAN. be removed from his issue and that a revocation under the seal of this court. day of . . Surrogate. At a Surrogate's court. 333 No. having neglected to give such further Ordered. .1872) and the said sureties. FOR NEGLECT TO GIVE SURETIES. etc. In the matter of the person and estate of An order having been heretofore made in on the day of . that said trust as such guardian.APPENDIX — FOEfilS. said order days from now on : reading due proof of the service of . requiring the guardian of the person and estate of said minor to give further sureties within that day . Surrogate. 104. of the letters heretofore granted to him. this matter . Present — Hon . on the said on the .

105. PETITION OE GUARDIAN TO BE RESIGN. for the reason that he has re- moved from this state.: 334 EXECUTOR'S AND ADMINISTEATOK'S GUIDE. duly appointed by the surro- gate of said county. other cause) and he prays that he may be permitted to render an account of his proceedings as such guardian. No. the county of .. a minor. 1872. are the next of kin of said minor. residing in this county above the age of fourteen years. as your petitioner verily believes. and . . (or is about to remove. 1868. to the end that a successor may be appointed and your petitioner may be relieved therefrom. . Dated. and has. . That your petitioner is desirous of resigning his trust as such guardian. {Verificaiion). the guardian of the person and estate of . this day of (Signed). on the day of . : of the respectfully shows That heretofore your petioner was. conducted himself honestly in the exe- cution of his trust. ALLOWED TO To the Surrogate of The petition of of . That . or.

) . ORDER APPOINTING SPECIAL GUARDIAN. Surrogate. requiring them to appear and show cause why said should not be at liberty to resign his trust. Present — Hon . having presented his peti- tion to the surrogate. . setting forth that he has con- ducted himself honestly in the execution of his trust. 106. 335 No. the guardian of the person and estate of the above named minor. that a and to his next of kin re- siding in this county. 9 which see. 107. state. In the matter of the person and estate of . (Same as No. At a Surrogate's court. etc. Ordered. . OKDER FOR CITATION THEREON. but has removed from this citation issue to said minor.APPENDIX — FORMS.. Surrogate. a minor. No.

ACCOUNT OF GUARDIAN. petition that executor or adminis- trator account.336 EXECUTOE'S AND ADMINISTEATOR'S GUIDE No. 60. PETITION THAT GUARDIAN RENDER AN ACCOUNT. No. .to or administrator his purpose. 108. see may form answer No. The account of an executor readily be adopted . 109. which may readily be adopted. 64. See form N'o.

deceased. own A B. that she was lawfully married to said A B. : Your petitioner further shows children and heirs of said said premises. Tour petitioner. was seized of an estate of inherit- ance of and in the following lands and premises. No. and lived with as his wife until his death. be the same more or less. BY WIDOW. 337 FORMS IN RELATION TO DOWER. To the Surrogate of the county of Rensselaer The petition of M B. therefore. subject to your petitioner's right of dower. east by lands of Van Hoesen and Joseph Hare. That A B. at the situ- time. and. the 15th day of June. C B. 110.APPENDIX — FORMS. south by lands of Joseph Hare. prays that an order be made for the admeasurement of her dower in said lands 22 . of the town of Schodack. claim to and your petitioner verily believes that they are the owners thereof. ated in the said town of Schodack. respectfully shows : That she is the widow of A B. and west by lands of James Van Voorhies. in his life A B. him late of said town. : in the county of Rensselaer. deceased. bounded and described as follows : On the north by lands of Barent said Van Hoesen. 1860 that the said time of his decease. on . PETITION FOR DOWER. containing one hundred' acres.

1. . the said child and heir of said A B. and having no general guardian. Dated. Schodack. S. says that the foregoing petition.. and premises and that three reputable freeholders maybe appointed for the purpose of making such admeasurement. M. B. true of her by her subscribed. M. 1862. 1862.: 338 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. B. the petitioner above named. is own knowledge. Atttmieyfor Belator. S. she believes it to be true. And she shows that is A B. ss M B. which are therein stated on information and and as to those matters. except as to the matters belief. K. deceased. April E. Rensselaer county. Sworn before me. being duly sworn. a minor under the age of twenty-one years and over fourteen years old. J M. Justice of the Peace. this 1st day I day of April.

^Surrogate. At. 339 No. and .APPENDIX— FORMS. for the sole purpose of appearing for and taking care of the interests of such infants in the proceedings in this matter. . claiming to be the widow of . of the of a discreet and substantial freeholder. 111. Present — Hon . are infants interested in the real estate described in said petition. be appointed guardian for said infants. appearing that heirs- at-law. . late of the town of and having filed her peit tition for the admeasurement of her dower. Surrogate. that . In the matter of the dower of a widow. of said deceased.'. Ordered. etc. ORDEK APPOINTINa GUAEDIAN FOR MINORS. . .

M.340 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. surrogate of the county of Rensselaer. On reading and filing the petition of the above for the named widow. at his office in the city. deceased. 8. April 3. heirs-at-law of B. NOTICE TO HEIES OE OWNEES. E. S. at ten o'clock in the forenoon of that day. that a petition. Attorney for Petitioner. Esq. etc. To C B. late of the town of Schodack. In tie matter of the dower of a widow. Present — Hon . and to all others claiming a freehold in the lands described in the annexed petition. Surrogate. 113.. OEDEE FOE APPOINTMENT OF COMMISSIONEES. Dated. and B. No 112. 1862. and that a motion will be then made that the prayer of the petition be granted.. of which the annexed a copy. At. will be presented to Moses "Warren. on the 25th day of April. praying admeasurement of her . 1862. of Troy. B. A A Take is notice.

EBPORT OF COMMISSIONEES. and proof of the due service of a copy of said petition with notice of the presentation of the same. and . commissaid county of by the surrogate of . late of the . is in the following described land. three respectable and disinterested freeholders. deceased. .APPENDIX— FORMS. for the purpose of making admeasuremeint (Description). In tLe matter of the dower of M. Now on motion of . be and they are hereby appointed commissioners. Surrogate of Rensselaer The undersigned. and E E. that . B. Ordered. Surrogate. 341 dower ia the lands therein described. that . said petitioner the widow of . on the next. of .. No. : Esq. To Moses county "Warren. And it day of further ordered that said commissioners report to this court their) proceedings. C D. attorney for the petitioner. and it appearing by proof is duly taken. 114. sioners appointed A B. and that the said lifetime seized of was in his an estate of inheritance in the lands therein described.

of the town of Schodack. honestly and impartially to discharge the duty and execute the trust reposed in us by said appointment. 5 00 Carried forward. do respectfully report first That having been duly sworn. including our fees. make admeasurement of the dower of late M B. that we have admeasB. and in- cluded within the red The items of the charges of said admeasurement. to 25th day of April. the one-third part bounded and described as follows : (describing by metes and bounds. who did appear at said time and place. and designating the per- manent monuments). being the part designated on the said map. C B. which map and survey is meet. in said county. and situated : town of Schodack. guardian of A B. we met on dis- • said premises on the 30th day of April. tlie Rensselaer. and J H. in above named. widow of A B. And we do in the thereof. to charge the duty and execute the trust aforesaid. by order dated 1862. for her dower ured and allotted to the said said lands M which is and premises. faithfully. so to having first given notice of our intention M B. in the land and premises said described in said order.: 342 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. deceased. $2 per day for each day's service of 8 |8 00 D G. $13 00 . surveyor. letter A. to hereto annexed. 1862. hereto annexed. and a map to be made thereof. Whereupon we caused a survey to be made of the premises. further report. are as follows Two One days' service for each commissioner. by the lines.

bearing date the 25th day of July.J No. one of the executors named is therein. Paid for chain and each. 115. 343 $13 00 one day 2 00 day $15 00 "Witness our hands. A sentence and decree of the County Judge of Eensselaer county. APPEAL FROM DBCEEE OP SUEROGATE. AB. adjudged and decreed that the instrument in writing propounded for probate in this matter by Thomas Sausse. this 12th day of May.^ C D. . county of Rensselaer In the matter of proving the will last and testament of Eugene Bendon. $1 per flag bearers. Brought forward. 1868.: APPENDIX — FORMS. 1871. acting as surrogate. 1862. deceased. I Commissioners. having been pro- nounced and entered in this matter on the 14th day of April. in said county. ordered. late of the city of Troy. the last will and testament of Eugene Bendon. EF.wherebyitwas decided. deceased. Surrogate's court.

deceased. that as principal. Thomas Bendon. July 3d. No. and as of real and personal estate. 1871. to be paid to the said (respondent). lawful money of the United States. heirs-at-law Thomas Bendon and Annie and next of kin to the said Eugene Bendon. BOND ON APPEAL. we Thomas Bendon. we bind ourselves. Annie Kelly. executors and . Dated. proofs and proceedings in the said matter may be transmitted to Supreme Court to the end as shall that such order may be made thereupon be just.344 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. To which payment well and truly to be made. the said Thomas Bendon and Annie Kelly. we. our heirs. in the sum of (not less than one hundred dollars). do hereby appeal from the said sentence or decree to the Supreme the court. feeling aggrieved by the said decree. Know and all men by'th^se presents. as sureties. 116. Kelly. and pray that the pleadings. and whereby the same was admitted to probate and ordered to be recorded as a will of real and personal estate. sucli is valid as a will above named. and Annie Kelly. . are held and firmly bound unto (naming the respondents to the appeal). and we. and of the city of Troy in the county of Eensselaer.

] Annie Kelly. certain paper writing purporting to be the last will and testament of Eugene Bendon. Annie Kelly. .] [L-S. admitting to probate a.] [l. late of the city of Troy. Now if the condition of this obligations is such that the said Thomas Bendon and Axinie efifect. by the Suappeal. have appealed to the Supreme court from the sentence or decree of the County Judge of the county of Bensselaer acting as surrogate of said county. / Whereas the above named Thomas Bendon and Annie Kelly. and dated the third day of July. . otherwise to remain in (Signed). or either of them or their heirs. before me personally came Thomas Bendon. [L-s. administrators. 345 and severally.. in said is county deceased. 18T1. . Rensselaer county. firmly by these Sealed with our seals. ss. jointly presents. shall prosecute this said appeal to acts that shall be and shall pay all adjudged against them. [l. Thomas Bendon. and virtue. T>.1871.s. which said sentence or decree of dated the day .s. "I A.] . executor or administrator. and to me known to be . then this obligation to full force preme court on such be void. Kelly.: APPENDIX — FOEMS. On this day of 1871.

the Society of Vincent De Paul. Thomas Bendon and Annie Kelly Thomss Sausse and Peter Brannan. Vincent's To the Supreme court The petition of appeal of Thomas Bendon and-Annie Kelly. PETITION OF APPEAL TO SUPEEMB COUET.. Surrogate. deceased. appellants in the above entitled cause. as executors of the will of Eugene Bendon. manner of execution. as to form. St. Mary A. Indorsed. by Me- . and the Catholic Male Orphan Asylum. Caroline O'SuUiTan. the Troy Orphan Asylum. I approve of the within bond. and who executed the foregoing instrument. the same person described in. and severally acknowledged that they executed the sanae. Catharine Kean. St.: 346 EXECUTOK'S AND ADMINISTRATOR'S GUIDE. . of Troy. Anna Brennan. No. and the sufficiency of the sureties therein.. Bernard Kean. (Signed).. Female Orphan Asylum. Maria Nugent. 117. (Signed). Justice of the Peace. McGovern.. Supreme Court. .

made and entered is a decree in the matter aforesaid.. . and ordering that the same be admitted to probate. deceased. that said paper writing. deceased. Thomas Sausse. acting surrogate. Esq. aged seventy-two years and upwards. Clellan 34 7 shows & Lansing. Smith Strait. respectfully to this court That the said appellants are heirs-at-law and next of kin of Eugene Bendon. the day of . deceased . named as one of the executors of the paper writing hereinafter mentioned. being. bearing date the 25th day of July. 1868 That the appellants. APPENDIX — FORMS. 1870. produced before the surrogate of the county of Rensselaer. and on the 22d day of September. so propounded as aforesaid will the last and testament of said Eugene Bendon. . your petitioners. 1871. a certain paper writing purporting to be the last will and testament of the said Eugene Ben- don.: . That the said Eugene Bendon died at the city of Troy on the his death. and each of them. their attorneys. and on the 14th day of April. and be recorded as a will of real and personal estate. in substance. duly appeared before the said surrogate and contested the validity of said alleged will and its ad- mission to proof or probate as aforesaid That the proceedings before the said surrogate were duly continued from time to time.1870. county judge of Rensselaer county. and propounded to for proof as a will of real him and for probate as a will of personal estate. E. . late of the city of Troy. at the time of owner of real and personal property of the value of fifteen thousand dollars and upwards That after the death of the said Eugene Bendon.

the Catholic Male Orphan Asylum. De Paul. and that a hearing may be had on this appeal. judgment and decree of said acting surrogate. Maria ]S"ugent.: 348 EXECUTOE'S AND ADMIN ISTEATOB'S GUIDE. your petitioners. except as aforesaid. of Troy the Troy Orphan Asylum. is errone- and they have. pray that said decision. McGovern. institu- tions. And the appellants. as executors of the will of said deceased. are as follows Catharine Kean. allege that the whole and every part of the said decision. order. Anna Vincent Brennan. and your petitioners may have such further or other relief in the premises as to the court shall seem just and 3. Thomas Bbndon. societies and corporations intended to be ties to made defendants. Bernard Eean. the Society of Saint . further state And that the persons. Caroline E. Mary A. the said appellants. may be reversed and annulled. duly appealed to this honorable court. order. and every part thereof. Thomas Sausse and Peter Brannan. equitable. your petitioners. Bernard Bendon. improper and illegal. in consequence. O'Sullivan. societies and corporations above named may of appeal pursuant to law and the this petition practice of this court. the appellants. judgment and decree (except such portion thereof ous. Saint Vincent Female Orphan Asylum. Annie Kblly. And your petitioners. And your answer petitioners pray that the persons. respondents and par- the said appeal. . as relates to the costs of the respective parties). July 1871. Dated. institutions.

: : APPENDIX — FORMS. ANSWER TO PETITION OF APPEAL. except as to the matters which are therein stated on information and belief. Thomas Bendon and Annie Kelly. and effect in the said petition of appeal set was made by the surrogate of the county of Rensselaer . Troy. know the and that the same is true of their own knowledge. Supreme Court. executors. 1871. No. Appellants. etc. and severally made oath that they had heard read the foregoing petition of appeal and tents thereof. CmCr of Deeds. and as to those matters they believe it to be true. Daniel Dunn. N. 118. before nle personally appeared the above named Annie Kelly and Thomas con- Bendon. Thomas Sausse and Peter Brannan. tenor forth. Y.. Eespond- These respondents in answer to the petition of appeal herein. ss On this 3d day of July. ents. admit that a decree or sentence of the date. 349 Rensselaer county.

therefore. . and that the said petition of may be dismissed by this honorable court. just and These respondents. Attorney for Eespondenis. is And and submit that such decree or sentence equitable. these respondents are advised and believed. with be adjudged to these respondents. costs to John Mokan. pray that the said sentence or decree of the surrogate of the county of Rensselaer appeal may be affirmed.350 EXECDTOE'S AND ADMINISTEATOE'S GUIDE.

when. how served. 150 173 175. form of. legacy for debt. creditors claim presented at not barred 73 98 by executors and administrators. may be contested referred to auditor or referee. contestants to have burden of proof. form allegations on contest. 103 103 106 of real estate contested on final settlement after. of executor or administrator. proceedings on application for. petition for order to. 91 91 91 91 tort liable to. Abatement. cited to render . not subject dower. order for." piety. 173 . proceedings on 133 133 133 of guardians. render. inventory 67 first. for executor or administrator gain or loss. on return of order. form 373 if AccoxTNTiNG. Page. be cited to by surrogate. creditor may apply for sale. 268 370 376 of. " " " " " Account. of executor or administrator. general legacies abate to. order that executor. of. to be filed on final settlement. to.« may 175 177 of guardian may be contested. 174 guardian to guardian file annual. executor or administrator de son special administrator 10 45 73 103 may be ordered shall.INDEX. testamentary trustees may be ordered may have. when dismissed. etc.. isflled. form of. 99 100 100 to.

form of. to observe will. liabilities Of.352 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. acts of in if good faith. with will annexed. form of. penalty of bond. 40 40 48 324 235 338 331 form of. order for. 35 Administrator. how granted. order for. with will annexed. see final seitlmnent. selling real estate considered trustees. time of commencing in favor of estate extended. form of. how granted on estate of non-residents on applying for. bond of. may be required to justify. has no charge of real have no authority out of state to take oath of office 36 36 43 before whom. may be removed for neglect appointed trustees to estate. when all executors renunciation of right petition for. valid. sureties become insolvent. with will annexed. to 44 44 49 49 special. 38 die. 71 73 72 against estate extended. unauthorized power to account to Ajdministratob with Will Annexed. Admbasubement of dower. AccoTTNTnirG. Action. acts of before notice. 49 . and to whom. 37 29 39 39 power of to cease. 234 335 10 10 See Letters of Adminis^ation. petition for. ADMonsTRATiON with will annexed. see Dower. to receive will. to. 10 executor or administrator may have. citation to issue. cannot sell real -estate. 35 35 35 sell real estate. Collector. 35 39. sureties of. valid. etc. may be maintained by executor or administrator against unautliorized persons. petition for revocation of. 43 43 43 to file bond. on annulling of probate.. form of. be revoked on proof of will. another person may be joined. to account after annulling. See letters to. Page. 70 ' in wljat courts may sue and be sued. be proved or acknowledged. granted. Administkatob de son tort. 71.

of revocation of letters to of. not to interfere with estate. 63 64 64 served. letters to be . may have may collect rent accrued before intestates death. 353 Page. . may be summoned to file inventory. Admujistbatob. " 63 63 68 " file " time to may be extended to. if summons to file inventory cannot be after revoked. not accounting.• to retain one to file copy of inventory. duty 66 23 . effect letters may be revoked for cause acts of before revocation valid. 53 53 duty to make inventory may have appraisers appointed See Inventory. to verify inventory filed. INDEX. 50 51. one or more may file inventory. inventory to have sole . " may be may be enjoined cited to show cause. neglecting. new may be appointed after revocation. 51 53 absent or non-resident. 53 53 55 subpoena to discover property. filing where more than one. 66 of. 65 costs. required to give failing to give new sureties. cannot collect rent accrued after intestates death. learning of property not before inventoried. to be inventoried . if sureties remove from insufficient 49 49 49 50 " " . state. . may be charged personally with 65 65 65 65 letters of may be revoked after thirty days imprisonment. summons may be attached. citation to issue. against. 57 57 61 61 claims of intestate. bond of may be prosecuted after revocation liable for acts or omissions when. who may administer oath 63 63 63 to provide sustenance to widow when. to file inventory. sureties citation to issue to. new sureties letters revoked. 50 51. 50 51 51 on application of sureties of effect may be released. sureties of may apply to be released. 65 66 66 66 imprisoned under attachment how discharged. 56. duty of as to sustenance to widow.. are assets. on power.

on credit except in with security. caimot be forced to pay debts in than a year. satisfy mortgage. 69 70. less 77 77 is trustee for creditors. advantages "burden of proof on. 68 68 68 68 mingling estate fund with their own. is liable for not doing so. to intestate. 73 73 73 74 not to seU specific articles unless necessary. 74 74 74 76 76 compromise claim should get order of court. of filing inventory. 70 70 71 71 71 71 71 71 liable to action for trespass of testator. . may he required to deposit funds of estate. may delay sale to to meet market should give notice of vendue. should obtain order to advertise for claims. 78 78 78 doubting justice of claims should may agree to refer claims. neglecting 68 69 money liable for losses. must act on claims personally paying interest._ debtor to estate. Page. one of several may release mortgaged premises. 77 78 may require vouchers with claims affidavit " " reject. several. only for gross or collusive negligence. should collect money not drawing interest. may be charged on final settlement. law but one person. 67 67 68 if inventory is not filed. how settled may retain 73 73 73 73 73 73 73 . should keep estate fund separate. Administratob. 69 may maintain action. admits claims. liable for gain New York selling without security liable for loss. liable for losses. may sell at public or private sale. may sue in aU courts.354 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. cannot purchase at sale purchasiug. are in to. be sued in liable all courts except Justices bound to collect in reasonable time. may treat transfer without consideration as void. for waste of intestate. indebtedness of. one may retain assets from co-administrator. to collect of persons in other slates bound distributive share to satisfy debt cannot sue co-administrator.

bond of may be sued one year before suit to enforce legacies. Administrator. may be cited to pay distributive share 95 ordered to pay distributive share before one year. 96 should invest moneys so as to bear interest. in 97 97 98 98 99 99 what should invest. 88 89 91 94. not to pay taxes assessed after to " pay assessment confirmed at " judgments and decrees and other estate. rent preferred by surrogate cannot revive an outlawed debt. in bar. reserving rebate. 85 86 86 86 87. pay own debt must obtain order. 87 88.81. may pay debts not due. 80 83 82 pays legacies. proceedings to obtain reference.INDEX. Laws. " " " pay should take receipt 85. must swear own claim. " " taxes assessed at decease of intestate. to 83 83 82 82 83 pay debts due under U. not liable to pay intestates debts unless personally liable on his after expii'ation of year own contracts. 87 88 how to obtain order to to his pay his own debt. may pay funeral expenses. and what they judgment against gives no preference. . distribution. 84 85 85 86. debts 83. may be sued for may have bond. 86 may to ' plead in suit that others debts are unpaid his execution cannot issue against except on order. order of payment of debts. debts. 88 cannot compound claims for his own benefit 88 88 buy claims against creditor. pay his own outlawed debt. protected in paying after advertising. S. should offer to refer to save from costs. 78 79 79 79 80 . surrogate will cite to account on application of bail proceeding to procure order to account. order to account how served. 97. after eighteen may be ordered to account months. 88 83 purchase money of real not to pay mortages 83 are. 93 94 96. 355 Page. when after estate abundant may pay debts. may plead six months neglect to sue.

cannot charge commissions on specific bequests. on decree... costs. . etc. 105 105 105 105 inventory pnma/flscie evidence against may dispose inventory.. to be 138 137 three years. petition for sale etc. 108 » where estate is $100. acting as trustee. etc. liable for interest. attorney. to all be verified administrators must join in petition for sale. apply for of real estate. estate funds mixing with Ms own . application for sale etc made within 138 138 139 139 130 133 - file inventory before. Page. whole estate charged commissions how computed contestant of account. to account for gains '.000 or more 109 109 110 110 Ill to be allowed expenses. not to make profit to himself on estate. may be sworn . 105 106 107 to... 100 101 when.. 99 100) 99 may be charged personally with apply for final settlement. 103 account of may be contested. his rate of commission. shall produce vouchers for debts. execution may issue against. Administbatob. 104 allowed items under twenty dollars. 356 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. be allowed claims inventoried as bad where no inventory. may be attaclied. 105 105 cannot charge for services. may have costs cannot receive beyond commissions for services Ill were revoked may be cited decree against may be docketed.. what to contain. contest right of petitioner for account. etc in real estate proceedings. bond ofmay be sued after return" of execution. . may have allowance for losses. whose letters 134 125 135 135 135 136 attachment may issue against proceedings on attachment against. on final settlement. 103 104 may be examined on oath 104 104 104 105. files his account etc. may file release of decree sale. commissions on pay for services may allege what.000. may 107 109. 99 letters revoked. items under twenty dollars to be sworn to. attached and not accounting.

. reckoned as part of estate. 354 255 359 form of. 273 301 303 102 182 119 119 119 . order for same. in real estate proceedings. proceedings by creditor against to effect application against sale. order that he render account. . Advancement. may be required to sell real estate. for final settlement. child advanced to take.. to pay to surrogate. 137 188 may sell real estate in parcels. account. of service of citation may be made. order for citation to. 150 151 151 form of. of. for of. exer. Admission. 139 139 139 may give shall make report of sale. . petition to compel order for 227 flliog of inventory by. 249 summons to file inventory. may be made after three years. form of. 144 144 144 144 145 145 deliver securities to surrogate. does not revive claims outlawed. petition for assignment of bond of. 264 270 271 '. form of. credit. 147 150 150 may be required to show cause why he should not sell &c. 357 Page. may be attached for neglect " bond may be sued " compensations of on sale of real estate. ADMrNiBTRATOB. shall not be interested in purchase. moneys after sale. or sale lease of real estate 136 137 neglecting to give. to give bond before mortgage. oppose. form of. order to show cause. form of.. form of. oath of office of. revocation of letters . form of. how served on. should notify creditors. of. petition of. form of. proceedings not to abate may be reimbursed from proceeds ot real estate. for leave to prove debt. INDEX. form of. petition of. form order for revocation of letters for not inventory. of. dying before sale &c. freeholder may be appointed. form filing" attachment against. . or admr.after account. 226 bond of^form of. 350 252 253 order for commitment not filing inventory. if not equal to share. any person may 182 133 in real estate proceedings. . to be accounted for on distribution.. form of. . form of.

real estate of. form of. form of. Page. Appkaisbbs. form of.. valid. from order removing guardian. form of. of. if exceeding share. form to contest account. petition of. Allowances. not to apply when ^eal estate is devised. account. 55 . 333 376 form of. 119 130 release of distributive share on. file 130 81 of intention to filed objections to issue of letters may be 30 313 of intention to object to issue of letters. Advancement. maiutaining a child educating a child is is 130 130 not provisions as to.358 EXECUTOR'S AND ADMINISTRATOR'S GUIDE.a year. on inventory. Affidavit to be made of service of citation. from order requiring new sureties may be had to Supreme Court from order fixing dower. 348 358 374 13 .. not. filed 184 184 within . Allegations against validity of will may be to contest probate. 180 195 343 344 346 349 844 53 53 may be 53 who should be appointed. Alien. appointed as occasion requires. bond on. two to be appointed to take inventory.. 38 331 order for citation on. 54 mode of proceeding. form of. answer to petition as. 53 53 53 54 54 surrogate usually consults parties as to to be disinterested. to be sworn adjourn or adm'r. form of. form of. may be made for expenditures. Appraisal. non-resident. see Iniientory. entitled to entitled to dower dower when. child excluded. to exhibit property to may ex'r. cannot devise may make will of personal property 13 13 not inhabitant of state cannot be executor. to fix value of personal estate. form annex to claim. form to be indorsed to of. 41 widow widow of. not entitled to administer. 104 105 39 179 losses Appeal may be had from decision on rehearing of proof. from decree.

to be executed with two sureties. on sale of real estate may be sued. 4 settlement. to inventory claims against executor or administrator. to give. Bond. 164 164 164 may be prosecuted. to be given to on payment of legacy or distribution when. 227 . be given on payment of legacy before one year. execution of to be proved. to give husband on taking letters. neglecting to set apart. guardian to give terms of guardian to be filed. petition for. may issue to enforce decree how issued and executed. executor may be required if executor neglect to give. of administrator form of. AuDiTOE. of administrator to be filed. 98 34 34 39 43 See Seeurity. of bond. 103 may apply for order that administrator account. form of. others may be appointed. 301 Attachment may issue against special administrator 45 may issue against executor or administrator for not filing inventory. of executor or administratives may be prosecuted after revocation. Appeaisees. form of. 59. 359 Page. 244 fortn of. may be directed to set apart to widow to state their judgment of claims.. letters superseded. issue.. distributive share before 94 97 97 one 144 145 163 year. 43 43 44 65 . to set apart articles to widow or children. 64 or order. of. penalty of. 58 60 60 60 61 61 order for. demand to 125 126 126 126 126 be made before issue copy of decree to be served before to issue on petition verified. freeholder appointed. may be appointed on final Bail. have discretion only as to what shall be set apart. . Assignment. to give. against executor or administrator for not filing inventory. 253 Attestation clause not necessary. INDEX. .

179 181 on petition of guardian to resign. creates lien on real estate. 50. on attorney general when. served by mail 20.. on return on adjournment when. 17 17 38 115 19. 49 . when published. 135 execution may issue on. how to guardian served. 33 33 33 new to issue if first not served. 39. when.. of. 50 how served. 19 31 31 i proof of service. . of. form of. 18 19 whom directed. of. . Bttkial. of decree. Bond. form of. when. form 301 order assigning. proceedings on return 182 of. 180. on application to be served for administration 38 38 39 43 43 49 how served. form 303 . Bkoteees. petition for assignment of. on return of proceedings. on payment of legacy. issue to minor. form of. ' proceedings as on complaint for removal. executor 31 33 executor may have expenses on service may employ persons to serve. may on be filed in clerk's office.51. on sale of real estate. 366 381 of. 38 38 allegations terms of. 303 an appeal. 135 form CHiLDRBir. how returnable after service executor to suspend. See Funeral Cebtificatb to be attached to will 36 135 «. rights of in surplus of estate Citation to attend pbobatb to to issue. of. filing. filing allegations against shall issue on wUl. 397 heirs. order for onproof of wUl. heirs or next of kin 344 17 38 11 when entitled to administration. 178 . next of kin. executor or administrator to give new sureties. 43. how served. form of. 50.360 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. eteperises. how served. when entitled to administration. expense preferred 'claim.

may be proved in real estate proceedings proved to be entered by surrogate. in paying.. 304 of. need not be sworn to unless required once admitted need not be again. contest probate. if interest be paid on. etc. Citation. . to compromise executor or administrator should get order. 340 361 order for. see debts. aifidavit with.. order to advertise form of. reject. to be advertised for. must be presented personally. may be presented by letter... widow. retained to pay. form of.. form of. form affidavit to 257 358 259 annex to. must show what to surrogate. presented. 303 proof of service of.. . 61 68 advertising for. against estate. form of. allowed on final settlement directed paid. form of. form of. Claims. agreement to refer. . form to widow. 83. form 314 319 333 233 on petition of. may be contested in real estate proceedings. 147 147 may be contested.. form of. form of. prosecuted. creditor may present on distribution. 78 83 order of preference. proceedings for reference of. barred unless prosecuted in six months. 78 rejected. to attend proof of will. power -to admit or reject cannot be delegated. . equal to admission 74 75 76 76 77 77 76 76 77 77 78 78 78 may be .. to administrator to 333 339 letters show cause why should not be revoked. notice to creditors to present. on final settlement. on to filing allegations to form of. 361 Page.. for... executor or administrator may require vouchers with. for removal. 257 of. INDEX. order for on objections to issue of letters.. 79. 104 113 133 133 133 sum may be legality of. 61 are assets. of deceased against executor or administrator to be inventoried. form to executor of. etc... form of. order for.

annually. 191 193 192 how to proceed. duty. OOLLBCTOB. rate of allowance of. unauthorized person to be appointed when. 44 44 44 may maintain action. liability. Commissions. Claims. form all of. may have time enlarged report of may be set aside. for not filing inventory. 110 executor acting as trustee what he may have 110 Ill not chargeable on legacies. rate of. to take proof may issue pay for services. 108 attachment on. to make report. 46 46 46 47 47 330 petition for. of surrogate. form of. 110 138 176 ofguardians allowed on annual income. only collection and preservation. 7^ must give bond. to be appointed only on notice not to sell property except by order. notice of application for to be given liable for interest. 253 253 35 105 109. 359 199 199 10 Collection of estate. form of. new may be appointed. Commitment. income only. short rule for computing. CoMMissiONBKS TO Admbasurb Dower. 176 177 to be sworn.362 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. of. petition of executor for payment Codicil. form of. order for. form of. may report admeasurement not practicable order confirming report of may be appealed from 193 193 193 193 193 194 195 . 45 46 must deposit moneys shall not draw money without order. may sell under direction conditions of bond sureties of. 44 44 45 45 45 47. of. may be ordered to deliver and account. . how to report may employ surveyor. not allowed on specific bequests. to take oath of office to account to. of testamentary trustees.

sale. must present claims sonally. may prosecute claims executor or administrator may require vouchers from. applying entitled. Complaint may be made against executor that executor is see Oommiasions. 38 in administration. interest of deceased in. cannot act as executor. of special guardian on proof of wUl. to executors or administrators per- need not swear to claims unless required. money from Convict. 206 151 Contract. 363 Page- Compensation of executor and administrator. executor's circumstances are pnecarious. . .. . affidavit from may collect claims of heirs.. may petition for return of inventory.. Costs of admeasurement of dower had paid. 83 order of preference in payment of. benefit of order to authorize. presenting claims at first accounting not barred. entitled to administration with will annexed 33 88 when first entitled to administration. 163 . Conveyance to be made on sale of real estate.- of. 154.. have third person joined in administration not '. 158 proceedings on „ bond to be taken of purchaser sale of 154 155 196 141 141 bond distributed. not entitled to administer 13 41 16 Ckbditob. state. form 41 163. be sold to pay debts. &c 80 83. about to remove from batli. INDEX. proceeding on against executor slibuld be on 33 34 68 74 75 75 re- CoMPBOMiSES by executors or administrators to authorize executor or administrator. should get order. 64 73 73 76 77 77 77 88 statute of limitations extended in favor of. may of. 108 33 38 incompetent. protects executor or administrator. vocable of guardian to be given. made under Consent to order. may apply for probate. preferred to County Treasurer 39 39 public administrator preferrd in New York city. 33 33 33 executor lias is removed fi'om state. requisites of.

of. form 268 of. duty of executors 7 11 Debts for funeral charges preferred. with additional of involved firm. when allowed on settlement. Ceopb. 150 150 257 263 367 notice to present claims. Page. of. 83 first prosecutes survivor. payment of may be enforced by surrogate. on learning. how cited to attend final settlement. Ckeditok. widow Death. . 112 for 147 147 may be contested. ^3. one not preferred above another of same class due not preferred above those not dne. 85 86. 83 judgments. petitioti of. County Trbasukbr. payment on final settlement. when entitled to administration. petitionof for payment of debt. form receipt of. form 304 195 110 widow may bequeath. 83 83 83 83 " " other claims not preferred. for sale of real estate. 364" EXBCtTTOR'S AND ADMINISTRATOR'S GUIDE. for accounting. form of. decrees. may contest account of executor or administrator.82 82 83 . 85 85 85 judgment against executor or administrator gives no preference may be paid granting rebate for rents may be preferred by surrogate when estate abundant may be paid without delay. of testator. of. mortgages not to be paid as. 85 89 95 96 104 vouchers for payment of to be filed. 39 169 187 187 1 Damages. entitled to preference. order of preference in paying due United taxes. " " " " " " assessments. may apply for order for mortgage. may present claim on distribution have decree claim of. CoiTNSBL FEE. may have executor or administrator account.. 98 103 103 113. proceedings on application. measure will takes effect upon. entitled to for withholding of dower. form of. how to present 38 84. lease or sale. security. . States. petition of. guardian suffering waste liable to treble. not due proceeding for enforcement.

. points settled by. conclusive only as to points stated in decree. Decree. of dower. form of. certificate of. may be witheld to satisfy debt to intestate. order to advertise form of. 137 DiscHAKGE. . 364 365 857 86. to be filed and docketed. Descent of real property Dbscenbants. 138 133 133 133 may be contested in real estate proceedings. for final settlement. real estate to pay. form of. may be made within twenty years. of. against guardian. etc. 134 when enforced. certificate to be docketed. form 377 380 197 398 343 391 form of. returned unsatisfied bond to be sued attachment may issue to enforce. 108 133 133 133 135. 135 137 177 how discharged. in real estate proceedings. 96. may be appealed from. form of. . &c. . on sale of real estate for debts. 73 DiSTKiBTJTiVB SHABB. 93 payment how enforced after six months.. how effected 380 form of. form of. execution on. . by suit. form of. Deed. 13 DiSABiLiTT to act as executor.. 119 14. enrolled against deceased. form of. release of. proceedings to legality of sell. Demand. 94. to take. 95 96 . form of. Dbposition. how discharged. 97. how removed. 135 135 135 execution to issue on. what do not authorize not due to suffer rebate to sale of real estate 134 147 be paid by surrogate from proceeds of real estate. persons served with citation. on proof of will. creditor for 147 359 payment of. preferred debt. before expiration of year. may be proved proved. 365 Page. of decree. 88 fixes commissions and distribution of surrogate. of. form of.' begotten before decease. 363 order for citation on petition for payment petition for payment of before for. . form of.INDEX. appeal from. petition of executor for leave to prove. 187 309 17 115. six months. how collected of. distribution among.. Debts. to be entered by surrogate.

114 share of widow on children on. widow entitled to damages. lands. may be made of uncollected assets. 113 117.. .. widow does not vest in certain cases against mortgage for purchase money. guardian may DiSTBiBUTiON of personal property fixed collect. among creditors &c. 147 of proceeds of sale of real estate. 34 may intervene on probate. who alien entitled to. 186 186 186 widow to have one year to act. 146 how admeasured 184 what is. petition to Supreme Court. DiSTRTBUTrvB Shaee. when. 119 descendants born after death of intestate to take.366 EXECUTOR'S AND ADMINISTRATOR'S aUIDE. relatives of half blood take with. rule as to representation. 184 184 184 185 entitled to. Page. petition for not election. Ill 113. where persons same degree. 173 17 113.for/adultery cuts off dower. . 130. 108 by decree on final settlement. 185 JJOWE^ how^ sausned iJl real estate sold. those of whole blood. 115 115 115 entitled are in other next of kin to be equal. per stm-pea and per capita when .. when 37 153 not to be sued for debt of testator within three years DrvQiiCE.. 119 130 of estates of married women. 17 Dbvtsbes distinguished from heirs at law. on may be bequeathed may be admeasured by action. /. testamentary provision bars. cut off by j oining in conveyance jointure. 117 117 117 118 to be apportioned per gtirpes where degrees are unequal. 186 186 may be demanded within twenty years 187 187 on recovery of. to receive wiU. 119 advancements to be accounted for on.. crop 187 187 187 other courts. . estates of intestates. . fixed by decree. 185 185 186 divorce for adultery bars inchoate how cut off. . . ..

. renders incompetent to act as executor incapacitates persons from administering. form of. 3 7 may rellevehimself of trust. form of. 367 Page. 183 admeasured on petition of widow. to &c. proof on admeasurement. 195 195 196 widow costs may occupy. how paid recovering petition of widow for. Ejectment. widow may have to take dower or legacy petition for dower. of admeasurement. proceedings on petition of heirs admeasurement of ordered. 198 may be set aside. against executor. appeal from order confirming report of commissioners. guardians to be appointed for minors heirs or owners may apply for admeasurement. cannot issue against exr. . 188 189 189. . may be modified. discharged from committee may DKUNKBinsfBss. appointment of commissioners. 190 190 190 191 191 191 freeholders appointed to admeasure. widow may have income order fixing income set off instead of. 7 7 7 remain passive file renunciation. time for report report 193 193 193 . INDEX. 188 189. how done. duty of commissioners appointed. 195 admeasurement may be controverted in an action. or admr. if no assetts in hands of executor none can issue. Dktjnkabds. statutory proceedings as to admeasurement. 195 186 186 87 87 87 298 3. report of commissioners. may be enlarged. Election. lease &c. Execution. powers and duties before probate. 14 13 41 41 degree of constituting incapacity. how made. form report of commissioners.. new commissioners may be proceedings 193 if admeasurement be not practlcabl*&c 194 194 194 . 193 appointed.. . ExECUTOB.. 340 341 act as executor. widow may bring for dower. Execution op will. until when no appeal from order allowing. have others appointed. petition for and notice to be served on lieirs or owners. form of. commissioners may employ surveyor. refusing. DowEK. not evidence of. 387 of..

who may infant. to. serve as. 31 31 31 be summoned to qualify. if all renounce. how effected. remaining ones to duty before probate. administrator. in case of renunciation of one. . . 368 EXECUTOR'S ANB ADMINISTRATOR'S GUIDE. 31 may 33 33 33 33 83 33 complaint may be made against. de son tort. serve citation. remove from .. acts of. etc. regulated by statute sball act. not competent. to account. when allegations against will. ' may may renounce. renunciation. 18 32 32 course on learning that proof is contested. administrator with wUl annexed. power of. if all may may employ person to to receive dead orincompetent. with will annexed. in precarious circumstances. be allowed traveling expenses. ExECUTOB. to be. incompetent to contract not competent.. to take cliarge of estate. 12 13 13 " " " " " " convict of infamous crime. Page. liabilities of. .. improvident person. treated. that he is incompetent. deemed to have renounced. 34 37 38 29 wiU on after proof. after annulling of probate. 13 13 13 13 16 drunkard. to be cited.. need not apply for probate. before notice of annulling. 7 8 8 8 8 8 8 10 10 10 13 not dispose of estate. " " alien not inhabitant of state. to cease on annulling of probate. before probate. liabilities of unauthorized person. retract renunciation. that he is about to state. not to interfere. *' " person in precarious circumstances. to if all be appointed incompetent. valid 29 39 30 31 renunciation of. 12 person. whomay act. unauthorized person to account power to make will implies power to appoint. sell to may may sell pay funeral charges perishable articles. not appearing after summons. except to preserve estate. 13.

how served he do not give bonds. letters superseded. bond required. " " time of to file may be extended. cannot collect accrued after testator's death. letters superseded. claims of testator against. 63 68 to verify inventory filed who may duty of. widow. may have may subpoena to discover property. complaint state. 56 collect rent accrued before testators death..INDEX. may be made that he has removed from 33 33 proceedings on complaint against.. are assets. if and administrators. 50 50 50 50 51 51 new sureties. inventory. to be inventoried. effect of revocation of letters to of. 61 61 63. 63 63 63 to file " one copy of inventory. letters revoked. 48 48 49 to issue. " all die' etc. 369 Page. new sureties become insolvent. 51. 51. improvident. not accounting effect letters 53 53 51 may be revoked for cause. absent or non resident. letters to issue.. 49 49 may be enjoined required to give failing to give 50 new sureties. in relation to inventory. citation to issue. sureties remove from state. not released from his to retain own " debt by bequest. 53 may apply for appointment of appraisers. part die. others to act. 57 57. 61 not released by will. rent. incompetent. ExEOtTTOB. . insufBcient.. as to sustenance to to file may be summoned 24 . 63 63 63 64 to provide sustenance to widow when. sureties of may apply to be released on application of sureties citations to issue to. on complaint. administer oath to. required to give security 34 34 34 34 34 34 etc. acts of before revocation valid. . summons if if if to issue to. duty of. 53 55 See inventory. sureties of may be released as to future acts.

cannot purchase at . 71 71 71 liable only for gross or collusive negligence. 370 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. liable for acts or omissions may when. are in satisfy 68 68 mortgage. to collect of solvent persons in other states. imprisoned under attachment. duty advantages of filing inventory. liable for losses. 68 68 losses. should collect moneys not drawing interest.. liable to actions for trespass of testator executor of Uable as testator. must show that he accounts for whole if no inventory filed... letters of may be revoked after thirty days imprisonment. one may retain assets. Page. maintain action. debtor to estate may be charged on may sell at public or private sale. neglecting to collect money. not to interfere with estate. may retain legacy to satisfy debt 72 72 final settlement cannot sue co-executor. learning of property not before inventoried. how discharged one or more may make inventory . of. if after summons. 67 if inventory is filed. exr. loss. may be attached to file 64 65 65 65 65 66 66 66 66 66 summons inventory cannot be served. letters to be revoked. bond of may be prosecuted after revocation. ExBCUTOB. 67 law but one person one of several may release mortgaged premises several. from co should keep estate fund separate. 67 67 is burden of proof on executor if inventory is not filed. with security selling without security liable for sale. burden of proof on contestants. mingling estate fund with their own. 73 73 73 73 73 73 on credit except in New York. neglecting to file inventory. 70 '71 71 71 may sue in all courts all be sued in courts except justices bound bonnd to collect in reasonable time or liable. treat transfers 69 70 without consideration as void. liable for 68 68 68 may be required to deposit fund of estate. be charged personally with costs. sell m another state can may property in this state 69 69 69 70.

should 78 78 78 may agree to refer claims . own 88. . neglect to sue. after expiration of 80 81. with claims. must is on claims personally. protested in paying. 83 83 not to pay mortgages. 83 83 83. 86. . should give notice of vendue. may require vouchers affidavit. not to liable for gain. 84 85 85 85 judgment against. pay purchase money of funeral expenses. must obtain order. after advertising not liable to pay testator's debts.INDEX. " " " pay should take" receipt. 83 are. except on order. 77 77 77 77 78 78 reject. to save from costs. unless. other debts. " " 83 83 assessments confirmed at " " judgments. 371 Page. admits claim. 80 year pays debts. must swear to his own claim. assessed at. " " doubting justice of claim. 79 79 79 may plead six months. should offer to refer. trustee for creditor cannot be forced to pay debts under a year. . personally liable on contracts made by him. act 74 76 76 should obtain order to advertise for claims. should get order of court. pay debt. -. paying interest. his 86 87 87 88 88 execution cannot issue against. rent on order of surrogate. may pay and what they 85. Executor. may pay debts not due. gives no debt preference. to 82 pay taxes. 83 order of paying debts not to pay taxes assessed after decease of testator. in bar. how to obtain order for payment of his debt. proceedings to obtain reference. 74 compromise claim. to 83 real estate. may to plead thatother debts are unpaid. cannot revive an outlawed debt. 86 86 86 87. purchasing. may be sued. reserving rebate. 73 74 74 sell specific articles unless necessary may to delay sale to meet market. . legacies.

. before 93 94 96. 97. 100 101 apply for final settlement. to. sbould take receipt for. . shall produce vouchers for.372 EXECUTOE'S AND ADMINISTRATOR'S GUIDE. 88 88 88 89 may retain buy claims against creditors. may disprove inventory. appearance of interest. debts. 104 104 105. . &c. . services. after one yeai' 91 91 94. on final settlement files his account account of may be objected to. services. may 103 103 104 104 may be examined on oath. . 105 106 may allege what . if petitioner have 100. year. may be delivered by. ExECTJTOK. may be cited to pay legacy. inventory prima facie evidence against. 104 items under twenty dollars to be sworn may have allowance for losses notto make profit on estate 105 105 105 105 105 105 to account for gains. his mixing estate funds with cannot charge for own chargable for interest. 90 90 91 must pay legacies may be compelled to pay legacy bond may be sold. may be allowed items under twenty dollars. order to stand. by surrogate. pay Ms own outlawed debt. when minors proceeding. bond to be given to. commissions are pay for contestant of account of. 89 90. may be attached. 95 96 97 97 98 98 99 99 99 99 may be cited to account after eighteen months. are interested. cannot puKhaee claim for Us own benefit. order to account. when. 99 100 . to enforce legacies. after one year suit. in what should invest. to procure order to account. may pay debts and legacies 89 not to pay legacies within a year or less. attached and not accounting letters revoked may be charged personally with costs may contest right of petitioners for account. 89 when estate is abundant. may take bond. paying legacy within year. legacy to pay debt specific bequests. surrogate may order to pay legacy before one should invest moneys so as to bear interest. may be sued for legacy. how served.

cannot receive beyond commission for services notwithstanding settlement Ill may collect assets. should join in petition for sale &c. 138 138 139 139 inventory before. estate charged. be charged. may issue against on decree. acting as attorney may be allowed costs. within three years. . 132 133 134 . all exrs. 130 133 in real estate proceedings may be sworn. 108 110 110 Ill acting as trustee. 144 144 145 of.000^ or over commissions to be apportioned. were revolted may be cited. 133 133 in real estate proceeding should notify creditors to give bond before mortgage or 136 137 sale of real estate neglecting to give bond. what to show. dying before sale &c. bond of may be sued on return of executins. 137 138 may sell real estate in parcels -. attachment may issue against. where no inventory whole 107 107 109. 144 144 deliver securities to surrogate. proceedings not to abate. 145 may be reimbursed firom proceed of real estate. compensation of on sale of real estate. &c.. 147 .. file 138 application for sale. execution 125 135 135 proceedings on attachment against. 108 commissions. may be bond attached and compelled to pay.. may file release of decree may apply for mortgage lease or sale to petition of for sale &c. may be allowed claims inventoried as bad. . INDEX. whose letters 134 135 decree against maybe docketed. shall not be interested in purchase 139 139 may give shall credit. to pay moneys to surrogate 139 after sale. 136 137 of real estate. freeholder may be appointed. proceedings where one of two is guilty of inisconduct. '... 373 Page. to be verified. may be sued for neglect to pay proceeds of real estate. make report of sale. rate of computation where $100. ExEClTTOR. lease of real estate... any person may oppose.. his rate of commission. cannot charge commission on specific bequests estate is 109 '. 109.

petition for revocation of letters issued on. or next of kin. etc. form of. after qualification. to file inventory. have renounced. form of. ExBCTTTOB. order superseding. executor or administrator may apply for. form of.. form of. form of.. attachment against for not filing inventory. rights of in surplus. 235 17 Father. may be show cause why he should not sell etc. 101 102. form of. be deemed to 320 249 250 351 352 253 354 255 359 364 370 371 373 False Rbpbbsbntations. petition of for final settlement... surrogate Final Settlement. form of. may be charged with his debt 98 by executor and petition for. for not filing inventory.374 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. citation served on. 101 101 what to state. adrninistrator. for leave to prove debt. summons to. form of. form of. when.. . 20 116 158 set apart to of intestate. form of. form of. application against. executor or administrator on. form 215 216 summons to qualify or renounce. order that he render account. heir. order for commitment of. after account may be reqtiired to sell. how served on. may widow. petition that he be summoned to oath of. account. of infant may appoint guardian on. for. order for citation to. order for revocation of letters of.. . petition to compel filing of inventory by.. order for a summons to file inventory. of. required to of.. 60 67 72 contestants have burdenof proof if inventory . 150 150 proceeding by creditor against. when. form of. form of. form of. is filed. citation to.. form of. petition of. real estate. when. 101 citation for. form 200 310 justify or renounce. when published 102 . form of. petition for removal of. form of. how served. 217 217 219 order that. form of. Page. 150 151 151 renunciation. to effect sale. revocation of letters of. form of. on petition for removal. may be made after three years order to show cause. citation to issue for.

112 may of. persons cited citation for. on. fixes commissions. null. by person signing FoKMS. what may allege. prima fcida. New York. . on. form 272 form of. court on.. guardian appointed for minors. 104 104 105. 273 277 3 3 decree on. 112 271 form order for citation to. claims allowed on. 105 105 106 107 contestant on. sum may be retained provisions of will petition for. to be filed on. governed by law and equity. surrogate may direct sale of assets. distribution 107 108 108 108 108 108 and legacies. etc. contestant has burden. whole estate charged. •. may 103 103 subpoenas account in may be issued on.109. be declared of. Final Settlement. may may be examined on oath be made on. course on. hearing on may be adjourned. 108 110 Ill Ill if part commission not allowed on specific bequests. . rate of allowance for commissions. where affidavit to account is full. vouchers for debts. proof closed. on value. for expenditures for expenditures not to exceed $500. evidence of 105 105 executor or administrator may be charged with interest on. executor or administrator to file his account to. 200 201 203 order for citation to heirs and next of kin. 102 103 103 admit service on return of citation. for not affixing residence. to satisfy claim. 197 199 renunciation of executor petition for proof of will. I04 104 executor or administrator allowance . 104 etc. allowed for losses on. .. codicil. 103 powers of referee on. when served by mail. account on of. when. will. may be referred to auditor. 104 inventory. 375 Page.INDEX. charged with gains on. 103 103 104.. on where no inventory. surrogate makes decree. form FoBFEiTTJHB. testator's name. decree on. of estate remains to be distributed. may be made for losses. referee may be appointed.

inventory. oath of administrator. 338 order for administration petition for revocation of letters. citation to widow &c. order that executor be deemed to have renounced.376 FoBMS.^ petition for administration with will annexed 888 380 331 331 appointment of collector. 349 350 order for summons to executor to file inventory . order admitting will to probate for letters testamentary. Page. bond of administrator. notice of appraisement 344 344 345 "348 . order for administration with will annexed. . 310 311 313 313 313 objections to issue of letters testamentary. 340 341 order for revocation of letters appointment of appraisers. 333 333 order for revocation of probate renunciation of widow or next of kin 334 335 336 337 petition for administration. Petition that executor an inventory. application to remove executor.. file . order for citation on filing objections. . or be super- seded order superseding executor. 384 385 889 order for citation on citation to last. proof of will. show cause why letters should not be revoked.. . deposition on proof of will. citation to vfidow &c. ' ^14 315 316 317 317 summons to executor to qualify. . petition for leave to intervene in proof. Order appointing special guardian. aflfidavit to inventory. order for citation to executor to show cause. petition that executor be sumtnoned. oath of executor. EXECUTOE'S AND ADMINISTRATOR'S GUIDE. allegations to contest probate 319 380 331 order for citation on filing allegations. citation to attend. affidavit of intention to file objections. 203 304 306 proof service of citation consent of special guardian. . 306 307 308 309 Order that party may intervene.

affidavit to account. order to order to for show cause. notice to creditors to present claims. 368 370 371 order that executor account. order for citation to attend final settlement.. petition for mortgage &c. . show cause. order for revocation of letters for not filing inventory.. 377 Page. 364 365 366 367 368 payment of debt before bond on payment of legacy.. certificate of decree to be docketed. 263 order for citation. 251 353 353 . 259 361 order for citation on last.' . in gross.vit to 357 258 259 . . order for commitment. summons to executor. afflda. petition for creditor for payment of debt. 294 294 396 297 398 .. real 284 estate. report of sale of real estate order confirming sale. sale of real estate. agreement to refer claim. release for discharge of decree. six months. petition for final settlement. benefit of creditor receipt for legacy. allegations to contest account 374 276 277 280 281 decree on final settlement. INDEX. attachment for not to file inventory.. bond on order for sale of real estate. 384 285 286 287 389 389 appointment of special guardian. . revocation of letters 354 355 357 order to advertise for claims. Forms. on petition for last. filing inventory. execution on surrogate's decree. petition for order to account.. 290 391 deed of real estate notice to widow to elect. of real estate. petition for proof of debt to executor or administrator. annex claims. notice of sale. . 301 order assigning bond. consent of widow to take sum annuity table and rule. 373 373 . executors account. petition for assignment of bond of admr. 303 .

316 318 319 by order fixing hearing. petition for guardian. on petition of creditor.378 PoBMS. vouchers for to be filed. " improvident " be revoked for cause legacy over fifty dollars to be paid to. may be appointed on application of creditor. 153 191 8 11. on letters letters revoked. 84 84 84 what are reasonable. -. infant under fourteen. letters of revoked. 50 51 51 51 letters issued to false representation revoked becoming drunken. 84 85 85.. of infant to take letters. when. special must appear enjoined in person. notice to relatives. surrogate may appoint to give 137 138 139. to give additional security for legacy may 52 92 92 95 may have suit for legacy or distributive share. professional. incompetent to GuABDiAN. infant over fourteen. 14 20 32 24. citation that executor be ordered to sell real estate. 41 maybe 50 required to give failing to give new sureties 50 new sureties. Paige. appointed to admeasure dower. FuNBBAi CHABGBs. where in estate is abundant may include tomb stones. to give bond. order for appointment of guardian. 84 104 act as executor. 138 bond before sale duties of as to sale &c. 145 145 may be appointed to mortgage or sell. . citation served on. EXCUTOR'S AND ADMINISTRAT GUIDE. 23 may not waive any formality. 304 306 307 308 311 order that administrator show cause > other persons for sale show cause. file that executor bond. preferred executor may sell property to pay. Gamblbb. relative 330 to sell real estate. allowed according to station of deceased. some cases may include mourning apparel what are allowed. Fbbbholdbk. sell appointing freeholder to 312 313 315 petition for guardian.

103 131 estate.. by Supreme Court. compelled to account. not to be interested in purchase of real and ward. of ward.. 139 158 158 158 158 may be appointed. 166 168 as to personal estate real estate. may sue for wrongs. to lease real estate. INDEX. . not liable for necessaries furnished ward maybe removed power of. by whom. 168 168 169 to repair real estate. cannot mortgage or 167 167 168 may agree to partition of real estate. father. to attend to nurture of ward. GuABDiAN. 166 166 to collect personal estate. surrogate 158 158 158 159 Supreme Court. stand in place of father. 161 161 161 frhen father is living. 160 160 160 160 160 160 160 161 161 acceptance of trust. continues until majority. idle. appointed by surrogate.. of. powers of. liable to be removed. appointed by surrogate. 379 PBge. may be removed. distributive share to be paid to. 164 165 165 165 166. 164 164 maybe sued on bond. how inferred may be appointed by Supreme Court. may be compelled to account by Supreme Court give security. appointed by Supreme Court. appointed by father to have custody of person and estate. general powers not to suflfer waste.. to be cited on final settlement.. sell real estate. 165 not to permit ward to remain allowed for education and support. answerable to ward. to give bond 163 terms of his bond. consent of mother to appointment necessary powers of. liable 166 166 not leasing real estate.

suffering waste to pay treble damages 169 169 170. allowance to may charge annual commissions 176 176 177 177 annual commission only on income. duty of surrogate to examine. rate of commissions. to expend only income. performing extra" services. 170 170 170 170 duty of. » rate of interest against. . decree against. GuAEDLAN. 169 cannot substitute himself for ward. fuller account may be required of. 174 174 174 174 175 may be cited to account. Page. liability to ward. account. may be 170 171 may get autbority to expend principal. 173 appointed by deed or wiU to account to court to file 173 173 173 173 how annual account and inventory. 177 177 177 177 177 177 account of can be contested. verify account by oath. bound to appointed in another this and ordinary diligence. no authority in this state. wasting estate forremoving. can be discharged complaint may be made for incompetency. citation. commission pay for services. " 178 178 178 178 178 misconduct " " " marriage of woman. citation to show cause. of.380 BXECTJTOR'S AND ADMINISTRATOR'S GUIDE. insolvency. surrogate may remove for neglect to .. compelled to account. annual accounts. ground for removal. no power in another. apply for citation to ward. fidelity. on settlement to make full 175 175 175 176 176 to account for interest. allowed for board of ward. state. may appear with ward without compensation of. receive and collect distributive share of. ground of removal " " intemperance. removed. should file vouchers. as to services. 171 171 171 173 to give security for legacy. how served on.• file.

. petition of infant for.. 153 . INDEX. form special. to be given on application for probate. proceedings thereon. 183 183 189 189 of. form of. petition for new sureties. order for citation form of. order for revocation of letters revocation of letters 330 331 333 333 334 335 336 336 339 order appointing in dower proceedings Habitual dstjnkakds. form of. defined. petition to compel account of. form bond of. account of. form of. 337 334 328 338 339 removal to. of. form of. - to. . 381 Page. proof of testator and of witnesses. account. form of. 332 of. not to be sued for debt of ancestor within three years. form of. form of. 206 306 385 313 315 831 order appointing. order for letters to. . court may appoint in dower proceedings special. form of. 35 16 17 of full age may waive citation.. GuABDiAJSi.. rights of. order for citation to. sureties of becoming insufficient. 181 surrogate for leave to resign. not impaired. for new sureties. order in real estate matters. ma^ petition 181 181 181 183. names &c. of minors entitled to notice in dower proceedings. petition of for leave to resign. of. of. 31 Hbiks. 58 131 . 180 180 .. order for citation on petition of. proceedings on application for leave to resign. order for appointment of. service. form of. 179 new sureties required. Hbies-at-law. annual. form of. form of. form of. new required. new guardian appointed on resignation. . removing guardian. form of. before sale of real estate. and inventory petition for form of.' liable to remove for neglect. See drunha/rds Handwritinq. shall render account. 183 assets may on resign on delivery of property and 183 resignation to take duplicate receipts. consent to be appointed on proof of will. may resign. form of.. form of.

. guardians of. entitled to notice in dower proceedings. distributive 93 sue for legacy share guardian of. may act as executor. when. how cut off. 148 148 149 to be invested. 14 how served with citation. . from real estate. liability of. may have dower admeasured. articles to legacy to. 38 letters to guardian of revoked. constitutes incompetency to act as executor. Hbibs. as administrator. children to take. Illegitimate pebsons. 30 32 28 HI 59. 58 92 93 92 93 93 93 with no guardian. on payment of legacy to guardian duty of surrogatfe. heirs and next of kin of. coming of age. guardian may special guardian. how computed how paid how on served with order on sale of real estate have special guardian.. entitled to administer on estate of wife. in estate of wife Idiots may not make wills.. not waive formality on probate. . 40 130 1 rights of. . guardian to take. entitled to securities dying before of age. how disposed sale of real estate to 132 139 of. ' 18 18 183 13 41 Inchoate dower. . not to have interest in purchase. incapacity to administer. shall give bond. how served with citation. . how served.. moneys due to. securities go to executor or adminisor. . of.. . 382 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. when. p'ound for resigning. 188 190 39 39 Husband. when entitled to administration. trator ^ on coming of age. . may 95 103 103 113 121 131 interested in final settlement.. final settlement special guardian to be appointed interest on on legacy to.. under fifty dollars may be paid to father over fifty dollars paid to guardian. Impbovidbnoe. 20 13 Ignobance constitutes incompetency to act as executor. securities how kept. legacy to be invested by surrogate security to. 41. Illness of guaedian. distributive share of. as to securities taken by him .. cannot act as executor. be set apart to in inventory. Page.. i 186 12 Infant.

of. old. cause for relief of guardian. 165 guardian of. may have benefit guardian capital. power of guardian of appointed by father over fourteen years petition of. citation. 159 . 173 173 173 how compelled to account. 158 160. 170 170 given to expend 171 171 may not expend capital. may apply for guardian. 179 may be renewed. marriage of. for education. . may be sold. 163 165 may choose new guardian.. of transaction of guardian rate of interest against guardian of. Infant. guardian of may be required to file 174 174 175 175 175 175 76 removed for not coming of age. may apply for guardian. of.. 169 responsibility of guardian suffering waste. 1 178. relatiye guardian of. removed. to file annual account. 383 Page. 158 158 160. filing account. . fuller account. to give bond. may cite his guardian. guardians guardians.. of.. 181 may be cited to show cause why guardian should not 181 resign. complaint against guardian. state. no power in another state. be cited of guardian. of. 158 by father by surrogate by Supreme Court. commissions of guardian guardian's sureties of. and rate. . inventory. 161 for guardian what should 163 . authority may be guardian of.. 177 180. under fourteen years.INDEX. may appear with guardian without account of guardian of to be full. etc.. . not liable for resources loan real estate.. 167 167 recover for selling estate of.. 162 163 notice of application to be given.. to be kept by guardian 168 169 170. 177. 166 166 real estate of. . to give security for legacy to collect distributive share of. not to be permitted to live in idleness 165 166.. and removal. guardian to collect personal estate. guardian.. guardian may be appointed for. . 173 173 173 '.

IsrsoLVBNCT of guardian. 189 ^06 " 206 285 order for special guardian for iu real estate matters. citation of authorities in various cases. computed on legacies. InrPAUT. duty of executor and administrator to take. is one who leaves no will.. leases for years to be stated in. guardians to account for. form of. dower proceedings. form of. form of. Interest. Inventory. Page. how. form of. executor or administrator may be required to deposit funds so as to earn. how each to be whatto state.. by relative. ground of removal. how served with citation Incompetency of guardian. interest in term of years. executor or administrator should arrange property. inlands derived for term of years. interest in lands held from year to year estate for life of another person. 55 not necessary always to file. Insanb pessons. petition of for guardian. form of. appraisers to be sworn.55 article to be stated separately. 384 EXECUTOR'S AND ADMmiSTRATOR'S GUIDE. Intestate. 113 rate of. and how. entitled to notice in court will appoint guardian for in consent of special guardian order appointing " " for. ground for removal. 20 177 178 178 Intempebaucb of guardian. should be obtained on moneys in hand executor or administrator to pay interest on estate. 68 97 105 113 170 175 114. two or more may be made. guardian of may resign. form of. 55 55 55 55 55 55 56 value of each article to be stated. 181 182 new guardian appointed guardian of. 313 816 318 petition for guardian for. to be posted notice of appraisement to be served. Intervene. . ground for removal. " " 189 . letters of administration granted on estate of. appraisers may made adjourn. 56. against guardian. dower proceedings. 208 36 36 53 53 54 54 54 54 54 54 56. petition for leave to. before taking. when. form of. for. by mother. 207 order for leave to.

'. 57 57 57 57 59. to be made on discovery of new property.... notes. money and articles to things in action. how enforced. annual... 63 62 one copy surrogate to be retained. appear eta. 56 56 56 56 crops growing. guardian to file 25 .. trade fixtures. stocks. advantages and necessity of. 385 Page. produce raised annually rent accrued to deceased. filing. making and filing of new. fixes prima fade value. partnership property. good and bad. etc. 66 67 . 62 62 may allow more time to oath. 59.58 to contain particular statement of notes. against exeicutor or administrator to be stated in 61 two copies to be made and signed. fact to in. 58 58 60 60 61 61 articles to be set off to widow or minors. may be contradicted... 59. 64 letters may be revoked for not filing. . ' 65 66 66 66 executor or administrator not returning to have full power. how. not to interfere with estate. etc. to state. may be surcharged on final effect of as to settlement. moneys. Inventory. bonds. children in. file. how compelled 64 executor or administrator neglecting to return. to be verified by 62 62 who may return of. .INDEX. after summons may be attached. to included. administer oath. claims of deceased. 106 107 173 value of claims. new 67. be set apart to widow in. filed with surrogate. debts secured to deceased. may be '64 summoned. 67 67 67 105 105 contestants have burden of proof to surcharge it. burden of proof on executor and ad^ ministrator prima fade evidence of value. when more is made. manner of stating to class claims as if no assets.

order for commitment for not 353 253 355 97 attachment for not filing. form of. form form of. form of. form of. suit may be had for. Lease of Real Estate. Legacy.386 EXECUTOR'S AND ADMINISTRATOE'S GUIDE. on filing form of. 91 when under over if fifty dollars may be paid to father. . unless directed by paid within a year.. guardian has power to. 90 terms of bond. of. not to be paid within a year. form of. . . rule as to. 94. bond on payment by guardian. may be withheld to specific satisfy debt of legatee.. may be made bond required on. Lease. how enforced 93. Inventobt. 91 91 ' what is not subject to abatement payment of.. to be paid to surrogate. may be sold. to be filed. 93 93 92 93 94 95 95 fifty dollars to be paid to guardian surrogate. to form of. filing. may be decreed by surrogate. 113 172 366 security to be given for. 138 136 169 281 petition for. petition tliat executor be compelled to form of. see real estate. 90 90 91 to be paid absolutely after expiration of year subject to abatement. bond to be given. . 88 lands sold subject to surplus 141 on. 104 cases how computed on various of. moneys 149 153 Lands. 244 245 248 file. bond to be taken. order for revocation for not filing. .' to pay debts. by guardian payment of. form 350 351 summons to executor. against deceased. proceedings before surrogate to collect. Judgment sale. vouchers interest for.. 86. i 73 89 89 will. may be delivered. . affidavit to. form of. when paid within when a year. . Investments. 249 order for summons to executor to file file. contract for purchase of. may be when retained to pay debt. notice of making. 95 96. 96.. before suit for . Page. of. preferred debt. no guardian invested by may be sued for after one year.

Letttks of Administeation with when. proof included in petition to whom granted. 86 36 estate.. for accounting. 28 32 32 83 " " residuary entitled to administration with principal specific. INDEX. males preferred to females. form of. Lb&atbb. 36 36 87 jurisdiction of surrogate to grant. consent. where several apply for discrection of surrogate. will annexed. 34 35 36 extend only to three forms of. 17 24 27 residing in this state. on application for. proof to be produced surrogate must examine applicant 37 37 38 38 39 39 '. form of. granted 368 268 petition of. how granted on estates of non residents . when. person entitled may have another joined. and order of priority.. " " " " " " " " " " entitled to notice of appraisement. unmarried woman preferred. 39 39 husband entitled to. 39 89 not to issue to relative not next of kin on issue to husband he shall give bond. if executors su- perseded. may examine other persons. to have another person joined by petition 39 40 40 40 41 not to issue to convict . may have return of inventory compelled.. 54 55 64 98 102 103 108 may attend appraisement.. granted in intestates when 37. letters of collection. assetts in the state. Legacy. relative of whole blood. 32 33 who entitled. receipt of. how cited to attend final settlement may contest account of executors objections by. to be cited on allegations. receipt for.. wiU annexed. distinguished from next of may intervene on probate. may have order that executor account. . preferred. 387 Page. with will annexed. 268 kin. to receive will.. for. form of.

how served on filing of renunciation. only statutory causes exclude. when when issued on false representations. form of. person in precarious circumstances cannot take. 388 EXECUTOE'S AND ADMINISTEATOE'S GUIDE. Letters tbstamentaby. to issue on application for. 65 65 65 69 former of. 18. when new revoked. not to take. objection to issue order for revocation revocation 354 355 of. Page. on return of citation. 13 idiot cannot take 14 convict cannot take. alien non-resident connot take. administrator becomes drunJsen. " " " drunkard. 13 14 . on taking oath. revocation of. form of. not to take. may be revoked for not filing may issue after revocation. to issue to be revoked if will be proved.: form of. 334 325 234 385 340 341 petition for revocation of. " " 41 41 one lacking understanding. citation to issue citation when filed...41 minor. order for. renunciation of right to. . &c. of. on application for. 13 13 13 13 improvident person cannot take. citation to form of. on application for. gambler cannot take. form of. habitual drunkard cannot take.. show cause on of. Lbttkbs of Admhtisthation. improvident. 41 non resident alien. not to take. form of. form petition for. form of. revocation of. after revocation supersede inventory letters. " " improvident person. one incapable of contracting. on filing bond special to issue. 43 43 43 43 43 43 43 44 48 49 51 51 51 See Collector.. 41 may be refused to ignorant person 43 before issue renunciation. give power only in this state. " " 41 41 .

claim for legacy. . . 88 95 may be interposed on in real estate proceedings. barred by. 20 14 . general provisions. 389 Page. how removed addressed to discretion of surrogate. 30 30 objections to issue to be stayed may be filed 30 30 30 31 32 33 on filing of affidavit. woman may take. appealable.. BOt/a defence. issue. form order for revocation of. married objections to issue. discharged from comnHttee. when. 13 how tried. how served. executor or administrator cannot waive. 72 78 79 waived by negotiations creditor barred by. form of. 48 to act. . revocation of. Ltjnatic. as to dower proceedings. etc. when revoked as to one executor. with citation. short statute of six months. may act as executor. when. 212 213 objection to issue o^ form of. may sue heirs. 34 35 48 when executor become lunatic. executor cannot pay his own debts. form of. may issue may forthwith. 80 86 86 statute of. may be pleaded by any person. after issue complaint may be made. Ijimitations. of. order for citation as objections. may be pleaded by any party. 79. not revived by admission. extended in favor of estates. on will of testator without the state. to issue after oath of ofllce. superseded if executor do not give bond extend only to assets in the state. objections to issue to be tried. 14 13 15 15 31 decision of surrogate on issue. IjETTRBS OF ADMINISTRATION. 88 88 89. creditors. 43 48 67 212 order for issue o^ form of. JNDBX. not available when. 132 132 187 claim barred by. 214 254 255 72 72 73.. grantingof. affidavit of intention to object to issue. statute form o^ of. other when executor is convicted of crime give power only in this state.

113 121 131 have special guardian. revoked when.. under over fifty dollars may be paid to father may be paid to guardian. how disposed to be invested. cannot act as executor Coming of age. how paid. how served with order on sale of real estate. letters to guardian be of. cause for relief of guardian. 58 93 98 92 93 with no guardian. 93 95 103 103 special guardian to be appointed on how interest computed on.. husband to take if letters. as to securities for legacy. 41. dying intestate. 1 competent to act as executors. guardian may not waive formality.. legacy to. 132 139 147 148 . . Mabinbes. MiNOB. . 149 158 general guardians may be appointed for. guardian to take. in inventory. 13 IS may give bonds. legacy to be invested by surrogate. entitled to securities 93 93 dying before of age securities go to executor or administrator. . may make unwritten will. 20 23 33 ^9 38 51 articles to set apart to. distributive share of... security to. Page. fifty dollars ' 59. on coming of age duty of surrogate. women guardian. what is ^wma/oci* evidence of. . interested in final settlement. may not bequeath property 1848. guardian not to have interest in purchase moneys due to on real estate sale. of.. 3 5 may make nunioipative will at sea when considered at sea. ground for removal.. on sale of real estate to of. special guardian to be appointed for.. 39 41 121. distribution of estates. on payment of legacy. how served final settlement. 390 EXECUTOR'S AND ADMINISTRATOK'S GUIDE. 120 178 181 191 of ward. guardian of. may act as executor 12 14 how served with citation. when entitled to administration. may sue for legacy or distributive share.. special guardian to be appointed for. : 5 acquired before 1 may make will. how kept. of. Makkied Women. legacy to. . securities. may Mabbiage take letters as of unmarried. on probate.

172 173 guardian of to file annual account. 160 160 161 supreme court may appoint guardian for. 160. reasons for sale estate of to be kept by guardian responsibility of guardian of.INDEX. guardians. account of guardian to be 175 177. 179 guardian sureties may be renewed. suffering waste. of. 160. age may be cited by guardian. MiNOB. . 159 guardian of appointed by father to have custody 160 . 158 when nec- 158 of. how compelled to account.. 162 apply for guardian. relative what may . removed. no power of. guardian of not liable for necessaries of. may account with guardian without citation. . 165 not to be permitted to live in idleness. . to petition of for guardian under fourteen years. over fourteen years old may apply for guardian. 166. 163 guardian of to give bond. by surrogate. 169 rate of interest against guardian 170 171 191 guardian of not to expend capital unless. . by supreme court. may be appointed by father.. powers of guardian appointed by father of. of. 163 notice of application to be given. 162 show. 173 173 173 account. 158 158 . . . law real estate of real estate of. 165 may choose new guardian. full. 176 commissions of guardian of and rate complaint against guardian and removal 178. care of estate. 391 Page. may have benefit of transaction of guardian. consent of mother to appointment of guardian essary. if in another state. guardian of may be required to file fuller 174 174 175 175 175 removed arriving at age arriving at for not filing may have guardian cited. 177 180. . . 181 . guardian for. 165 166 guardian of to collect personal property of. 170.. marriage of cause for relief of guardian. guardian of to give security for legacy to invest distributive 172 money. 166 167 167 168 169 may be sold. inventory.

heir or next of kin. may be decreed by surrogate. .. • 68 68 83 128 136 141 to. court will dower proceedings'. to 27 28 32 38 " have notice of appraisement. not to be paid out of personal estate.. may have action for distribution.- 149 281 petition for. . nor any widow.. entitled for.. when. . of. 183 189 consent of special guardian. entitled to administration with will annexed. of real estate. 316 318 of. . to notice in .. 392 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. y. bond required on. order for guardian petition for.. may contest account of administrator. .. 16 18. order appointing special guardian. " " order for appointment of guardian form 321 from. 93 94 95.. appoint guardian for. on.. may be made to pay debts. should not resign.. may be guardian cited to of. show cause wliy g'dn.. MoTHBB. of intestate. of. form petition of for guardian. relative.. may petition for return of inventory. may petition that administrator account. 94 98 102 Ia3 115 121 where there is none.. form " for. surplus moneys form of.17 may waive citation. in real estate matters. MoKTSAGE. may contest validity of will within a year... surplus to be paid to state treasurer. defined. names. rights in surplus 20 116 Next of Kin.. one executor or administrator may release discharge. 313 315 by mother for guardian. form of.. may attend appraisement. rights of in surplus of estate 54 55 64 94. Minor. of.. distribution to... . of. before suit to give bond.. to be paid to surrogate. how cited to attend final settlement.. . . 181 181 may resign. are subject sale. to be given on petition for probate. form order for special guardian of. form of." rights of as to administration. 17 citation served on. in dower proceedings. torm of. 189 309 206 285 for. etc.. land sold for debts. of full age. new guardian may be appointed guardian of..

form of. for issue of letters testamentary. . form of. of application for dower. form of. 3 5 5 how made. may be made to to account filed. of executor. of sale of real estate. form of. Oath. form of. testimony to be recorded letters to issue on. 106 file. Next 234 332 29 148 163 188 357 389 340 NxmcuPATrvB Wills. order for citation to. who may administer. 163 31 31 Oath of Office of executor to be filed with surrogate may be taken before whom.. before acting... form of.. afBdavitof intention to . form of. that executor be deemed to have renounced. to be taken 43 54 administrator. Notice to be given and published of annulling of probate. 62 104 173 191 commissioners to admeasm'e. form of. INDEX. '. to widow on sale of rfeal estate of hearing on application for guardian to be given. proceedings. account to be verified by. what may be charged form of. that party may intervene on probate. Objections to issue of letters may be filed 210 226 80 103 213 213 107. of Kin. to inventory. in real estate proceedings. form of. admitting will to probate. account of executor or administrator filed. new sureties may be appealed from. annual account to be on... Okdee for probate ^nd record to be made. 393 Page. .. . dower to take.. to issue of letters. . form of. by executor or 63 who may administer.. renunciation of. of administrator. order for citation on filing. to 214 26 show cause. on proof of will. to issue of letters. . fonn of.. form of. 5 one witness sufllcient. how served to creditors to present claims. of administrator. form of.. form of. how served. appraisers to take. may be made by soldiers and mariners. . appointing special guardian on proof of wiU. for citation on objections to issue of letters. . guardian. 130 179 180 removing guardian that guardian give for citation may be appealed from. 303 306 308 311 313 314 217 .. form of. to heirs in decree.

course on presentation. &c. will to be recorded as a will of. proof of will of. form of for revocation of probate.. citation . form of. 253 for revocation of letters for not filing Inventory. for probate supplementary. form for sale ofreal estate. . for probate to be presented. to show cause why lands should not be sold.. appointment of appraisers. for probate. for citation to widow. ... 163 162 163 163 what to state should be verified. letters should not be re341 voked. form of. for citation to administrator to 264 of. wh^ to contain. form of. for citation. pay debt. 384 287 pARTNBBSHip AssBTS. 163 . form of.. when filed. of. form of. for administration with v^ill annexed. ' 394 EXECUTOR'S AND ADMINISTRATOR'S GUIDE Page. 75 . 17 cotton machinery is. of. 319 320 223 323 331 333 334 389 for citation to show cause why of. Personal estate. See Inventory. form of.. 57 58 Penalty for not affixing residence to vrttness name. relative of infant may make. superseding executor. form of.. form of. 254 257 261 form of. for order to compromise. form of. form of. form to advertise for claims.. for letters of administration. rights of executor or administrator in. 3 35 26 entitled as ' Personal property. how to be Stated in inventory. form of. . form for revocafion of letters. to be given for guardian. Oeder for on petition to remove executor. that executor be summoned to qualify or renounce. form of. when. form of. hearing on notice of. for citation on filing allegations to contest probate. what to state. looms in woolen mill are 56 56 56 18 19 manure Petition is in certain cases. what to contain. for administration.. for accounting. torm for 344 350 summons to executor or administrator to file inventory.. 99 of infant for guardian.. persons next of kin 18. for commitment. 33 38 215 what must contain.

form of. when. 29 29 29 when annulled. form of. administration. that executor or administrator file inventory. form of. order of. 188 201 proof of will. form of. order admitting will to. of executor for leave to prove. leave to intervene on proof of will. with will annexed. mortgage. appointment of collector. supplementary petition if citation when to issue 23 23 25 not served. any person interested. of.. e* 83 7 16 16 18 19 30. form of. form of. proof of. may ask immediate. form of. pREFEKBNCB. creditor for payment of debt. form petition for leave to intervene on proof of will. confirmed.. Pbobatb. form of... 207 317 235 228 230 335 . INDEX. petition for proof. etc. be revoked.. how served parties of full age. form of. 301 203 of. may apply for. form of. 395 Page. form of. Pbtition for dower. within a year 28 28 29 allegations against may be filed. -widow may apply by. form of. petition for to be presented. form of. foi-m of. of creditor for sale of real estate. order for citation on. final settlement. 31 course on presentation of petition for citation to attend. in payment of debts. when published.. allegations to contest. creditor for payment before six months. form of. for order to account. deposition on. on application for facts to be given. 207 208 209 211 331 . for. new to hearing on. form of.. removal of executor.. form of. power of executor before. revocatipn of letters.. form of. 249 259 362 265 368 271 281 301 304 seq. form order that party may intervene on. new one proof requisite on Qf will of personal estatCj 26 26 real property. 19 33. form of. assignment of bond of administrator. form of. form of. notice to be given to executor Pkoof of Will.

order for reYOcation of. money may be made a of. 133 132 ex- on return of order. to pay debts. form . when lease of. accuracy. 138 133 133 requisites before order of sale. decree for etc. 39 31 17 36 Real Estate. to creditgrs iii adminis. to specify order of sale. 181 131 131 to be published show cause necessary tobemaUed. . special guardian to be appointed. wills affecting. expenses. proved out of state may be recorded recorded in other counties 37 37 86 56 56 56 may be administrators have no charge of. devise persons entitled as heirs. to be made.. petition for sale &c. . 134 135 135 135 136 186 when peculiarly situated. how long may be made order for sale. 138 138 138 139 . on 135 128 mortgage. Proof of Wjil. made for sale &c. more may be sold than necessary. Page. alien cannot proof of. manure part of in certain cases water wheels. order to show cause. hop poles are part of. may be ordered. validity of. 133 may be proved on.. are part lien of. within three years. how made Public Adsiiiiistbatob.396 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. by petition. 138 by executors &c. mill stones.. 133 persons interested may contest. lease or sale application for sale &c. of.. vouchers to be filed in court. 131. order for sale of. executor or administrator may be amined.. filed. 130 130 how how publication of order to served. . before inventory to be devised or inherited unless when. when. has preference tration. not to be lease or mortgage. witnesses debts 133 may be sworn. what to show what must appear to authorize sale. 130 served on minors. 233 33 3 Publication of wiU.

appointed. &c. contract for purchase of.. .. may be as to. 137 137 138 executor or administrator neglecting to give bond.. freeholder may be appointed to 145 145 proceeding not trator. requisites of 140 140 140 141 141 . order that executor or administrator show cause how served on executor or administrator. .. . conveyance of. be kept. apply for sale of. executor or administrator free holder . 141 sell. proceeds of. satisfies dower. sale of. 146 146 147 149 149 securities for to distribution of. sale of. 139 189 189 189 report to be sale made of sale may be set aside new sale may be ordered sale may be confirmed in part. paid.. ete. notice of sale to be posted published vrhat to contain. 169 . 3-97 Real Estate. of. bond to be freeholder given before sale ordered. 152 152 be appointed.142. may 153 proceedings for sale of contract... may be ordered to sell. title of. 188 188 when made 188 sell administrator may in separate parcels. on application of creditor. aflfected by death of executor or adminis146 146 surrogate pays first charges and expenses. 150 . appointed to 167 167 169 reasons authorizing a sale power of guardian guardian to lease. free- may be of. not to be impeached. validity of sale. INDEX. dower in. 138 138 139 amount purchase should pay on credit executor or administrator not to be interested in sale may be given on sale of.. and how to be distributed by surrogate. how estimated. may be sold to pay debts distribution of proceeds of sale of contract. sale of. may 150 150 151 151.. proceedings for sale &c. special guardian 154 155 sell. . surplus creditor moneys on by mortgage. conveyance may be ordered purchaser on sale of holds growing crops.

of guardian to a distance. . sale of. how obtained. for special guardian. to be filed before administration granted 43 42 may be revoked before issue of of. form of. Release of distributive share on advancement good of decree may be entered by surrogate county clerk's for discharge of decree. Page. of executor. of. form of. 381 show cause. treated of executor. form of. . 217 7 30 31 effect. of. form of. of. 181 form file. bond on 386 . form of. on form of. executor may of excutors. form Rent. Referee may be appointed on final settlement.. of guardian. 390 391 deed of. RENtmciATiON. to. form of. order to petition to mortgage. sell. form of. 215 217 224 56 57 of executor. form order as 200 petition for citation to compel. filed in ofl3. for sale on petition by creditor. . form of. form. form of. may resign. appeal from. &c. when to be included in inventory. form of. form of. proceedings on. how effected deemed executor to have taken 31 32 43.. may retract. of. order for sale of. of. 384 . 398 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. 269 78 103 Kefbrbncb of claim rejected. instances when not . 130 137 137 280 34 179 179 Removal of executor on complaint. consent of widow to accept a sum in gross.ce. form by creditor for sale of.' 387 389 389 order confirming sale of. 394 of. 394 304 306 order that administrator that show cause. other person show cause. form of.. report of sale of. letters. 313 367 Eecbipt of creditor. executor file bond. notice of sale of. form of. form for legacy. Ebal Estate. of executor. of widow or next of kin. or he petition for. 285 form of. notice to widow as to dower. petition form of. form of. . 307 808 811 appointing freeholder to form of. to be included. form of.

. entitled to administration Resignation of guardian. or non-resident. of probate. when issued on false representation. form of. executor or administrator will. order conflrming.. may be preferred as a debt. 53 53 65 good faith before. order for. for payment of debts. 381 389 order confirming form of. petition for. form of. INDEX. . may be set aside. 3 see niiTUMpatim wills. 105 35 17 when Soldiers. letters may be revoked for not filing inventory. when executor or administrator incompetent. citation to show cause. may be for cause. or next of kifi. 181 Revocation of how done.. when issued of administration. 38 4. form of. be appealed from. to be made what to contain. petition for. . form for not filing inventory. with will an- 195 139 32 Residuakt Legatee. deed on. 193 193 193 193 how to fix boundaries. acts in 333 335 340 of. 85 118. when will proved. form of. form of. 4 . may of sale. form of. sale. executor or administrator cannot chaise Signature. when Representation on distribution rule of. Rent. nexed. form of. 341 354 355 3 138 . guardian to give on receipt of legacy Services. course 61 does not account. letters issued on false representations. Sale of real estate. 399 Page. 390 391 173 for. to be made. when absent. proof of. valid. letters on failure to give new sureties 51. order for. . Sisters. Security. 6 48 49 50 51 of letters.. heirs. may make unwritten wUls. Sailors may make unwritten wills. entitled to administration. form of. by witnesses. 86. after 53 new letters to issue. report of. of letters. 117 Report of commissioners.

on proof of will. lieu of t dower. executor and administrator. to be paid to surrogate. complaint made. 33 103 133 167 167 when appointed. Summons may issue to executor to qualify may issue to inventory. order. 38 85. SuPEBSBDiNG. insufficient. widow may 186 1 witnesses need not sign in presence 3 next of kin to. for minors on sale of real estate may be appointed to sell land. Tbbspass. . all 71 71 31 file against executor or administrator in all courts except Justices . form of. form of Specific bequests. executor or administrator neglecting to 64 to executor to qualify or removal. 34. widow to pay on dower Tbstambntaey PbJvision on Testatob. of guardian when insuflBcient. of testator or . Suits. SuBEOGATB. may be employed to lay off dower Taxes. in real estate matters. appointed for minors on final settlement. 400 EXECUTOR'S AND ADMINISTRATOR'S GUIDE. by executors or administrators may be brought in courts. proceedings on complaint against 180 149 5 Surplus Moneys. . assessed subsequent to decease of testator. intestate. may contest probate within a year. definition. form of. not to be paid. SuKETiBS of executor or administrator. must appear in person. of. not subject to abatement. Special GrAEDiAH. form of. as to executor. 89 be delivered. lands... See LvmMatwm statute of. . ignorant of English. on mortgage sale. may 91 78 3 108 SuBPEONA. records testimony on nuncupative wills. SuBBcmPTioii of will.. order for. not to be sold until consent 306 385 73 90. Page. removing from state.. may be issued on final settlement. 49 49 49 179 . to be before witnesses or acknowledged. may refuse letters to one. Tombstones. shall ascertain SuRVBYOB. are preferred debts 83 83 195 elect. 14 16 193 on application for probate. 316 251 to executor or administrator to file inventory. 320 . of. . Statute oj' limitations.. 84 70 liable for. facts. form of. may be allowed when. . becoming insolvent.

cut ofii may electto take dower 26 or legacy. in lien apparel 85 of dower draws interest. may sell at. .. surplus goes to state 131 sale of real be served with order to show cause before estate 130 131 how non-resident served. to be filed with surrogate. name &c. 53 123 133 may be compelled to account. where there treasury to is none. 59 . commissions testamentary letters of. articles. 38 59. due to. may be revolted. 133 177 16 33 Widow. . of alien entitled to dower. . debts. 58 to have articles set apart in inventory. 146 184 184 184 185 185 186 186 what is dower of. 133 when letters revoked may be cited by successor to preference will 138 83 . to remain her property. to dower as against purchase money. executor or administrator. entitled to dower.1 United States. of claims to be filed in real estate proceedings. 73 104 106 . of. inventory. acting as. VoucHEBS... may have mourning legacy to. how 113 115 rights of in surplus of estate. . how notified. rule of dower not entitled on exchange of lands. statutory provisions as to sustenance. must be produced on final settlement. may have final settlement. . claims in real estate sold. to administration. entitled Unsound Mind. guardian should file.' how dower of.set apart to. . may not make 4 or administrator. executor of. may have value of articles not set apart on may have mourning apparel when. to be given on petition for probate. 60 63 63 63 63 sustenance out of personal property. nor next of kin.. may have sustenance for forty days. commissions of. persons Unwkittbn Wills Vendue. 401 110 Trustee. entitled to administration first entitled with will annexed. INDEX.

in what court. what it is. 1 enough that intention be subscribed be in writing. may have time ex. may occupy must pay lease land. 188 188 189. Will. 196 order for form of. form accept a 334 383 notice to elect after sale. males of eighteen years only persons of full may bequeath personal age. is clear. duty of commissioners. Widow. court order fixing report of. not election. 394 in gross. 3 . apply by petition. 189 190 191 191 notice how served. petition for dower. dower of. 194 194 195 195 195 dowertof. 188 may heirs petition for dower and notice how served or owners may apply for admeasurement to. 195 195 costs of may bequeath renunciation crop. may . consent of. 193 193 193 may be set aside. form of. may adjudge sum to be income may be modified. when. commissioners appointed to adn^easure dower of. . 2 2 special forms not required.. new commissioners may be appointed to admeasure dower dower of. etc.. of. hearing on application for dower. admeasure dower of. of. statutes. bequeath crops on dower lands. .. paid to. 402 EXECUTOR'S AND ADMINISTBATOE'S GUIDE. to be signed in presence of witnesses. 186 187 187 187 recovering dower entitled to damages. . may devise real estate. Page. annuity table to compute value petition of. . . admeasurement of dower.. fixing 193 commissioners to tended report fixing dower of. of. 193 on report. 1 1 1 who may make females of sixteen years it is bequeath personal estate. report of commissioners. of.. to sum form 394 896 857 1 estate. must pay half of of. estate of. admeasurement. fixes location. taxes. for dower. land. citation to.. 2 shall shall 3 . 186 ' may may claim dower within twenty years. admeasured. or acknowledged.

fees. citation to attend proof. should be opened as soon as practicable. &c. » 33 32 34 witnesses to be examined. letters to issue on.. 36 36 with proofs certificate to be attached to after proof to be delivered to whom. &c. on presentation for probate. 36 36 as to request to witnesses as to signature of witnesses. 3 3 how. to be recorded only as a will of per- proof requisites of execution. how executed. parties of fall age how served may ha^e immediate of. dead. if witnesses dead. mariners may make unwritten. sick or infirm witness. INDEX. 28 29 proof will be taken again. omissions of witness to aMx residence not to affect 4 4 nuncupative or unwritten. 403 Page.. . at least two. affecting real estate may be recorded. facts to be ascertained subpoena will issue to compel production. how made nuncupative. 37 37 28 proved out of state. proof. validity of. when witnesses sonal estate. 4. 16 by being destroyed. as to publication i . how proved soldiers 4 5 5 5 nuncupative to be recorded nuncupative revoked. to be presented to surrogate 18 18 19 30. subpoena will issue to witnesses witnesses to. and proof may be recorded in other counties. Will. proceedings on filing of allegations. if living. revoked by execution of another. 19 33. probate. 21 course on presentation for proof of. 3.. nuncupative. 5 5 6 6 9 17. 34 24 35 35 35 legatees or devisees may intervene on course as to aged. may be contested within one year. may make unwritten. proof of hand writing. to be published. to be examined. ' to be recorded 26 26 37 27 37 affecting real estate to be recorded in other counties exemplified copies may Be recorded.

form of. shaU sign at end. subpoena. confirmed. not excused from testifying to execution of attestation clause not necessary. issue to to be examined. 34 35 at least two. allegations to contest probate. annexed to observe. if surrogate decide of. petition for leave to intervene on proof of. form of.. form of.. 29 29 29 30 33 35 49 197 198 probate to be revoked. when commission may issue. petition for administration with.. Page. to will. attestation clause of. order for administration with. letters revoked. EXECUTOE'S AND ADMINISTRATOR'S GUIDE. fees of. 4 4 32 33 to wm. annexed form of.. when. form of. petition for proof of. to take testimony 35 of. order admitting to probate. : 301 203 203 207 208 209 211 221 228 231 : 2 3 3 to will. sick or infirm. citation to attend proof of. 35 . letters of administration administrator with will on issue. . when. 404 Will. annexed form of. wUl . form of.. if living to course as to aged.. after proof. when. Witnesses. order for citation on proof of. 34 be examined. if after administration. 3 3 3 will. penalty for not doing so need not sign in presence of testator. shall affix residence. form. deposition on proof of. form of. form of. signing testator's name. letters may issue. order that party may intervene in proof of. must sign as witness. it to be invalid to be annulled. proof of handwriting to be taken. form of. found and proved form of. how many to will.

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