HI2- /Pfo Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1803 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Co ,„eU Unwersnv Ubr« KFN5210.M12 1890 . ouid e -a complete manua,, The executor sX&llllli ^24 022 809 424 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022809424 THE EXECUTOR'S GUIDE: < A COMPLETE MANUAL FOR Executors, Administrators and Guardians, WITH A FULL EXPOSITION OF THEIR RIGHTS, PRIVILEGES, DUTIES AND LIABILITIES, AND OF THE RIGHTS OF WIDOWS IN THE PERSONAL ESTATE. THIRD EDITION. BY ROBERT H. M_cC LELLAN, COUNSELOR, ETC., AND FORMER SURROGATE OF RENSSELAER COUNTY. ALBANY, N. Y.: WILLIAM GOULD & SON, LAW BOOKSELLERS AND PUBLISHERS. 1882. Entered according to Act of Congress in the year 1882, By ROBERT H. McCLELLAN, in the office of the Librarian of Congress, at Washington. THE ARGUS COMPANY, PRINTERS AND 8TERE0TYPERS, ALBANY, K. Y. Preface to Third Edition. A Third Edition of this boolc having been tailed for, I have prepared it, endeavoring to bring it up to the present time in its state- ments as to practice, as 'Mil as the duties of executors, etc. TJte wdriciiaving been done while I was engaged in active practice, I have been obliged to avail myself of the' services of my son, Samuel P. McClellan, in superintend- ing the publication. The book is submitted with the confident hope that it will be of value to persons having the care of estates and of infants. Robert H. McClellan. Troy, October 2, 1882. Table of Contents. Chapter I. PAGB . Of Wills and Manner of Execution 1 Chapter II. As to the Powers and Duties of the Executors Named before Offering the Will for Proof 6 Chapter III. Who may Appoint an Executor, and who mny Serve as such — Disability, how Removed 10 Chapter IV. The Duty of an Executor in Proving the Will 13 Chapter V. The Proceedings on Presentation of the Petition for Proof of the Will and the Service of the Citation 17 Chapter VI. Proceedings on Return of Citation and of Proving the Will, and of New Trial within One Year 25 Chapter VII. Of Granting Letters Testamentary and Renunciation of Exe- cutors—Administration with the Will Annexed — How Executors compelled to give Bonds 32 vi Table of Contents. Chapter VIII. page. Letters of Administration 38 Chapter IX. General Provisions in regard to Letters Testamentary and of Administration — For what Reasons Letters are Revoked, etc 48 Chapter X. Of the Power of Executors and Administrators in Discov- ery and Recovery of Property ; their Duties in regard to the Inventory and the Rights of the Husband, Widow and Minor Children 57 I Chapter XL Returns of Inventory ; how Compelled, and Effect of not Returning it < 68 Chapter XII. Of the Collection of the Estates — Compromising Debts Due the Estate and Advertising for Claims 71 Chapter XIII. Of the Payment of Debts and Legacies 83 Chapter XIV. Of the Accounting of Executors and Administrators — The Settlement and Distribution of Estates and of Commissions, 96 Chapter XV. Of the Mortgage, Lease or Sale of the Real Estate of a Deceased Person for the Payment of his Debts 119 Table op Contents. vii Chapter XVI. pagb. Guardians and "Wards 134 Chapter XVII. Accounts of Guardians — How Compelled to Account, and how Removed or Relieved of their Trust 147 Appendix •. 157 Index 201 EXECUTOR'S ADMINISTRATOR'S GUIDE. Chapter I. Of Wills and Manners of Execution. A will is a disposition of an estate by a person called a testator, to take effect upon his death. All persons of the age of twenty-one years, except idiots and persons of unsound mind, may so dispose of their real estate ; and males of the age of eighteen years, and females of the age of sixteen years, may in like manner dispose of their personal property. Married women, formerly disabled by law from making a valid will, are by the statutes of 1848, 1849, and 1869, expressly empowered to devise and bequeath their property, in the same manner as if unmarried. But these statutes, before 1860, gave to a married woman no power to dispose by will of property acquired before the passage of the acts, nor of the interest accruing after the acts, upon money previously acquired by her, nor of the proceeds of her own labor. {Ryder v. Hulse, 24 N. Y., 372 ; see also Woodbeck v. Havens, 42 Barb., 66.) Wills shall be in writing, except in the case of Wills, How Made. soldiers in actual military service, or mariners at sea. (2 E. S., 60 ; 3 R. S. [5th ed.], 141.) Special forms are not required in drawing a will ; it is enough that the intention of the testator is plainly expressed ; but it is well to follow certain forms of expression which have been long in use, in the formal parts. The execution of a will shall be accompanied with certaiu formalities regulated by statute, to the intent that, as the will is not to be proved until after the death of the testator, it may fully appear that in making it, he was aware of the character of the instrument, and was not imposed upon. § 40. (2 R. S., 63 ; 3 R. S. [5th ed.], 144.) " Every last will and testament of real or personal property, or both, shall be executed and attested in the follow- ing manner : '' 1. It shall be subscribed by the testator, at the end of the will. " 2. Such subscription shall be made by the testa- tor, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses. " 3. The testator, at the time of making such sub- scription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. [Unless the testator declares, or gives the witnesses, in some form, to understand at the time of making or acknowledging his subscription, that the instrument signed is his will, there is no sufficient publication. (Bagley v. Blackman, 2 Lansing, 41.)] Wills, How Executed. " 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator. [It does not seem to be necessary that the witnesses should sign their names in the presence of the tes- tator. (Ruddon v. McDonald, 1 Brad., 352.)] § 41. " The witnesses to any will shall write oppo- site to their names their respective places of residence ; and every person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with each of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who shall sue for tile same. " Such omission shall not affect the validity of any will ; nor shall any person, liable to the penalty afore- said, be excused or incapacitated on that account from testifying respecting the execution of such will." It is sufficient that the testator, when executing the will, makes the declaration and request to the wit- nesses, in answer to a question put to him. An attestation clause is not absolutely necessary, but it is used to perpetuate the transaction in the minds of the witnesses, and to assist them to recall the facts when they shall come to be sworn. It should always be appended. (For form of will, see Appendix No. 1 and Codicil No. 2.) Nuncupative or Unwritten Wills. To constitute a valid unwritten will, made by a soldier, it must be proved, that he was m actual 4 Nuncupative Wills. service, either of the United States or the State of New York ; that, in prospect of battle, exposing his life, or in immediate danger of death from disease or wounds in such service, he declared what disposition he desired to make of his personal property, under such circumstances as to make it appear that he intended such disposition to be his will. He may make this declaration himself, or in answer to questions put to him by another, and it is not neces- sary, even, that he request any other to witness the declaration as his will. Two witnesses are required to establish the will before the surrogate of the county where the deceased resided, who will record the testi- mony proving the declaration made as a will ; and if he considers it proved, he will issue letters upon it to the person named as executor by the testator, and it will operate as a valid disposition of personal estate. (Code, § 2618.) A mariner at sea, whether in the merchant service or the service of the government, may make such a will in the same manner. The question has arisen as to what constitutes being at sea ; and it has been held (8 N. Y. Rep., 196), that a master of a vessel lying at anchor in a bay of the ocean, near the land, where the tide ebbs and flows, was at sea in the meaning intended by the stat- ute, the point of the decision being, apparently, that because he was in tide-water he was at sea. This rule, if carried out — as it is reasonable to sup- pose it will be — will include mariners on vessels engaged in the coasting trade, even if they shall die, Wills, How Revoked. 5 leaving such a will, in the Hudson river at any place below Troy. In one English case, under a similar statute, a mariner being on shore at Monte-Video, in South America, received a wound and died, having first made a nuncupative will, which was held valid. A will may be revoked by the testator by destroy- ing it, or by executing a new will expressly revoking the former one. Power as to Personal Property. Chapter II. As to the Powers and Duties of the Executors Named before Offering the Will for Proof. On learning the fact of his appointment as an executor and the death of the testator, it becomes the immediate duty of the person so appointed, to decide whether or not he will take upon himself the dis- charge of the trust to which he is nominated, and to give notice to those interested in the will, ot his decision. There are two ways in which an executor may relieve himself of the trust before the letters are issued to him. First. By remaining passive, and. taking no steps in the matter. 1 Second,. By making and filing a renunciation. (See form and directions, Appendix No. 3.) In case more than one person is appointed in the will, any of them so appointed may decline to act, or renounce, and the remaining one or ones acting, will have full power to execute the will, as if all appointed assumed the trust. The duty of the executors, before the will is proved, in relation to the property of the deceased, is regu- lated by statute. § 16.' (2 K. S., 71 ; 3 R. S. [5th ed.], 156.) " No executor named in a will, shall, before letters, testa- mentary are granted, have any power to dispose of any part of the estate of the testator, except to pay Power as to Personal Property. 7 funeral charges, nor to interfere with such estate in any manner, further than is necessary for its preservation." From this it follows, that the executor named may sell the effects of the deceased, to the extent neces- sary to raise money to pay the necessary funeral expenses, and that he shall take charge of the estate to preserve it. In regard to what are proper funeral expenses, see hereafter. For the purpose or preserving the property, the executor need not take it into his possession, or remove it from the charge of the family of the deceased, 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 do so for his own protection. He may, doubtless, convert into money perishable articles which could not be kept long enough to be inventoried. Where the effects are in charge of persons not interested in the -preservation of them, the executor ought to care for them and remove them, if necessary, and he will be protected in taking steps for that purpose. . He may take the papers of the deceased and seal them up, awaiting further authority, and deposit them in a place of security. The will of the deceased should be opened and its contents ascertained as soon as practicable after his death, for the purpose of learning if any directions are contained in it in regard to his funeral, or the immediate care of his family. 8 Executors Db Son Tort. There is in some parts of the State, a practice of waiting for six weeks after the death of the testator before opening the will, or taking any steps to prove it. This is founded in a sentiment of respect for the deceased, but is a mistaken exercise of it ; for the best way to manifest such respect, is to regard the wishes of the deceased and take immediate steps to carry them into effect, which can only be done by proving his will and caring for the estate which he accumu- lated for his family. In this connection, it may be well to state the lia- bilities of any unauthorized persons taking posses- sion of property of the deceased, as regulated by law. (2 E. S., 81.) [When an executor de son tort afterwards takes letters testamentary, his responsibility relates back to the death of the decedent, or to his own first act of unauthorized interference. {Estate Ellen Farrell, 1 Tucker, 110.)] § 60. " Every person who shall take into his posses- sion any of the assets of any testator or intestate, without being thereto duly authorized as executor, administrator or collector, or without authority from the executor, administrator or collector, shall be liable to account for the full value of such assets, to every person entitled thereto, and shall not be allowed to retain or deduct from such assets for any debt due to him " from the deceased, personally, in his lifetime. But he may retain any such assets for a sum due to him for care taken of them, or for labor expended on them, and demand payment of a lieu so acquired before delivering them up, or he may have such sum Claim for Burying. 9 allowed him in accounting for the goods or the value thereof on a trial at law. § 17. " No person shall be liable to an executor of his own wrong, for having received, taken or interfered with the property or effects of a deceased person, but shall be responsible as a wrongdoer, in the proper action, to the executors or general or special adminis- trators of such deceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts to the estate of the deceased." It may be remarked 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 claim, preferred above all other claims. 10 Disability op Executors. Chapter III. Who may Appoint an Executor and who mat Serve as such — Disability, how Removed. The statutes, as amended by the acts of 1848 and 1849, in respect to the rights and powers of married women, provide that " all persons except idiots, per- sons of unsound mind and infants, may devise their real estate by last will and testament," and that " every male person of the age of eighteen years or upwards, and every female of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal 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 to make a will involves the power to appoint executors, but — § 3. (2 E. S., 69.) " 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, of making a contract (except married women). " 2. Under the age of twenty-one years. " 3. An alien, not being an inhabitant of this State. {McGregor v. McGregor, 1 Keyes, 113.) " 4. Who shall have been convicted of an infamons prime. " 5. Who, upon proof, shall be adjudged incompe- tent, by the surrogate, to execute the duties of such Disability of Executors. 11 trust, by reason of drunkenness, improvidence or want of understanding. {McGregor v. McGregor, 1 Keyes, 133.) " Or one whose circumstances are so precarious as not to afford adequate security for the administration of the estate. (2 R. S., 70, § 6, 7."). Married women are capable of acting as executrices, and of receiving letters testamentary as though they were single women ; and their honds, 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 the consent of her husband in writing, filed with the surrogate, and by giving such consent he became liable for her acts jointly with her. The disability arising from the minority of the per- son appointed, is at an end at the arriving of the person appointed at full age; of an alien, on his becoming naturalized, or becoming an inhabitant of. this State. The first subdivision also includes, for example, idiots and lunatics and habitual drunkards in charge of committees ; and the disability ceases in case of the lunatics and drunkards when they are discharged from the custody of their committee, and are judicially declared to be of sound mind, or capable of managing their own affairs. Upon the fourth subdivision it maybe remarked that however guilty or base the executor appointed may be, conviction must precede the objection ; and in case of contest before the surrogate, the record of 12 Disability of Executors. conviction must be produced. (1 Barb. Ch. R., 47 ; Harrison v. McMahon, 1 Brad., 289 ; McMahon v. Harrison, 6 N. Y., 443 ; Emerson v. Bowers, 14 K Y., 449.) The incompetency mentioned in the fifth sub- division arises from drunkenness, improvidence, or such a want of care and foresight as renders the person appointed a poor manager of his own affairs ; or want of understanding, which, it is supposed, is intended to mean gross ignorance of business, as 1 well as natural incapacity, and probably inability to read and write would ordinarily be a sufficient objection. A professional gambler is presumptively incompetent. {McMahon v. Harrison, 6 N. Y., 443 ; 1 Brad., 289.) "Any surrogate may, in his discretion, refuse the application for letters testamentary, or letters of administration, of any person unable to read and write the English language." (Chap. 782, Laws of 1867, §5.) • 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 probably open to review before a superior or appellate tribunal. Where Will to be Proved. 13 Chapter IV. The Duty of an Executor in Proving the Will. There is no absolute necessity that application for the probate of a will be made by an executor ; it may be made by any person interested. Even a creditor may make the application and procure the necessary citation, in case those more immediately interested neglect the duty. But the application should be made, usually, by the one who intends .to act as executor. The same provision is incorporated in the Code. § 2614. A person designated in a will as executor, devisee or legatee, or any other person interested in the estate, or a creditor of the decedent, may present, to the surrogate's court having jurisdiction, a written petition, duly verified, describing the will, setting forth the facts, upon which the jurisdiction of the court to grant probate thereof depends, and praying that the will may be proved, and that the persons, specified in the next section, may be cited to attend the pro- bate thereof. Upon the presentation of such a peti- tion, the surrogate must issue a citation accordingly. The jurisdiction of the court as to proof of wills is fixed by statute and section 2476 of the Code of Civil Procedure. § 2476. The surrogate's court of each county has jurisdiction, exclusive of every other surrogate's court, to take the proof of a will, and to grant letters testa-, mentary thereupon, or to grant letters of ad'ministra- 14 Where Will to be Proved. tion, as the case requires, in either of the following cases : 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the State, died within that county, leaving personal prop- erty within the State, or leaving personal property, which has, since his death, come into the State, and remains unadministered. 3. Where the decedent, not being a resident of the State, died without the State, leaving personal property within that county, and no other ; or leaving personal property which has, since his death, come into that county, and no other, and remains unadministered. 4. Where the decedent was not, at the time of his death, a resident of the State, and a petition for pro- bate of his will, or for a grant of letters of administra- tion, under subdivision second or third of this section, has not been filed in any surrogate's court ; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter, is situated within that county, and no other. Preliminary to the application it must be ascer- tained who are the lieirs-at-law and next of kin of the testator, or it must occur that the names and places of residence of the heirs and next of kin, or some of them, cannot be by diligent inquiry ascertained. The diligent inquiry required, is seeking the requisite information from those who, by reason of relationship to the testator, or intimate acquaintance, may be expected to know of his family. Heirs- at-Law ; Next of Kin. 15 We would here caution parties not to confound the terms heirs and next of kin in the statute, with lega- tees and devisees in the will. The terms heirs and next of kin imply blood connection, while the rela- tion of legatee or devisee arises from the will, and the testator and the legatee or devisee, may be strangers in blood as well as in fact. Heirs are distinguished also from next of kin ; the first taking the real estate by descent, and the last taking the personal property by distribution. 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; 3. His mother, if she be living; 4. ,His col- lateral l'elatives. (3 R. S., 41.) The next of kin are — 1. The children ; 2. The father ; 3. The mother, and brothers, and sisters, and the legal representatives (that is, the children) of such as shall have died ; 4. His collateral relatives, not beyond brothers' and sisters' children. (2 R. S., 96 ; 3 R. S. [5th ed.J, 183.) The heirs-at-law and next of kin of an illegitimate, if he have no children, are — 1. His mother; 2. His relatives on the part of his mother. (S. L., 1845, chap. 236.) " And illegitimate children born since 1855, in default of lawful issue, are heirs-at-law and next of kin of their mothers." (S. L., 1856, chap. 547.) Having ascertained these facts they should be embodied in a petition to the surrogate (see form, Appendix No. 5), which, together with the will, should be presented to that officer, who will issue a citation to the proper parties. 16 Who Mat Prove Will. If the executor has not the will in his possession, or if he cannot obtain it, the surrogate will issue a subpoena to the person holding it and compel him to produce it. If there be no executors named in the will, or if he or they be incompetent, have removed to a great dis- tance, or are dead, the duties above specified devolve upon any person interested in the will, who may pro- ceed as above directed. Who to be Cited. 17 Chapter V. The Proceedings on Presentation of the Petition for Proof of the Will and the Service of the Citation. The petition having been presented to the surro- gate, containing the information required above, he will issue a citation to the proper persons, requiiing them, at a time and place therein mentioned, to appear before him and attend the probate of the will. § 2615. The following persons must be cited, upon a petition, presented as prescribed in the last section : 1. If the will relates exclusively to real property, the husband, if any, and all the heirs of the testator. 2. If the will relates exclusively to personal prop- erty, the husband or wife, if any, and all the next of kin of the testator. 3. If the will relates to both real and personal prop- erty, the husband or wife, if any, and all the heirs, and all the next of kin of the testator. § 2616. The citation must set forth the name of the decedent, and of the person by whom the will is pro- pounded ; and it must state whether the will relates, or purports to relate, exclusively to real property, or personal property, or to both. Where the will pro- pounded was nuncupative, that fact must be stated in the citation. Where the surrogate is unable to ascer- tain to his satisfaction whether the decedent left, surviving him, any person who would be entitled to the property affected by the will, if the decedent had 2 18 Service of Citation. died intestate, the citation must be directed, where the will relates to real property, to the attorney- general ; where it relates to personal property, to the public administrator, who would have been entitled to administration, if the decedent had died intestate. {Gombavlt v. Pub. Admr., 4 Bradf., 226.) The time for the return of the citation necessarily depends on the time required for service, from eight days to six weeks, and is fixed by statute as follows : § 2520. Except where special provision is otherwise made by law, service of a citation within the State must be made upon an adult person, or an infant of the age of fourteen years or upwards, by delivering a copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns, with a person of suitable age and discretion, under such circumstances, that the surrogate has good reason to believe that the copy came to his knowledge in time for him to attend at the return day. A citation must be so served, if within the county of the surro- gate, or an adjoining county, at least eight days before the return day thereof; if in any other county, at least fifteen days before the return day ; unless, in either case, the person served, being an adult, and not incom- petent, assents in writing to a service within a shorter time. Any person, although a party to the special proceeding, may serve a citation. But the surrogate may make an order for substituted service in all cases on a non-resident, and in certain cases on a resident. Where it appears to the surrogate by affidavit that proper and diligent effort has been, made to serve a citation on a party named, and that the person to be Service op Citation. 19 served cannot be found, or, if found that he evades service, so that it cannot be made, the surrogate may make an order (§ 436, Code) that the citation be served by affixing it to the outer or other door of the person's residence, and by depositing another copy thereof, properly enclosed in a post-paid wrapper addressed to him, at his place of residence, in the post- office at the place where he resides. The provisions as to non-residents and unknown parties are as follows : § 2522. The surrogate, from whose court a citation is issued, may make an order, directing the service thereof without the State, or by publication, in either of the following cases : 1. Where it is to be served upon a foreign corpora- tion, or upon a person who is not a resident of the State. 2. Where the person to be served, being a resident of the State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of process. 3. Where the person to be served, being a resident of the State, has been continuously without the United States, for such a length of time, and under such cir- cumstances, that an order for the service upon him without the State, or by publication, of a summons issued from the supreme court, might be made by a judge. 4. Where the person to be served is a^ resident of ' the State, or a domestic corporation, and an attempt was made to serve a citation, issued from the same surrogate's court, upon the presentation of the same petition, before the expiration of the limitation appli- 20 Service of Citation. cable to the enforcement of the claim set forth in the petition, as fixed in chapter fourth of this act ; and the limitation would have expired, within sixty days next preceding the application for the order, if the time had not been extended by the attempt to serve the citation. § 2523. The surrogate may also make an order, directing the service of a citation without the State, or by publication, in either of the following cases: 1. Upon a party to whom a citation is directed, either by his full name or part of his name, where the surrogate is satisfied, by affidavit, that the residence of that party cannot, after diligent inquiry, be ascertained by the petitioner. 2. Upon one or more unknown creditors, next of kin, legatees, heirs, devisees, or other persons included in a class, to whom a citation has been directed, designating them by a general description, as pre- scribed in this article. The publication required is for six weeks in two' newspapers to be fixed by the surrogate. The order for publication is granted upon an affidavit showing the non-residence or other fact authorizing it. A personal service of the citation may be made thirty days before the return thereof. In all cases the citation must be made returnable upon a day certain, not more than four months after the date thereof. (Code, § 2579.) Infants under fourteen years of age must be served personally, and a copy must be delivered to its parent, guardian, or to the person in whose charge the infant may be. Service on a lunatic, idiot, habitual drunkard, Service on Infants. 21 by delivering a copy to such person and also to his committee. (Code, § 2526.) So, also, the surrogate may, upon the presentation of the petition appoint a person upon whom the service may be made in certain cases. § 2527. Where a person, cited or to be cited, is an infant of the age of fourteen years or upwards, or where the surrogate has, in his opinion, reasonable ground to believe, that a person, cited or to be cited, is an habitual drunkard, or for auy cause mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the surrogate may, in his discretion, with or without an application therefor, and in the interest of that person, make an order requiring that a copy of the citation be delivered in behalf of that person, to a person designated in the order ; and that service of the citation shall not be deemed complete until such delivery. Where the person cited or to be cited, is an infant under the age of fourteen years, or a per- son judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, and the surrogate has reasonable ground to believe that the interest of the person, to whom a copy of the citation was delivered in behalf of the infant or incompetent person, is adverse to that of the infant or incompetent person, or that, for any reason, he is not a fit person to protect the latter's rights, the surrogate may likewise make such an order ; and as a part thereof, or by a separate order, made in like manner at any stage of the proceedings, he may appoint a special guardian ad litem to conduct the 22 Special Guardian Appointed. proceedings in behalf of the incompetent person, to the exclusion of the committee, and with the same powers, and subject to the same liabilities, as a com- mittee of the property. A special guardian may be appointed for an infant under the following provision : § 2530. Where a party who is an infant does not appear by his general guardian, or where a party who is a lunatic, idiot or habitual drunkard does not appear by his committee, the surrogate must appoint a competent and responsible person to appear as spe- cial guardian for that party. Where an infant appears by his general guardian, or where a lunatic, idiot or habitual drunkard appears by his committee the sur- rogate must inquire into the facts, and must in like manner appoint a special guardian if there is any ground to suppose that the interest of the general guardian or committee is adverse to that of the infant or incompetent person ; or that, for any other reason the interests of the latter require the appointment of a special guardian. A person cannot be appointed such special guardian unless his written consent is filed at or before the time of entering the order appoint- ing him. Notice should usually be given on the service of the citation under the following section, of the applica- tion for the appointment of the special guardian. § 2531. Where a person other than the infant or the committee of the incompetent person applies for the appointment of a special guardian, as prescribed in the last section, at least eight days notice of the application must be personally served upon the infant Peoop of Service, How Made. 23 or incompetent person, if he is within the State, and also upon the committee, if any, in like manner as the citation is duly required by law to be served. But except in the case specified in title fifth of this chapter the surrogate may, by an order to show cause, provide for the service a shorter time, and direct the service of the order to be made in such manner as he deems proper. The application may be made at the time of pre- senting the petition ; and in that case die order to show cause may, in the surrogate's discretion, accom- pany the citation. (For notice, see form in Appendix.) It appears, therefore, that the order to show cause may be served in every case, except where the pro- ceeding is for the disposition of the real property of the decedent for the payment of his debts and funeral expenses; and, when the persons to be served are in court, the order may be made that they might show cause forthwith, and the order made without delay. The citation and the notice are usually incorporated in the same paper and may be served by any person ; and the proof may be made by affidavit, or where the proof of service is made by the sheriff, by his certificate. The proof may also be made by admission of service of the party to be served, signed by him, in which case his handwriting may be proved by an affidavit of some person who saw him write or who is acquainted with his handwriting. Where, however, all the parties, heirs-at-law and next of kin, are of full age, they may waive the formal service, or any service, and by all uniting in 24 Tkavbl to be Allowed. the petition for proof, or by appearing in court and filing a written consent to the course, the surrogate will proceed to take proof of the will and issue letters forthwith. 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 service of the citation, the executor may be allowed his expenses of such travel, or he may employ a person to make the service, and he may be allowed a reasona- ble payment made to such person. It will be well to procure from the surrogate, on taking 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 fifty cents for each day's attendance. Appearance on Proof. 25 Chapter VI. Proceedings on Return of Citation and of Prov- ing the Will, and of new Trial within one Year. On the day appointed for proof, if the citation shall not have been duly served on all the parties who ought to receive notice, the surrogate may adjourn the proceedings and issue a further citation, and as may sometimes happen, should the name of some proper persons have been omitted in the petition for probate, a supplementary petition may be filed at any time, on discovering the omission, and a new citation issued to bring them into court. A party of full age, and not judicially declared to be incompetent, may appear in the proceeding in person or by an attorney with the same effect as to jurisdiction, as it he had been served with the citation. (Code, § 2528.) If the service or appearances are complete, the surro- gate will appoint a special guardian for infants, idiots or lunatics on the written consent of the person to be appointed (§ 2530), and the special guardian shall appear in person before any further steps are taken. The witnesses will then be examined. At this point, the party offering the will for probate, may learn for the first time, that the probate is con- tested. If this should be so, and the executor or other party offering the will, be but remotely interested in the matter, it is suggested that he turn over the responsi- 26 Witnesses to be Examined. bility of the contest to those more nearly interested in proving the will, as legatees or devisees, by imme- diately notifying them that the probate is contested, that they make the proper appearance before the sur- rogate and take charge of their interests. They will have leave to appear upon petition. (§ 2617.) As counsel will necessarily be employed, if the probate is contested, it is not necessary 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 disabled from age, sickness, 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 satisfactorily shown to the sur- rogate taking such proof. (§ 2619.) If any such aged, sick or infirm witness resides in the same county with the surrogate, the surrogate will, without making unnecessary delay, proceed to take the examination of such witness, at his dwelling- house or other place of residence. If he reside in any other county of the State, the surrogate will direct that his examination be taken by the surrogate of that county. If all the witnesses are out of the State, dead, or insane, or incompetent to testify, the surrogate may receive proof of the handwriting of the testator 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. The will in such a case must remain on file in the surrogate's office. (§ 2620.) A commission may also issue, as in the supreme Lost or Destroyed Will. 27 court, to take the testimony of witnesses to the will, and other testimony. A lost or destroyed will can be admitted to probate in a surrogate's court, when the will was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime ; and its provisions are clearly and distinctly proved by at least two credible wit- nesses, a correct copy or draft being equivalent to one witness. (§§ 1865, 2621.) Before admitting a will to probate, the surrogate must inquire particularly into all the facts and cir- cumstances, and must be satisfied of the genuineness of the will and the validity of its execution. He may require proof of the circumstances not only of the execution, but the possession thereof, and may call testimony in relation thereto. (§ 2622.) If it appears to the surrogate that the will was duly executed, and that the testator, at the time of execut- ing it, was in all respects competent to make a will and not under restraint, it must be admitted to pro- bate as a will valid to pass real or personal property, or both, as the case may be. (§ 2623.) If it shall appear that the testator signed his will in the presence of at least two witnesses, publishing the instrument as his last will and testament, in their presence, declaring it to be such ; or if, after signing, he acknowledged to such witnesses that he had signed it, publishing and declaring it as above ; that he requested them to sign as witnesses ; that they did so sign ; that at that time the testator was of sound mind and memory, of full age to execute a will, and not under any restraint, the surrogate will enter an 28 Record of Will. order that the same be admitted to probate and be recorded as a will of personal estate. To entitle it to be recorded as a will of real estate, it must further appear that the testator was a citizen of the United States ; or if an alien, that he had taken the proper steps to enable him to take and convey real estate. The surrogate will record the will and proofs in accordance with the order, and will attach a certifi- cate to the will, that the same had been duly proved before him, as a will of personal estate, or of real and personal estate, as the case may be, and will retain it for one year, and then will on demand deliver it to the person from whom he received it; 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 ; or if the same relate to per- sonal estate only, to any acting executor of such will, or administrator with the will annexed, or to a legatee named therein. (§ 2635.) The will so proved and certified, together with the proofs thereof, when it relates to real estate, must be recorded in the offices of the clerks of the counties in which such real estate may lie, who are required to record and index them as they are required to record and index conveyances. This is required to be done by the executor within twenty days after the issue of letters, and to comply with it the executor must take out an exemplified copy. (§ 2633.) Exemplified copies of wills proved out of the State, devising real estate, may be recorded in the office of the surrogate of the county where such real estate is Probate May be Revoked. 29 situated, and shall be presumptive evidence of the will and of the execution thereof. (§ 2703.) The probate of the will is conclusive as to personalty on all parties until it is reversed on appeal, or revoked by the surrogate (§ 2626), while it establishes pre- sumptively all matters as to real estate. (§ 2627.) Probate may be revoked, notwithstanding the will has been once proved and letters issued upon it. Any person interested in the estate of the decedent may present a written petition, duly verified, containing allegations against the validity of the will or the competency of the proof, and praying that the pro- bate may be revoked, and that the persons enumerated who took any interest under the will, may be cited to show cause why it should notjje— revoked, and the surrogate will issue a citation. (§ 2647.) "-'' The petition must be presented within one year from the probate of the will, except that in case of a minor it may be presented in one year after majority, an insane person upon recovery, or a person in prison upon release, according to section 396. (§ 2648.) The citation is to be issued to the executor or administrator with the will annexed, and to the devi- sees and legatees named in the will, and to all other persons who were parties to the proceeding for pro- bate of the will. If the legatee shall have died, his executor or administrator must be cited, if one has been appointed ; if none has been appointed then such persons must be appointed as representing him, as the surrogate designates for the purpose. (§ 2649.) Upon the service of the citation the executor or the administrator must suspend all proceedings relating 30 Probate of Heirship. to the estate, except that he may recover or care for the property and collect it and pay the debts ; he may also do such other acts as the surrogate expressly permits. (§ 2550.) Upon the return of the citation the surrogate takes proof of the will, and if any witness who was examined at the probate has died without the State, or has become incompetent, then his testimony which was taken on the previous hear- ing will be received in evidence. (§ 2551.) If the surrogate decides the will is not sufficiently proved or is invalid, he will make a decree revoking the probate, if he decides otherwise he will make a decree confirrning the probate. (§ 2662.) If he revokes the probate of the will, the surrogate will cause notice ot the ■ revocation to be published for three successive weeks. So, also, a person claiming as heir of one who has died intestate may present to the surrogate's court of the county, where real property is situated, a written petition describing the proper ty, and the death of the intestate, and his interest, and the interest of each 6th ur heir of the decedent, and pray for a decree to establish the rights of the several parties in the inher- itance, and that all parties may be cited to attend the probate. (§ 2554.) The surrogate issues a citation to all the parties setting forth the name of the decedent and the peti- tioner, and the share which the petitioner claims, and a brief description of the property ; and at the hear- ing any heir may appear and make himself a party. (§2555.) The surrogate will hear the allegations and objec- Probate of Heirship. 31 tions of the parties, and if it appears that there is a contest respecting the heirship of the party, or the share to which he is entitled, the surrogate will dis- miss the proceeding; but if there is no contest, the petitioner must establish by satisfactory evidence the fact of the decedent's death, the place of his resi- dence at the time of his death, his intestacy as to this property, the heirs entitled to inherit and the interest of each, and the surrogate will make a decree describ- ing the property and declaring that the right of inheritance has been established to his satisfaction in accordance with the facts. (§ 2656.) The decree may be recorded in the office of the county clerk, or the register of deeds, and is pre- sumptive evidence of the facts declared to be estab- lished thereby. (§ 2657.) Any person who is not a party to the previous hear- ing may, at any time within ten years, apply to the surrogate that the decree be set aside or modified, and all persons interested will be cited to show cause why it should not be done. (§ 2658.) , 32 Letters Testamentary, How Delayed. Chapter VII. Of Granting Letters Testamentary and Renun- ciation or Executors -7- Administration with the Will Annexed — How Executors Compelled to give Bonds. After a will of personal estate shall have been proved the surrogate will issue letters testamentary thereon to any competent person who shall' appear and qualify. And they may be granted immediately unless some person interested files an affidavit showing his interest and showing some legal objection to the granting of letters to one or more of the executors, or stating that he is advised and believes that there are such objec- tions, and that he intends to file a specific statement of them. Tf such an affidavit is filed the surrogate must stay the granting of letters, at least thirty days, unless the matter shall be sooner disposed of. The specification or objection must be verified by the oath of the objector, or his attorney, to the effect that he believes it to be true. (§ 2696.) The surrogate will take proof in relation to the objection, if the objection is that the executor's cir- cumstances are precarious, or that he is not a resi- dent of the State and he is a citizen of the United States, he may be entitled to letters upon his giving a bond as prescribed by law. But a non-resident is entitled to letters testamentary without giving a bond, if he has within the State an office for the regular transaction of business, and the will directs Renunciations. 33 that he may act without giving security. (§§-2637, 2638.) A person named as executor may renounce the duty by an instrument in writing, signed by him, and acknowledged or proved as a deed is required to be proved or attested by one or more witnesses, and proved to the satisfaction of the surrogate. He may retract his renunciation at any time before letters are issued to any person, or after they haye been so issued, if they had been revoked or. the persons to whom they were issued have died or become incompetent. (§ 2639.) If a person named as executor does not qualify or renounce within thirty days after the probate of the will, the surrogate, on the application of another executor or of any person interested in the estate, may make an order requiring him to quality within a time therein named, and directing that if he shall not so qualify he will be deemed to have renounced. The order may be served personally or by publication. It would be improper to issue letters until all the exe- cutors have qualified or actually or legally renounced. (§2644.) But if there is nc- person named as executor, or all the persons named renounce or fail to qualify, or are legally incompetent, then letters of administration with the will annexed will be granted, as if no exe- cutors had been named in the will — 1. To the resi- duary legatees, or some one of them; 2. To any principal or specific legatee; 3. To the widow or next of kin ; 4. To any creditor of the testator ; 5. To any proper person designated by the surrogate — 3 34 Administration, with Will Annexed. in the same manner and under the like regulations and restrictions as letters of administration in cases of intestacy ; which see hereafter. Letters testa- mentary upon a will of a testator domiciled without the State, at the time of his death, may also be issued by the surrogate of any county in which there may be any property or effects. (§ 2476.) So an executor may be appointed under a power given in the will authorizing some person to select an executor. But the selection must be made within thirty days after probate or the power may be waived. (§ 2640.) But the issue of letters must be delayed in such a case until thirty-five days after probate. (Id.) Any person interested may file objections to the issue of letters to the person selected, within five days after the selection is made, by an affidavit allowing his interest, and the objections which he makes, which may be the same as against an executor named in the will. In such a case the proceedings for trying the objections are the same as in the cases of objections made to an executor. (§ 2641.) The official oath required of executors, administra- tors and guardians may be taken before any officer authorized to take an affidavit to be used in the supreme court, within or without the State. (§ 2594.) Letters issued to an executor or administrator may be revoked for cause. § 2685. In either of the following cases, a creditor, or person interested in the estate of a decedent, may present to the surrogate's court, from which letters were issued to an executor or administrator, a written petition, duly verified, praying lor a decree revoking Kevocation op Lettbbs. 35 those letters ; and that the executor or administrator may be cited to show cause why a decree should not be made accordingly : 1. Where the executor or administrator was, when letters were issued to him, or has since become, incom- petent, or disqualified by law to act as such ; and the grounds of the objection did not exist, or the objec- tion was not taken by the petitioner, or a person whom he represents, upon the hearing; of the applica- tion for letters. 2. Where, by reason of his having wasted or improp- erly applied the money or other assets in his hands, or invested money in securities unauthorized by law, or otherwise improvidently managed or injured the prop- erty committed to his charge ; or by reason of other misconduct in the execution of his office, or dishonesty, drunkenness, improvidence, or want of understanding, he is unfit for the due execution of his office. 3. Where he has willfully refnsed,"or, without good cause, neglected to obey any lawful direction of the surrogate, contained in a decree or order; or any pro- vision of law relating to the discharge of his duty. 4. Where the grant of his letters was obtained by a false suggestion of a material fact. 5. In the case of an executor, where his circum- stances are such that they do not afford adequate security to the creditors or persons interested for the due administration of the estate. • 6. In the case of an executor, where he has removed or is about to remove from the State, and the case is not one where a non-resident executor would be enti- tled to letters without giving a bond. 36 Executor to Give Bonds. 7: In the case of an executor, where, by the terms of the will, his office was to cease upon a contingency, which has happened. 8. In the case of a temporary administrator, appointed upon the estate of an absentee, where it is shown that the absentee has returned ; or that he is living, and capable of returning and resuming the management of his affairs; or that an executor or an administrator in chief, has been appointed upon his estate ; or that a committee of his property has been appointed by a competent court of the State. The proceeding is upon a petition on which a cita- tion is issued. (§ 2686.) It is also believed that the surrogate may enjoin an executor or administrator from acting until the determination upon the petition. An executor should be compelled to give bonds where he has no property except an unliquidated demand, and is about to remove from the State. (2 Barb. Oh., 426; 4 Paige, 299.) He should not be required to do so merely because he does not own property to the full value of the estate. (8 Paige, 475.) The main point is, whether it is doubtful whether the trust, fund is safe in his hands. (1 Brad., 148.) The circumstances of an executor are precarious, within the statute, only when his character and con- duct present such evidence of improvidence or recklessness imthe management of the trust estate, or of his own, as in the opinions ot prudent and discreet men, endangers its security. Though bank- ruptcy might furnish a reason for superseding an executor, poverty does not. (60 Barb., 56.) Incompetency of Executors. 37 The term improvidence refers to such habits of mind and conduct generally, as render a man gene- rally, and under all circumstances, unfit to serve. (14 N. Y., 449.) It is the want of ordinary care and forecast in the acquisition and preservation of prop- erty. (9 Hun, 471.) That a man is a professional gambler is presumptive evidence of improvidence. (6 N. Y., 443.) Although an executor is illiterate and of, small means, and has been guilty of misconduct or mis- management of the estate, the surrogate cannot super- sede him. He might require him to give security. (14 N. Y., 449.) 38 Administration. Chapter VIII. ■ Letters of Administration. When a person dies, leaving no will, he is said to die intestate, and letters of administration are granted on his estate. Administrators, in their representative capacity, have no charge over the real estate of their intestate (16 N. Y., 278 ; 10 Barb., 432), and their authority is local, extending only to assets within the State. (7 Johns. Oh., 46.) There are four forms of letters of administration : general letters upon the estate of an intestate ; special letters of collection, upon the estate of either an intestate or testator, in certain cases ; letters of admin- istration with the will annexed; letters of adminis- tration upon the estate of an absentee. Administration upon the estate of a decedent is granted by the surrogate, where he was a resident of the county ; where not being a resident he died within the county leaving personal property within the State, or leaving personal property which has, since his death, come into the State and remains unadministered ; or where not being a resident of the State he died without the State, leaving personal property within that county and no other ; or leaving personal property which has, since his death, come into that county and no other, and remains unadministered ; or where the decedent was a non-resident but left real estate sub- ject to be sold for payment of his debts. (§ 2476.) Administration, to Whom. 39 Under certain circumstances two or more surro- gates may have jurisdiction to grant letters, as where the decedent was a non-resident of the State, and his personal property is in or comes into two or more counties ; or where he left real estate in two or more counties subject to be disposed of for payment of his debts. Application for letters may be made in either county, but the filing of a petition in one county bars proceedings in any other. § 27. (2 R. S., 74 ; amended, chap. 782, Laws of 1867.) Administration, in case of intestacy, shall be granted to the relatives of the deceased who would be entitled to succeed to his personal estate, if they, or any of them, will accept the same, in the following order : " First, to the widow ; second, to the children ; third, to the father; fourth, to the mother; fifth, to the brothers ; sixth, to the sisters ; seventh, to the grand- children ; eighth, to any other of the next of kin who would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors, administration shall be'granted to their guardians ; if none of the said relatives or guardians will accept the same, then to the creditors of the deceased, and the first creditors applying will, if otherwise competent, be entitled to the preference. If no creditor apply, then to any other person or persons legally competent ; but in the city of New York the public administrator shall have preference, after the next of kin, over creditors and all other person's ; and in the other counties, the county treas- urer shall have preference, next after creditors, over 40 Who Entitled to Administer. all other persons. And in the case of a married woman dying intestate, her husband shall be entitled to administration in preference to all persons. This section shall not be construed to authorize the granting of letters .to any relative not entitled to suc- ceed to the personal estate of the deceased as his next of kin, at the time of his decease." Where several persons, of the same degree of kin- dred, apply for letters, males are preferred to females ; relatives of the whole blood, to those of the half blood ; unmarried women, to such as are married ; and where several persons, in the same degree and equally enti- tled, apply, the surrogate may appoint such as in his discretion he thinks most fit. , § 29. (2 E. S., 75.) " A husband, as such, if other- wise competent, according to law, shall be solely enti- tled to administration on the estate of his wife, and shall give bond as other persons, but shall be liable, as administrator for the debts of his wife, only to the extent of the assets received by him." And any person entitled to letters, by filing his or her consent in writing, may have a competent person, not otherwise entitled, joined in the administration (2 R. S., 75) ; as, for example, a widow may have her father, or brother, or another person, joined with her; a son or a daughter may have any competent person joined with him or her. The consent required may be embodied in the petition. Where a married woman is entitled to letters the same may be granted to her as if she were unmarried. (Chap. 782, Laws of 1867.) And if any person who would otherwise be entitled, Who Incompetent to Administer. 41 be a minor, such lettei-6 shall be granted to his guard- ian, the same as they would be to the person so entitled if of full age. (2 R. S., 75.) § 32. (Page 75.) " No letters of administration shall be granted to any person convicted of an infa- mous crime, nor to any one incapable, by law, of making a contract, 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 who shall be judged incompe- tent, by the surrogate, to execute the duties of such trust, by reason of drunkenness, improvidence, or want of understanding." * * The surrogate cannot exclude a person otherwise entitled to letters, except for the causes specified in the statute. (1 Barb. Ch. 45.) As to the degree of drunkenness incapacitating the applicant, see 1 Redfield, 472. § 5. (S. L , 1867, chap. 782.) "Any surrogate may, in his discretion, refuse the application for letters testamentary, or letters of administration of any person unable to read and write the English language." But before the issuing of letters, the applicant must produce and file, with the surrogate, a renunciation, executed in the manner heretofore prescribed in speak- ing of renunciations by executors (see form, Appendix) of all persons having a prior right to administration ; or the surrogate must issue a citation to such persons, requiring them to show cause why administration should not be granted to such applicant. One who has renounced may revoke his renunciar 42 Citation, How Served. tion at any time before letters are actually granted. (4 Brad., 13.) The citation must be served on such as reside in the county, or an adjoining county, personally, or by leav- ing a copy at their residences, at least eight days before the return day thereof; on such as reside in any other county in this State in the same manner, at least fif- teen days before the return day ; and on such as reside out of the State, or whose residences cannot be ascer- tained, personally, at, least thirty days before its return, or it may be published, as against those out of the State, or whose residences cannot be ascertained, once a week for six weeks, in two papers designated by the surrogate and by service of copies by mail. A like citation must be served, at least twenty days before its return, on the attorney-general of the State, in all cases where it does not appear in the applica- tion, or other written proof, to the surrogate, that the intestate left kindred entitled to his estate, specifying names and residences, as far' as can be ascertained. (See petition, order, etc., in Appendix.) On the application, therefore, if the person apply- ing has the first right, or is one of several equally entitled as a class, or on filing, the renunciation of persons having the prior right, or on the return day of the citation to such persons, if they or some of them do not take letters or show cause why the applicant should not have them, letters will issue to the appli- cant on his taking an oath or affirmation, before any officer authorized to administer oaths, and filing the same with the bond required. (See oath, in Appendix.) Administration on Non-resident's Estate. 43 The bond is executed to the people of the State, with two or more sureties, to be approved by the sur- rogate, and in a penalty of not less than twice the value of the personal estate of which the deceased died possessed. The surrogate may examine such persons as he may think proper, as to the value of the personal estate, and he may also require the sureties to justify. The execution of the bond must, in all cases, be acknowl- edged or proved before the surrogate or some person authorized to take acknowledgment of deeds. (See form, Appendix.) Letters of administration issue upon the estate of an illegitimate in the following order: First, to the widow ; second, to the children or other descendants ; third, to the mother ; fonrth, to the relatives on the part of the mother, in the order of their nearness of kindred to him, through the mother. (S. L., 1845, chap. 236.) Letters of administration upon the estates of non- residents, in cases where letters have been issued at the places of their domicil, are called ancillary letters and issue to some person who may have been legally appointed administrator in any other State, who, on producing his letters granted in such other State, shall be entitled in preference to creditors, or to some person appointed by the foreign administrator to receive them. But if none of the persons above spe- cified apply, then creditors or other proper persons may do so, and after the proper citation, may receive letters. Upon the presentation of a petition for letters in 44 Special Administration. such a case, the surrogate must ascertain whether any persons claiming to be creditors reside within' this State (§ 2698), and may fix the penalty of the bond at twice the amount which appears to be due from the decedent to residents of this State. (§ 2699.) The duty of the ancillary administrator is to collect and transmit the prdperty to the principal adminis- trator in the other State, but he may pay creditors residing in this State, or distribute among them pro rata. (§§ 2700, 2701.) Special letters of administration may is'sue in the discretion of the surrogate, when, in case of a contest relative to the proof of a will, or relative to granting letters testamentary or administration with the will annexed, or of administration in cases of intestacy ; or where by reason of absence from this State of any executor named in the will, or for- any other causes, a delay is necessarily produced in granting such letters; or where a person, of whose estate the surrogate would have jurisdiction, if he was shown to be dead, disappears or is missing, so that, after diligent search, his abode cannot be ascertained, and under circum- stances which afford reasonable ground to believe either that he is dead, or that he has become a luna- tic, or that he has been secreted, confined, or otherwise unlawfully made away with ; and the appointment of a temporary administrator is necessary for the protec- tion of his property, and the rights of creditors, or of those who will be interested in the estate, if it is found that he is dead. (§ 2668.) In the first case of delay in the issue of letters, the Temporary Administrators. 45 proceeding is by petition, notice of ten days and hear- ing before the surrogate. In the case of letters durante absentia, on the estate of an absentee, the application for snch an appoint- ment * * * must be made by petition, in like manner as where an application is made for adminis- tration in a case of intestacy ; and the proceedings are the same as prescribed in the case of a decedent. Such an application for the appointment of a tempo- rary administrator may also be made, with like effect, and in like manner, as if it was made by a creditor, by the county treasurer of the county where the person, whose estate is in question, last resided ; or, if he was not a resident of the State, of the county where any of his property, real or personal, is situated. These temporary administrators must qualify as in case of administrators on the estate of a decedent, give a like bond and take a like oath of office. They may take possession of the personal property to secure and preserve it, and may maintain actions for those purposes. Upon leave obtained from the surro- gate, an action may be had against them. The surro- gate may, by an order made upon at least ten days' notice, authorize the special administrator to sell, after appraisal, personal property of the decedent or absentee. The surrogate may also authorize payment of funeral expenses or any expenses of the adminis- tration. (§ 2672.) After publication by order of the surrogate to creditors to present claims, the surrogate, after the expiration of one year, may permit payment of the 46 Temporary Administrator. debts. The temporary administrator may be cited and have settlement. (§§ 2673, 2674.) Such an administrator may be authorized by the surrogate to lease real estate from year to year. (§§ 2675, 2676.) The administrator on the estate of an absentee may. under order of the surrogate, make provision for the family of the absentee. (§ 2677.) They must deposit any money coming to hand in a bank to be designated by the surrogate, or designated by the general rules of practice. If he neglects to deposit, an attachment may issue against him. The deposits can be withdrawn only on the order of the surrogate. (§§ 2679, 2680.) It has been held that the sureties of a special admin- istrator are liable for moneys received by him before his appointment. (19 N. Y., 150.) The surrogate may reduce the penalty of -the bond in certain cases. In a case where a bond or new sureties to a bond may be required by a surrogate from an executor, administrator, or other trustee, if the value of the estate or fund is so great, that the surrogate deems it inexpedient to require security in the full amount prescribed by law, he may direct that any securities for the payment of money, belouging to the estate or fund, be deposited with him, to be delivered to the county treasurer, or be deposited, subject to the order of the trustee, countersigned by the surrogate, with a trust company duly authorized bylaw to receive the same. After such a deposit has been made, the surro- gate may fix the amount of the bond, with respect to Administrator's Bond. 47 the value of the remainder only of the estate or fund. A security thus deposited shall not be withdrawn from the custody of the county treasurer or trust company, and no person, other than the county treasurer or the proper officer of the trust company, shall receive or collect any of the principal or interest secured thereby, without the special order of the surrogate, entered in the appropriate book. Such an order can be made in favor of the trustee appointed, only where an addi- tional bond has been given by him, or upon proof that the estate or fund has been so reduced, by pay- ments or otherwise, that the penalty of the bond originally given, will be sufficient in amount to satisfy the provisions of law relating to the penalty thereof, if the security so withdrawn is also reckoned in the estate, or fund. Where there are several administrators, the statute requiring the surrogate to take from every adminis- trator a bond with sureties, is complied with by tak- ing one joint and several bond from all the adminis- trators with competent approved sureties. (Hopk., 309.) In such a case the administrators are sureties for each other. It would doubtless be proper to take from each of several administrators a separate bond with sureties. 48 Power of Administrator or Executor. Chapter IX. General Provisions in Regard to Letters Testa- mentary and of Administration — For what Reasons Letters are Revoked, etc. Letters of administration give no power over the real estate of the decedent. Letters testamentary likewise do not, except where the will expressly authorizes the executor to meddle with it. Heirs-at- law or devisees can be evicted only through a sale under the decree of a court for the payment of the debts of the decedent. But if an executor or admin- istrator interfere witli the real estate, unless it is wanted to pay debts, those interested may treat him as a trustee and make him account. (3 Edwd., SIM Where one of two or more executors or adminiro rata as above. 9. If there be any surplus to the heirs or devisees, or the persons claiming under them, or according to the will of decedent. The executor or administrator is allowed no com- mission, but is to be allowed the expenses of sale, and a reasonable sum, not exceeding five dollars, for each day actually and necessarily occupied, and such Securities Taken. 133 further sum as the surrogate thinks reasonable for services of attorney and counsel. In making the distribution of the surplus, the sur- rogate may admit claims by lien against the heirs as a valid charge against their interest. (2 Brad., 394 ; 6 Paige, 521.) All securities are to be in the name of the county treasurer and approved by the surrogate. He shall apply the moneys under the direction of the surrogate. (§ 2800.) 134 POWEE OF GUAKDIANS. Chapter XVI. Guardians and Wards. ' Guardians are persons having, by reason of their relation or by appointment, the care and custody, of infants during their minority. Their relation to their wards is one of trust and confidence; so much so that they cannot, in any beneficial transaction, substitute themselves for their wards. Guardianship by relation arises under the provisions of the statute. Where an estate in lands shall become vested in an infant, the guardianship of such infant, with the rights, powers and duties of a guardian in socage shall belong: 1. To the father of the infant; 2. If there be no father to the mother ; 3. If there be no father or mother, to the nearest relative of full age, male in preference. (1 E. S., 718, § 5.) The rights and authority of such a guardian shall be superseded by a testamentary or other appointment, but will continue if there is none. (5 Johns., 65.) He may lease his ward's lands f®r any period within his minority, subject to the lease being defeated by an appointment of a guardian. (46 N. Y., 594.) Guardians may be appointed by the father, by the supreme court or by the surrogate. § 1. (2 R. S., 150.) " Every father (whether of full age or a minor) of a child likely to be born, or of any living child under the age of twenty-one years and Appointment by Father. 135 unmarried, may, by his deed or last will duly executed, or in case such father be dead and shall not have exercised his said right of appointment, then the mother, whether of full age or a minor, of every such child, may, by her deed or last will, duly executed, dispose of the custody and tuition of such child dur- ing its minority, or for any less time, to any person or persons in possession or remainder." § 2. " Every such disposition, from the time it shall take effect, shall vest in the person or persons to whom it shall be made, all the rights and powers and subject him or them to all the duties and obligations of a guardian of such minor, and shall be valid and effect- ual against every other person claiming the custody or tuition of such minor, as guardian in socage or otherwise." The appointment of the father by will or deed is not defeated by a subsequent appointment by the surrogate. (1 Barb., 430.) § 3. " Any person to whom the custody of any minor is so disposed of, may take the custody and tuition of such minor, and may maintain all proper actions for the wrongful taking or detention of the minor, and shall recover damages in such actions for the benefit of his ward. " He shall also take the custody and management of the personal estate of such minor, and the profits of his real estate during the time for which such dis- position shall have been made, and may bring such actions in relation thereto as a guardian in socage might by law." The guardians so appointed are liable to be removed 136 Appointment by Court. for incompetency, irresponsibility, improvidence or other good cause b}' the supreme court, which can also compel them to account from time to time, and when advisable, order them to give security. It is optional, however, with the persons appointed by will, or the deed of the father, whether they will accept the trust ; but once having accepted it, they must continue until discharged by the supreme court, or the lapse of time. Acceptance may be inferred from the acts of the guardian, as transacting some business relating to the person or estate of the ward, or assum- ing some control or direction of the ward or his estate. The supreme court will, upon petition, appoint a guardian for a minor, and control him in the exercise of his duties ; will compel him to make suitable pro- vision for his ward, to account when necessary, and remove him for cause, as in case of a testamentary guardiap ; will audit his final account, and discharge him from his trust. The guardian appointed by the supreme court con- tinues until the majority of the infant, and is not con- trolled by the election of the infant when he arrives at the age of fourteen years. (1 Johns. Ch. 25.) We will consider the proceedings in relation to the appointment by the surrogate. The surrogate's court has the like power and authority to appoint a general guardian of the person or of the property, or both, of an infant, which the chancellor had on the thirty-first day of December, eighteen hundred and forty-six. It has also power and authority to appoint a general guardian of the person or of the property, or both, of an infant whose How Appointed. 137 father or mother is living, and to appoint a general- guardian, of the property only, of an infant married woman. Such power and authority must be exercised in like manner as they were exercised by the court of chancery, subject to the provisions of this act. The same person may be appointed guardian of an infant in both capacities; or the guardianship of the person and of the property may be committed to dif- ferent persons. (§ 2821.) As to Petition by Infants over Fourteen Years of Age. In either of the following cases, an infant of the age of fourteen years or upwards may present to the surrogate's court of the county in which he resides, or, if he is not a resident of the State, to the surro- gate's court of the county in which any of his prop- erty, real or personal, is situated, a written petition, duly verified, setting forth the facts upon which the jurisdiction of the court depends, and praying for a decree appointing a general guardian, either of his person or of his property, or both, as the case requires ; and, if necessary, that the persons entitled by law to be cited upon such an application, may be cited to show cause why such a decree should not be made: 1. Where such a general guardian has not been duly appointed, either by a court of competeut juris- diction of the State, or by the will or deed of his father or mother, admitted to probate or authenticated and recorded as prescribed in section 2851 of this act} 2. Where a general guardian so appointed has 138 What Petition to Contain. died, become incompetent or disqualified ; or refuses to act ; or has been removed ; or where his term of office has expired. Where the petitioner is a non-resident married woman, and the petition relates to personal property only, it must affirmatively show that the property is not subject to the control or disposition of the peti- tioner's husband, by the law of the petitioner's resi- dence. (§ 2822.) The residence of the minor is determined by the residence of the parents ; if but one survive, then of that one. (2 Brad., 214 ; 1 Tuck., 38.) But this must be actual not legal. (12 How., 532.) A guardian can change the residence of the minor after appoint- ment, but a relative, not a guardian, cannot, by mere removal of the minor. The petition of the infant must state whether or not the father and mother of the petitioner, or either of them, are known to be living, and the circum- stances which render the appointment of some other person expedient, if it does not pray for the appoint- ment of the father or mother. It must pray for the citation to the father or mother if living. The cita- tion to the father must be served at least ten days before it is returnable. The former guardian, if any, must also be cited if he be living. The surrogate may also cite any relatives of the minor in the county. (§ 2823.) If the petitioner is a married woman, her husband must also be cited, and the surrogate may omit citing her father or mother. (§ 2824 ; See form petition of infant, Appendix, No. 14.) Upon the return of the citation, the surrogate must Temporary Guardian. 139 make such a decree in the premises as justice requires. He may, in his discretion, hear allegations and proofs from a person not a party. Where a citation is not issued, the surrogate must, upon the presentation of the petition, inquire into the circumstances. For the purpose of such an inquiry, or of an inquiry into the amount of security to be required of the guardian, he may issue a subpoena requiring any person to attend before him to testify respecting any matter involved therein. If he is satisfied that the allegations of the petition are true in fact, and that the interests of the infant will be promoted by the appointment of a general guardian, either of his person or of his prop- erty, he must make a decree accordingly, except that a guardian of the person of a married woman shall not be appointed. In a proper case he may appoint a general guardian in one capacity without a citation, and issue a citation to show cause against the appoint- ment of a general guardian in the other capacity. (§2825.) The guardian is nominated by the infant subject to the approval of the surrogate. (§ 2826.) In case of an infant under fourteen years of age the application is made by some relative or other person in his behalf. The petition may be made in behalf* of a resident of the county, or a non-resident, having real or personal property in the county, and showing the facts, may pray for a decree appointing a guardian. (§ 2827.) The guardian is called a temporary guardian because he is liable to be superseded when the infant arrives at the age of fourteen years. (See petition, etc., in Appendix, No. 15.) 140 Power of Guardian. The guardian in an^r case before letters are issued to him takes an official oath, which may be adminis- tered by any officer competent to administer an oath, and files a bond with at least two sureties approved by the surrogate. (§ 2830.) This is the proceeding also where the guardianship is of the person only. (§ 2831.) His sureties are liable for money in hand at the time of his appointment, as well as that subsequently received. (16 A.m. Dec, 635.) The powers and duties of guardians appointed by will or deed, and by the court are the same. The guardian is entitled to the custody and control of the person of his ward, to the same extent as a father, under the supervision of the court, and his duty is to attend to the proper care, nurture and education of his ward, in a manner suitable to his condition in life. He shall not permit him to remain 'in idleness, if able to earn "his support by his own industry ; if he do so permit him, he will not be allowed for his support in such idleness, but he will be allowed the expenditures necessary to educate him for future usefulness, and his support while so edu- cating him. (8 Paige, 152.) Though a father is liable for necessaries furnished to his child, without his consent, because he is bound to support him and is entitled to his services, yet a guardian is not so liable. (4 Watts & Serg., 118.) In case the guardian abuse the power he has over the person of the ward, the court will interfere and remove him if necessary. In relation to the personal estate, the power of the guardian, and consequently his duty, extends only to Power of Guardian. 141 the collection and investment ot it in good, perma- nent securities, and the receipt and expenditure ol the income for the necessary care, nurture, education and clothing of his ward ; and for the piirpose of such collection, he may sell such personal property as he may think perishable, and for the interest of the minor. (7 Johns. Oh., 150.) His power and duty in regard to the real estate is to lease it and receive the rents and profits thereof, and after paying the taxes and for the necessary repairs, to expend the surplus for his ward as above, when necessary, or invest it and suffer it to accumulate for his benefit. (1 Johns. Ch., 561.) It is his duty to lease it, if possible, and if he will- fully neglect to do so, or occupy it himself, he will be accountable for the fair value of the rents and profits. He can lease only for a period ending with the minority of his ward. (7 Johns. Oh., 154.) He lias no power to mortgage or sell the real estate, but may make, as guardian, 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 time it may become neces- sary for the support, etc., of his ward, or advisable for the reason that the same is unproductive in propor- tion to its value, or that it is depreciating in value ; and the court, if satisfied of the propriety or necessity of the sale, will allow it, and direct the least price at which it may be sold. And whenever it shall appear to the supreme court by due proof, or on the report of a referee appointed for the purpose, that any infant holds real estate in 142 Power op Guardian. joint tenancy or in common, or in any other manner which would authorize his being made a party to a suit in partition, and that the interest of such infant requires that partition of such estate should be made, such court may direct and authorize the general guard- ian of such infant to agree to a division thereof, or to a sale thereof, or of snch a part of the said estate, as in the opinion of the court shall be incapable of division, or as shall be most for the interest of the infant to be sold. It is a sufficient ground for this last proceeding that the real estate is held jointly or in common with adults, and that the value of the estate is small in comparison with the expense of a partition suit, to which it must otherwise be subjected. § 20. (2 E. S., 152.) " Every guardian in socage, and every general guardian, whether testamentary or appointed, shall safely keep the things that he may have in his custody belonging to his ward and the inheritance (the real estate) of his ward, and shall not make or suffer any waste, sale or destruction of such things, or such inheritance, but shall keep up and sustain the houses, gardens and other appurtenances to the lands of his ward, by and with the issues and profits thereof, or with such other moneys belonging to his ward as shall be in his hands, and shall deliver the same to his ward when he comes to his full age, in as good order and condition, at least, as such guar- dian received the same, inevitable decay and injury only excepted ; and he shall answer to his ward for the issues and profits of real estate received by him, by a lawful account." Liability of Guardian. 143 § 21. " If* any guardian shall make or suffer any- waste, sale or destruction of the inheritance of his ward, he shall lose the custody of the same, and of such ward, and shall forfeit to the ward thrice the sum at which the damages shall be taxed by the jury." But the guardian shall not be held to repair from his own moneys, where the income of the estate of his ward is insufficient, although such insufficiency is a good ground for an application to the supreme court for a sale. The relation of the guardian to his ward is one of confidence, and the guardian cannot in any way derive benefit from the funds or property of the ward, beyond his fees. If he compromises a claim against his ward, or purchase a debt against him at a dis- count, it will be for the benefit of his ward only. (2 Kent's Com., 229.) He cannot substitute himself for his ward in any beneficial transaction, although if he do so put himself in place of his ward, and a loss accrue, he himself will have tp bear it. If he purchase land in a sale where his ward is interested, and take the conveyance to himself, his ward, on coming of age, may, if he so elect, claim the benefit of the purchase. If he settle a debt due to his ward and take a promissory note, running to himself, he will be held accountable for it, whether it be collected or not ; otherwise, if he take the note to himself as guardian. If the guardian use the moneys of his ward in trade, the ward may elect, on coming of age, to take either the profits of the trade or his money with compound 144 Liability op Guardian. interest, to meet the profits. If he neglect to invest the money of his ward after a reasonable time (and he is usually allowed six months), he must pay interest, and in case of gross neglect he will be charged com- pound interest. (40 N. Y., 76 ; see, also, 2 Wend., 77 ; 8 Barb., 48.) ■ He may Hot employ an agent or attorney, at the expense of his ward, to do those acts which he ought to do himself, such as the collection of rents, etc., his commissions are for such services. If he have his ward in his own family, he will be allowed a reasona- ble sum for his board, if the ward does not earn enough to remunerate him. (I Brad., 345.) A guardian may not expend the capital of his ward, but only the income, except under the direction of the supreme court, which will, upon the petition of the guardian, if considered necessary and advisable for the interest of the minor, authorize the guardian to expend so much as may be directed, in support and education, especially education, wisely considering this in the highest degree important. A guardian, however, acting within the scope of his powers, like an executor or administrator, is bound only to fidelity and ordinary diligence and prudence in the execution of his trust, and his acts, in the absence of fraud, will be liberally construed. (8 Barb., 48.) A guardian appointed in another State cannot receive of an executor or administrator in this State a legacy or distributive share to his ward ; but, to acquire the right, he must be appointed in this State and give the proper security. • And a guardian Ancillary Letters. 145 appointed in this State has no power over the real estate of his ward sitnated in another State. Their rights and powers are strictly local, and can- not be exercised in other States. (1 Johns. Oh., 156 ; Story Conf. Laws, 414.) Nor have they any author- ity over the real property of their wards situate in other countries ; for such property is governed by the law rei sites. (Story Ibid., 414, 417.) But a non-resident guardian may obtain letters here. Where an infant who resides without the State but in the United States, is entitled to property within this State, or to bring an action in any court, one who has been appointed his general guardian in his own State, and giveri\he same security which would be required in this State in case of a resident, may peti- tion for an appointment here. (§ 2838.) The surrogate upon proof of the issue of the letters in the other State, and showing his jurisdiction issues letters here. (§ 2839.) Ancillary letters are issued * * * without security, and without an oath of office. They author- ize the person, to whom they are issued, to demand and receive the personal property, and the rents and profits of the real property of the ward ; to dispose of them in like manner as a guardian of the property, appointed as prescribed in this article ; to remove them from the State ; and to maintain or defend any action or special proceeding in the ward's behalf. But they do not authorize him to receive, from a resident guardian, executor or administrator, or from a testa- mentary trustee, subject to the jurisdiction of a surro- gate's court, money or other property belonging to * 10 146 Legacy to Minor. the ward in a case where letters have been issued to a guardian of the infant's property, from a surrogate's court of a county within the State, upon an allegation that the infant was a resident of that county ; except by the special direction, made upon good cause shown, of the surrogate's court from which the principal letters were issued ; or unless the principal letters have been duly revoked. (§ 2840.) We have already seen that a legacy to a minor of fifty dollars or under, may be paid to his father for the use and benefit of such minor ; but when the legacy exceeds that sum, the same may be paid under the direction of the surrogate, to the general guardian, who must first give security to the minor, to be approved by the surrogate, for the faithful application of such legacy ; and this security is additional to that previously given on the appointment, unless that so previously given was estimated especially in view of the legacy. When a distributive share is to be paid to a minor, the surrogate may direct that it be paid into court, and invested under his orders ; or he may direct that it be paid to the general guardian. A general guard- ian has the same powers in relation to the collection of a legacy or distributive share by actions or pro- ceedings before the surrogate, that his ward would have if of full age. Accounting. 147 Chapter XVII. Accounts of Guardians — How Compelled to Account, and how Removed ok Relieved of Their Trust. Guardians appointed by the supreme court are sub- ject to the jurisdiction of that court, and may account personally to their ward, on their coming of age, or the court will compel them so to do. But guardians appointed by deed or by will, or by the surrogate's court, are subject to the jurisdiction of the latter court. Guardians appointed by the surrogate must account annually to him, and the surrogate must supervise their accounts. He must, in the month of January in each year, as long as he has the property of the infant, file in the surrogate's court an inventory containing a full state- ment and description of the items of the personal property of his ward, received by him since his appointment, or since the filing of his last- inventory, the value of each item, a list of the items remaining in hand,' and an account of the manner in which he has disposed of each item not in hand, and a full description of the nature and of the amount of each investment. It shall also contain an account in form of debtor and creditor, of all his receipts and disbursements during the past year. 148 StTRBOGATE TO EXAMINE ACCOUNTS. He must also annex to such inventory an account and affidavit, the terms of which are fixed by the statute. (See inventory, account and affidavit in the Appendix, No. 16.) It is the duty of the surrogate, in the month of February in each year, to examine or cause to be examined all these inventories or accounts filed during the year, and if it appears to him that any general guardian has omitted to file his inventory or account or the affidavit, or if the interests of the infant require a more full or satisfactory inventory or account, the surrogate must make an order requiring such account, and he may require the guardian to pay the expenses personally of serving the order upon him. Where he fails to comply with such order within three months after it is made, or where the surrogate has reason to believe that sufficient cause exists for the guardian's removal, the surrogate may appoint a fit and proper person special guardian of the ward for the purpose of filing a petition in his behalf for the removal of the guardian and prosecuting the neces- sary proceedings. (§ 2844, etc.) .Formerly, surrogates had no authority to authorize .a general guardian to expend more than the income of the infant's property, but this power has been extended ; now, he may, upon notice to such persons as he thinks proper to notify, make an order directing the application by the guardian of the infant's prop- erty to the support and education of the infant of such a sum as to the surrogate seems proper, out of the income of the infant's property, or where the Guardian's Settlement. 149 income is inadequate for that purpose, out of the prin- cipal. (For petition, see Appendix.) There is no provision of the statute for the judi- cial settlement and examination of the guardian's account, at the instance of either the ward or the guardian, while the guardianship continues. . (37 Barb., 168.) But a petition may be presented for a judicial set- tlement of the account of the general guardian of an infant's property : 1. By the ward after he has attained his majority; 2. By the executor or administrator of a ward who has died ; 3. By the guardian's successor. It is a matter of course to require a guardian to account on his removal and to pay over to his succes- sor. (10 Paige, 316 ; 11 N. Y., 324.) The petition last adverted to may be made by the general guardian of the infant's person, if he has received any property of his ward, for which he has not accounted, or which he has not paid to the guard- ian of the infant's property. (§ 2848.) A guardian may ask for the judicial settlement of his account when his ward has attained full age, or has died, or his successors have been appointed, and a citation will issue to the proper parties to attend to the petition. In reference to the service of the citation and an accounting, the proceedings differ so little from the like proceedings in a case of the accounting of an executor, that it seems unnecessary to prepare forms. 150 Guardian's Account. His account should give dates and names of parties to whom payments have been made, and should charge the guardian with the whole of the personal property received by him, and with all interest received, or for which he is liable tor funds uninvested after six months from the receipt of such funds. It should also contain the reasonable expenses of the guardian, which are regulated by the same rule as the allowances for executors and administrators, and his commissions. The rigid rule held by the court as to executors and administrators, that however beneficial their services to the estate, however onerous the trust, they could only be allowed commissions, is applied to the accounts of guardians. (49 N. Y., 667.) The commissions for receiving and paying out moneys are similar as allowed to executors, to wit : five per cent on all sums up to one thousand dollars ; two and one-half per cent on Bums above one thousand dollars, and up to ten thou- sand dollars; and one per cent on all sums above ten thousand dollars. He shall also file all vouchers received by him and verify the whole by his oath, and the account will be conducted in all respects like an accounting by exe- cutors or administrators, and may be contested in the same manner. After the settlement, should the decree be against the guardian, a certificate thereof may be filed in the clerk's office, so as to make it a lien against his estate and an execution duly issued thereon. The payment may likewise be enforced by an Removal op Guakdian. 151 attachment as one against an executor (§ 2553), or by suit upon the bond of the guardian. The decree may be discharged in the same manner as a decree against an executor or administrator. (See form in Appendix.) So, also, a guardian may be removed and his letters revoked upon the petition of the infant, or any rela- tive or other person in his behalf, or any surety of the guardian : 1. Where the guardian is disqualified by law, or is, for any reason, incompetent to fulfill his trust. 2. Where, by reason of having wasted or im- properly applied the money or property of his ward, or improvidently managed or injured the per- sonal or real property of the ward, or by reason of other misconduct in the execution of his office, or his dishonesty, drunkenness, improvidence or want of understanding, he is unfit for the due execution of his office. 3. Where he has wilfully refused, or, without good cause, neglected to obey any order of the surrogate. 4. Where the granting of letters to him was ob- tained by a false suggestion of a material fact. 5. Where he has removed or is about to remove from the State. 6. In the case of a guardian of the person, where the infant's welfare would be promoted by the appoint- ment of another guardian. Upon petition the surrogate issnes a citation, and upon the hearing testimony is taken. 152 New Sureties of Guardian. The insolvency of the guardian, or one of his sureties, is cause for his removal. (2 Paige, 34.) Gross intemperance of, the guardian is also cause. (1 Paige, 488.) Where the guardian had trusted his ward's money to liis brother-in-law, on personal security, it was held cause for his removal. (1 Tucker, 34.) And insanity is also a cause. (2 Eedf. Sur. Ct. Rep. 198.) The surrogate, at the time of issuing the cita- tion, may also, in his discretion, make an order sus- pending the guardian, wholly or partly, from the exercise of his powers during the pendency of the proceedings. Any person interested in the estate, or infant, or any relative of the infant, may present a petition set- ting forth that the surety in any bond taken from a guardian is insufficient, or has removed or is about to remove from the State, or that the bond is inadequate in amount and pray for additional sureties. If the surrogate entertains the petition, he cites the princi- pal in the bond to show cause why the prayer of the petitioner should not be granted, and upon the return of the citation, if on hearing the proofs and allega- tions of the'parties any of the objections are found to be valid, he will require additional security. (§ 2597, etc.) If the new bond or additional sureties are furnished, the proceedings will be dismissed, but if they are not, the surrogate will make a decree removing the guardian for neglect to furnish the sureties. Guardian may Resign. 153 Resignation of Guardian. A guardian appointed by the surrogate may, at any time, present a petition to him, setting forth the facts upon which the application is founded, and praying that his account may be judicially settled, and that his letters may be revoked and himself discharged. He may show as a reason for his resignation his physical disability arising from age or illriess, his removal, actual or contemplated, to a distance from where the property of his ward is situated, or auy other cause which would render it for the interest of the infant that, he should resign. (See form of petition in Ap- pendix, No. 17.) > If the surrogate entertains the application, he will issue a citation to the infant and such other persons as he deems proper, and upon the return of the cita- tion will appoint a guardian ad litem, for the ward, and will allow any person to appear and contest the appli- cation in the interest of the ward. If the surrogate determines that it is a case proper for the resignation of the guardian, he will allow the petitioner to account for the purpose of being dis- charged. Upon his fully accounting and paying all money which is found to be due from him to the ward, and delivering all books, papers and other property of the ward in his hands over to the court, or in such manner as the surrogate directs, his letters will be revoked and he will be discharged. The citation should be served on the ward and on such other persons as the surrogate shall direct. If served in the same county or adjoining county it must 154 Guardian's Letters. be served at least eight days before the return day ; if in any other county in the State, fifteen days. But notwithstanding the discharge of the guardian is made upon his own application, his successor or the ward may compel the judicial settlement of his account, in which the previous account, upon his dis- charge, is of no value, and his sureties remain liable until his account is judicially settled. ' Guardians by Will or Deed. Guardians appointed by will must take out letters founded upon the will, which must also be. previously proved, and it is provided (§ 2851) that a person shall not exercise any powers or authority as guardian of the- person or property of the infan t by virtue of the appointment in a will, unless the will has been duly admitted to probate and letters have been issued to him, or by virtue of an appointment in a deed, unless the deed has been acknowledged and recorded in the office for recording deeds in the county. And where the deed containing such appointment is not recorded within three months after the death of the grantor, the person, appointed is presumed to have renounced the appointment. The person appointed guardian by will must qualify within thirty days after probate, otherwise he is deemed to have renounced the appointment, but the surrogate may extend the time for not more than three months. Objection may be made to him as they may be made to an executor, and the proceedings may be tried as in that case. So, also, a person appointed a guardian by Guardian by Will. 155 will may renounce the appointment. (§ 2852.) Where the guardian of the infant's person or property has been appointed by will or by deed, the infant, or any person in his behalf, may apply to the surrogate's court, by a written petition, setting forth facts which were then interposed as an objection to granting letters testamentary to the executor, would make it necessary for such person to give a bond, and the surro- gate will issue a citation requiring the guardian to show cause why he should not give security. (§ 2853.) The security to be given in such a case must be a bond to the same effect, and in the same form as the bond of the general guardian. (§ 2854.) The guardian appointed by will or deed is subject to the obligations in regard to filing an inventory and account only after he shall have been ordered to file them. After such order he is liable as a guardian appointed by the surrogate. This order may be made upon the petition of the ward, or any relative or other person in his behalf, requiring the guardian so appointed to render and file an inventory and account in the same manner as a guardian appointed by the surrogate's court. (§ 2855.) A guardian appointed by will or deed may also be compelled to make a judicial settlement of his account in any case where a like settlement would be com- pelled of the account of the guardian appointed by the court, and the proceedings to procure such settle- ment are the same as if the guardian had been so appointed. (§ 2856.) Such a guardian appointed by will or deed may be removed, and may be allowed to resign in the same 156 Cotjrt may Appoint Successor. manner as a guardian appointed by the surrogate, and reference is made to what is said upon that subject heretofore. Where the sole guardian appointed by will or by deed has been, by the decree of the court, removed or allowed to resign, the court may appoint a successor, unless such an appointment would contravene the express terms of the will or deed. (§ 2860.) APPENDIX No. 1. The last will and testament of A. B., of the town of ." , in the county of and State of New York. I, A. B., make this, my last will and testament, as follows : First. I direct that my funeral charges, expenses of administering my estate, and my debts, be paid out of my personal estate; and if my personal estate be insufficient for those purposes, I expressly charge the payment thereof, or of any deficiency, upon the real estate whereof I may die seized, and for that pur- pose, or for the payment of the legacies hereinafter bequeathed, I authorize my executors hereinafter named to sell at public or private sale the whole, or such part of my real estate as may be sufficient for those purposes. Second. I give and bequeath to my beloved wife, if bhe shall survive me, the sum of dollars, to be paid to her, with interest from the time of my decease, in lieu of her dower, and of her dis- tributive share in my estate. Third. I give and bequeath to my daughter C. D., wife of , one thousand dollars, to be paid to her by my executors, for her separate use. 158 Appendix. And I further direct that if she should die during my lifetime, leaving issue, and any of her descendants shall be living at my decease, said sum shall be paid to said descendants in the proportion that the same would be paid to them under the statutes of this State, if the said C. D. had died intestate, leaving said sum for distribution as a part of her personal estate. Fourth. I give and bequeath unto , infant son of , of -, one hundred dollars ; and I authorize my executors, if they shall deem it safe and prudent, to pay the said legacy to the father of said infant, and to take his receipt therefor, and his agreement to hold the same in trust for the said infant, to be paid to him when he shall arrive at full age, with interest; or, if they shall think best, the said executors may deposit said legacy in some savings bank to be selected by them, to the credit of said infant, and proof of such deposit shall be a sufficient discharge to my said executors for the same. Fifth. I give and bequeath to each of my brothers, A. and B., the sum of five hundred dollars, and I direct that in case either of my said brothers should die during my lifetime, his legacy shall not lapse but shall go to the survivor. If both of my said brothers shall die during my lifetime, then the legacies to them shall lapse into the residue of my estate. Sixth. I give and bequeath my ten shares of one hundred dollars each, of stock in the Union National Bank of Troy, to my friend Seventh. I give and devise to my beloved wife, the Appendix. 159 dwelling-house and lot in the village of , where I now live, for and during her natural life ; and from and after her death, I give and devise the same to my son, A. R., his heirs and assigns forever. Eighth. I hereby dispose of the custody and tuition of my infant children during their minority, and while they shall remain unmarried, to my beloved wife, so long as she shall remain my widow ; but if she shall die or marry during the single life and infancy of any of said children, then and in that case I dispose of and commit their custody and tuition to my friend, R. F. Ninth. I give, devise and bequeath all the residue of my estate, real and personal, to my children, share and share alike, as tenants in common. Lastly. I appoint my son, S. B., and my friend, A. R., executors of this my last will and testament, hereby revoking all former wills by me made. In witness whereof, I have hereunto subscribed my name, this day of .' , in the year of our Lord one thousand eight hundred and (Signed) A. B. The foregoing instrument was, at the date thereof, subscribed by the said A. B. in our presence, and lie at the same time declared the same to be his last will and testament, and requested us to sign our names as witnesses, which we do in his presence. C. D., Troy, Rensselaer Co., N. Y. R. M. D., Troy, Rensselaer Co., N. Y. 160 Appendix. Attestation Clause where the Execution was Acknowledged. On the day of the date of the foregoing instrument, the above named A. B. acknowledged to us and each of us that he had subscribed the foregoing instrument, and at the same time declared the same to be his last will and testament, and requested ns to sign the same as witnesses, which we do in his presence. CD., Troy, Rensselaer Co., N. Y. K. M. D., Troy, Rensselaer Co., 2V. Y. Attestation Clause Showing Execution, and good in any State except Louisiana. [Three witnesses are required.] On this day of . .- 1882, the under- signed being present and believing the above named A. B. to be of sound mind and memory, saw the said A. B. subscribe the foregoing will, and at the time of such subscription, the said A. B. stated to each of the undersigned that the paper so subscribed by him was his last will and testament, and requested us and each of us to sign said will as witnesses. Whereupon we do in his presence and in presence of each other, attest and subscribe the same as witnesses, the day and year above written. CD., Troy, Rensselaer Co., iV^. Y. E. F., Troy, Rensselaer Co., N. Y. G. H., Albany, N. Y. Appendix. 161 Clause in a Will, Limiting Certain Property to the Use of a Married Woman. I give and bequeath to A. B. and C. D., the sur- vivor of them or their successors, appointed by the supreme court, the sum of two thousand dollars in trust to receive the interest thereof during the joint lives of G. H. and E. H., his wife, and to pay the same to the said E. H. and her assigns, notwithstand- ing her coverture, for her sole and separate use, from time to time, during the joint lives of the said G. H. and E. H., his wife, so that the said E. H. shall not sell, mortgage, charge or otherwise dispose of the same in the way of anticipation. And if the said E. H. shall survive her said husband, then upon trust to pay the said principal sum to the said E. H. ; but in case the said E. H. shall die during the lifetime of her husband, then in trust, after the decease of the said E. H., to assign and transfer the said sum of two thousand dollars to such person or persons, and in such shares and subject to such conditions as the said E. H., by her last will and testament in writing, or by any writing in the nature of, or purporting to be her last will and testament, shall limit or appoint, and in default of such appointment upon trust, to pay, transfer and assign the same to the next of kin of the said E. H.,not including therein the said G. H., her husband. 11 162 Appendix. Clause in a Will Limiting Real Estate to the Separate Use of a Maeeikd Woman. I give and devise to A. B. and C. D. during the joint lives of E. H. and Gr. H., her husband, all that parcel of land conveyed to me by R.,J., by deed dated November 1, 1882, and recorded in the office of the clerk of the county of , in book No of deeds, page etc., upon trust to pay the rents, issues and profits thereof to the said E. H., or to such person or persons as she shall, by writ- ing, appoint to receive the same, during the joint lives of the said E. H. and Gr. H., for her sole and separate use, so that the said E. H. shall not sell, mortgage or otherwise dispose of the same in the way of anticipa- tion. From and immediately after the decease of the said G. H., then I give and devise said premises to the said E. H., if she shall survive her said husband. But in case the said E. H. shall die in the lifetime of her husband, then I give and devise the same to herheirs- at-law, as tenants in common. Legacy to Charitable or Religious Corporations. I give and bequeath to the (American Bible Society, stating the name, if possible, or otherwise clearly describing the society), the sum of one thousand dol- lars, to be applied to the uses of said society. Appendix. 163 No. 2. Codicil. Whereas, I, James Richards, of the town of Scho- dack, in the county of Rensselaer, have made my last will and testament, bearing date the , 1882, in and by which I have given and bequeathed to my daughter Mary, five hundred dollars. Now, therefore, I do, by this instrument, which I hereby declare to be a codicil to my last will and testament, and to be taken as a part thereof, order and direct that only the sum of two hundred dollars be paid to my said daughter Mary, in full of the legacy given and bequeathed to her in my said last will and testament. And it is my desire that this codicil be annexed to and be made a part of my last will and testament. In witness whereof I have hereunto set my hand and seal, this first day of March, A. D., 1882. JAMES RICHARDS, [l. s.] The foregoing instrument was, at the date thereof, subscribed by James Richards in our presence, and he at the same time declared said instrument to be a codicil to his last will and testament, and requested us to sign our names as.witnesses, which we do in his presence, and in the presence of each other. A. B., Troy, Rensselaer Co., N. Y. C. D., Troy, Rensselaer Co., N. T. 164 Appendix. No. 3. Renunciation of Executob. SURROGATE'S COURT. — Rensselaer County. In the Matter op the Last Will and j Testament f of / THOMAS WILLIAMS, Deceased. 1 I, Henry Williams, of the town of Brunswick, in said county of Rensselaer, one of the executors appointed in and by the last will and testament of Thomas Williams, late of said town, deceased, do hereby renounce the said appointment, and all right and claim to letters testamentary of the said will, or to act as executor thereof. HENRY WILLIAMS. Dated Teot, February 20, 1882. Signed in the presence of John Stiles. The signing may be proved by an affidavit of one of the witnesses, or by acknowledgment, as in the case of deeds. Appendix. 165 No. 4. SUBROGATED COURT. In the Matter of Proving the Last^ Will and Testament of of , Deceased. To Moses Warren, Esq., Surrogate of the County of Rensselaer: The petition of . . . . , named in the last will and testament of , late of the of , in the county of Rensselaer and State of New York, deceased, respectfully showeth, on information and belief, that the said died on or about the day of 188.., at the of.. in the county of Rensselaer aforesaid, which was the place of h . . residence at the time of h . . death. That the instrument now presented and shown to your petitioner. ., purporting to be the last will and testa- ment .of said deceased, and bearing date upon the day of , 188 . . , your petitioner. . verily believe. . to be such last will and testament , and that the said instrument purporting to be such last will and testa- ment relates to both real and personal estate. And your petitioner . . further show . . that the deceased left , and who are all and the only heirs-at-law and next of kin of the said deceased. 166 Appendix. Tour petitioner., therefore pray., that the persons above-named may be cited to attend the probate of Baid will, and that a citation may issue to the heirs-at law and next ot kin to said deceased, requiring them to appear before the said surrogate, at his office in the city of Troy, in the county of Eens- selaer aforesaid, to attend the probate of the last will and testament, according to the form of the statute of the State of New York in such case made and provided. And your petitioner . . , as in duty bound, will ever pray, etc. .Dated Troy, ,188... STATE OF NEW YORK, ) gg , Rensselaer Couhty. j , being duly sworn, say . . that the foregoing petition by subscribed is true, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters believe . . it to be true. ' Sworn to before me, this ) 188.. 1 Appendix. 167 No. 5. SUKEOGATE'S COURT. In the Matter of the Application for Letters of Administration on the ( Estate OF Deceased. To Moses Warren, Esq., Surrogate of the County of Rensselaer : The petition of of the town of in said county, respectfully shows upon information and belief, That late of the town of in said county, died on or about the ... day of , 188 ... at the town of. aforesaid, without leaving any last will and testament ; that said deceased at the time of . . . . death was pos- sessed of certain personal property within the State of New York, the value whereof does not exceed the sum of dollars, as your petitioner. . is informed and verily believe. . And that your peti- tioner . . is the of the said deceased. Tour petitioner. . further show ... that the deceased left .... surviving only next of kin, and that. . . .was at, or immediately previous to ... . death, an inhabitant of the county of Rensselaer. Your petitioner . . pray . . that administration upon 168 Appendix. the estate of the said deceased, may be granted to your petitioner Dated Tboy, 188 . . STATE OF NEW YORK, ) Renssela.ee County. ) ss. being duly sworn, say . . that the petitioner. . named in the foregoing petition, and that the said petition is true of . . . . own knowledge, except as to the matters which are therein stated to be on information and belief, and as to those matters believe . . it to be true. Sworn. to before me, this ) day of , 188. Appendix. 169 No. 6. Inventory Papers — Notice of Appraisement. To the legatees and next of km of John Doe, deceased: Rensselaer County, ss. : Take notice that the subscriber, with the appraisers, duly appointed, will attend at the late dwelling-house of the deceased, in the city of Troy, in the said county, on the 28th day of February, 1862, at ten o'clock in the forenoon of that day, to estimate and appraise the personal property of the said deceased, and, with the aid of the said appraisers, take an inven- tory thereof. Dated February 22, 1862-. JOHN DOE, Administrator, etc. Inventory. We, whose names are hereunto signed, appointed by the surrogate of the county of Rensselaer, having first taken and subscribed the oath required by law, and hereto annexed, do certify that we have estimated and appraised the property in the annexed inventory contained exhibited to us, according to the best of our knowledge and ability, and we sign duplicate inventories thereof. Dated this 28th day of February, 1862. 170 Appendix. STATE OF NEW YOEK, j Rensselaer County. ) I do solemnly swear that I will truly, honestly and impartially appraise the personal property of (Richard Roe) deceased, which shall be exhibited to me, accord- ing to the best of my knowledge and ability. (Signed) JOHN DOE. Sworn before me, this 28th \ day of February, 1862. \ John Kirbt, Justice of the Peace. STATE OF NEW YORK, ( ' > ss. : Rensselaer County. ) I do solemnly swear, etc., (the same as the oath above to be signed by the other appraiser and sworn to in the same manner). (Signed) RICHARD ROE. Sworn before me, this 28th ) day of February, 1862. J Henry Kirby, Justice of the Peace. A true and perfect inventory of all and singular the goods, chattels and credits of Richard Roe, deceased, made by , administrator (or as the case may be) etc., of the said deceased, with the aid of (John Doe) and (Richard Roe) appraisers appointed by the surrogate of Rensselaer county, duly qualified, and after service of notice as the law directs, on the 28th day of February, 1862. Appendix. 171 The following articles are stated but not appraised, being set apart, according to law, for the widow (or minor children), to wit : One spinning wheel. One weaving loom. Three stoves kept for the use of the family. (Continue the list set apart by law.) The following articles are appraised and set apart for the use of the widow (or the use of the widow and minor children), in addition to those enumerated above, in pursuance of the statute, to wit : One mahogany bureau $15 00 One sofa 75 00 One sideboard 3 50 One carpet 5 00 One eight-day clock 5 00 (And furniture to the amount of $150.) The following articles are in addition to those above enumerated, to wit : Forty sheep, 20s $100 00 One sorrel horse 60 00 One black horse 75 00 (And thus through the like articles.) The following accounts and notes are considered good and collectible, to wit : Note, John Myers, dated February 10, 1860, for $100, indorsed, interest for two years, now worth $100 00 Account against James Jones 15 00 (And thus through the good items.) 172 Appendix. The following are considered doubtful, to wit : Note, Thomas Nokes, dated August 1, 1857, no indorsement $16 00 (And so through the doubtful.) The following are considered bad, to wit ; (Here state the bad items in detail.) Dated February 28, 1862. (Signed) Appraisers. The following affidavit is to be indorsed on, or an- nexed to the inventory when filed : STATE OF NEW YORK, i ' <■ ss \ Rensselaer County, (John Doe), executor, etc. (or administrator, etc.), of Richard Roe, deceased, being duly sworn, does depose and say, that the annexed (or foregoing) inven- tory is in all respects just and true, that it contains a true statement of all the personal property of the said deceased, which has come to the knowledge of this deponent, and particularly of all moneys, bank bills, and other circulating medium belonging to the said deceased, and of all just claims of said deceased against this deponent. (Signed) Sworn before me, this 1st ) day of March, 1862. i R. C. Jennings, Justice of the Peace. Appendix. '173 No. 7. Notice to the Creditors to Present Claims. In pursuance of an order of Moses Warren, Esq., surrogate of the county of Rensselaer, notice is hereby given, according to law, to all persons having claims against (Richard Roe) late of the town of Brunswick in the said county, deceased, that they are required to exhibit the same, with vouchers thereof, to the sub- scriber, executor of the will of the said deceased, at his residence in the said town of Brunswick, on or before the 1st day of September, 1862. Dated February 28, 1862. (Signed) Executor. Affidavit to Annex to Claim. Rensselaer County, ss. : Edward Murphy of the city of Troy, in the county of Rensselaer aforesaid, being sworn, doth depose and say that the foregoing claim against the estate of Kyran Cleary, deceased, is justly due and owing to this deponent ; that no payments have been made thereon, and that there are no offsets against the same (other than those stated in the foregoing account), to the knowledge of this deponent. (Signed) EDWARD MURPHY. Sworn to, this 1st day of March, ) 1862, before me. i George Day, Commissioner of Deeds, Troy, N. Y~. 174 Appendix. No. 8. Receipt of Creditor. Received, Troy, April 10, 1862, of John Jones, executor, etc. (or administrator, etc.), of Henry Jones, deceased (ten dollars and fifty cents), in full of fore- going account (or in payment of all demands due me from the estate of said deceased), (or for taxes assessed in the city of Troy on the estate of said deceased, previous to his death). (Signed) AMOS S. PERRY. Receipt for Legacy. Whereas, James Richards, late of the town of Schodack, in the county of Rensselaer, deceased, lately made his last will and testament, dated the day of , 1862, in which he gave and bequeathed to me the sum of (five hundred dollars) : Now, therefore, I hereby acknowledge the receipt of said sum so bequeathed to me, of John Richards, executor named in said will. Dated Schodack, March 1, 1862. (Signed) MARY WILLIAMS. Appendix. 175 No, 9. Petition of Creditor to Compel Payment of His Claim. To the Surrogate of the County of The petition of , of the of , respectfully shows : That your petitioner is a creditor of , late of the of , in said county, deceased, upon a claim for dollars, as follows : That your petitioner sold and delivered to the said deceased, in his lifetime, goods, wares and merchan- dise to the value of dollars, which sum he promised to pay at the expiration of months, but he did not pay the same, nor have any payments been made thereon since, and there are no offsets against the same, to the knowledge of your petitioner, and there is due thereon to your petitioner dollars, with interest from the day of 1882. That on or about the day of , 1882, the last will and testament of the said deceased was duly proved in this court, and letters testamen- tary thereon were issued to executor named in said will, who has duly returned an inven- tory of the personal estate of said deceased. That said executor advertised for the presentation of claims against the estate of the said deceased, and your petitioner duly presented his claim, which was no't disputed, and your petitioner, after the expiration 176 Appendix. of six months from the granting of such letters, demanded payment of his said claim from the said executor, who has not paid the same nor any part thereof. Wherefore your petitioner prays that a decree may he made for the payment of said claim, or for such other order .or decree as shall be agreeable to law and equity. Dated July 28, 1882. (Signed) Rensselaer County, ss. : , being duly sworn, says that the foregoing petition by him subscribed is true of his own knowledge, except as to those matters which are therein alleged to be stated on information and belief, and as to those matters he believes it to be true. (Signed) Sworn before me, this day of , 1882. Appendix. 177 No. 10. Petition fob Judicial Settlement. SURROGATE'S COURT — County of Rensselaer. To Moses Wakeen, Esq., Surrogate of the County of Rensselaer : The petition of of the of in the county of Rensselear aforesaid, respectfully showeth, that your petitioner., w... duly appointed and qualified by the surrogate of said county of Rensselear, as the of the late of the in said county, deceased, and that more than one year has elapsed since letters w granted and iss.ued to your petitioner. . by the surrogate aforesaid. That your petitioner. . ha. . returned to the surro- gate of said county an inventory of the personal property and estate of the said deceased. That said deceased left surviving And that the following named persons are, or claim to be, creditors of said deceased : Wherefore, your petitioner. . pray . . that account may be judicially settled, and that the said may be cited to attend such settlement. And your petitioner., will ever pray. (Signed) Dated, , 188.. 12 178 Appendix. Rensseleab County, ss. : being duly sworn, says that the foregoing petition by subscribed, and that the same is true of own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters believe . . it to be true. Sworn to before me, } 188.. C Appendix. 179 No. 11. Account of Executor oe Administrator. [This form may be adapted to any estate or any amounts. ] A. B., executor (or administrator), in account with the estate of O. D., deceased : 1862. Dr. To amount of inventory on file. . $550 00 Jan. 2. To received, savings' bank deposit not inventoried 15 50 To received, interest from E. F., not included in inventory 6 10 $571 60 I860. Contra — Cr. July 1. By paid surrogate letters, testa- mentary, etc $15 00 By expenses to and at Troy to obtain letters 3 00 By paid C. D., witness to will , . . . 2 00 By paid E. F., witness to will 1 50 9. By paid J. H. and E.R., appraisers, 6 00 By paid oath, filing inventory 50 20. By paid funeral charges 40 50 29. By paid support of widow and family for forty days 10 50 1861. Jan. 3. By paid, surrogate's order to ad- vertise for claims, etc 75 By paid, printing same 5 50 180 Appendix. 1861. Jan. 3. By Iobs on sale of inven- toried articles $16 00 By expenses to Troy three times 4 50 $20 50 $108 75 Showing balance for commissions, debts and distribution of $462 25 The following claims have been presented against the estate of said deceased : Edward Murphy $150 00 James Jones 16 00 (Stating them in full.) The following affidavit is to be included in, or annexed to the account : Ebnsselaee County, ss. : A. B. of the town of , in the county of Rensselaer, being duly sworn, says: That he is executor of the last will and testament of (or admin- istrator of all and singular the goods, chattels and credits of) C. D., late of said town of , deceased, and that the foregoing (or annexed) account is in all respects just and true ; that the same accord- ing to the best of his knowledge and belief, contains a full and true account of all his receipts and disburse- ments, on account of the estate of said deceased, and of all sums of money and property belonging to the Appendix. 181 estate of . the said deceased, which have come into his hands as such administrator, or which have been received by any other person by his order or authority, for his use ; and that he does not know of any error or omission in the said account, to the prejudice of any creditor of, or person interested in, the estate of the said decedent. And he further says, that the sums under twenty dollars, charged in said account, for which no vouchers or other evidence of payment are herewith filed, or for which he has not been able to produce vouchers or other evidences of payment, have actually been paid and disbursed by him as charged. (Signed) A. B. Sworn before me, this ) day of ,1882.) 182 Appendix. No. 12. Release fok Discharge of Decree. SURROGATE'S COURT — County of ... . In the Matter op the Estate of J- Deceased. Whereas, by a decree of the surrogate of the county of , in this matter, entered on the day of , 1873, executor of the .will of the above-named deceased, was ordered and directed to pay to the undersigned, a legatee named in said will, the sum of dollars, now I do hereby acknowledge the receipt of the said sum from said , and release him from all claims therefor, and request the surrogate of said county, to enter this as a discharge of said decree. Witness my hand, this day of , 1873. (Signed) Rensselaer County, ss. : On this day of , 1.873, before me personally came , to me known to be the same person described in and who executed the foregoing instrument, and acknowledged that he executed the same for the uses and purposes therein mentioned. (Signed) , Justice of the Peace. Appendix. 183 No. 13. Petition for Mortgage, Lease or Sale, by Execu- tor or Administrator. SURROGATE'S COURT — Rensselaer County. In the Matter of the Real Estate | of A. B., Deceased. 1 To Moses Warren, Esq., Surrogate of the County of Rensselaer : The petition of C. D., executor (or administrator) of the will of (or of the goods, etc., of) A. B., late of the town of Brunswick, in the county of Rensselaer, deceased, shows that your petitioner has made and filed an inventory of the personal property of the said A. B., deceased, according to law, and has discovered the same to be insufficient to pay the debts of the deceased. That the amount of the personal property which has come to the hands of your petitioner amounts to the sum of $578. That the outstanding debts of the deceased, which remain unpaid and which are justly due and owing, and which are not secured by judgment or mortgage, or expressly charged on the real estate of the deceased, as near as the same can be ascertained, amount to the sum of $1,005, owing as follows : To A. B $175 00 To C. D 50 00 To G. F 200 00 To G. EL for funeral expenses, etc., etc 125 00 184 Appendix. And your petitioner verily believes and states the fact to be, that he has proceeded with reasonable dili- gence in converting the personal property of said deceased into money, and applying the same to the payment of debts. That the deceased died seized of the following real estate, situated in the county of Rensselaer aforesaid, valued at the sum respectively affixed to each lot or parcel, and occupied or not occupied as stated in respect to each of the several lots or parcels, that is to say, all (stating fully metes and bounds). Besides the above described real estate, the deceased left no other in the State of New York which may be disposed of for the payment of his debts, and none of the above described real estate is devised by the testator expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution. And your petitioner further shows that S. B. is the widow, and A. B., C. B. and E. B., of the town of Brunswick, are children and heirs-at-law of the said A. B., deceased, of the age of twenty-one years and upwards, and J. B. and K. B. are infants of the age of fourteen years and upwards, and aged sixteen and nineteen years respective^', and L. B. and M. B. are infants, and are also children and heirs-at-law of the deceased, and under fourteen years of age, and aged ten and twelve years respectively, and none of said infants have any general guardian. Your petitioner, therefore, prays that authority may be granted to him by the said surrogate (pursuant to the statutes of the State of New York in such case Appendix. 185 made and provided), to mortgage, lease or sell so much of the real estate of the deceased as shall be necessary to pay the debts of the deceased. And your petitioner will ever pray, etc. (Signed) C. D. Dated October 1, 1882. STATE OF NEW YORK, ) co . r So- • Kensselaek County. ) C. D., being sworn, deposes and says that the above petition, by him subscribed, is true of his own knowl- edge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters he believes it to be true. (Signed) C. D. Sworn, etc. 186 Appendix. No. 14. Petition of Creditor for Sale. To Hon , Surrogate of cotmty : The petition of , of the of , respectfully shows as follows : Tour petitioner is a creditor of , late of the of , deceased, intestate, said intestate having died indebted to your petitioner in the sum of dollars and interest upon a promissory note, made by him to your petitioner or order, dated the day , 1882, and payable ninety days after date. Said claim is justly due to your petitioner, no payments have been made thereon, and there are no offsets against the same to the knowledge of your petitioner, and the same is not .secured by judgment, mortgage upon or expressly charged on the real estate of the said deceased. Letters of administration of the goods, chattels and credits of the said , deceased, were duly ispued by the surrogate of the county of . '. , on the day of , 1873, to of the , and the same still remain in full force as your petitioner is informed and believes. That besides the debt to your petitioner, he is informed and verily believes that there are other debts of the decedent unpaid ; but your petitioner after diligent inquiry is unable to ascertain the names of the creditors or the amounts of such debts. The said intestate died seized of the following described parcels of real estate, valued at the sum Appendix. 187 respectively affixed to each parcel, and occupied or not occupied as hereafter stated as to each ; that is to say (describe each parcel and names of occupants and value). Tour petitioner has made diligent inquiry as to whether said deceased left any other real estate within the State, but is unable to ascertain whether or not he did so. is the widow, and of full age, and , an infant, of the age of twenty years, and , an infant, of the age of thirteen years, neither of whom have a general guardian, are the heirs-at-law of the said deceased. Your petitioner therefore prays, that the surrogate will grant an order for the said , admin- istrator as aforesaid, to show cause why he should not be required to mortgage, lease or sell the real estate of the said deceased, for the payment of his debts, and that such other or further proceedings, according to law, may be thereupon had, as may tend to the relief of your petitioner and the payment of his claim aforesaid. Dated December 1, 1874. (Signed) County, ss. : , being duly sworn, says that the foregoing petition, by him subscribed, is true of his own knowledge ; except as to the matters which are therein stated on information and belief, and as to those matters he believes it to be true. Sworn, etc. (Signed) 188 Appendix. No. 15. ^ Annuity Table and Rule. Age. '1 2 No. of years purchase. 11,563 13,420 Age. 29 30 No. of years purchase. .... 13,177 13,072 3 14,135 31 12,965 4 14,613 32 12,854 5 14,827 33 12,740 6 7 15,041 15,166 34 35 12,623 12, 502 8 15,226 15,210 36 12,377 9 37 12, 249 10 . . . . 15,139 38 12,116 11 15,043. 39 11,979 12 13 14, 937 14,826 40 41 11,837 11,695 14 15 14,710 14,588 42 43 11,551 11,407 16 14, 460 44 11, 258 17 14,334 45 11,105 18 19 20 14, 217 14,108 14,007 46 47 48 . 10, 947 10, 784 10,616 21 13, 917 49 10,443 22 23 . , 13,833 13,746 50 51 10, 269 10,097 24 25 26 27 , ., 28 13,658 13,567 13,473 13,377 13, 278 52 53 54 55 56 9,925 9,748 9,567 9,382 9,193 Appendix. 189 No. of years Age. purchase. 57 8,999 58 8,801 59 8,599 60 8,392 61 8,181 62 7,966 63 7, 742 64 7,514 65 7,276 66 7,034 67 6,787 68 6, 536 69 6,281 70 6, 023 71 5,764 72 5,504 73 5,245 74 4, 990 75 4,744 76 4, 511 No. of years Age. purchase. 77 4,277 78 4,035 79 3,776 SO..... 3,515 81..... 3,263 82 3,020 83 2,797 84 2, 627 85 2,471 86 2,328 87 2,193 88 2,080 89 1,924 90 1,723 91 1,447 92 1, 153 93 816 94 524 95 238 Rule foe Computation. Calculate the interest at five per cent for one year upon the sum to the income of which the person is entitled, and multiply this interest by the number of years purchase set opposite the person's age in the table, and the product is the gross value of the life estate of such person. 190 Appendix. Example. Suppose a widow's age is forty, and she is entitled to dower in real estate worth $1,500 ; one-third of this is $500 ; interest on $500, one year, at five per cent, is $25 ; multiply this by 11,837, the number of years purchase set opposite her age, and you have $2#5.92, as the gross value of her dower right. Appendix. 191 • No. 16. Petition foe Guaedian, Infant Ovek Foubteen. To Moses Waeeen, Esq., Surrogate of the County of Rensselaer : The petition of , of the of respect- fully showeth, that your petitioner is a resident of the county of Rensselaer, and who has no testamentary oi>other guardian, and is a minor over fourteen years of age, and was years of age on the day of last past. That your petitioner is entitled to certain property and estate, and that to protect and preserve the legal rights of your petitioner, it is necessary that some proper person should be duly appointed the guardian of person and estate during '. ... minority. Your petitioner therefore nominates, sub- ject to the approbation of the surrogate, of the of in the county of , to be such guardian and prays appointment accordingly. And your petitioner will ever pray. Dated the day of , A. D. 188. . Rensselaee County, ss. : The foregoing petitioner, being duly sworn, says that has read the foregoing petition, and knows the contents tkereof, and that the same is true of .'. own knowledge, except as to the matters which are therein stated to be alleged on information 192 Appendix. and belief, and as to those matters believes it to be true. Sworn before me, this day of , 188. t Consent. I, of the of , do hereby consent to be appointed the guardian of the person and estate of the above-named minor during minority. Dated this day of , A. D. 188 . . Affidavit as to Property. STATE OF NEW YORK, ) _ } ss. : County of Rensselaer. \ , of the of , being duly sworn, doth depose and say that is acquainted with the prop- erty and estate of the above-named minor ; and that the same consists of real and personal estate ; and that the personal- estate of said minor does not exceed the sum of six thousand dollars or thereabouts ; and that the annual rents and profits of the real estate of said minor do not exceed the sum of one hundred and fifty dollars or thereabouts. Sworn this day of , . A. D. 188 .. , before me. ) Appendix. 193 CouNTr of Rensselaer, ss. : I, , do solemnly swear that I will well, honestly and faithfully dis- charge the duties of general guardian of the person and estate of , a minor, according to law. Subscribed and sworn before me, ) this.... day of ,188.. f 13 1 94 Appendix. No. 17. Petition for Guardian, Infant Under Fourteen. To Moses Warren, Esq., Surrogate of the County of HenSselaer : The petition of , of the of , in the county of respectfully showeth that your peti- tioner is the of minor. . ; that said minor, .reside. . in the county of .Rensselaer, and .... under fourteen years of age, and has no testamentary or other guardian, and whose father is deceased ; that said was years of age on the day of , last past ; that said minor enti- tled to personal property to the value of about dollars, as your petitioner is informed and verily believes, and that also seized of certain real estate, the annual rents and profits do not exceed the sum of. dollars to each, and to protect and preserve the legal rights of said minor.... it is necessary that some proper person should be duly appointed the guardian of person and estate. Your petitioner therefore prays that you will appoint of the of in the county of , the guardian of the person and estate of said minor. . until he shall arrive at the age of four- teen years, and until another guardian shall be appointed. And your petitioner will ever pray. Dated this day of , A. D. 188 . . Appendix. 195 Consent. I, , of the of , do hereby consent to be appointed the guardian of the person, .and estate of the above-named minor, .during. . . . minority. Dated this day of 188 . . STATE OF NEW YORK, County of Rensselaeb. , of the of , the above-named petitioner, being duly sworn, deposes and says, that the fore- going petition by ... . subscribed is true of own knowledge, except as to the matters which are therein stated to be alleged on information and belief, and as to those matters .... believes it to be true. Sworn before me, this day of. ..., 188. 1 County of Resselaer, ss. : I, , do solemnly swear that I will well, honestly and faithfully discharge the duties of general guardian of the person and estate of , a minor, according to law. Subscribed and sworn before me, [ this day of , 188.. 1 196 Appendix. No. 18. Guardian's Annual Account, etc., and Inventory. SURROGATE'S COURT — Rensselaer County. In the Matter of A. B., a Minor. Inventory. A just and true inventory of the estate and effects of the above-named minor on the 1st day of April, 1862: Cash received of C. D., executor, etc., of C. D., deceased $350 00 1861. Dr. John La Fountain, bond and mortgage, $200, interest one year, $14 214 00 R. Thompson, bond and mortgage, $300, interest six months, $10.50 310 50 Ten shares Central Railroad stock par value $1,000, actually worth 830 00 House and lot No. 164 Fulton street, Troy, valued at 800 00 Farm in Sand Lake valued at 2? 000 00 . $4,504 50 , Appendix. 197 Account. J. K., guardian, in account with A. B., a minor: 1861. De. Apr. 1. To interest on La Fountain mort- gage ■ $14 00 Oct. 1. To interest on Thompson mort- gage 21 00 1862. Feb. 1. To dividend Central Railroad, 3 per cent.. 30 00 To three quarters' rent, house 164 Fourth street 180 00 Mar. 1. To 1 year's rent, farm in Sand Lake 200 00 $445 00 1861. CoNTBA — Cb. Apr. 10. By board paid J. H., 26 weeks at $2 $52 00 July 1. By clothing purchased of J. N., 10 00 9. By hats purchased of G. F 50 Oct. 1. By board paid J. H., 26 weeks, 52 00 10. By clothing of J. N 15 00 1. By repairs No. 164 Fourth street, 8 50 1862. Feb, 10. By taxes No. 164 Fourth street, 12 00 By taxes farm in Sand Lake .... 22 00 Apr. 1. By interest on $350, uninvested 6 months 12 25 Commission for receiving in- come, 2i per cent on $445. . . 11 12 198 Appendix. » 1862. Apr. 1. Commission on paying out in- come, 2% per cent on $195.37, $3 87 Balance due estate. 234 64 $445 00 Kenssblaee County, ss. : J. K., of the city of Troy, being duly sworn, says that the foregoing inventory and account contains; to the best of his knowledge and belief, a full and true statement of all his receipts and disbursements as guardian, as therein stated ; and of all money and other personal property of the ward's which have come into deponent's hands as guardian, or have been received by any other person by his order or authority, or for his use, since his appointment (or since the filing of the last annual inventory and account); and of the value of such, together with a fall and true statement and account of the manner in which he has disposed of the same, and of all the property remaining in his hands at the time of filing said inventory and account ; and a full and true descrip- tion of the amount and nature of each investment made by him since his appointment (or since the filing of the last annual inventory and account), and that he does not know of any error or omission in the inventory or account to the prejudice of said ward. J. K. Sworn before me, this 29th ) day of July, 1882. i A. B., Justice of the Peace. Appendix. 199 No. 19. Petition foe Leave to Expend foe Infant. SURROGATE'S COURT — Rensselaee County. In the Matter op the Pekson and Estate op A. B., an Inpant. The petition of C. D. respectfully shows to this court : That your petitioner was heretofore appointed by this court the general guardian of the person and estate of the above-named A. B., an infant, and has faithfully discharged his duty as such general guardian. That said infant is now of the age of fourteen years and your petitioner deems it desirable to take proper steps for his education, but the income of the estate of said infant is insufficient' (if this be the case) to properly educate and maintain- said infant while acquiring an education. The income will not exceed the sum of dollars per annum, and the sum requisite for the aforesaid purposes is at least .dollars per annum. Your petitioner therefore prays, that he may be authorized to make application of the income of the estate of said infant to his support and education, and that he may further apply annually of the principal of said estate for that purpose. And your petitioner will ever pray, etc. Dated May 13, 1882. C. D. 200 Appendix. Rensselaer County, ss. : 0. D., being duly sworn, says that the foregoing petition by him subscribed, is true of his own knowl- edge, except as to the matters which are therein stated to be alleged on. information and belief, and as to those matters he believes it to be true. C. D. Sworn before me, this . . ) day of November, 1882. i Notary Public. INDEX. A. ABATEMENT, pa OB . applied to legacies 91 what legacies not subject to 91 ABSENTEE, special administrator upon estate of 45 family of, provided for 46 ACCEPTANCE, of guardian inferred 136 ACT, of one co-executor binding 71 ACTION, special administrator may maintain 45 against special administrator 45 to recover withheld property 57 against executor or administrator 73 executor or administrator may have 73 to recover rejected claims 79 guardian may maintain 135 ACCOUNT. (See Claims.) executor or administrator may be cited to render 96 intermediate, may be filed any time. . . 96 temporary administrator may be compelled to render. . 96 may be ordered 98 executor or administrator to file 100 may be referred 101 manner of making 101 may be contested 101 of guardian regulated 147 duty of surrogate as to 148 how made 150 202 Index. ACCOUNT — Continued. pase. vouchers to be filed on 150 form of 196 ACCOUNTING, may be ordered on petition 96 preliminary to execution 96 executor punished for not 98 interest chargeable on 101 executor may be examined on 101 reference mayfbe ordered on 101 - what expenses allowed on 102 what objection made on 102 bad and doubtful claims on 103 payments allowed without vouchers on 103 equity to be practiced on 103 commissions on 104 distribution on 106, 107 settlement on conclusive, how , 114 of testamentary trustees 115 by guardian, when 149 of executor, etc 179 {See Judicial Settlement.) ACCOUNTS, deemed assets • 61 ADMINISTRATOR, de son tort liabilities of 8 unauthorized power to account to 8 must suspend proceedings when cited 29 cited when allegations filed against will 29 oath of 34 letters issued to, may be revoked 34, 36 temporary 36 may be enjoined from acting 36 has no charge over real estate 38 authority local 38 public, entitled to administration 39 special 44 ancillary, duty of 44 special, application for appointment '45 Index. 203 ADMINISTRATOR— Continued. fash. special, must qualify 45 must give bond 45 oath 45 may take possession 45 may maintain actions 45 action may be had against 45 authorized to sell 45 may pay 45 cited 46 may have settlement 46 may lease 46 may provide for family 46 must deposit money .* 46 cannot withdraw deposit except 46 neglect to deposit attachment issued 46 sureties liable 46 surrogate may reduce bond 46 new bond 46 where several, joint bond 47 sureties for each other 47 individual bonds 47 when treated as trustee 48 successor appointed, when 48 failure to file new bond 50 letters of, revoked unless new bond 50, 51 revocation of letters deprives of power 54 successor to 55 may resign 55 successor may compel, to account 55 may petition judicial settlement 55 decree revoking letters •. 55 decree revoking letters '. 56 may show that property is withheld 57 to apply for appraisers 58 must take inventory 58 to exhibit property to appraisers 59 to arrange property in classes 59 rent due to, when '. . 61 claim of decedent against, inventoried 62 204 Index. ADMINISTRATOR— Continued. pase. accountable for claim of decedent 62 discretion in providing sustenance 64 neglect to set apart for survivor 66 oath to inventory 66 bond prosecuted 69 any, may return inventory 69 returning inventory has whole power until 69 liable for loss 67, 71 to keep estate funds separate 71 may compromise, when 71 to deposit with bank 71 power of each 71 treat fraudulent transfers as void 73 have actions for debts 73 actions for personal property 73 for trespass 73 for trespass against 'an 73 to make collections 72, 74 chargeable for waste 74 to use diligence 74 liable for negligence 74 may retain, for debt due . 74 cannot sue his co-administrator 74 charged on final settlement 74 liable for credit granted 75 cannot purchase assets 75 claims of, against decedent 75 may sell at public sale, etc 75 use discretion as to time of sale 76 may compromise debts 76, 77 to advertise for claims, unless 77, 78 in respect to creditors, is trustee 78 to investigate claims 79 not coerced to pay debts within year 79 may require vouchers 79 state objections to claim 79 may reject claim 79 notify creditor of rejection 79 may agree to refer claim . < 80 Index. 205 ADMINISTRATOR— Continued. PAOE . should ofier to refer claim 80 where negotiations after rejection 80 may avoid costs on rejected claim 80 protected in payment of debts, etc 81 liability of, on his own contract . . 81 duty as to debts and distribution 83 duty of, as to taxes . . . . 83 as to judgments 83 as to mortgages 84 as to purchase-money 84 as to funeral expenses 84 not to give preference in debts 86 to pay debts not due 86 not to pay outlawed debt 87 to take a receipt 88 to pay debts only in order 88 duty of, as to leases 88 liability of, for rent 88 must prove his own claim 89 claim of, not entitled to preference 89 when to be presented ., 89 must be verified .' 89 not to settle claim for his own benefit 89 cannot retain outlawed debt 89 case of,, as to debts 89 how compelled to pay distributive share 92 to anticipate distributive share, when 93 duty of, as to investments 95 liable for loss on investments, when 95 when ordered to account 96 may be cited for judicial settlement .- 97 may be ordered to account 98 how punished for not accounting 98 may apply for settlement 98 to file account 100 chargeable with interest 101 may be examined on account 101 - allowance for payments by 101 force of inventory against 101 206 Index. ADMINISTRATOR— Continued. pack, may falsify inventory 101 presumptions in favor of 102 must produce vouchers 102 what expenses allowed to 102 not allowed for services 102 objections to account of 102 allowed bad or doubtful claims, when 103 what allowed to, without vouchers 103 on accounting of equity to prevail 103 commissions of 104 no allowance to, except commissions 105 commissions apportioned to several 106 bequest instead of commissions 106 not filing inventory to have no commissions 106 decree against, enforced by execution 116 decree against, enforced by attachment 117 punished by indictment 117 decree against, how satisfied 118 duty as to real estate 119 when, may apply for sale of real property 120 may be required to account in real estate proceedings. 122 to give bond on real estate 125 ' death of, not to affect real estate proceedings 126 not to buy real estate 126 to pay proceeds of sale 130 balance due to, how paid 132 compensation of, as to real estate 132 petition.of, form 177 account of, form 179 release of, form ' 182 petition of, for disposition of real estate 183 ADMINISTRATION, when granted 38 to whom granted 39 person entitled to, may have joined 40 denied, whom 41 petition for letters of, form 167 letters of, revoked upon petition. (See Letters of Administration, ditto.) Index. 207 ADMINISTRATION— Continued. paqk. letters of, revoked without petition. (See Letters of Administration, ditto.) ADVANCEMENTS, how charged on personal estate 112 statute as to 112 maintaining or educating is not 113 applied to estates of married women 113 released for good 113 does not apply where there is real estate 113 ADVERTISEMENT, for claims 77 executor protected on proving 81 AFFIDAVIT, for order to return inventory 68 AGENT, executor may employ 73 AGREEMENT, to refer claim 80 ALLEGATIONS, against will, filed within one year 29 surrogate will hear 30 ALIEN, cannot devise real estate 10 may make will of personal property 10 not inhabitant of State cannot be executor 10 ALLOWANCE, of personal property to widow 64 made for payments on settlement 101 ANNUITY TABLE, and rule 188 APPLICATION, for special guardian, notice of, to be served 22 for special guardian 22 when may be made 23 for letters, where made 39 for judicial settlement, surrogate's discretion 56 for guardian by infant over fourteen 137 208 Index. APPOINTMENT, paob. of guardian 134 APPRAISEMENT, notice of, served and posted 59 notice of, form of 169 APPRAISERS, when appointed 58 executor, etc., to apply for two 58 appointed by surrogate. . 58 who may act as 58 fees 58 duty of 58, 59 oath 59 property to be shown to 59 shall mark price 59 shall appraise in presence of 59 may adjourn after first meeting 59 discretion of 64 neglect to set apart for widow 64 ARTICLES, not deemed assets for distribution 62 in inventory not appraised 62 sold first 76 ASSETS, process for discovery and recovery of 57 applied and distributed 60 included in inventory 4 60 what are 60, 61 of a partnership not inventoried 62 stated but not appraised 62 things annexed to freehold not, except 62 of estate to be insured 72 executor cannot purchase 75 ASSESSMENTS, not a preferred debt. 83 ATTACHMENT, may issue for not accounting 98 when issued to enforce decree 117 Index. 209 ATTESTATION CLAUSE, PAQ b. to will, form of 160 ATTORNEY-GENERAL, when cit»d 18, 42 ATTORNEY, may appear for adult not served 25 AUCTION, i sales by 76 (See Vendue.) AUTHORITY, of administrator, local 38 ANCILLARY LETTERS, unnecessary, when 72 B. BANK, sums to be deposited in 108 BANKRUPTCY, of executor 37 BEDS, bedsteads and bedding not appraised 63 BEQUEST, of claim against executor 65 BIBLE, family, not appraised 63 BILLS, | or notes deemed assets 61 BOND, executors 32, 36 of administrator, to whom executed 43 sureties 43 penalty 43 execution 43 of special administrator 45, 47 surrogate may reduce 46 amount of, surrogate may fix 46 new, of executor or administrator 49 14 210 Index. BOND — Oontinued. page. with new sureties, proceedings dismissed 50 new, failure to file 50 principal of, when cited 50, 51 when no successor appointed, who may prosecute. ..'... 55 successor may prosecute 55 of person withholding property 57 if not given 58 of executor prosecuted 69 only given on payment of legacy 91 new, required of guardian, when 153 BONDS, deemed assets 61 statement of, in inventory 65 BOOKS, not appraised 63 BROTHERS, entitled to administration 39 when entitled to distribution 109 BURIAL, expense of, preferred claim 9 (See Funeral Expenses.) BURYING GROUNDS, how exempt from sale 119 c. CERTIFICATE, surrogate will attach to will 28 CESTUI QUE TRUST, not entitled to'control 71 CHANCELLOR, former power to appoint guardian 136 CHILDREN, entitled to administration 39 provisions in favor of 62, 63 distributions to 109 posthumous, right of . s . 112 advancements to, how reckoned 113 Index. 211 circulating medium, pa8b . deemed assets 61 CITATION, to attend probate to issue 17 to whom directed 17 must state facts 17 substance of 17 to whom issued 17 when issued 17 substance of 17 how served 18 to attorney-general, when 18 to public administrator, when 18 returnable, when 18 how served on infant of fourteen 18 adult .. 18 must be served, when 18 who may serve 18 how served on non-resident 19 service by publication 19, 20 service without State 19, 20 how served on lunatic 20 idiot 20 drunkard 20 infant 20 when returnable 20 surrogate may direct special service of 21 notice on service of 22 and notice in one paper 23 and notice may be served 23 proof of service of - 23 adult may appear if not served with 25 if not served, adjourn 25 to whom issued on filing allegations 29 executor must suspend, when served with 29 administrator must suspend, when served with 29 to issue on petition of alleged heir 30 to issue after decree, on application 31 to issue to executor or administrator to show cause 35 212 Index. CITATION — Oonimued. paok. issued on renunciation 42 served on ■ 42 served, when 42 to special administrator 46 to principal of bond 50 to person withholding property, issued 57 returnable, where », 57 on petition to set apart for survivor 66 for judicial settlement, procuring on return of 97 on judicial settlement, how served 99 how served on infant, etc 100 proof of service of, how made 100 when to be served by publication 122 on petition for guardian 137 CLAIMS, " of decedent against executor, inventoried 62 classed as good, doubtful and bad 65 executor may arbitrate 73 of executor against decedent 75 to be advertised for, unless 77 how presented 78 executor may reject 79 not paid short of a year 79 vouchers required on 79 agreement to refer 80 suit on, when barred 80 offer to refer, to accompany rejection 80 negotiations on, after rejection 80 what referable 80 suit on, executor protected 81 enforced by accounting 96 allowance of bad or doubtful 103 proof as to same 103 how proved bad, etc 103 decree to settle payment of 107 not due, how treated 107 how proved as to real estate 122 notice to present form of 173 petition to compel payment of, form 175 Index. 213 CLASSIFICATION, paqb. of claims in inventory 65 CLERK, in surrogate's, cannot act as appraiser 58 CLOTHING, not appraised 63 CO-ADMINISTRATORS, one person in law 71 (See Administrators.) CO-EXECUTORS, one person in law 71 not charged by other's note 72 {See Executors.) COLLECTION, of estate ft 71 COLLECTIONS, executor to make 72, 74 power of executor to make 73 COLLECTOR. (See Administrator, Special.) COMMISSION, to take testimony may issue 26 COMMISSIONS, how computed 104 rate of 104 not allowed on specific bequest 105 no other allowance for services 105 not allowed on real estate 132 of guardian 150 COMMITTEE, to be served, when 23 COMMON LAW, right of heir by, not impaired 62 COMPANY, stock in, deemed assets 61 COMPLAINT, against person withholding property 57 214 Index. COMPROMISE, pass. executors may, when 71 with debtors 77 CONTEST, who may make, of account 101 objections to account on 102 CONTRACT, executor personally liable f or . . . 81 of executor, void unless in writing 81 as to real estate, how sold. 129 effect of sale of .' 129 CONTROL, of trust fund exclusive, when 72 CONVICT, denfed administration 10, 41 COSTS, of proceeding upon non-filing of inventory 68 executor may avoid, on rejected claim 80 how paid on real estate 132 COUNSEL FEE, what, allowed on settlement 105 COUNSEL, sum to be allowed to, on real estate 133 COUNTY CLERK, to docket decree 116 COUNTY TREASURER, entitled to administration 39 real estate proceeds paid to 131 CREDIT, sale on, administrator liable for 75, 126 CREDITOR, may apply for probate 13 receives letters, when 33 entitled to administration 39 ancillary letters to, upon non-resident 43 ancillary administrator may pay 44 bequest ot claim on executor, not valid against 65 Index. 215 CREDITOR— Continued. page. no gift valid against 66 remedies of, on rejection of claim 79 rejection of claim communicated to 79 may collect of next of kin 81 when to, additional security 84 of an insolvent firm, rights of 84 remedy of, against next of kin or legatees 89 may petition for accounting 96 may petition for settlement 97 cited to settlement 98 payment to, on settlement 106 when paid in full. 108 when may apply for sale of real property 120 time of, how extended 120 to attend on distribution .., 131 notice to present claims, form of ■. 173 receipt of, form 174 petition of, to compel payment, form 175 petition for sale of real estate 18ft CROPS, produced by cultivation deemed assets 60 purchaser to hold, when 128 CUSTODY, of minor 135 D. DEBT, special administrator may pay, when 45 secured by mortgage deeimed assets 61 articles not assets for payment of 62 action tor, by administrator 73 executor may retain for, due 74 executor may compromise 76, 77 executor protected for having paid 81 no preference as to ' 86- not due to be paid 86 for rent may be preferred by the surrogate 86 preference of, to legacies 87 216 Index. DEBT — Continued. paqe. receipts to be taken for 88 care as to payment of. 90 legacy for, does not abate 91 decree to settle payment of 107 not due, how treated 107 real property, liability of , for 119 how paid on distribution 132 petition for sale of real property to pay 186 (See Claims.) DECREE, alleged heir may petition} for ' 30 in probate of heirship 31 in probate of heirship, where recorded 31 is evidence of facts 31 how set aside 31 removing executor or administrator 52, 56 revoking letters 56 to deliver withheld property 57 to set apart for survivor 66 what made on settlement 106 as to unsold chattels 107 as to debts not due 107 conclusive of, on settlement 114 when may be opened ' 115 how enforced 115 enforced by execution 115 by attachment 115 by suit on bond 115 by action on decree , 115 enforced by attachment, when 117 how satisfied 118 as to real property when made 123 appointing guardian of infants of fourteen 137 against guardians, how enforced 150 how discharged 151 form of discharge of 182 DEED, effect of deed of real estate 128 Index. 217 DETENTION, PAOE . of minor, action for 135 DEVISEE, m ay petition, probate 13 how evicted 48 exonerated from debts, when 131 DISABILITY, to act as executer, how removed 11 DISCHARGE, of executor, etc. , decree for 56 of decree, how made 118 form of 182 DISCRETION, of surrogate as to judicial settlement 56 as to voluntary removal of guardian 56 of appraisers. 64 of executor in providing sustenance 64 DISTRIBUTIONS, statute of 109 Representation on 112 advancements, how charged on 113 of real estate proceeds, how made 13] DISTRIBUTIVE SHARE, payment of, anticipated ' 93 DOCKETING, of decree, effect of 116 DOWER, legacy for, does not abate 91 real estate sold, free from 129 how satisfied in real estate 132 DRUNKARD, , may act as executor, when 11 how served with citation 20 may have special guardian 22 denied administration 41 special guardian for 100 218 Index. DUPLICATES, pass. of inventory, signed by appraisers 66 disposition of 66 DURANTE ABSENTIA, letters of 45 E. ELECTION, of infant as to guardian 136 ERROR, decree may be opened to correct 115 ESTATES, held for life of another, deemed assets 60 collection of 71 funds of, to be kept separate 71 personal, vests in representatives 71 assets kept insured 72 not charged by executor's note 72 not liable for contracts of executor 81 of infant, guardian for 134 EVIDENCE, as to withholding of property 57 EXECUTION, on decree, how issued 116 EXECUTOR, powers and duties before probate 6 may relieve himself of trust 6 may remain passive 6 msy file renunciation , . . 6 in case of renunciation of one, remaining one to act 6 duty before probate, regulated by statute (5 shall not dispose of estate 6 may sell to pay funeral charges 7 may sell perishable articles 7 before probate, not to interfere, except to preserve estate, 7 to take charge of estate 7 may deposit papers of deceased , 7 de son tort, liabilities of 8 Index. 219 EXECUTOR— Continued. p AaK . liabilities of unauthorized person 8 unauthorized person to account to 8 power to make will implies power to appoint 10 who may serve as 10 person, incompetent to contract not competent. 10 infant, not competent 10 alien not inhabitant of State, not competent 10 convict of infamous crime, not competent 10 drunkard, not competent 11 improvident person, not competent 11 person in precarious circumstances, riot competent 11 need not apply for probate 13 if all dead or incompetent, who may act 16 may employ person to serve citation 24 shall have will recorded 28 must take exemplified copy of will 28 cited when allegations filed against will 29 must suspend proceedings when cited 29 may renounce 33 may retract renunciation 33 renunciation presumed, when 33 shall qualify within 33 when all fail, letters to whom 33 oath of 34 may be appointed 34 circumstances precarious, when 32, 36 letter issued to, may be revoked 34, 36 may be enjoined from acting 36 to give bonds, when 36 improvidence of 37 illiterate 37 poverty of .' 37 when treated as trustee ■ 48 successor appointed, when 48, 49 failure to file new bond 50 revocation of letters deprives, of power 54 may petition judicial settlement 55 decree revoking letters 55 resign 55 220 Index. EXECUTOR— Continued. page. successor may compel, to account 55 successor to 55 decree revoking letters 56 may show that property Is withheld 57 must take inventory 58 cannot recover rent from heirs, when 61 rent due to, when 61 claim of decedent against, inventoried 62 discretion in providing sustenance 64 claim of decedent against, bequeathed 65 neglect to set apart for survivor 66 oath to inventory 66 bond presented 69 . any, may return inventory , . 69 liable for loss , -67, 71 may compromise, when 71 to keep estate funds separate 71 power of each 71 to deposit with bank 71 non-resident, power of, in State 72 cannot charge estate by note 72 to insure assets 72 to convert into money, when 72 may bring suit 73 may employ agent 73 may arbitrate claims 73 have actions for debt 73 for personal property 73 for trespass 73 action for trespass against an 73 treat fraudulent transfers as void 73 to make collections 72, 74 to use .diligence 74 liable for negligence 74 may retain for debt due 74 cannot sue his co-executor 74 charged on final settlement 74 claims of, against decedent : 75 may sell at public sale, etc 75 Index. 221 EXECUTOR— Continued. page. cannot purchase assets 75 use discretion as to time of sale 76 may compromise debts 76, 77 to advertise for claims, unless 77, 78 in respect to creditors, is trustee 78 to investigate claims 79 not coerced to pay debts within year 79 may require vouchers 79 to notify creditor of rejection 79 may agree to refer claim 79 suit against, on rejected claim 80 should offer to refer claim 80 where negotiations after rejection 80 may avoid costs on rejected claim 80 liability of, on his own contract 81 protected in payment of debts, etc 81 duty of, as to taxes 83 as to judgments 83 as to debts and legacies 83 as to mortgages 84 as to purchase-money 84 as to funeral expenses 84 liability of, for funeral expenses 86 not to give preference to debts 86 to pay debts not due 86 not to pay outlawed debt 87 to pay debts only in order 88 duty as to leases 88 execution only to issue against 88 liability of, for rent 88 to take a receipt 88 must prove his own claim 89 claim of, not entitled to preference 89 when to be presented 89 must be verified 89 not to settle claim for his own benefit 89 cannot retain outlawed debt 89 care of, in payment of debts, etc 90 duty as to specific legacies 90 222 Index. EXECUTOR— Continued. paob. when to pay legacies 90 may require bond on paying legacy 91 how compelled to pay legacies, etc 92 duty as to legacy to infants 93 to anticipate legacies, when 93 liable for loss on investments, when 95 duty of, as to investments 95 when ordered to account 96 may be cited for judicial settlement 97 how punished for not accounting 98 may apply for settlement 98 may be ordered to account 98 to file account, etc 100 force of inventory against . . .' v . . . 101 may be examined on account 101 may falsify inventory 101 chargeable with interest 101 allowance for payments by, , 101 what expenses allowed to 102 not allowed for services 102 what objections to, account of 102 presumptions in favor of 102 must produce vouchers 102 allowed bad or doubtful claims, when 103 what allowed to, without voucher 103 an accounting of equity to prevail 103 commissions allowed to 104 no allowance to except commissions 105 commissions apportioned to several 106 bequest to, instead of commissions 106 not filing inventory to have no commissions 106 decree against, enforced by execution 116 punished by indictment, when 117 decree against, how satisfied 118 duty as to real estate 119 when may apply for sale of real property 120 may be required to account in real estate proceedings . . 122 to give bond on real estate 125 death of, not to affect real estate proceedings 126 Index. 223 EXECUTOR— Continued. PAOII • not to buy real estate; 126 to pay proceeds of sale 130 balance due to, how paid 132 compensation of, as to real estate 132 renunciation of, form 164 petition of, form 177 account of, form 179 release of, form '. 182 petition of, for disposition of real estate 183 EXECUTRIX, married women capable. 11 EXPENSES, executor may be allowed traveling 24 EXTENSION, in favor of estate 75 F. FAILURE, to set apart for survivor 66, 67 FATHER, entitled to administration 39 distribution to 110 appointed guardian 134 FEES, of witnesses 24 of appraisers 58 (See Commissions.) FINAL SETTLEMENT. (See Judicial Settlement ; Accounting. FORM, of will 157 FORMALITY, guardian may not waive 24 FRAUD, of creditors, transfers in, void 73 FREEHOLD, things annexed to, assets 60 224 i Index. FREEHOLDER, paoe. to sell real estate, when appointed 125 to pay proceeds of sale 130 FUNERAL EXPENSES, executor may sell property to pay 6 special administrator may pay 45 executor liable for 81 preferred 9, 84 care as to 85 what are... 85 liability of executor for 86 liability of real estate for 119 how paid on distribution 132 FURNITURE, necessary, set apart for widow 63 G. GAMBLER, professional, incompetent to act as executor 12 GENERAL GUARDIAN, legacy payable to, when 93 to give security 93 share of infant, when paid to 108 petition for, form of , 194 account and inventory, form of 196 petition to expend principal, form of 199 (See Guardian.) GIFT, not valid against creditors 66 GRANDCHILDREN, N entitled to administration 39 GROSS SUM, rule for estimating 188 GUARDIAN, special, may be appointed, when 22 application for 22 special, when may apply for 23 may not waive formality 24 oath of .' . . 34 Index. 225 GUARDIAN — Continued. page. removal on own application 56 defined 134 relation of, to infant 134 cannot substitute himself for ward 134 by relation 134 who is appointed as 134 when appointed 134 rights of, when superseded 134 appointment of father as, not defeated 135 may maintain actions 135 to manage personal estate 135 removal of 135 by whom appointed 134, 136 acceptance of, inferred 136 supreme court will appoint 136 to control 136 to continue until majority 136 appointed by surrogate 136 of person 136 of property 136 former power of chancellor to appoint 136 of infant married woman 137 bow appointed on petition of infant 138 of person, how appointed 138 of property, how appointed 138 of infant under fourteen 139 liabilities of, sureties of 140 powers and duties of, by will 140 entitled to control of ward 140 not liable for necessaries 140 subject to direction of court 140 his powers as to personal estate 140 may apply for sale of real estate. 141 in socage, power of 142 penalty ot, for neglect of 143 not bound to repair, when 143 may not expend capital 144 acts of liberty construed 144 power of, appointed in another State 144 ' 15 226 Index. GUARDIAN — Continued. page. power of, local 144 non-resident, may have letters here 145 ancillary, letters of, when he shall have 145 may account, how 147 must file annual account 147 power of, as to principal 148 may have authority to expend principal 148 when may have settlement 149 > accounting of, how prepared 150 commissions of 150 proceedings on accounting of 150 how decree enforced against 150 commissions of 150 when removed 151 may resign, when 153 objection to, appointed by will 154 appointed by will or deed, duties, of 155 successor appointed to 156 petition of infant for 191 petition for infant over fourteen, form 194 account and inventory of , form 196 petition to expend principal, form of 199 H. HALF-BLOOD, take same as whole blood 112 HEIR, defined : 15 of testator, when cited '17 at-law may waive service, when 23 may make himself a party 30 person claiming as, may petition 30 contest as to heirship 31 at-law, how evicted 48 right of, not impaired 62 exonerated from debts, when 131 HOMESTEAD, exempt from sale, how 119 Index. 227 HUSBAND, paoii. entitled to administration 40 payment to, on settlement 106 entitled to what share in estate of wife 113 I. IDIOT, may not make will 1, 10 how served with citation 20 may have special guardian 22 special guardian for 100 IGNORANCE, constitutes incompetency to act as executor 11 ILLEGITIMATE, heirs and next of kin of. 15 children to take, when 15 letters upon estate of .*. 43 estate of, how instituted Ill IMPROVIDENCE, constitutes incompetency to act as executor 11 guardian removed for 136 INCOME, person entitled to, only, not entitled to control 71 INCOMPETENCY, of executor 36, 37 guardian removed for 136 INDEBTEDNESS, of executor or administrator 74, 75 INFANT, cannot act as executor 10 coming of age, may act as executor 11 how served with citation 18, 20 under fourteen, how served 20 may have special guardian, when 22 notice of application for special guardian, how served, 22 administration granted to guardian 41 where parent dies, articles not assets 62 provisions in favor of 62, 63 228 Index. INFANTS— Continued. pasb. additional provisions 63 rights of 63, 64 legacy to, how paid 93 duty as to accounting when they are interested 96 how served with citation 100 notice for special guardian to be served on 100 special guardian to be appointed for 100 share of, paid to guardian 108 guardian has custody of 134 guardianship of, belongs to 134 detention of, action for 135 guardian of, who may appoint 134, 136 married woman, guardian of 137 guardianship of non-resident 138 residence of, how determined 138 what petition of, to contain 138 who to be cited on application of 138 guardian of infani under fourteen 140 guardian of, to take oath ., 140 liabilities of sureties of 140 powers and duties of, by will 140 guardian of, may apply for sale of real estate 141 relation of guardian of, confidential 143 guardian of, not held to repair 143 penalty for neglect of guardian of 143 guardian of, may not expend capital 144 guardian of, acts liberally construed 144 guardian of, in another State, power of 144 ancillary letters to guardian of 144 distributive share of, paid to general guardian, when. . . 146 security of, guardian for legacy 146 guardian of, to file account 147 account of guardian of, how made 150 commissions of guardian of 150 decree against guardian of, how enforced '. 150 guardian of, when removed 151 new sureties for guardian of, when required 152 guardian of, may resign, when 153 guardian of, by will, to take letters 154 Index. 229 INFANTS— Continued. paok. successor to guardian of 156 petition of, for guardian 191, 194 account of, guardian, form of 196 petition of, guardian to expend principal, form of 199 INVENTORY, property withheld from 57 statute regarding 58 two or more if necessary 58 form of. (See Appendix, No. 5.) proof of service of, notice attached to 59 articles in, not appraised 62 amount of bequest of debt, including 65 classification of claims in 65 shall contain statement of moneys paid out 65 shall contain statement of bonds, money, notes, etc 65 duplicates, when completed 66 duplicates of, given to 66 verified 66 return to surrogate . .• ■ 66, 68 extension of time for filing 68 order for return of 68 person committed to jail for not returning 68 penalty for not filing 68, 69 who may return 69 new, on discovery of property 69, 70 necessity illustrated ' 70 not conclusive on accounting 101 force of. . 103 one not filing, to have no commissions 106 guardians must file annual 147 form of 169 of guardian, form of 196 INVESTMENTS, duty of executor as to 95 INSURANCE, of assets by executor 72 INTERMEDIATE ACCOUNT, may be filed any time 96 230 Index. INTEREST, paob. in lands, deemed assets 60 in term for years, deemed assets 60 when charged on accounting 101 allowed on legacy to widow or infant 108 computed on legacies 108, 109 INTESTACY, distribution in case of 109 IRRESPONSIBILITY, guardian removed for 136 J. JUDGMENTS, order of preference of 83 joint, when not collected 83 order and payment of 87 JUDICIAL SETTLEMENT, petition for .' . 55 ' petition for, who may make 97 interest of petitions may be contested 97 , may be ordered 98 executor or administrator may apply for 98 who to be cited on 98, 99 citations on, how served 99 account to be filed on 100 vouchers to be produced on 100 special guardian on 100 citation for, how served on infants, etc 100 allowance for payments on 101 account may be referred on 101 contest of account on 101 objections may be required on 101 executor may be examined on 101 inventory not conclusive on 101 may be falsified on 101 interest charged on 101 no allowance for executor's services on 102 what expenses charged on 102 what objections prefer on 102 Index. 231 JUDICIAL SETTLEMENT— Continued,. page. bad or doubtful claims allowed on 1Q3 what allowed on, without vouchers 103 commissions allowed on 104 counsel fee on 105 to fix rights by decree on 106 specific articles delivered on 107 decree on, how conclusive 107 supplemental citation on 107 share of infant on 108 unknown owners on 108 legacy, when paid to State treasurer 108 decree as to creditors on 108 interest on 108 decree for payment to county treasurer 108 advancements settled on 113 effect of 114 balance due executor on, how paid 132 of guardian's accounts, when 148 petition for, form of 177 (See Accounting.) JURY, may be ordered as to real estate 123 L. LANDS, held by deceased from year to year, deemed assets 60 interest in, deemed assets 60 LEASES, for years, deemed assets 60 upon death of lessor, tenant to pay to 61 duty of executors as to 88 sale of, to pay debts 119 on real estate, when ordered 124 petition for leave to, form of 183 LEGACIES, articles not assets for payment of 62 executor protected for having paid 81 postponed to debts 87 232 Index. LEGACIES — Continued. page. receipt to be taken for 88 care as to payment of 90 may be retained to pay debt 90 when specific, to be delivered 91 when to be paid 91 bond on payment of, when 91 when to abate 91 abatement of 91 payment of, how enforced 93 statute of limitations as to 92 to minors, how paid ; 93 payment of, anticipated 93 effect of, instead of commissions 106 commissions not charged on 106 when paid to county treasurer 108 to State treasurer 108 interest, how computed on 108, 109 when paid to general guardian 146 LEGATEE, served with notice of appraisement * 59 appraisement in presence of 59 creditor may collect of 81 remedy of creditor against 89 may petition for accounting 96 cited to settlement 98 payment to, on settlement 106 receipt of, form 174 LETTERS, to executor or administrator may be revoked 34 petition for decree revoking. 34, 35 ancillary, upon estate of non-resident 43 special, durante absentia 1 45 LETTERS OF ADMINISTRATION, married woman may take 11 objections to issue, how removed 11 how tried 12 addressed to discretion of surrogate 12 decision of surrogate on issue, appealable 12 Index. 233 LETTERS OF ADMINISTRATON — Continued. page. where granted 13 may issue, forthwith 24 with the will annexed, to issue, when 33 to whom issued , 33, 34 how issued 34 when granted 38 general 38 special 88 with the will annexed 38 upon estate of absentee 38 by whom granted 39 application for 39 to whom granted . . ' 39, 41 surrogate may refuse 41 denied to drunkards 41 to convicts 41 to aliens . '. 41 to minors 41 applicant must file renunciation 41 citation issued 41 renunciation may be revoked 41 citation, on whom served 41 defied, whom 41 when to issue 42 upon estate of illegitimate 43 of non-resident 43 special 44 no power over real estate 48 revoked unless new bond .50, 51 revoked upon petition 52 petition for revocation 52, 55 revoked upon petition »52, 53 revoked without petition, when 54 decree revoking 56 petition for 167 revoked for not filing inventory 68, 69 local 72 284 Index. LETTERS TESTAMENTARY, page. convict cannot take 10 alien non-resident cannot take 10 objection to issue of 10, 11 idint cannot take 11 habitual drunkard cannot take 11 person in precarious circumstances cannot take 11 improvident person cannot take 12 gambler cannot take , . 12 where granted 13 when issued 32, 34 to whom issued * 32 objections to issue 32 granting of, staid 32 objection to, must be verified 32 objection, proof in relation 32 non-resident entitled to 32 bond 32 revoked upon petition, where incompetent or dis- qualified 52 petition for revocation 52, 55 revoked without petition, when 54 decree revoking 56 revoked for not filing inventory 68, 69 local 72 LIABILITY, of executor for waste, etc 74 of executor on his own contract 81 LIBRARY, family, not appraised 63 LIEN, one executor may release from 71 LIVERY STABLE, manure of, personal property 60 LOOMS, in woolen mill, personal property 60 LUNATIC, discharged from committee, may act as executor ". . 11 special guardian to be appointed for 100 Index. 235 M. MAJORITY, PAOB . supreme court guardian continues until 136 MALES, preferred in administration 40 MANURE, when personal property 60 when part of realty 60 MARINERS, may make unwritten wills 2 " may make nuncupative will at sea 4 when considered at sea 4 MARRIED WOMAN, when entitled to letters 40 advancements in estates of 113 guardian for an infant 137 MEETING, of appraisers 59 adjourned from time to time 59 MEMORANDUM, executor not chargeable unless, appears 81 MILEAOE, of witnesses 24 MILL, looms in woolen, personal property 60 cotton machinery, personal property 60 water-wheels, part of realty 60 mill-stones, part of realty 60 bolting apparatus, part of realty 60 MILL-STONES, part of realty 60 MINOR, may have special guardian, when 22 under fourteen, how served 20 administration granted to guardian 39, 41 cannot administer 41 when parent dies, articles not assets 62 236 Index. MINOR — Continued. pags. provisions in favor of ; 62, 63 additional provisions 63 rights of '. 63, 64 legacies to, how paid 63 duty as to accounting, when they are interested 96 how served with citation 100 notice for special guardian to be served on 100 special guardian to be appointed for 100 guardian has custody of 134 guardianship of, belongs to 134 detention of, action for 135 guardian of, by whom appointed s . .'. 136 over fourteen, petition for guardian 137 guardianship of non-resident 138 residence of, how determined 138 what petition of, to contain 138 who to be cited on application of 138 under fourteen, guardian of 139 guardian of, to take oath 140 guardian of, may apply for sale of real estate 141 penalty for neglect of 143 relation of guardian of, confidential 143 guardian of, not held to repair. ' 143 may not expend capital 144 acts liberally construed 144 in another State, power of 1 44 ancillary letters, to guardian of 144 security of guardian for legacy 146 distributive share of, paid to general guardian, when ... 146 account of guardian of, how made 150 commissions of, guardians of 150 decree against guardian of, how enforced 150 new sureties for guardian of, when required 152 guardian of, may resign, when 153 to account, when 154 by will to take letters 154 petition of, for guardian 191, 194 account of guardian, form of 196 petition of guardian to expend principal, form of 199 Index. 237 MISCONDUCT, paob. of guardian, cause for removal 152 MONEY, deemed assets 67 MORTGAGES, statement of, in inventory 65 not to be paidtrat of personalty 84 when paid out of personalty 84 to pay debts 119 on real estate, when ordered 124 petition for leave to, form of 183 MOTHER, v heir or next of kin 15 entitled to administration 39 appointed guardian 134 distribution to '. 110 N. NEGLECT, of special administrator 46 of executor to set apart property 66 to file inventory, penalty 68, 69 NEGLIGENCE, executor liable for 74 NIECE, when entitled to distribution 109 NEPHEW, when entitled to distribution 109 NEWSPAPER, claims advertised for in 77 NEXT OP KIN, names, etc., to be given on petition for probate 14 defined 15 may waive service, when 23 receive letters, when 33 entitled to administration 39 served with notice of appraisement 59 appraisement in presence of 59 238 Index. NEXT OF KIN— Continued. pasb. creditor may collect of 81 . remedy of creditor against 89 may petition for accounting 96 cited on settlement 98 payment to, on settlement 106 distribution to 109 NON-RESIDENT, how cited 19 entitled to letters testamentary 32 administration of estate of 38 ancillary letters upon estate of 43 NOTES, or bills deemed assets 61 how classified in inventory 65 executor to watch 72 NOTICE, on service of citation 22 of application for special guardian, served on infant 22 and citation in one paper 23 and citation may be served*. 23 proof of service of 23 of appraisement, served and posted 59 to present claims. . .' 78 of rejection of claim 79 NUNCUPATIVE WILL, may be made by soldiers and mariners 2 how made 3 testimony to be recorded 4 letters to issue on 4 citation must mention fact 17 o. OATH, of executors, administrators or guardians taken before whom 34 of special administrator 45 of appraisers... 59 of executor annexed to inventory 66 Index. 239 OBJECTIONS, page. to sureties, if valid 50 may be required on account , 101 proper on accounting 102 OFFER, to refer claim 80 OMISSION, of name in petition for probate 25 ORDER, for publication, when granted 20 to show cause may be served 23 omitting to probate ... 28 for executor to qualify, who may apply for 33 how served 33 authorizing special administrator to sell 45 for new or additional sureties 50 granting petition for removal 56 to return inventory 68 ORNAMENTS, of widow not appraised 63 P. PAPERS, of deceased, executor may deposit 7 PARENT, when entitled to distribution 109 PARTITION, no bar to sale of real estate ]20 PARTNERSHIP, assets of, not inventoried 62 PAYMENTS, of debts, order of 83 of legacies, order of 83 charged may be contested 102 y petition to compel, form 175 PENALTY, for not affixing residence to witness name 3 of bond 43, 44 for not filing inventory 68, 69 240 Index. PERISHABLE ARTICLES, pass. executor may convert 7 PERSONAL PROPERTY, special administrator may sell, when 41 how distributed 49 shall be inventoried 58 appraisers appointed , 58 exhibited to appraisers 59 executor to arrange in classes 59 appraised in presence of 59 cotton machinery is 60 looms in woolen mill are 60 manure of livery stable is 60 set apart for widow, etc 63 omitted in inventory 69 vests in personal representatives 71 action for, by administrator 73 converted into money 75 guardian to manage 135 power of guardian as to 141 PETITION, for probate to be presented 15 for probate, omission in 25 for revocation of probate 29 who may present 29 must be presented, when 29 for decree revoking letters 34, 35 that executor be cited to show cause 35 for letters 39 for special letters 44, 45 for new bond, who may make 49, 50 grounds for 49 for revocation of letters, when necessary 52, 53 when unnecessary 54 decree revoking letters 55 for revocation of letters, must set forth facts 55 for judicial settlement 55, 56 for removal, order for 56 to set apart for survivor 66 Index. 241 PETITION— Continued. PAOE , for sanction to compromise 77 who may make, for settlement 97 for sale of real estate, what to contain 121 for guardian, by infants of fourteen 137 hearing on, of infant 138 for guardian, infant under fourteen, form of 194 of guardian to expend principal, form of 199 PICTURES, family, not appraised 63 PLATES, twelve, not appraised 63 POKE, not appraised 63 POWER, of each executor 71 POSTHUMOUS CHILDREN, rights of 112 PROBATE, power of executor before * . . . 6 any person interested, may apply for 13 on application for facts to be given 13 petition for, to be presented 15 course on presentation of petition for 19 citation to attend, proof of, how served 19, 20 parties of full fige, may ask immediate 23 supplementary petition for, when 25 if citation not served, new one to issue 25 lost or destroyed will can be admitted to 27 before admitting to, surrogate must learn facts. 27 order admitting to 28 conclusive, until, 29 may be revoked 29 revocation of, surrogate will publish notice of 29 to be revoked, when 29 to be sustained, when 29 may be revoked 29 16 242 Index. PROBATE — Continued. page. petition for revocation 29 who may present 29 must be presented, when 29 of heirship 30 petitioner must establish fact 31 PRODUCE, raised by labor, deemed assets 61 PROOF, of service of notice 23 of will, course of executor on learning that, is contested, 25 PROPERTY, PERSONAL. (Bee Personal Property.) process for discovery and recovery of, withheld 57 withheld from inventory 57 warrant to search for and deliver 58 PROVISIONS, set apart for widow, etc 63 additional, in favor of widow 63 in will, for executor to compromise debts 76 PUBLICATION, service by 19, 20 unknown parties served by .- 99 non-residents served by 99 service by mail in case of 99 PURCHASE-MONEY, when to be paid by executor 84 how paid 128 Q. QUALIFICATION, of executor, order for 33 QUARANTINE, widow's 64 E. REAL ESTATE, who can convey by will 1 executor has action for trespass on 73 special administrator may lease 46 Index. 243 REAL ESTATE — Continued. PAGB , letters, no power over 48 if executor or administrator interfere with 48 will of, construed 49 what is liable for debts 119 when application for sale to be made 119 who to apply for sale 120 time for sale of, how extended 120 ' petition for sale of, what to contain 121 proceedings on petition * 122 mortgage, when ordered 124 lease, when ordered 124 order of sale of 1 25 freeholder appointed to sell 12/5 sale of, on credit 126 sale, how made 127 executor not to purchase 127 report of sale to be made 128 sale, how confirmed 128 deed on 129 title of, purchaser of 129 contract for purchase of, how sold 129 irregularities on sale not to affect 130 money on sale, how paid 130 proceeds, how distributed 131 security on, how taken 133 power of guardian as to . . . 141 petition for disposition of, form. , 183 petition of creditor for disposition of 186 REALTY/ hop poles part of 60 water wheels part of 60 mill-stones part of 60 bolting apparatus part of 60 manure on farm part of 60 RECEIPT, to be taken in all cases , 88 of creditor, form 174 for legacy, form .174 244 Index. RECORD, page. of will 28 REFEREE, may be appointed on accounting 101 compensation of 101 may be appointed as to real estate 123 REJECTION OP CLAIM, notice of , etc 79 offer to refer, to accompany 80 negotiations after 80 RELATION, confidential 143 RELATIVE, nearest, appointed guardian 134 RELATIVES, when cited 138 RELEASE, to discharge decree, form 182 REMEDIES, as to articles not set apart 66, 67 of creditor on rejection 79 REMOVAL, of testamentary trustees, when 115 of guardian 135 RENT, deemed assets, when 61 not deemed assets, when 61 preferred debt, when 86 when not preferred , 87 duty of executor as to 88 RENUNCIATION, of executor , 33 executor may retract 33 presumed, when 33 applicant must file 41 may be revoked 41 of executor, form 164 Index. 245 REPORT, paok. of sale, how made 128 REPRESENTATIVE, of deceased partner entitled to 62 personal, personal estate vests in 71 on distribution 112 RESALE, when ordered 128 RESIGNING, of testamentary trustees 115 RESPONSIBILITY, of executor for compromise 77 RETURN, of inventory, extension of time for 66 REVERSIONER, rent due to, when 61 REVOCATION, of will, petition for 29 of probate, surrogate will publish notice of 29 of letters to executor or administrator 34, 36 of letters upon petition 52, 53 without petition 54 of guardianship, when 151 RIGHTS, of widow 62 of heir not impaired 62 of minors 63, 64 s. SALE, public or private 75 of real property to pay debts 119 petition for leave. 183 petition of creditor for 186 SALE OP REAL ESTATE. (See Real Estate.) SANCTION, of surrogate to compromise 77 246 Index. SATISFACTION, page. of decree, how made 118 SAUCERS, twelve, not appraised. 63 SCHOOL BOOKS, not appraised 63 SECURITY, executor to give 36, 37 SECURITIES, classification of, in inventory 65 when required of guardian on legacy 94 to be taken by surrogate for legacies 94 testamentary trustee may be compelled to give 115 guardian to give, for legacy 146 SERVICE, of citation 18, 21 on adult or infant of fourteen 18 when to be made 18 who may make 18 where party cannot be found 19 evades 19 on non-resident 19 on unknown parties 19 on foreign corporation 19 by publication 19, 20 without State 19, 20 on infant under fourteen 20 notice on 22 on lunatic 20 on idiot 20 on drunkard 20 special cases 21 proof of 23 heirs-at-law and next of kin may waive, when- 23 guardian may not waive 24 of citation, neglect to make 25 if complete, surrogate will appoint 25 of order for executor to qualify, how made 33 Index. 247 SERVICE — Continued. page. of notice of appraisement 59 proof of, attached to inventory 59 SERVICES, commissions only pay for 105 SETTLEMENT, special administrator may have 46 petition for, form of 177 (See Judicial Settlement.) SHEEP, with fleeces, not appraised 63 SISTERS, entitled to administration 39 SPECIFIC LEGACIES, when to be delivered 90 duty of executor on delivering 90 not subject to abatement 91 no commissions allowed on 105 SPECIAL GUARDIAN, when other than infant applies for 23 on settlement, to be appointed 100 as to real estate 122 SPINNING WHEELS, not appraised 62 SPOONS, twelve, not appraised 63 STATUTE OF LIMITATIONS, who may interpose 87 as to claim of executor or administrator. 89 STABLE, livery, manure of, personal property 60 STOCK, deemed assets 61 STOVES, not appraised 62 SUBPOENA, for witnesses ... 24 248 Index. SUBSTANCE, page. of citation 17 SUCCESSOR, to executor or administrator 48, 49, 55 may prosecute bond 55 may compel predecessor to account 55 SUIT, executor may bring 73 SURETIES, required to justify 43 of special administrator 46, 47 additional 49 new or additional 50, 52 may be released 50, 51 need not give reason for release 51 may petition for settlement 97 SUGAR DISH, one, not appraised 63 SURPLUS, how distributed 109 how distributed on real estate 133 SURROGATE. has exclusive jurisdiction, when 13 will issue citation, when 17 may order service of citation by publication, when . . 19, 20 service of citation without State 19, 20 may direct special service of citation, when 21 may appoint special guardian 22 will appoint special guardian 25 , may enjoin executor from acting 36 may issue special letters, when 44 may authorize special administrator to sell 45 to pay expenses ..". 45 SWINE, two, not appraised 63 T. TABLE, one; not appraised 63 Index. 249 TAXES, page. when a preferred debt i 83 TEACUPS, twelve, not appraised 63 TEAPOT, one, not appraised. . ,. ■.. 63 TEMPORARY ADMINISTRATORS, may be compelled to account 96 TESTATOR, shall subscribe at end of will 2 shall subscribe before witnesses 2 shall declare, etc 2 TESTAMENTARY TRUSTEES, may account 115 may resign 115 may be compelled to give security 115 may be removed 115 THINGS, annexed to a freehold, when assets 60 when part of realty 60, 62 in action, deemed assets 67 TRANSFERS, in fraud of creditors void 73 TRANSCRIPT, of decree, how filed 116 TRESPASS. v executor may have action for 73 TRUST COMPANY, sums to be deposited in 108 TRUSTEE, executor or administrator, when treated as 48 disagreement, order to show cause 51 testamentary, may account 115 may-resign 115 may be compelled to give security 115 may be removed 115 250 Index. TUITION, page. of minor, guardian may take 135 u. UNKNOWN PARTIES, how served with citation 14, 99 sums payable on settlement 108 UNMARRIED WOMAN, preferred in administration 40 UNWRITTEN WILLS 3 V. VENDUE, sales by 76 VOUCHERS, executor msiy require 79 to be filed with account ... 100 to be filed as to all itemB except, etc 100 proof instead of 101 conclusive, unless impeached 102 what allowed without 103 w. WARD, guardian maintain action for 135 WARRANT, to search for withheld property 58 WASTE, executor chargeable for 74 WATER-WHEELS, part of realty 60 WEARING, apparel 63 WIDOW, receives letters, when 33 entitled to administration 39 rights of 62 Index. 251 WIDOW — Continued. pass. provisions in favor of 62, 63 additional provisions in favor of 63 clothes of, not appraised 63 ornaments of, not appraised 63 entitled to tarry forty days 64 guardian of 64 legacy for dower to, does not abate 91 payment to, on settlement 106 rights of, in estate 109 dower of, as to real estate sold 129 dower of, how satisfied in real estate 132 WILL, what it is 1 mnles of eighteen years may bequeath personal estate. . 1 only persons of full age, may devise real estate 1 females of sixteen years may bequeath personal estate . . 1 it is enough that intention is clear 2 shall be subscribed 2 shall be in writing, when 2 special forms not required 2 to be signed in presence of witnesses, or acknowledged. . 2 to be published, how 2 how executed 2, 3 nuncupative or unwritten 3 omission of witness to affix residence not to affect 4 soldiers may make unwritten 4 mariners may make unwritten 4 . nuncupative, how made 4 how proved 4 to be recorded 4 letters to issue on 4 revoked, by being destroyed. . ., 5 revoked by execution of another 5 should be opened as soon as practicable 7 who may make \, 10 any one interested may petition for probate of 13 where proved 14 on presentation for probate, facts to be ascertained. . 13, 14 to be presented' to surrogate 15 252 Index. WILL — Continued. page. subpoena will issue to compel production 16 of real property, whom cited 17 of personal property, whom cited 17 of real and personal, whom ciled 17 nuncupative, citation must state fact 17 witnesses to, fees of 34 order admitting to probate ...'. 35 when contested, course of executor 35 if witnesses dead must remain on file 36 witnesses to be examined 36 at least two, if living 36 course as to aged, sick or infirm witness 36 if witnesses dead, proof of handwriting 36 legatees or devisees may intervene on probate 36 commission may issue to take testimony 37 lost or destroyed, can be admitted, when 37 copy of, equivalent to one witness 37 before probate, surrogate must learn facts 37 of personal estate, requisite proof of 37 of real estate, requisite proof of 38 exemplified copies of, where recorded 38 surrogate will attach certificate to 38 will retain one year 38 will deliver, when 38 where and when recorded 38 executor must take exemplified copy 28 probate of, conclusive until 39 probate may be revoked . . ; 39 who may petition revocation . . 39 petition must be presented, when 39 citation on allegations against 39 probate of, to be revoked, when 39 probate of, to be sustained, when 39 proof will be taken again 39 of personal estate takes effect, how 49 of real estate, construed 49 discharge of claim against executor 65 provision for executor to compromise debts 76 guardian appointed by * 135 Index. 253 WILL — Continued. page. power of guardians appointed by 154 guardians appointed by, to take out letters 154 form of 157 attestation clause of, form 160 special clauses in 161 codicil to 163 codicil, form of 163 petition for proof of 165 probate, petition for '. 165 WITNESSES, how many to will 3 to will, shall sign at end 3 signing testator's name, must sign as witness 3 to will, shall affix residence 3 penalty for not doing so 3 need not sign in presence of testator 3 not excused from testifying to execution of will 4 attestation clause not necessary. 4 subpoena for ^ 24 fees of . . 24 when examined 25 living, to be examined 26 commission to take testimony of 26 if all dead, proof of handwriting 26 will must remain on file 26 infirmity shall be shown 26 aged, sick or infirm, how examined 26 non-resident, how examined 26 Y. TARN, not appraised 63