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That the value of the personal estate in the hands of the petitioner (exclusive of the widow's allowance) is

And that the personal estate is therefore insufficient to pay the debts

of the deceased and the charges of administration, by the sum of $

Wherefore your petitioner prays that he may be licensed to sell so much of the real estate of said deceased as will raise the last mentioned sum, for the payment of said debts and charges of administration.

Dated the

day of

A.D. 186

(Signature.)

The undersigned, being all persons interested, hereby assent to the sale, as prayed for in the foregoing petition.

(Here should follow the signatures of the widow and all the heirs.)

[If the petitioner wishes the court for special reasons to direct what specific part of the real estate shall be sold, he must set forth the value, description, and condition of the estate, or of such part as he proposes to sell.]

(228.)

Administrator's Petition for leave to sell the Whole of the Real

Estate.

TO THE HONORABLE THe Judge oF THE PROBATE COURT IN AND FOR THE COUNTY OF

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That the value of the personal estate in the hands of the petitioner (exclusive of the widow's allowance) is

That the personal estate is therefore insufficient to pay the debts of the
deceased, and the charges of administration, and it is necessary

for that purpose to sell some part of the real estate to raise the
sum of

That the value of the real estate according to the appraisal is

$

And that by a partial sale, the residue of the estate would be greatly injured. Wherefore your petitioner prays that he may be licensed to sell the whole of the

real estate of said deceased, for the payment of said debts and charges of administration, and for the reasons aforesaid.

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The undersigned, being all persons interested, hereby assent to the sale, as prayed for in the foregoing petition.

(Here should follow the signatures of the widow and all the heirs.)

[If the petitioner wishes to sell only a specific part of the real estate, which is more than enough to pay debts and legacies, he must give a concise description thereof, sufficient to enable parties interested to identify it.]

(229.)

Bond of Administrator Licensed to sell Real Estate.

Know all Men by these Presents, That we licensed) as principal, and the State of

(name of person

(names of his sureties) as sureties, and all within are holden and stand firmly bound and obliged unto Esquire, Judge of the Probate Court in and for the county of in the full and just sum of dollars, to be paid to

said judge, and his successors in said office; to the true payment whereof we bind ourselves, and each of us, our and each of our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals. Dated the

day of

and sixty

deceased) late of

in the year of our Lord one thousand eight hundred

The Condition of this Obligation is such, That if the above-bounden (name of the person licensed) administrator of the estate of (name of (residence of deceased) deceased, who has been licensed by said court to sell real estate of said deceased, more than is necessary for the payment of debts, and charges of administration, shall account for and dispose of according to law, all proceeds of the sale remaining after payment of debts, and charges, then this obligation to be void; otherwise to remain in full force and virtue.

Signed, Sealed and Delivered in Presence of

I,

estate of

SUFFOLK, 88.

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(name of administrator) do solemnly swear, that in disposing of the real (name of the deceased) deceased, which I have been licensed by the

Probate Court to sell, I will use my best judgment in fixing on the time and place of sale, and will exert my utmost endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested therein. So help me God.

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The first (or second or other as the case may be) account of executor) executor of the last will and testament of

(residence of the testator) in the county of

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(name of

(name of the testator) late of deceased.

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$

Said accountant charges himself with the several amounts received as
stated in Schedule A, herewith exhibited
And asks to be allowed for sundry payments and charges as stated in
Schedule B, herewith exhibited

Balance

(Signature.)

Executor.

The undersigned, being all the parties interested, having examined the foregoing account, request that the same may be allowed without further notice. (Signatures of the widow and all the heirs and legatees.)

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Amount received from gain on sale of personal estate over ap

praised value, and from other property as follows:

SCHEDULE B.

Amount paid out and charges, as follows:

1. For funeral-expenses and expenses of last sickness

2. For charges of administration

3. For debts of the deceased

4. For amounts paid to legatees or heirs.

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CHAPTER XL.

GUARDIANS.

GUARDIANS of all descriptions are treated by courts as trustees; and in almost all cases they are required to give security for the faithful discharge of their duty, unless the guardian be appointed by will, and the testator has exercised the power given him by statute, of requiring that the guardian shall not be called upon to give bonds. But, even in this case, such testamentary provision is wholly personal; and if the individual dies, refuses the appointment, or resigns it, or is removed from it, and a substitute is appointed by court, this substitute must give bonds.

The guardian is held, in this country, to have only a naked authority, not coupled with an interest. His possession of the property of his ward is not such as gives him a personal interest, being only for the purpose of agency. But for the benefit of his ward he has a very general power over it. He manages and disposes of the personal property at his own discretion, although it is safer for him to obtain the power of the court for any important measure. He may lease the real estate, if appointed by will or court; he cannot, however, sell the real estate without leave of the proper court. Nor should he convert the personal estate into real, without such leave.

As trustee, a guardian is held to a strictly honest discharge of his duty, and cannot act in relation to the subject of his trust for his own personal benefit, in any contract whatever. And if a benefit arises thereby, as in the settlement of a debt due from the ward, this benefit belongs wholly to the ward. And it has been held that if a guardian makes use of his own money to erect buildings on the land of his ward, without having an order of the court therefor, he cannot charge the same in account with his ward, or recover the amount from the ward. But we doubt whether a rule so severe would be applied unless for special reasons. He must neither make

nor suffer any waste of the inheritance, and is held very strictly to a careful management of all personal property. He is responsible not only for any misuse of the ward's money or stock, but for letting it lie idle; and if he does so without sufficient cause, he must allow the ward interest or compound interest in his account.

To secure the proper execution of his trust, he is not only liable to an action by the ward, after the guardianship terminates, but, during its pendency, the ward may call him to account by his next friend, or by a guardian appointed by the court for the action. The courts have gone so far as to set aside transactions which took place soon after the ward came of age, and which were beneficial only to the former guardian, on the presumption that undue influence was used, and on the ground of public utility and policy.

A guardian cannot, by his own contract, bind the person or estate of his ward; but if he promise, on a sufficient consideration, to pay the debt of his ward, he is personally bound by his promise, although he expressly promises as guardian. And it is a sufficient consideration if such promise discharge the debt of the ward. And a guardian who thus discharges the debt of his ward may lawfully indemnify himself out of the ward's estate, or if he be discharged from his guardianship, he may have an action against the ward for money paid for his use. An action will not lie against a guardian on a contract made by the ward, but must be brought against the ward, and be defended by the guardian.

The guardianship is a trust so strictly personal, or attached to the individual, that it cannot be transferred from him, either by his own assignment or devise, or by inheritance or succession.

A married woman cannot become a guardian without the consent of her husband; but with that she may. A single woman who is a guardian generally loses her guardianship by marriage; but she may be re-appointed. In some States, she loses it by statute; in others not.

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