Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the next degree embraces the brothers and grandparents, and so on in the same order. The law and course, in those states which follow the English law, must be to grant administration, first, to the husband or wife ; second, to the children, sons or daughters; third, to the parents, father or mother ; fourth, to the brothers or sisters of the whole blood; fifth, to the brothers or sisters of the half blood ; sixth, to the grandparents; seventh, to uncles, and aunts, and nephews, and nieces, who stand in equal degree ; eighth, to cousins. Grandmothers are preferred to aunts, as nearer of kin; for the grandmother stands in the second degree to the intestate, and the aunt in the third.b If none of the next of kin will accept, *the surrogate may exercise his discretion *414 whom to appoint; and he usually decrees it to the claimant who has the greatest interest in the effects of the intestate. If no one offers, he must then appoint a mere trustee ad colligendum, to collect and keep safe the effects of the intestate ; and this last special appointment gives no power to sell any part of the goods, not even perishable articles; nor can the surrogate confer upon him that power.d This very inconvenient want of pow. er is supplied by the New York Revised Statutes ;e and an administrator, ad colligendum, (who is called in the statute a collector) may, under the direction of the surrogate, sell perishable goods, after they shall have have been appraised.

(2.) of the power and duty of the administrator.

The administrator must enter into a bond before the judge of probate, (under whatever name the competent

Shep. Touch. by Proston, vol. ii. p. 453. Durant v. Prestwood, 1 Atk. Rep. 464.

• Blackborough v. Davis, 1 P. Wms. 41.
• Tucker v. Westgarth, 2 Addams' Rep. 352.

1 1 Rol. Abr. tit. Executor, ch. 1. Shep. Touch. by Preston, vol. ii. p. 488.

• Vol. ii. p. 76, sec. 39. Vol. II.

40

court may be known,) with sureties, for the faithful execution of his trust; and being thus duly appointed, it is his duty to proceed forthwith to the execution of his trust. His powers and duties under the common law of the land may be summarily comprehended in the following particulars : 1. He is to make an inventory of the goods and chattels of the intestate, in the presence and with the discretion of appraisers, who, in New York, Massachusetts, and probably in other states, are to be appointed by the probate court, and sworn; and, under the English law, they are selected by the executor or administrator, from the creditors, or next of kin, or discreet neighbors.b Two copies of this inventory are to be made and indented and one copy is to be lodged with the surrogate, un

der the attestation of the administrator's oath, and the *415 other is to be retained. This *inventory is intended

· N. Y. Revised Statutes, vol. ii. p. 77. sec. 42. Under the N. Y Revised Statutes, vol. ii. p. 70, sec. 6, 76, the surrogate, if he deem the circumstances of the case to require it, may require an executor to give security. If he be abont to remove out of the state, he may in that case also require it. See Wood v. Wood, 4 Paige's Rep. 299. In Tennessee, executors must give security equally with administrators, before they can law. fully act. Act of 1813. 4 Yerger's Rep. 20. By the Massachusetts Revised Statutes of 1835, and the Revised Statutes of Vermont, 1839, p. 260, the executor, as well as the administrator before he enters on his trust, must in all cases give bond with sufficient suiety to the judge of probate, for the faithful execution of his trust ; and as a consequence the executor of an executor has po authority to administer on the estate of the first testator. The English rule in equity is, that if an executrix who has infant children marries a second husband in necessitous circumstances, and there is danger of waste, a receiver will be appointed. Dillon v. Lady Mount Cashell, 4 Bro. 341. Middleton v. Dodswell, 18 Vesey, 268. And this is the rule of equity in South Carolina, Stairley v. Rabe, 1 M Mullen, 22, and would probably be followed if the case arose in the equity courts in the other states.

o The administration bond only binds the administrator to administer the assets within the state and not goods in another jurisdiction. Governor v. Williams, 3 Iredell's N. C. Rep. 152.

. N. Y. Revised Statutes, vol. ii. p. 82. sec. 1. Ibid. vol. ii. p. 84. sec. 15, 16. The New York statute specifies the nature of the assets which shall go to the executor or administrator; and it has followed, in this re

e

for the benefit of the creditors and next of kin; and the ad. ministrator will be obliged to account for the property mentioned in it; and he will also be obliged to show good cause for not collecting the debts that are mentioned to be due, unless he had the precaution to note them in the inventory as desperate. He is liable also to have the letters of administration revoked, (and it is the same with the letters testamentary of an executor,) if an inventory be not duly made and returned. And if any one or more of the executors or administrators returns the inventory, those who neglect to do it cannot afterwards interfere with the administration until they redeem their defalt.a

spect, the rule of the common law. They are, the interest of the deceased in leases for years; things annexed to the freehold, for the purpose of trade or manufacture; growing crops raised annually by labour and cultivation, excepting grass and fruit not gathered; rent accrued, debts and things in action, though secured by mortgage, and moveable property and effects. N. Y. Revised Statutes, vol. ii. p. 82. sec. 6. Evans v. Eglehart, 6 Gill f. Johnson, 171, 189, 190, S. P. In Massachusetts, mortgage debts, before foreclosure, are personal assets in the hands of the executors and administrators of the mortgagee. Massachusetts Revised Statutes, 1835. Certain necessary domestic articles for family use, as looms, stoves, pictures, school books, wearing apparel, bedding, table furniture, and a small number of necessary domestic aniinals, are not to be appraised, but to remain for the use of the widow and children. New-York Revised Statutes, vol. ii. p. 83. sec. 9, 10. There is a similar exception in Massachusetts, Connecticut, Ohio, and probably in other states, in favour of the widow and family; and it extends to such small necessary family articles as are exempt from execution. The widow and children in Ohio, if any under fifteen years of age, or the children only, is no widow, are entitled to sufficient provisions or other property for their support for twelve months from the intestate's death, without having the same accounted for as part of the inventory. Statutes of Ohio, 1831. The Ohio statute, as to emblements declares that those sowed after March 1st, and before December 31st, shall go to the executor or administrator, if the decedent died within that period; but that those growing on the land on March 1st, or between December 31st and March 1st, shall go to the heir, deyisee or remainderman or reversioner, is the decedent died within that period.

In Massachusetts, Connecticut, (Revised Statutes of Massachusetts, 1835, and of Connecticut, 1821,) and probably in those other states where the distribution of real and personal property is the same, the inventory is to include equally the real andpersonal estate.

· N. Y. Revised Statutes, vol. ii. p. 85. sec. 17–23.

After completing the inventory, the duty of the administrator, is, to collect the outstanding debts, and convert the property into money, and pay the debts due from the intestate. He must sell the personal property, so far as it may be necessary for the payment of debts and legacies, beginning with articles not required for immediate family use, nor specifically bequeathed.a

In paying

- The English rule is to convert the assets into cash by a public sale, and this was the rule declared, in Covenhoven v. Shuler, 2 Paige, 122. But in Maryland, unless the sale of the assets be necessary to pay debts and legacies, or to make a satisfactory distribution, the rule is for the executors and administrators to divide the property specifically in kind between legatees and distributees. Evans v. Eglehart, 6 Gill f. Johnson, 171. By the N. Y. Revised Statutes, vol. ii. p. 87. sec. 25, 26, tho executor is allowed, except in the city of New York, to sell on credit not exceeding one year, with approved security; and he will be exempted from responsibility for losses, if he acts in good faith and with ordinary prudence. The statute has not defined what was intended by approved security. The Eng. lish rule in equity is, that the executor must not rest on personal security ; and if he does, it is at his own peril. But there are exceptions to the severity of that rule; and it will depend upon circumstances whether, under the New-York statute, an executor or administrator acting in good faith, be bound to answer for the eventual failure of personal security. See a discussion of the subject in Smith v. Smith, 4 Johns. Ch. Rep. 284. 629. The weight of the modern English authority is, that investing trust moneys in personal security is a breach of trust. Lord Hardwicke, in Rider v. Bickerton, 3 Swanst. Rep. 80. note. Lord Kenyon, in Holmes v. Dring, 2 Cox's Cases, 1. Lord Loughborough, in Adye v. Fauilleteau, 3 Swanst. Rep. 84, note. Lord Eldon, in Walker v. Symonds, 3 Ibid. 63. Where the will directed the executors to put on interest to be well secured £500, and they invested it in stock of the bank of the U. S. and it was lost by the bankruptcy of the bank, it was held to mean security by mortgage or judgment on realty, and that the bank security was no better than perso. nal security, and the executors were held responsible for the money. Nyce's estate, 5 Watts g Serg. R. 254. An executor is responsible if he invests trust monies otherwise than upon real security or in government stock. Bank stock will not do. Ackerman v. Emett, by Parker, V. Ch., in 3 N. Y. Legal Observer, 337. But the executor may place money where the testator had been accustomed to place it, and without being responsible, if he acts with good faith. 1 Tamlyn's Rep. 279. In Gray v. Fox, Sarton's N. J. Ch. Rep. 259, the question what is due security in respect to trustees loaning money was learnedly discussed, and it was declared to be a well settled rule in the English chancery and was adopted in New

*the debts, the order prescribed by the rules of the common law is, to pay, first, funeral charges,a and the expense at the probate office; next, debts due to the state ; then, debts of record, as judgments, recognizances, b and final decrees; next, debts due for rent, and debt by specialty, as bonds and sealed notes; and, lastly, debts by simple contract. Causes of action arising ex delicto, for wrongs for personal injuries, die with the person, and do not survive against his representatives. Executors and administrators are the representatives of the personal property of the deceased, and not of his wrongs, except so far as the tortious act complained of was beneficial to his estate. The civil law gave no preference to creditors, ex

Jersey, that the loaning of trust monies, and especially where infants were concerned, on private or personal security, was not due security, and such loans were at the risk of the trustees. The trustee must take adequate real security, or an investment in public stocks or funds. This was the opinion of the chancellor of New York, in Smith v. Smith, above cited. In Stickney v. Sewell, 1 Mylne of Craig, 1, executors were empowered to lend money on real or personal security, and it was held that money should be advanced to the amount only of two thirds of the value of freehold land, of a permanent value, and not upon houses or buildings which are fluctuating, and the executor was held answerable for the deficiency.

a As against creditors, the rule of law is, that no more shall be allowed for funeral expenses than is absolutely necessary, regard being had to the degree and condition in life of the deceased person. Hancock v. Podmore, 1 B. f Adol. 260. Palmes v. Stephens, R. M. Charlton's Geo. Rep. 56. In Louisiana the privileged claim of the lessor as against the estate of the deceased lessee, comes in immediately after the funeral charges. Divine v. Tecquet, 4 Rob. Rep. 366.

b A recognizance, as of special bail, is of higher dignity than a debt by specialty, and has preference. Moon v. Pasteur, 4 Leigh’s Rep. 35.

• Hambly v. Trott, Cowp. 371. The People v. Gibbs, 9 Wendell, 29. Hench v. Metzer, 6 Serg. f Rawle, 272. But for devastavits, or wrongs to property, the personal representatives of the deceased, who committed the tort, were made answerable by the statutes of 30 Car. II. ch. 7, and 4 and 5 W. & M. ch. 24, and doubtless the same law exists in this country. Executors and administrators are also made liable to answer for injuries to real property, in the character of torts or trespasses. N. Y. Revised Statutes, vol. ii. p. 114. sec. 4. Respecting the liabilities of co-executors, it is understood that one executor is not chargeable for a devastavit of his co-executor, and is chargeable only for the assets which have come to his

« ΠροηγούμενηΣυνέχεια »