§ 419. Testator and intestate.-A person dying without making a will is called an intestate, and one who makes and leaves a will is called a testator.

§ 420. Statutes of descent and distribution.—The personal property of an intestate is distributed to his heirs, according to the statutes of the states where the intestate lived at the time of his death, and his real estate descends to his heirs, according to the laws of the place where the real estate was situated.

§ 421. Administrator.-Upon the death of an intestate, an administrator is appointed, whose duty it is to take possession of all the personal property, convert it into money, pay the debts, and to distribute what remains amongst the heirs. The administrator has no right to meddle with the real estate of the decedent, unless the proceeds of the personal estate should prove insufficient to discharge the debts, in which case, upon proper application to the court having probate jurisdiction, he will be authorized to sell under the direction of the court so much of the real estate as will discharge the debts. The right to administer is generally first in the surviving husband or wife, next in the children, according to age and capacity, next to the largest creditor, and if none of them desire to accept the trust, the court will appoint 17-Elem. Law.

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some competent person. When appointed, the administrator is required to take an oath and give a bond for the faithful performance of the duties of his trust. He is at all times under the direction and control of the court, to whom he is required to report all his doings in the management of the property which comes to his hands. When he is ready to close the estate, he files his final accounts, and if no objections are made by the parties in interest, he is discharged. If an administrator dies, resigns or is removed, the court appoints a successor, who is called an administrator de bonis non, and his duty is, as the name implies, to administer so much of the estate as was left unsettled by his predecessor. The authority issued by the court under its seal to an administrator is called letters of administration.

§ 422. Executor.-An executor named in a will is the person appointed by the testator to carry out his purpose as expressed in the will. It is usual for the executor to give bond and take an oath, though the giving of the bond is sometimes dispensed with where the testator in his will indicates a desire to that effect, and no objection is made by the parties in interest. The authority issued to an executor is called letters testamentary. It is the duty of the executor to carry out the wishes of the testator in the distribution of such articles of personal property as are disposed of by the will. The gift of personal property by will is termed a bequest or legacy, and the person to whom it is given is called a legatee; the gift of real property by will is termed a devise and the person receiving it is termed a devisee. If the executor has cause to fear that the property of the testator will not be sufficient to discharge the debts of the estate and to pay the legacies, he may require the legatee to give bond that, in case such deficiency should occur, he will

refund to the estate so much as may be necessary to pay his share of such deficiency. The devisees take the real estate according to the terms of the will as soon as the will is admitted to probate, subject to the debts remaining after the personal estate is exhausted. The executor, as the administrator, does not meddle with the real estate of the testator unless it is shown to the court that it is necessary to sell a portion of it to pay debts. The reports and accounts of the executor are made and disposed of in the same way as the reports and accounts of the administrator. If the person named as executor renounces the trust the court appoints an administrator as in the case of an intestate, and the administrator is called administrator with the will annexed, and if this administrator dies, resigns or is removed, a successor is appointed who is called an administrator de bonis non with the will annexed. Executors and administrators receive such compensation as the court may allow, or as may be provided for in the will.

§ 423. The law of contracts.-This branch of the law is concerned with the formation, operation, interpretation and discharge of contracts. So much of our modern economic life is dependent upon contractual obligations that it has become necessary to give them a definite legal status in order to make possible their consistent enforcement through the courts of the state. In making contracts individuals do not always contemplate all the possible emergencies nor do they always have the same conception as to the meaning of all the terms of the agree

ment. In enforcing them, therefore, the courts must lay down rules to meet such emergencies. For example, A contracts with B for the rent of his house for the month of July, the contract being made June fifteenth. On June thirtieth the house burns down, an emergency probably not contemplated by the parties. Can A sue B for failure to rent the house? If contracts are to be made an efficient instrument of modern industry and commerce, the courts must adopt rules that will provide a definite and uniform solution for this and similar problems.

Again there are certain contracts which under an enlightened policy of justice and fairness ought not to be enforced, as contracts secured by fraud or duress, and consequently rules must be laid down so governing the subject of contracts as to prevent them from being made instruments of fraud and oppression.

§ 424. Growth of right to contract.-In primitive societies, and under the ancient laws, the rights and liabilities of persons, so far as they had rights and liabilities, were largely fixed and determined by their stations in life, whether as lord or vassal, husband or wife, parent or child, master or slave. The individual, unless he were lord, master or head of a family, had little or no voice in fixing his rights and obligations. Status, a word which is used to designate the personal condition of the individual under these old laws, has been gradually succeeded and almost supplanted by conditions which are the immediate or remote result of agreement, and the great movement of the progress in society has been a movement from status to contract. Societies are civilized and progressive to the extent that the individual can for himself establish such relations as he chooses, work for whom he pleases, and for what he pleases, buy and sell what and where he can, having no superior to control