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Later on we shall see whom it is that the lawmakers have chosen to be the heirs of an intestate, and the object they sought to attain in making the selection they did.

35. Disadvantages arising from intestacy. Theoretically the statute works out a perfect scheme of descent, and fully satisfies the demands of public policy and the natural rights of man's dependents. As a practical matter, however, when he dies intestate his property frequently does not pass in quite the same way or to the same persons as he would have directed had he committed his ideas to paper. Few men are so unemotional as that their affections and sense of responsibility are distributed among their nearest of kin in the same proportion as the statute fixes for the descent of their property. Hence, in most cases, that property usually passes into the possession and enjoyment of persons, and in shares, not at all according to the decedent's real wishes.

Then, too, the estate is frequently administered by persons having neither the regard nor the confidence of the decedent. It may, at the time of his death, be in a disordered condition, and composed of property requiring manipulation with judgment of the utmost nicety. Yet its liquidation and

management may be confided to a person, male or female, having neither the experience nor business ability which the occasion demands. This is a matter which each man must decide for himself, but it is well worth his consideration.

And another, too, though not so serious. An executor is not usually required to furnish an undertaking for the faithful performance of his duties, because the law presumes that he whom the testator appoints is honest and capable, and can be trusted without the giving of security. But on the other hand, the law is not so sure about its own selection, and, therefore, always requires its administrators to furnish a bond with sureties, usually in an amount equal to and sometimes double, the value of the estate. No one enjoys the embarrassment of having to ask a friend to assume the burden (frequently a liability), of becoming a surety; and the only alternative is the employment of a professional surety company. This involves an expense which cannot be avoided, and which in amount is amply sufficient to warrant an effort to save it.

Not the least of the disadvantages arising from intestacy is the effect it has upon the ownership of property held jointly by the decedent and others. In case of a will, his undivided interest in lands, as a tenant in common with another, can

usually be disposed of by his executor under an ordinary power of sale, but if he fails to leave a will, his interest in the property may pass to half a dozen different persons, having no united views as to what disposition should be made of it. If even one of them refuses to sell, no transfer of the title can be made, and that most expensive of legal proceedings-a partition suit-inevitably follows.

It may be said that all these things have been shown by experience to have worked no lasting injury or serious hardship. All that may very well be, but they are disadvantages nevertheless.

BOOK II

DEVOLUTION BY WILL

36. Necessity for administration.

We have already seen how, upon the death of an owner of property, the title to that property passes, without any lapse, to someone else. The identity of the new owner is not always apparent, and must be ascertained by the court through proceedings which vary according to the circumstances of each case. The property must be gathered together, and sometimes recovered from the custody of third parties; the names of the creditors, and the amounts due them must be ascertained and paid; the federal and state taxes upon inheritance must be fixed and discharged; and, finally, the remaining property must usually be reduced to cash preparatory to distribution among those entitled to receive it. All these processes, taken together, form what is known as the administration of the estate, and is confided, where the decedent leaves a will, to a person or persons named therein for that purpose,

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known as executors and trustees. While these various steps in the administration of the estate are taking place, the possession and enjoyment, and even the power to dispose of the property by the new owner, is suspended. During this period the executors and trustees themselves are vested with a qualified title, that is, such title as is necessary and sufficient to enable them lawfully to carry out the instructions and perform the duties imposed upon them by the instrument appointing them.

But to be able to do all these things and to repel any attack which may be made upon their authority, it is first essential that the writing from which they derive their appointment, i. e., the will, shall be established as a valid instrument, and their authority should be evidenced by the issue of certificates under the seal of the probate court, commonly known as letters testamentary. Our immediate attention, therefore, will be centered upon a consideration of the office of executors and trustees, and the means whereby their authority is authenticated.

37. Executors and their nomination.

An executor is the person, male or female, who is designated by the testator as charged with the duty of executing the provisions of his will.

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