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/Q-X'<i^^-— ^e^. / 1/3 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW OF DECEDENTS' ESTATES INCLUCING WILLS THE LAW OF DECEDENTS' ESTATES INCLUDING WILLS An Abridgement for the Use of Law Students OF J. G. Woerner's Great Treatise for Practitioners on "The American Law of Administration " EDITED BY WM. F. WOERNER and F. A. WISLIZENUS Instructors in the Law Departments op St. Louis and Washington Universities BOSTON LITTLE, BROWN, AND COMPANY 1913 Copyright, 1913, By William F. Woerner. All rights reserved T 1913 THE tTNIVERSITT PRESS, CAMBRIDGE, TJ. 8. A. PREFACE. This book, specially designed for use as a text-book in law schools, is an abridgment and condensation into a single volume of Judge J. G. Woerner's monumental work on "The American Law of Administration." The editors, in lecturing upon the subject of wills and administration of decedents' estates, respectively in the law departments of Washington and St. Louis Universities, found no suitable text-book for students covering this field, which is of such practical and grow- ing importance in a law course. The best plan devised was to lecture from Judge Woerner's book. But that great treatise is adapted to the needs of the practising lawyer and the courts, not to students. Though containing the fundamentals neces- sary to a proper understanding of the subject by the student, it contains also a tremendous amount of matter, nicety of detail, and citation of authorities, all of which is indispensably valuable to the practitioner, but is only a source of confusion to the beginner. In the light of their experiences in teaching this subject, these editors therefore conceived the idea of elim- inating all matter not essential from the elementary viewpoint, and otherwise so modifying the main treatise as to make it of special adaptation to the needs of the beginner and properly to ground him in this field of the law. The citation of cases is limited to a few which illustrate the principles involved or mark the development of the law upon this live and growing subject. The main work and the present abridgment are not competitive; each performs a separate 776710 VI PREFACE. and independent function — the former is for the lawyer, the latter for the learner. The active practitioner should of course consult the main work for the authorities, details, and statu- tory references which are necessary in actual practice. But for the acquisition of the essentials necessary to a thorough understanding of the subject by the student, the editors trust that this abridgment will supply a much-felt demand. Wm. F. Woerner. F. A. WiSLIZENUS. St. Louis, May, 1913. TABLE OF CONTENTS. Page Preface v Table of Cases Cited xxxi INTRODUCTION. OF THE NATURE OF PROPERTY AND THE PRINCIPLE DETERMINING ITS DEVOLUTION. CHAPTER I. OF PROPERTY IN GENERAL. 1. Nature of Property 1 2. Nature of Law 2 CHAPTER II. EFFECT OF THE FEUDAL SYSTEM IN AMERICA. § 3. Feudal Influences 3 § 4. Modified in England by Statutes 3 § 5. Incongruity of the Rule in America 4 § 6. Function of Special Courts for Administration 5 TITLE ONE. OF THE DEVOLUTION OF PROPERTY ON THE DEATH OF ITS OWNER. PART I. Of the Devolution as Determined by the Act of the Owner. BOOK ONE. OF TESTAMENTARY DISPOSITION OF PROPERTY, 7. What is Disposable 7 8. Disposition by Will or in Case of Intestacy 7 Vlll TABLE OF CONTENTS. CHAPTER III. op the external limits placed upon testamentary capacity. Faoe 9. The Right to make a Will 8 10. The Right to will Realty at Common Law 8 11. Testamentary Capacity 9 12. Aliens 9 13. Infants 11 14. Married Women 12 CHAPTER IV. INCAPACITY ARISING FROM MENTAL DISABILITIES. § 15. Degree of Mental Vigor Requisite to make a Will 13 § 16. Incapacity of Idiots, Imbeciles, Deaf, Dumb, and Blind ... 14 § 17. Limatics 15 § 18. Presumption of Sanity 16 § 19. Presumption of Continuance of Proved Insanity — Ijucid Intervals 17 § 20. Opinions of Non-experts as to Sanity 17 § 21. Incapacity in Consequence of Force, Fraud, or Intimidation . 18 § 22. Incapacity arising from Undue Influence 18 § 23. Presumption against Legacies to Fiduciary Advisers 20 § 24. Presumption as to Seamen's Wills 20 § 25. Partial Avoidance of Will by Undue Influence 20 CHAPTER V. FORM, EXECUTION, AND ATTESTATION OF WILLS. § 26. The Will is Ambulatory 22 § 27. Wills distinguished from Conveyance of Future Interests . . 22 § 28. Conditional Wills 23 § 29. Joint and Mutual Wills 24 § 30. Joint WiUs as Contracts 24 § 31. Separate Wills in Pursuance of Contract 25 § 32. Contracts to make Particular Provision by Will 26 § 33. No Formahty as to Will's Contents 26 § 34. Nor as to Writing Material or Language 27 § 35. The Signature 27 § 36. Attestation 29 § 37. Change in Law as to Testamentary FormaUties 30 § 38. Competency of Attesting Witnesses 31 § 39. Holographic Wills 32 § 40. Nuncupative Wills 33 § 41. Formal Requisites for Nuncupative Wills 33 § 42. Wills of Soldiers and Mariners 35 § 43. Codicils 35 TABLE OF CONTEXTS. IX CHAPTER VI. OF THE REVOCATION OF WILLS. Page § 44. Methods of Revocation 37 § 4.5. Revocation by Cancelling, etc 37 § 46. Dependent Relative Revocation 39 § 47. Partial Revocation by Cancelling 39 § 48. Revocation by Subsequent Will 40 § 49. Revival of a Prior Will by Revocation of a Later Will .... 41 § 50. What Property passes Under Will 42 § 51. Revocation by Inconsistent Disposition of the Testamentary Gift 43 § 52. Revocation by Marriage of Feme Sole 43 § 53. Revocation by Marriage of Males and Birth of Issue .... 43 § 54. Con.sequence of Failure to provide for Issue 45 § 55. Repubhcation of Wilis 45 BOOK TWO. OF GIFTS EXECUTED IX AXTICIPATIOX OF IMMEDIATE DEATH. CHAPTER VII. DONATIOXES MORTIS CAUSA. § 56. Definition of the Term 47 § 57. Apprehension of Death 48 § 58. Delivery of the Thing Given 48 § 59. Parting with Control 49 § 60. Delivery to Person other than Beneficial Donee 50 § 61. Revocation by the Living Donor . . 50 § 62. Revocation by Law 51 § 63. Liability of the Gift to Donor's Creditors 51 § 64. Vahdity of the Gift as against the Donor's Family 51 PART II. Of the Devolution by Operation of Law. CHAPTER VIII. DESCENT AND DISTRIBUTION OF PROPERTY OF INTESTATES. 65. Principles Governing Distribution 53 66. Sources of American Law of Descent and Distribution .... 54 67. The Degrees of Relationship 54 X TABLE OF COXTEXTS. Page § 6S. Collateral Relationship under Canon and Civil Law 55 § 69. Representation 55 § 70. Statutory ModiScation of Svstem of Distribution 57 §71. Heirs of "the Half Blood . ' 58 § 72. Posthumous Children 58 § 73. Adopted Children 59 § 74. Illegitimate Children 60 § 75. Aliens as Heirs 61 § 76. Ancestral Estates 61 § 77. Disinheritance of Heir or Devisee who kills Ancestor 62 § 78. What Law governs Descent and Distribution 63 CHAPTER IX. PROVISIONAL ALIMONY OF THE FAMILY. § 79. Nature of Allowance to Famih- , 64 § 80. The Extent and ^Slode of Allowance 65 § 8L Rules governing the Amount of the Allowance 65 § 82. To what Extent Liberality should govern the Court 66 § S3. The Allowance with Respect to Solvency or Insolvency of the Estate 66 § 84. Separate Property of the Widow affecting the Allowance ... 66 § 85. The Will as barring the Allowance 67 § 86. How affected bj- Marriage Settlements 67 § 87. How affected by Liens or Preferred Debts of the Decedent . . 68 § 88. When the Allowance takes Effect 68 § 89. What constitutes a Family 69 § 90. Allowance to Widow Alone 69 § 9L Allowance to the Children Alone 70 § 92. Out of what Property to be Allowed 70 § 93. Time and Procedure to obtain the Allowance 71 § 94. Additional Allowance 72 § 95. WhsLt Law governs 72 § 96. Scope of the Subject 72 CHAPTER X. EXEMPTION OF THE HOMESTEAD. § 97. Xature of the Homestead Right of the Sur^-iving Family . . 74 § 98. What Tenement constitutes the Homestead 75 § 99. Homestead Rights of the Widow 76 § 100. The Homestead as affected by the Widow's Dower 77 § 101. The Widow's Right to sell the Homestead 77 § 102. Abandonment or Divorce affecting Homestead 77 § 103. Homestead Rights of Minor Children 78 § 104. Homestead Rights of Widow and Children as affected bj' Encumbrances 79 TABLE OF CONTEXTS. XI Page § 105. Homestead Rights as affected by Inconsistent Disposition of the Estate bj- the Deceased OwTier ^9 § 106. Homestead Rights as affected b}' Administration 80 § 107. Procedure in Probate Court in Setting out the Homestead . . 81 § 108. The Rights and Burdens connected with Enjoj-ment of the Homestead 81 § 109. "VMiat Law controls 82 CHAPTER XL DO'tt'ER. 110. Dower in Realty 83 111. Dower in Personalty 83 112. Election between Dower and Devise 84 CHAPTER XII. PARTXERSHIP ESTATES. § 113. Results of Death of a Partner at Common Law 88 § 114. Results of Death of a Partner in Equity 88 § 11.5. The Right of Surviving Partners to prefer Creditors .... 89 § 116. Surviving Partners Continuing the Business 89 § 117. Continuing the Interest of Deceased Partner in Business . . 90 § 118. Rights of Partnership Creditors 92 § 119. Rights of Representatives of the Deceased Partner 93 § 120. Distribution of Partnership Effects 93 §121. Good Will of Partnership 94 § 122. The Real Estate of the Partnership 95 § 123. History of the ISIissouri Statute as T^sical of Modern Partner- ship Administration 97 CHAPTER XIII. ESCHE.^TS. § 124. Devolution of Property in Default of Heirs 99 § 125. Escheat at Common Law 100 § 126. Escheats under the Statutes of the Several States 100 § 127. Need of Inquest of Office under Statutes 101 § 128. An Official as Representative of the State 101 § 129. Escheated Estate Subject to Trusts 101 § 130. Subsequent Recovery by Heir from the State 102 § 131. Administration of Escheated Estates 102 xn TABLE OF CONTENTS. TITLE TWO. OF THE IXSTROIENTALITIES EFFECTING THE DEVOLUTION. Page § 132. Tribunals and Officers eniploj-ed by the Law to accomplish the Devolution 103 PART I. Of the Tribunals Controlling the Administration of the Estates of Deceased Persons. CHAPTER XIV. PROBATE POWERS AS EXISTING AT COMMON LAW UNDER ENGLISH STATUTES. § 133. Origin of the Ecclesiastical Jurisdiction over Probate of Wills . 104 § 134. Origin of Administration in England 105 § 13.5. Powers of Ecclesiastical Courts in England 106 § 136. Probate Jurisdiction in Other English Courts 108 CHAPTER XV. NATURE OF PROBATE COURTS IN AMERICA. § 137. Origin of Probate Courts in America 110 § 138. American Statutes the only Source of Probate Powers in the States Ill § 139. Their Dignity as Courts 112 § 140. Their Powers as Judicial Tribunals 113 § 141. Conclusiveness of their Judgments in Collateral Proceedings 113 § 142. How far Probate Courts may correct their Judgments ... 116 § 143. Entering Judgment nunc pro tunc 116 § 144. Proceeding in Rem and in Personam 117 § 145. Method of Procedure in Probate Courts 119 CHAPTER XVI. OF THE StJBJECT-MATTER WITHIN THE JURISDICTION OF PROBATE COURTS. § 146. Scope of the Jurisdiction 121 § 147. Jurisdiction as limited to the Devolution of Property on the Owner's Death 121 § 148. Liabilities arising from Administration 122 § 149. Adjudication of Claims against the Deceased 123 § 150. Incidental Powers conferred by Necessary Implication . . . 123 TABLE OF CONTENTS. XIU Page § 151. Power to construe Wills in Probate Court 123 § 152. Construing Wills in Equity 124 § 153. Exclusive and Concurrent Jurisdiction 125 § 154. Probate Jurisdiction of Federal Courts 126 CHAPTER XVII. DOMICILIARY AND ANCILLARY JURISDICTION. § 155. Authority of Representatives limited to the State granting it 128 § 156. Administration of Same Succession in Different Countries . 128 § 157. Jurisdiction over Property removed to Another Country after Owner's Death 130 § 158. Legal Status of Foreign Administrators 131 § 159. Validity of Voluntary Payment to Foreign Administrator . 132 § 160. Extra-territorial Validity of Title once vested 132 § 161. Statutory Authority of Foreign Executors and Administrators 134 § 162. Liability of Foreign Administrators 134 § 163. Procedure governed by the Law of the Forum 135 § 164. Payment of Debts and Distribution to Non-Residents . . . 135 § 165. Real Estate governed by the Lex Rei Sitae 137 PART II. Of the Office of Executors and Administrators. CHAPTER XVIII. NATURE OF THE TITLE VESTING IN EXECUTORS AND ADMINISTRATORS. 166. Conduit of the Inheritance 139 167. Distinction between Executors and Administrators .... 139 168. When the Title vests in the Executor, and when in the Ad- ministrator 140 169. Relation of the Appointment to the Time of Death .... 141 170. Title of Executors and Administrators in Auter Droit . . . 142 171. Power of Alienation 142 CHAPTER XIX. OP SPECIAL AND QUALIFIED ADMINISTRATORS. 172. Administrators -cum Testamento Annexe 143 173. Administrators de Bonis Non 143 174. Public Administrators . 145 175. Administrators Pendente Lite 145 176. Temporary and Limited Administration 146 XIV TABLE OF CONTENTS. TITLE THREE. OF THE DEVOLUTION TO THE LEGAL REPRESENTATIVES. PART I. Of the Estate without Official Representation. CHAPTER XX. WHAT MAT BE DONE BEFORE PROBATE OR GRANT OF LETTERS. Page § 177. To whom the Real and to whom the Personal Property de- scends 149 § 178. Authority of Executors before Grant of Letters Testamentary 150 § 179. Authority of Administrators before Grant of Letters .... 150 CHAPTER XXI. OF EXECUTORS DE SON TORT. § ISO. Extent of Doctrine of Executor de son Tort in America . . 152 § 181. Executor de son Tort — how constituted 153 § 182. The Liability of the Executor de son Tort 154 § 183. Effect of Appointment of Executor de son Tort upon his Previous Acts 154 CHAPTER XXII. OF THE NECESSITY OF OFFICIAL ADMINISTRATION. § 184. Why Administration is Necessary 156 § 185. Administration not Necessary under Certain Circumstances in some States 150 PART II. Of the Induction to the Office of Executor and Administrator. CHAPTER XXIII. OF THE PRELIMINARIES TO THE GRANT OF LETTERS TESTAMENTARY AND OF ADMINISTRATION. § 186. Local Jurisdiction to grant Letters Testamentary and of Ad- ministration 159 § 187. Jurisdiction over Estates of Deceased Non-Residents . . . 160 TABLE OF CONTEXTS. XV Page § 188. Claims for injury resulting in Death as Asset 162 § 189. What constitutes Domicile or Residence 163 § 190. Proof of Death 164 § 191. Administration on the Estates of Living Persons 165 § 192. Administration on Estates of Absent Persons 166 CHAPTER XXIV. OF THE PROBATE OF THE WILL. § 193. Necessity for Probate 167 § 194. Validity of Probate in Probate Courts 167 § 195. Production of the Will for Probate 167 § 196. Jurisdiction for Probate in Common and Solemn Form . . . 169 § 197. Jurisdiction over Probate of Lost Wills 169 § 198. Method of Proof in Common Form 169 § 199. The Probate in Solemn Form 171 § 200. Contest of Probate 171 § 201. Proof when Testimony of Subscribing Witness cannot be obtained 173 § 202. Witnesses disqualified by Interest 174 § 203. Proof of the Testator's Sanity 175 § 204. Proof of Lost Wills 175 § 205. Proof of Wills in Part 177 § 206. Probate in Fac-simile 178 § 207. Testator's Declarations as Evidence in Probate of Will . . . 179 § 208. Admissions by Beneficiaries under Will 180 § 209. Wills Proved in Foreign Jurisdiction 181 § 210. Revocation of Probate 183 § 211. Effect of Probate 184 • CHAPTER XXV. OF THE GRANT OF LETTERS TESTAMENTAKT. § 212. How the Executor is Constituted 186 § 213. Residence as Qualification of Executor 187 § 214. Infancy as disqualifying Executor 187 § 215. Coverture as disqualifying Executrix 187 § 216. Mental Incapacity, Immorality, and other Disqualifications for Executorship 188 § 217. Acceptance or Refusal of Executorship 189 CHAPTER XXVI. LETTERS OF AX)MINISTR.\TION. § 218. Principles governing the Grant of Letters of Administration 191 § 219. Husband's Right to Appointment 192 XVI TABLE OF CONTENTS. Pagb § 220. Widow's Right to Appointment 193 § 221. Right of Next of Kin to Appointment 194 § 222. Right of Creditors to Appointment 194 § 223. Right of Pubhc Administrator to ackninister 195 S 224. Disqualifications excluding from Appointment as Adminis- trator 195 § 225. Considerations governing Discretion 197 § 226. Renunciation of the Right to Administer 198 § 227. Effect of Renunciation or Waiver 199 § 228. Administrators cum Testamento Annexo 200 § 229. Administration of Estates of Non-Residents 201 § 230. Administrators de Bonis Non 202 § 231. Administrators with Limited Powers 202 CHAPTER XXVII. OF THE ADMINISTRATION BOND. § 232. Origin of the Law requiring Administration Bonds 203 § 233. Bonds of Executors 203 § 234. Power of Court to order Bond 204 § 235. Circumstances rendering Bond Necessary 204 § 236. Invalidity of Administration without Bond 205 § 237. When Additional Bond may be ordered 205 § 238. Nature of Liability of Sureties 2C6 § 239. Ordering Further Bond 206 § 240. Contribution between Different Sureties in the Same Estate 208 § 241. Bonds given in Successive Trustee Capacities 208 § 242. Technical Execution of the Bond 209 § 243. Amount of the Penalty 209 § 244. Joint or Separate Bonds 210 §245. Approval and Custody of Bonds . . . .• 211 § 246. Special Bonds 211 CHAPTER XXVIII, OF THE PROCEDURE IN OBTAINING LETTERS AND QUALIFYING FOR THE OFFICE. § 247. The Petition for Grant of Letters, Testamentary or of Ad- ministration 212 § 248. Notice to Parties entitled to administer 213 § 249. Nature of the Proceeding 214 § 250. Nature of the Decree, and its Authentication 215 § 251. Oath of Office 215 TABLE OF CONTENTS. XVU CHAPTER XXIX. ON THE REVOCATION OF LETTERS TESTAMENTARY AND OF ADMINISTRATION. § 252. Conclusiveness of the Decree or Order granting Letters . . 216 § 253. Jurisdiction to revoke Letters 216 § 254. Recall of Letters granted without Authority in the Court . 217 § 255. Theory of Removal for Cause 218 § 256. What Misconduct justifies Revocation of Letters 219 § 257. Who may mcve for Revocation 219 § 258. Resignation of Executors and Administrators 221 § 259. Consequences of the Revocation of Letters 221 PART III. Of the Property to which the Title of Executors and Administrators Extends. CHAPTER XXX. OF PROPERTY IN POSSESSION. § 260. Heirlooms not Personalty 224 § 261. Disposition of the Corpse 224 § 262. Joint Property 225 § 263. Real Estate ,* 225 § 264. Chattels Real ' 225 § 265. Chattels Real of the Wife 226 § 266. Mortgages 226 § 267. Chattels Animate 227 § 268. Chattels Vegetable [ [ 227 § 269. Emblements 227 § 270. Fixtures, as between Heir and Personal Representative . . 229 § 271. Fixtures as between Devisee and Personal Representative . 231 § 272. Fixtures as between Personal Representative of Life Tenant and Remainderman 231 § 273. Separate Property of the Wife 232 § 274. Ante-Nuptial Settlements 232 § 275. Post-Nuptial Settlements 233 § 276. The Wife's Savings from Separate Trade, Pin-Money, Gifts, etc 233 § 277. The Wife's Paraphernalia 234 CHAPTER XXXI. TITLE OF EXECUTORS AND ADMINISTRATORS TO CHOSES IN ACTION. 278. Survival of Actions at Common Law 235 279. Reason of the Rule 235 XVlll TABLE OF CONTENTS. Pagd § 280. American Statutes regulating the Survival of Actions . . 237 § 281. Actions for Injury to Personalty 237 § 282. Actions concerning Realty 238 § 283. Actions for Injuries to the Person 239 § 284. Actions for Injuries resulting in Death do not lie at Common Law 239 § 285. Suit for Death Loss under Law of Other State 241 § 286. Property conveyed by Decedent in Fraud of Creditors . . . 241 § 287. Annuities and Rent Charges 242 § 288. Apprentices and Servants 243 § 289. Copyrights and Patents 243 § 290. Rents 244 § 291. Apportionment between Ijife Tenant and Remainderman . . 24.5 § 292. The Wife's Choses in Action 245 § 293. Actions accruing to the Representative, officially or individu- ally 246 TITLE FOUR. OF THE DUTIES OF THE PERSONAL REPRESENTATIVE IN RESPECT OF THE ESTATE. PART I. Of Acquiring Possession of the Estate. CHAPTER XXXII. WHAT CONSTITUTES ASSETS. § 294. Meaning of the Term Assets 249 § 295. Assets not Possessed by the Decedent 251 § 296. Accretions, Interest, Rents, Profits 252 § 297. Property in Foreign Jurisdiction 253 § 298. Property lost through Administrator's Negligence as Assets . 253 § 299. Debts of Executors or Administrators as Assets 254 § 300. Property in Auter Droit not Assets 255 § 301. Legal and Equitable Assets 255 § 302. Personal and Real Assets 256 CHAPTER XXXIII. OF THE INVENTORY AND APPRAISAL. § 303. Office and Necessity of the Inventory 257 § 304. Within what Time the Inventory must be filed 257 § 305. What Property must be inventoried 258 § 306. Details of the Inventory 260 TABLE OF CONTENTS. XIX Page § 307. Indication of the Value of Assets 261 § 308. Appraisement of the Goods 261 CHAPTER XXXIV. DUTIES OF EXECUTORS AND ADMINISTRATORS IN TAKING CHARGE OP THE ESTATE. § 309. Duty of Administrators to take Estate into Possession . . . 263 § 310. Right of Administrator paramount to Heir or Legatee . . . 264 § 311. Their Duty to prosecute and defend Actions pending by or against the Estate 265 § 312. Actions to recover or defend the Estate 265 § 313. Summary Proceedings to recover Assets 266 PART II. Of the Management of the Estate. CHAPTER XXXV. OF THE DUTIES OF EXECUTORS AND ADMINISTRATORS WITH RESPECT TO PERSONAL PROPERTY. § 314. Compounding with Debtors 269 § 315. Arbitration 270 § 316. Protest and Notice respecting Negotiable Paper 270 § 317. Duties in Relation to the Contracts and Trade of the De- ceased 272 § 318. Preserving the Property 274 § 319. Taxes on Personalty 275 § 320. The Succession Tax 277 § 321. Transfer of Personalty by Personal Representative at Common Law 279 § 322. Restraint on Power of Sale by Statute 280 § 323. Sale of Perishable Property 280 § 324. Method and Notice of Sale 281 § 325. Terms and Method of Payment 282 § 326. Purchase of Personalty by the Executor or Administrator himself 283 § 327. Record and Report of the Sale 283 § 328. Duties in Respect to the Investment and Custody of Funds . 283 CHAPTER XXXVI. OF THE MANAGEMENT OF THE REAL PROPERTY. § 329. Probate Control over Realty at Common Law and under Statutes 287 XX TABLE OF CONTENTS. Page § 330. I. The Common Law almost wholly abrogated 288 § 331. II. States giving Statutory Powers to the Personal Repre- sentative 289 § 332. III. Power over Realty through Probate Court 290 § 333. Power over Real Estate conferred by Will 290 § 334. Power given in a Will not following the Office of the Executor 292 § 335. Statutes Regulating the Power over Real Estate conferred by Will 293 § 336. Constructive or Equitable Conversion 293 § 337. Duties and Liabilities arising to Executors and Administra- tors in Respect of Real Estate 295 § 338. Power to Mortgage the Real Estate 296 PART in. Of the Privity among Executors or Administrators of the Same Estate. CHAPTER XXXVII. tJNITT OF ESTATE AMONG EXECUTORS AND ADMINISTRATORS OP THE SAME DECEDENT. § 339. Power of Co-executors to bind Each Other by Acts of Ad- ministration 298 § 340. The Liability of one Co-executor or Co-administrator for the Acts of Another 298 § 341. Remedies in Protection of Co-administrators against Liabil- ity for One Another's Acts 299 § 342. Executor's Executor Representing the Executor's Testator . 300 § 343. Succession in the administration at Common Law 300 § 344. Administration de bonis non under American Statutes . . . 302 § 345. Privity between Successive Administrators 303 TITLE FIVE. OF THE PAYMENT OF DEBTS BY EXECUTORS AND ADMIN- ISTRATORS. § 346. Origin of the Common-law System of Paying Debts of De- ceased Persons 305 PART I. Of the Priority of Demands against the Estates of Deceased Persons. § 347. Distinction between the Debts of the Decedent and Liabili- ties contracted by the Personal Representative 306 TABLE OF CONTENTS. XXI CHAPTER XXXVIII. OF THE PAYMENT OF LIABILITIES ARISING AFTEE THE DEATH OF THE DECEDENT. Page § 348. Funeral Expenses allowable as Incidental to the Adminis- tration 307 § 349. Amount allowed for Funeral Expenses 308 § 350. What items are allowed as Funeral Expenses 308 § 351. Expenses of Last Illness when preferred to Debts 309 § 352. Expenses necessary in the Administration of the Estate . . 309 § 353. Provisional Alimony for the Surviving Family 310 CHAPTER XXXIX. OF THE PRIORITY OF DEBTS CREATED BY THE DECEDENT. § 354. Priority of Debts at Common Law 311 § 355. Expenses of Funeral and Last Illness as Debts 311 § 356. Debts to the Government of the United States 312 § 357. Debts to the State and State Corporation 312 § 358. Debts owing in a Fiduciary Capacity 313 § 359. Judgments against the Decedent in his Lifetime 313 § 360. Debts by Specialty 314 § 361. Rent 314 § 362. Wages 315 § 363. Simple Contract Debts 315 PART II. Of the Common-law System of Paying Debts of Deceased Persons. § 364. Payment of Debts according to their Priority 316 CHAPTER XL. OF THE PAYMENT OF DEBTS AT COMMON LAW. § 365. Common-law Preference among Creditors of Equal Degree . 317 § 366. Right of Retainer at Common Law 317 § 367. Consequence of Paying Legatee before Notice of Debt . . . 318 § 368. Defenses against Actions for Debts of the Deceased .... 319 § 369. Effect of Admissions and Promises by Executors or Adminis- trators 321 § 370. Enforcing Judgments de bonis testatoris at Common Law . . 322 § 371. Liability of Executors and Administrators in Equity .... 323 XXU TABLE OF CONTENTS. PART III. Of the System of Paying Debts of Deceased Persons under American Statutes. Page § 372. Contrast between Common Law and American System . . 324 § 373. Notice to Creditors of the Grant of Letters 325 CHAPTER XLI. OF THE EXHIBITION OF CLAIMS TO, AND THEIR ALLOWANCE BY, THE EX- ECUTOR OR ADMINISTRATOR. § 374. Creditors required to exhibit Claims 326 § 375. What constitutes a Sufficient Exhibition 320 § 376. Time for the Exhibition of Claims 328 § 377. Affidavit of Creditors necessary 328 § 378. Allowance or Rejection of Claims by the Administrator . . 329 CHAPTER XLII. OF ESTABLISHING CLAIMS AGAINST THE ESTATES OF DECEASED PERSONS. § 379. When Claims may be established in Probate Court .... 330 § 380. What Actions and Defences are triable in Probate Courts . 331 § 38L Claims against Estates of Deceased Married Women . . . 332 § 382. Claims not matured 332 § 383. Contingent Claims 333 § 384. Claims of Executors and Administrators 334 § 385. Claims of Relatives 334 § 386. Notice to the Administrator of Claims to be established . . 335 § 387. Set-offs in Probate Courts 336 § 388. Claimants as Witnesses 337 CHAPTER XLIIL OF THE TIME WITHIN WHICH CLAIMS MUST BE ESTABLISHED. § 389. Time of establishing Claims with Reference to their Rejection by the Administrator 338 § 390. Special Limitation of Time to establish Claims against Estates 338 § 39L Application of the General Statute of Limitations to Executors and Administrators -. 339 § 392. Application of the Statute of Non-claim 340 § 393. Effect of proving Claims after the Primary Period fixed there- for bv Statute 342 TABLE OF CONTENTS. XXlil CHAPTER XLIV. OF CLAIMS AGAINST ESTATES SPECIALLY ADMINISTERED AS INSOLVENT. Page § 394. Special Administration for Insolvency in some States . . . 344 § 395. How Estates are declared Insolvent 344 § 396. Special Administration of Insolvent Estates 345 § 397. Time within which Claims must be presented against Insol- vent Estates 346 CHAPTER XLV. OP CLAIMS SECURED BY COLLATERAL. § 398. Rights of Creditors holding Collateral Security to Assets of Insolvent Estates 347 § 399. Actions to foreclose Collateral Securities 347 CHAPTER XLV A. OF THE PAYMENT OF DEBTS WHEN ESTABLISHED. § 400. Nature and Effect of the Allowance or Judgment establish- ing Claims 349 §401. The Order or Decree to pay Debts 350 § 402. Enforcement of the Order or Decree to pay Debts 351 TITLE SIX. OF LEGACIES AND DEVISES. § 403. Distinction between Devises and Legacies 353 PART I. Of Ascertaining the Meaning of Wills. CHAPTER XLVI. OF THE GENERAL RULES APPLIED IN EXPOUNDING WILLS. § 404. Ascertaining the Testator's Intention 354 § 405. Rule requiring the Several Parts of a Will to be construed together 355 § 406. General Intent Controlling the Particular Intent 356 § 407. Construction of terms repeated in the Will 356 § 408. Rule allowing Words and Limitations to be transposed, sup- plied, or rejected 357 Xxiv TABLE OF CONTENTS. Page § 409. Precatory Words 357 § 410. Estates by Implication 358 § 411. From what Period the Will speaks in Respect of the Law governing it 359 § 412. From what Period the Will speaks in Respect of the Testator's Intention 360 § 413. Extrinsic Evidence in Aid of Construction 361 § 414. Testamentary Donees as Classes 303 § 415. Classes designated by Technical Terms 364 CHAPTER XLVII. TESTAMENT.\RY DISPOSITIONS CONTROLLED BY PUBLIC POLICY. § 416. Gifts for Immoral or Superstitious Purposes 368 § 417. Gifts prohibited by the Statute of Mortmain 369 § 418. Corjiorations as Testamentary Donees 370 § 419. Corporations as Donees in Trust 371 § 420. Rule against Perpetuities 371 § 421. Accumulation of the Income 373 § 422. Gifts to Charitable Uses 374 § 423. Force of the English Statute of Charitable Uses in America . 375 § 424. Charitable Uses upheld where other Trusts fail for Indefinite- ness 375 § 425. Charitable Trusts continue Indefinitely 377 § 426. The Doctrine of Cij Pres 377 § 427. Bequests for Masses for the Dead 378 PART II. Of Caxr3ring Wills into Effect. CHAPTER XLVIII. LEGAL INCIDENTS AFFECTING DEVISES AND LEGACIES. I 428. Lapse of Testamentary Gifts by the Death of the Donee before that of the Testator 380 § 429. Statutory Exceptions in Favor of Representatives of Deceased Legatees 381 § 430. The Doctrine of Lapse as affected by the Contingent or Vested Character of the Devise or Legacy 382 § 431. Devolution of Void and Lapsed Devises and Legacies . . . 382 § 432. The Devolution of Void and Lapsed Devises and Legacies as affected by Statutes 383 § 433. Remainders, and Executory Devises and Bequests 384 § 434. Devises and Legacies on Condition 386 § 435. Repugnant Conditions 387 § 436. Spendthrift Trusts 388 TABLE OF CONTENTS. XXV Page § 437. Bequests Conditioned on Religious Qualifications 388 § 438. Condition for Separate Life of Married Couple 389 § 439. Condition against Disputing the Will 389 § 440. Conditions in Restraint of Marriage 389 § 441. Classification of Legacies 391 § 442. Cumulative, Repeated, and Substituted Legacies 393 § 443. Ademption and Satisfaction of Legacies by Act of the Testator 393 § 444. Legacies in Satisfaction of Debts 394 § 44o. Ademption of Legacies given as Portions 395 § 446. Admissibility of Parol Evidence on Questions of Ademption . 396 § 447. Statutory Provisions affecting Ademption or Satisfaction of Legacies 396 CHAPTER XLIX. OF THE SATISFACTION OF LEGACIES BY THE EXECUTOR. § 448. Preference of Creditors over Legatees 398 § 449. Order in which Legacies abate 398 § 4.50. Executor's Assent to Devises and Legacies 400 § 45L Time for Paying or Delivering Legacies 401 § 452. Time for Paying Legacies fixed by Statutes 402 § 453. Payment of Bequests for Life with Remainder over .... 402 § 454. Resort to General Estate when Annuity Fund fails .... 404 § 455. Profits as Constituting Income for Life Tenant 405 § 456. Relative Rights of Life Tenants and Remaindermen to Divi- dends of Stock 405 § 457. Interest on Legacies 406 § 458. Interest when Time of Payment is fixed by the Will .... 407 § 459. Interest on Annuities 408 § 460. Persons competent to receive Payment of Legacies .... 408 § 461. The Doctrine of Election 409 § 462. Payment of the Residue 410 TITLE SEVEN. OF THE APPLICATION OF THE ASSETS FOR THE PAYMENT OF DEBTS AND LEGACIES. PART I. Of the Liability of Real Estate for the Debts of Deceased Persons. CHAPTER L. OF THE PROCEDURE IN OBTAINING THE ORDER OF SALE. § 463. Nature of the Power to sell Real Estate for the Payment of Debts 413 Xxvi TABLE OF CONTENTS. Page § 464. Sale by Executor under Power in Will 414 § 465. Who may apply for the Order to sell Real Estate 414 § 466. Within what Time Application may be made 415 § 467. Notice of the Application to Heirs and Devisees 416 § 468. What the Petition must show 417 § 469. Proof of the Existence of Debts 418 § 470. Proof of Insufficiency of the Personalty 418 § 471. Defence of Heir or Devisee to application for Sale 419 § 472. What Interest of the Decedent in Lands may be ordered to be sold 419 § 473. Of the Bond and Oath required of Executors and Administra- § 474. The Order, License, or Decree to Sell 420 CHAPTER LI. OF THE SALE AND ITS CONSUMMATION. § 475. Time of Selling 422 § 476. Notice or Advertisement of the Sale 422 § 477. Appraisement required before the Sale 423 § 478. Conducting the Sale 424 § 479. Report and Confirmation of the Sale 425 § 480. Payment of the Purchase-Money 426 § 481. The Deed of Conveyance 427 CHAPTER LII. OF THE CONSEQUENCES ATTENDING THE SALE. § 482. Application of the Proceeds 430 § 483. Purchaser's Liability for Encumbrances 431 § 484. Purchaser's Liability to Dowress and Homestead Tenants . 432 § 485. How Purchasers are affected by the Rule of Caveat Emptor 433 § 486. The Purchaser's Rights in Equity 433 § 487. Executors and Administrators as Purchasers 435 § 488. Validity of the Sale in Collateral Actions 436 PART II. Of the Relative Liability of Assets to Creditors and Legatees. CHAPTER LIII. OF MARSHALLING ASSETS FOR THE PAYMENT OF DEBTS AND LEGACIES. § 489. Order of the Application of Funds Liable to the Payment of Debts 438 TABLE OF CONTENTS. XXvii § 490. Charge of Debts on Real Estate 440 § 491. Charge of Legacies on Real Estate 440 § 492. Effect of Devise of Rents and Profits 441 § 493. Exoneration of the Personalty 442 § 494. Exoneration of Mortgaged Property 442 § 495. Statutory Modification of the Rule as to Devise of Encum- bered property 443 § 496. Marshalling Assets in the Course of Administration .... 444 § 497. Marshalling Assets among Creditors, Legatees, Devisees, Heirs, and Distributees 444 TITLE EIGHT. OF ACCOUNTING AND SETTLEMENTS BY EXECUTORS AND ADMINISTRATORS. CHAPTER LIV. OF THE COMMON LAW AND STATUTORY SYSTEM OF ACCOUNTING. § 498. Accounting under the Older System of Administration . . 445 § 499. Statutes requiring Periodical Accounting 446 § 500. Rendering the Account and Passing upon it 446 § 501. Exclusive and Concurrent Jurisdiction over Administration Accounts 447 § 502. Conclusiveness of Partial Settlements 448 § 503. Nature of Final Settlements 448 § 504. Conclusiveness of Final Settlements 449 § 505. Setting aside Final Settlements in the Probate Court .... 449 § 506. Setting aside Final Settlements in Chancery 449 CHAPTER LV. OF THE DEBIT SIDE OF THE ACCOUNT. § 507. What the Account must show 451 § 508. Inventoried Assets to be charged in the Accoimt 452 § 509. What Interest Administrators are Chargeable with .... 452 § 510. Debts of Executor or Administrator to be charged 453 § 511. Rents and Proceeds of Real Estate Chargeable to the Ex- ecutor or Administrator 453 CHAPTER LVI. OF THE CREDIT SIDE OF THE ACCOUNT. § 512. What the Accountant may take Credit for 455 § 513. What Counsel Fees will be allowed 455 XXVIU TABLE OF CONTENTS. Page § 511. \Miat Counsel Fees will not be allowed 45G § 515. Costs in Litigation Incident to Administration 45G § 516. The Executor's Expenses in Litigation concerning Estab- lishment of the Will 457 § 517. Disbursements in Respect of the Real Estate 458 § 518. The Allowance for Support of Widow and Children .... 458 § 519. Advance Payments to Distributees 458 § 520. Disbursements in Payment of Debts 459 § 521. Payments at Discount, or in Depreciated Currency .... 459 § 522. Credits for Difference between Inventoried and Actual Values 460 § 523. Interest on Advancements by the Executor or Admmistrator 460 CHAPTER LVII. COMPENSATION OF EXECUTORS AND ADMINISTRATORS. § 524. Commissions allowed by Statute and in the Absence of Statutes 461 § 525. Compensation in Cases of Maladministration 461 § 526. Upon what Property Commissions are allowable 462 § 527. Compensation for Extra Services 463 § 528. Compensation of Joint Executors or Administrators .... 463 § 529. Compensation to Successive Administrators 464 § 530. Bequest to Executor as Bearing on his Right to Commission . 464 § 531. Commissions where the same Person is Executor and Trustee 465 § 532. Credit for Commissions in the Administration Account . . . 465 CHAPTER LVIIL OF THE JIETHOD AND PROCEDURE IN ADJUDICATING THE ACCOUNT. § 533. Devastavit 467 § 534. Accounting by Co-executors or Co-administrators 467 § 535. Accounting by Successive Administrators 468 § 536. Accounting for Assets received in Foreign Jurisdiction . . . 468 § 537. Compelling Final Settlement 469 § 538. Falsifications and Surcharges on Final Settlement 469 § 539. Verification and Evidence 470 § 540. Judgment on the Adjudication of the Accoimt 470 CHAPTER LIX. OF APPEALS FROM COURTS OF PROBATE. § 541. Right of Appeal given by Statutes 472 § 542. Who may appeal 472 § 543. From what Decisions of Probate Courts Appeals are allowable 472 TABLE OF CONTENTS. XXIX Page § 544. How Appeal is taken 473 § 545. Powers of the Probate Court after Appeal 473 § 546. Nature of the Trial in the Appellate Court 474 § 547. Nature of the Trial de Novo 474 TITLE NINE. OF THE CLOSE OF THE ADMINISTRATION. PART I. Of Distribution to Legatees and Nezt of Kin. § 548. Duty of Probate Courts to order Distribution 475 CHAPTER LX. OF AX)V AN CEMENTS. § 549. Definition of Advancements 476 § 550. Distinction between Advancement and Ademption .... 476 § 551. Jurisdiction over Advancements of Realty and Personalty . 477 § 552. To whom the Doctrine of Advancements applies 477 § 553. ^Miat constitutes an Advancement 478 § 554. Rights of Donees in Respect of Advancements 478 § 555. Computation of the Value of Advancenients 479 § 556. How the Existence of Advancements may be shown .... 480 CHAPTER LXI. OF THE DECREE OR ORDER OF DISTRIBUTION. § 557. Refunding Bonds 481 § 558. Parties to the Order of Distribution. Its Conclusiveness . . 482 § 559. Nature and Scope of the Decree 482 § 560. Rights of Assignees of Distributees . . . 483 § 561. Set-off to Legacies and Distributive Shares 484 § 562. Distribution of Personalty by Law of Domicile 484 § 563. The \Vidow's Rights not affected by Remarriage or Prior Gift 485 § 564. The Share of a Deceased Distributee goes to his Personal Representative 485 § 565. Rights of Posthumous and Pretermitted Children 485 § 566. Distribution without Administration 485 § 567. Partial and Premature Distribution 486 § 568. Partition of Real Estate in Courts of Probate 486 § 569. Enforcing the Order to pay Legacies and Distributive Shares 488 § 570. Enforcement of Distribution under American Statutes . . . 489 § 571. Disposition of Unclaimed Legacies and Distributive Shares . 489 XXX TABLE OF CONTENTS. PART II. Of the Estate after Official Administration. CHAPTER LXII. OF THE STATUS OF EXECUTORS AND ADMINISTRATORS AFTER FINAL SETTLEMENT. Pagb § 572. Res Judicata as a Defence after Final Settlement 491 § 573. Duration of the Office at Common Law 491 § 574. The American Theory of the Duration of the office .... 492 § 575. Statutory Provisions for the Discharge of Executors and Administrators 492 CHAPTER LXIII. OF THE LIABILITY OF THE ESTATE AFTER FINAL SETTLEMENT. § 576. Liability of Legatees and Distributees after Settlement to Creditors of Deceased at Common Lav/ 494 § 577. Liability of Heir and Devisee at Common Law 494 § 578. Liability of Beneficiaries of Estate under Statutes 494 § 579. What Creditors can claim after Final Settlement 494 § 580. Extent of Liability of the Beneficiary of Deceased 495 § 581. The Creditor's Form of Remedy against Beneficiaries of Estate 495 INDEX 497 TABLE OF CASES. (References are to Sections] A. Sec. Allen V. Freeman, 96 Ky. 313 195 Anschuetz v. Miller, 81 Pa. St. 212 412 Avery v. Pixley, 4 Mass. 460 45 B. Babb V. Reed, 5 Rawle, 151 422 Baird v. Boucher, 60 Miss. 326 408 Baker v. Brown, 18 111. 91 391 Bank of Iron Gate v. Brady, 184 U. S. 665 279 Barnum v. Baltimore, 62 Md. 275 437 Barrett v. Choen, 119 Ind. 56 269 Basket V. Hassell, 107 U. S. 602 59 Bate I'. Bate, 11 Bush, 639 528 Blackstone v. MUler, 188 U. S. 189 319 Blythe v. Hinckley, 127 Cal. 431 12 Boardman v. Woodman, 47 N. H. 120 20 Boyce v. City of St. Louis, 29 Barb. 650 419 Brant's WUl, 40 Mo. 266 493 Bristol V. Washington Co., 177 U. S. 133 320 Brown v. Fletcher, 210 U. S. 82 156 Buck V. Beach, 206 U. S. 392 319 Buckingham v. Morrison, 136 111. 437 453 Bundy v. McKnight, 48 Ind. 502 15 Byers v. McAuley, 149 U. S. 608 144, 154 C. Carpenter v. Strange, 141 U. S. 87 156 Chambers v. City of St. Louis, 29 Mo. 543 419 Chase v. Redding, 13 Gray, 418 64 Christ Hospital ;-. Grainger, 16 Sim. 83; s. c. 1 MacN. & G. 460 . . 425 Clinton v. Clinton, 223 Mo. 371 313 Coggins' Appeal, 124 Pa. St. 19 420 Colton V. Colton, 127 U. S. 300 409 Copenhaver v. Copenhaver, 9 Mo. App. 200 69 Cowan V. Mueller, 176 Mo. 192 399 Crites, Estate of, 155 Cal. 392, 101 Pac. 316 218 Cruce V. Cruce, 81 Mo. 676 509 XXXll TABLE OF CASES. [References are to Sections] Sec. Cunnius v. School District, 198 U. S. 458 192 Cutting V. Gilman, 41 N. H. 147 58 D. Davis, In re, 106 Cal. 543 218 Davis V. Krug, 95 Ind. 1 73 Dawes v. Head, 3 Pick. 128 164 Day V. Wallace, 144 111. 256 405 Dellner v. Dellner, 141 Wis. 255, s. c. 124 N. W. 278 80 Dcnise v. Dcnise, 37 N. J. Eq. 163 429 Despard v. Churchill, 53 N. Y. 192 502 De Valengin's Admr. v. Duffy, 14 Peters, 282 294 Devone v. Fanning, 2 Johns. Ch. 252 487 Dickson, Ex parte, 1 Sim. (N. S.) 37 437 Doolittle V. Lewis, 7 John. Ch. 45 159 Dowdale's Case, 6 Co. 47 297 Dulaney v. Willis, 95 Va. 606 398 E. Earp's Appeal, 28 Pa. St. 368 456 Eaton V. Brown, 193 U. S. 411 28 Edson V. Parsons, 155 N. Y. 555 31 EUzalde v. Elizalde, 137 Cal. 634 294 Elliott's Estate, 98 IMo. 379 551 Evans, Estate of, 117 Mo. A. 629 218 F. Farrar v. Dean, 24 Mo. 16 125 Farrcll v. O'Brien, 199 U. S. 89 154 Farrill v. Roberts, 50 N. Y. 222 486 Festorazzi v. St. Joseph's Church, 104 Ala. 327 427 Fickle V. Snepp, 97 Ind. 289 379 Finley v. King, 3 Peter.?, 376 434 Fontain v. Ravenel, 17 How (U. S.) 369 424 Foote V. Overman, 22 111. App. 181 269 Forman's Will, 54 Barb. 274 17 Foster v. Cook, 3 Bro. C. C. 340 412 Freer, In re, 22 L. R. Ch. Div. 622 443 French v. French, 14 W. Va. 458 28 Fretwell v. McLemore, 52 Ala. 124 185 G. Gass V. Wilhite, 2 Dana 170 416 Gates V. Seibert, 157 Mo. 254 420 Gibbons v. Mahon, 136 U. S. 549 456 Gilkev V. Hamilton, 22 Mich. 283 169 Gollnick's Estate (Minn.) 123 Northwestern, 492 78 TABLE OF CASES. XXxill [References are to Sections] Sec. Gough V. Manning, 26 Md. 347 440 Graham v. Burch, 47 Minn. 171 45 Greenwood v. Greenwood, 178 111. 387 336 Grice v. Randall, 23 Vt. 329 [ 568 Gunn i;. Barry, 15 Wall. 610 109 V. Thruston, 130 Mo. 339 556 H. 