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Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

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Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 65 of 70)
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ing, that he must distribute and dispose of the estate as the law
requires, as he has no will to direct him, unless he is an administra-
tor with the will annexed. The debts must be paid in a certain
order. This is not precisely the same in all the States ; but it is
very generally as follows :

1. Funeral-expenses, charges of the last sickness, and probate
charges.

2. Debts due to the United States.

3. Debts due to the State in which the deceased had his home.

4. Any liens attaching to the property by law.

5. To creditors generally.

If the estate is insufficient to pay all the debts due from it, as
soon as the executor or administrator finds this to be the case, he
should represent the estate as insolvent at the Probate Court, and
thereafter follow the requirements of the law of the State and the
rules of the Probate Office, in reference to insolvent estates of
deceased persons.

In most of the States, all the necessary forms or instruments are
given to applicants at the Probate Office. It may, however, be con-
venient to know how to frame some of the most necessary forms ;
and I give below those which, with such obvious changes as circum-
stances may require and indicate, may be found sufficient.

(223.)
Petition to be appointed Executor, without further Notice.

To THE HONORABLE THE JUDGE OF THE PROBATE COURT IN AND FOR THE

COUNTY OF

Respectfully Represents (name of the executor) of (residence of executor)

that (name of testator) who last dwelt in (residence of testator) died on the

day of in the year of our Lord one thousand



FORMS OF BONDS, PETITIONS, ETC. 649

eight hundred and possessed of goods and estate remaining to be

administered, leaving a widow, whose name is (name of the fidow) and as

his only heirs-atrlaw and next of kin, the persons whose names, residences and
relationship to the deceased are as follows, viz. (here give all the names, stating the
relationship of each person). That said deceased left a will and a codicil herewith
presented, wherein your petitioner is named executor.

Wherefore your petitioner prays that said will and codiciTmay be proved and
allowed, and letters testamentary issued to him.

Dated this day of A.D. 186 .

(Signature of executor.')

The undersigned, being all the heirs-at-law and next of kin, and the only parties
interested in the foregoing petition, request that the prayer thereof be granted
without further notice.

(Signatures of heirs.)

[Minors must be so designated, and the names of their guardians given, if they have any.
If any party is a married woman, her husband's name must be given.]

(224.)
Executor's Bond.

Know all Men by these Presents, That we (name of the executor)

as principal, and (names of his sureties) as sureties, and all within the Com-

monwealth (or State) of are holden and stand firmly bound and

obliged unto 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 hi said office ; to the true payment whereof we
bind ourselves and each of us, our and each of our heirs, executors, and administra-
tors, jointly and severally, by these presents. Sealed with our seals. Dated the
day of in the year of our Lord one thousand

eight hundred and sixty-

Tbc Condition of this Obligation Is such, That if the above-bounden
(name of the executor) executor of the last will and testament of (name

of the testator) late of (residence of testator) deceased, testate, shall

First, make and return to the Probate Court for said County of
within three months from his appointment, a true inventory of all the real estate
and all the goods, chattels, rights and credits of said testator, which are by law to
be administered, and which shall have come to his possession or knowledge ;

Second, administer according to law and the will of said testator, all the goods,
chattels, rights, and credits, and the proceeds of all the real estate that may be sold
for the payment of debts or legacies, which shall come to the possession of said
executor, or of any other person for him ; and

Third, render upon oath a just and true account of his administration within one



650 EXECUTORS AND ADMINISTRATORS.

year, and at any other times when required by said court ; then this obligation to

be void ; otherwise to remain in full force and virtue.

(Signature of executor.) (Seal.)
(Signature of surety.) (Seal.)
(Signature of surety.) (Seal.)
Signed, Sealed and Delivered in presence of

,88. 18 Examined and approved.

(name of judge)

Judge of Probate Court.

(225.)
Bond of Executor, tvJio is also Residuary Legatee.

Know all Men by these Presents, That I (name of the executor)

in the Commonwealth (or State) of * am holden and stand firmly

bound and obliged unto 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 I bind myself and my heirs, executors, and administrators, by these pres-
ents. Sealed with my seal. Dated the day of
in the year of our Lord one thousand eight hundred and sixty-

The Condition of this Obligation is such, That, if the above-bounden
(name of executor) executor of the last will and testament of (name of

testator) late of (residence of testator) deceased, testate, being residuary legatee in
said will, shall pay all debts and legacies of said testator, and such sums as may be
allowed by said Probate Court for necessaries to the widow or minor children of
said testator, then this obligation to be void, otherwise to remain in full force and

virtue.

(Signature.') (Seal.)
Signed, Sealed and Delivered in the Presence of

,88. 18 Examined and approved.

(name of judge)

Judge of Probate Court.
i

(226.)

Administrator's Bond.

Know all Men by these Presents, That we (name of adminis-

trator) &9 principal, and (name of sureties) as sureties, and all within the

State of are holden and stand firmly bound and obliged unto

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

* If suretiefl are required, they should be added here as in preceding Form.



FORMS OF BONDS, PETITIONS, ETC. 651

and his successors in said office ; to the true payment thereof we bind ourst Ives
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 in the year of our Lord one thousand eight hundred and

sixty

The Condition of this Obligation is such, That if the above-bounden
(name of administrator) administrator of the estate of (name of

deceased) late of (residence of deceased) deceased, intestate shall,

FIRST, make and return into said Probate Court, within three months after his
appointment, a true inventory of all the real estate, and all the goods, chattels,
rights and credits of said deceased, which have or shall come to his possession or
knowledge ;

SECOND, administer according to law all the goods, chattels, rights and credits
of said deceased, and the proceeds of all his real estate that may be sold for the
payment of his debts, which shall at any tune come to the possession of said admin-
istrator, or of any other person for him ;

THIRD, render upon oath a true account of his administration, within one year,
and at any other times when required by said Court ;

FOURTH, pay any balance remaining in his hands, upon the settlement of his
accounts, to such persons as said Court shall direct ; and

FIFTH, deliver the letters of administration into said Court, in case any will of
said deceased is hereafter duly proved and allowed : Then this obligation to be
void, otherwise to remain in full force and virtue.

(Signature of administrator.) (Seal.)
(Signature of surety.) (Seal.)
(Signature of surety.) (Seal.)

Signed, Sealed and Delivered in Presence of .

B8. 186 . Examined and approved.

(name of judge)

Judge of Probate Court.

(227.)

Administrator's Petition for leave to sell a Part of tJie Real

Estate.

To THE HONORABLE THE JUDGE OF THE PBOBATE COURT IN AND FOR THB
COUNTY OF

Respectfully Represents (name of the administrator) as he is adminis-

trator of the estate of (name of the deceased) late of (residence of the

deceased) in said County, deceased. That the debts

due from the deceased, as nearly as they can now be
ascertained, amount to ..............

And the charges on administration to ............ 3



Amounting in all to
43



652 EXECUTOBS AND ADMINISTEATOBS.

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 tpecificpart of the real
estate shall be sold, he must set forth the value, description, and condition of the estate, or of
rach part as he proposes to sell.]



(228.)

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

Estate.

To THE HONORABLE THE JUDGE OF THE PROBATE COURT IN AND FOR THB
COUNTY OF

Respectfully Represents (name of administrator) as he is adminis-

trator of the estate of (name of deceased) late of (residence of the

deceased) in said County deceased That the debt*

due from the deceased, as nearly as they can now

be ascertained, amount to $

And the charges of administration to f

Amounting in all to $

That the value of the personal estate in the hands of the petitioner

(exclusive of the widow's allowance) is S

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.

\Vherefore your petitioner prays that he may be licensed to sell the whole of the



POEMS OP BONDS, PETITIONS, ETC. 653

real estate of said deceased, for the payment of said debts and charges of ad mini*,
tration, and for the reasons aforesaid.
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 icidoto and all the Act;*.)

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



(229.)
Bond of Administrator Licensed to sell Heal Estate.

Know all Men by these Presents, That we (name of person

licensed) as principal, and (names of his sureties) as sureties, and all within

the State of 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 in the year of our Lord one thousand eight hundred

and sixty-

The Condition of this Obligation is such, That if the above-bounden
(name of the person licensed) administrator of the estate of (name of

deceased) late 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 pay-
ment 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 remaiu

in full force and virtue.

(Signature of administrator.) (Seal.)

(Signature of surety.) (Seal.)

(Signature of surety.) (Seal.)

Signed, Sealed and Delivered in Presence of

SUFFOLK, ss. A.D. 186 . Examined and approved.

(name of judge)

Judge of Probate Court.

I, (name of administrator) do solemnly swear, that in disposing of the real

estate of (name of the deceased) deceased, which I have been licensed by the



654 EXECUTORS AXD ADMINISTRATORS.

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.

(Signature of administrator.)

SUFFOLK, ss. 186 . Personally appeared the above-

named and took and subscribed the above oath.

Before me,

Justice of the Peace.



(230.)
Account of Executor.

The first (or second or other as the case may be) account of (name of

executor) executor of the last will and testament of (name of the testator) late of
(residence of the testator) in the county of deceased.

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 tha same may be allowed without further notice.

(Signatures of the widow and all the heirs and legatees.)



SCHEDULE A.

Dolls. CU.
Amount of personal estate according to inventory ....

Balance of former account

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. Fur 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 . . . . .



GUARDIANS. 655



CHAPTER XL.



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 sub-
stitute 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 prop-
erty 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 tho
personal property at his own discretion, although it is safer for Lira
to obtain the power of the court for any important measure. Ho
may lease the real estate, if appointed by will or court ; he can-
not, 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 duo 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 tho
land of his ward, without having an order of the court therefor, ho
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



656 GUAEDIANS.

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 lie 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 influ-
ence was used, and on the ground of public utility and policy.

A guardian cannot, by his own contract, bind the person o*
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.



SCHEDULE OF STAMP DUTIES. 657

CHAPTER XLI.

8TA.MJP A. C T.

SCHEDULE OF STAMPS REQUIRED FOR DIFFERENT INSTRUMENTS,
ON AND AFTER OCT. 1, 1870.

DoU$. Ctt.

Acknowledgment of deeds, exempt.

Affidavit 5

" in suits or legal proceedings, exempt.

Agreement or appraisement (for each sheet or piece of paper on which the

same is written) 5

Assignment or transfer of lease or policy of marine, inland, or fire insu-
rance, the same duty as the original instrument.

" of patent right 5

Bank Checks, drafts or orders, &c., at sight or on demand 2

Bills Of Exchange (Foreign}, drawn in, but payable out of, the United
States, each bill of set of three or more must be stamped.

For every bill of each set, where the sum made payable does not exceed
one hundred dollars, or the equivalent thereof in any foreign currency
in which such bills may be expressed, according to the standard of
value fixed by the United States 2

For every additional hundred dollars, or fractional part thereof in excess
of one hundred dollars 2

(Foreign), drawn in, but payable out of, the United States (if drawn
singly or in duplicate), pay the same duty as Inland Bills of Exchange.

[The acceptor or acceptors of any bill of exchange, or order for the
payment of any sum of money drawn, or purporting to be drawn, in
any foreign country, but payable in the United States, must, before
paying or accepting the same, place thereupon a stamp indicating the
duty.]

Bills Of Exchange (Inland), draft or order, payable otherwise than at
sight or on demand, and any promissory note, whether payable on de-
mand or at a time designated (except bank-notes issued for circulation,
and checks made and intended to be, and which shall be, forthwith
presented for payment), for a sum not exceeding one hundred dollars ,""

[But promissory notes for less than $100 are er.empt.]

For every additional one hundred dollars, or fractional part thereof. ... 5

[The warrant of attorney to confess judgment on a note or bond is ex-
empt from stamp-duty, if the note or bond is properly stamped.]
Bills of Lading, of vessels for ports of the United States or British North
America, exempt.

" or receipt for goods to any foreign port 1O



658 STAMP ACT.

Dolls. Cta.
Bill Of Sale of any vessel, or port thereof, when the consideration docs not

exceed five hundred dollars 50

" exceeding five hundred dollars, and not exceeding one thousand dollars. l.OO
" exceeding one thousand dollars, for each five hundred dollars, or frac-
tional part thereof GO

" of personal property (other than ship or vessel) 5

Bond, personal for the payment of money. [See Mortgage.]

' official 1 . OO

" for indemnifying any person for the payment of any sum of money,
where the money ultimately recoverable thereupon is one thousand
dollars, or less >O

" where the money recoverable exceeds one thousand dollars, for every

additional one thousand dollars, or fractional part thereof 5O

Boilds. County, city, and town bonds, railroad and other corporation bonds

and scrip, are subject to stamp-duty. [See Mortgage.]
" of any description, other than such as are required in legal proceedings,

and such as are not otherwise charged in this schedule 23

Certificates of deposit in bank, sum not exceeding one hundred dollars 2

" of deposit in bank, sum exceeding one hundred dollars 5

" of stock in an incorporated company ii"

" general 5

" of record upon the instrument recorded, exempt.

" of record upon the book, exempt.

" of weight or measurement of animals, coal, wood, or other articles, ex-
cept weigher's and measurer's returns, exempt.

" of a qualification of a Justice of the Peace, Commissioner of Deeds, or
Notary Public

" of search of records

" that certain papers are on file

" that certain papers cannot bo found

" of redemption of land sold for taxes

" of birth, marriage, and death

" of qualification of school-teachers

" of profits in an incorporated company for a sum not less than ten dol-
lars, and not exceeding fifty dollars 1O

" exceeding fifty dollars, and not exceeding one thousand dollars 25

" exceeding one thousand dollars, for every additional one thousand dol-
lars, or fractional part thereof 25

* of damage, or otherwise, and all other certificates or documents issued

by any port warden, marine surveyor, or other person acting as mch. 25



SCHEDULE OF STAMP DUTIES. 659

Dollt. Cti.
Certified Transcripts of judgments, satisfaction of judgments, and of all

papers recorded or on file 5

[N.B. Asa general rule, every certificate which has or may have a
legal value in any court of law or equity will require a stamp-duty
of five cents.]

Charter Party, or letter, memorandum, or other writing between the captain,

owner or agent of any ship, vessel, or steamer, and any other person,

relating to the charter of the same, if the registered tonnage of said

ship, vessel, or steamer does not exceed one hundred and fifty tons. . . l.OO

" exceeding one hundred and fifty tons, and not exceeding three hundred

tons 3.OO

" exceeding three hundred tons, and not exceeding six hundred tons 5.OO

" exceeding six hundred tons 1O.OO

Check, draft or order for the payment of any sum of money exceeding ten dol-
lars, drawn upon any person other than a bank, banker, or trust com-
pany, at sight or on demand 2

Contract. [Sec Agreement. \

" Broker's 1O

Conveyance, deed, instrument, or writing, whereby lands, tenements, or other
realty sold, shall be conveyed, the actual value of which docs not ex-
ceed five hundred dollars 5O

" exceeding five hundred dollars, and not exceeding one thousand dollars. l.OO
" for every additional five hundred dollars, or fractional part thereof in

excess of one thousand dollars >O

Entry of any goods, wares, or merchandise at any custom-house, either for
consumption or warehousing, not exceeding one hundred dollars in

value. i-' .">

" exceeding one hundred dollars, and not exceeding five hundred dollars

in value GO

" exceeding five hundred dollars in value l.OO

" for the withdrawal of any goods or merchandise from bonded warehouse. CO
Indorsement of any negotiable instrument, exempt.



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 65 of 70)