William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

. (page 67 of 108)
Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 67 of 108)
Font size
QR-code for this ebook

460, sec. 1. In Enfcland, generally speaking, all ecclesiastical testamentary
jurisdictions are limited in their authority, to property locally situate within
their district. Crosley v. Archdeacon of Sudbury, 3 Hogg. E. R. 199.

(b) N. r. R. S. vol. ii. p. 79. Ibid. vol. ii. p. 117—138. By the act of
April 20th, 1830, in amendment of the Revised Statutes, further provision is
made for the case in which the first judge of the county cannot act as sur-
rogate. The trust devolves on the district attorney of the county, and event-
ually on the chancellor. «

(c) N. Y. Revised Statutes, vol. ii. p. 74, sec. 27, 29. The rule in England
is to grant administration to the husband on the wife's estate, and in other
cases to the widow, or next of kin, or both, at discretion. The nearest of
kin to the intestate has preference; and of persons in equal degree, the or-
dinary may take which he pleases. The nearness of kin is computed ac-
cording to the civil law. 2 Blacks. Com. 504.

{d) N. Y Revised Sfatuies^ vol. ii. p. 74, sec. 28.



by Google


discretion (a). To guard against imposition or mistake in issning
letters of administration prematurely, the surrogate is required
to have satisfactory proof, that the person of whose estate ad-
ministration is claimed is dead, and died intestate; and when ap-
plication is made to administer, by any person not first entitled,
there must be a written renunciation of the party having the
prior right to administer, or a citation to show cause is to be first
issued to all such persons, and duly served or otherwise pub-
lished (6).»

According to the provision in the New York Revised Statutes j
if none of the relatives, or guardians of infant relatives, (for the
guardians of minors who are entitled may administer for them« )
will accept the administration, then it is to be given to the cred-
itors of the deceased; and the creditor first applying, if otherwise
competent, is to be preferred (c). If no creditor applies, then
to any other person legally competent (d). In the city of New
York, the public administrator has preference after the next of
kin; and in the other countries, the county treasurer has prefer-
ence next after creditors (e). In the case of a married woman
dying intestate, the husband is entitled to administration, in pre-
ference to any other person; and he is liable' as administrator for

(a) 1 Salk Rfp. 36. Fawtry v. Fawtry, Sir, Rep. 552. Anon. Case of
Williams, 3 Hogg. E, B. 217. TIte N. Y. Revised Stalutes^ vol. ii. p. 74, aeo.
27, heem to have destroyed this discretion. But the MatmaehtueUs Revised
Statutes, 1835, and the New Jersey Statute of 1795. Elmer's Dig, 165, leave
it as in the English law.

(6) N, Y, Rerised Laws, vol. ii. p. 74. sec 26. Ibid. p. 76, sec 35, 36. In
England, an executor who has renounced, may retract before administration
is actually granted to another. M'Donnell v. Pendergast, 3 Hogg, E, R, 212.
And in New York, the surrogate may, with the consent of the person en-
titled, join one or more competent persons with him in the administration.
When admin isti-ation is granted to two or more persons, it being an entire
thing, if one dies, the entire authority remains with the snrvivors, the same
as in the case of executors. Lewis v. Brooks, 6 Yerger's Tena. Rep, 167.

(e) In North Carolina, the greatest creditor is, in such case, entitled to the
preference. Act, 1792,

{d) The same general rules are prescribed in the Massachusetts Revised
Statutes of 1835, and exist throughout this country.

(e) N. Y. Revised Statutes, vol. ii. p. 74, sec. 27. Where persons not in-
habitants of the State of New York die, leaving asseta in the state, if no ap-
plication for letters of administration be made by a relative entitled thereto
and legally competent, and letters have been granted by competent authority
in any other state, the person so appointed, or producing such letters, is en-
titled to letters of administration in preference to creditors or any other per-
sons, except the public administrator in the city of New York. Ibid. p. 75.
sec. 31.

" If any of the persons above mentioned are minors, adminitit<nttion will
be granted to their guardians.



by Google


the debts of his wife, only to the extent of the assets received bj
him. If he does not administer on her estate, he is presumed to
have assets, and is liable for her debts (a). Under the English
law, at least, until lately, if the husband dies leaving the goods
of the former wife unadministertd, the right of
* administration de bonis non belongs to the next of [ *,412 ]
kin of the wife; though the right of property belongs
to the representatives of the husband. The principle of the
English statute of 21 Hen. YIII. was, to vest the administration
de bonis non in the person who wbs next of kin at the time of
the intestate's death, and who was possessed of the beneficial in-
terest in the personal estate. The case of Hale v. Doleman^ in 1730,
was an anomalous case, and established an exception to a gen-
eral rule; for the original administration to a feme covert^was
granted to her next of kin, in preference to the representative of
the deceased husband, who survived her, and in whom the in-
terest was vested (6).**

When there are several persons of the same degree of kindred
to the intestate entitled to administration, they are preferred in
the following order; first, males to females; second, relatives of
the whole blood to those of the half blood; third, unmarried, to
married women ; and when there are several persons equally en-
titled, the surrogate, in his discretion, may grant letters to one or
more of them (c). No person convicted of an infamous crime,
or incapable by law of making a contract, nor a non-resident
alien, or minor or feme covert, or person deemed incompetent

(ff) N. Y. Revised SMutes, vol. ii. p. 74, sec. 27. Ibid. p. 75, sec. 29, 33;
nnd ride mpra, p. 135, 136.

(6) 1 Hagg. E. R. 341. 2 76iVf. 631, App. 150, 165. The recent doctrine
in Betts v. Kimpton, 2 B. it Adolphus^ 273, is also, that administration df
bonis non of the wife's choses in action left unadministered by the hushand,
jcoes to the next of kin oi the wife, to be admiiiistered, however, for the
benefit of the husband's representatives. See, supra, 136. But in the still
hiter case of Fielder v. Hanger, 3 Hagg. E. R. 769, the more reasonable rule
in at last adopted, that the administration on the estate of the deceased wii'a
follows the interest, and on the husband's death, goes to his representatives.

(c) N. Y. Revised Statutes, vol. ii. p. 74, sec. 28. The statute law of New
Jersey of 1795, follows closely the English law on the subject of adrainis-
tnition. Elmer* s Digest, 165.

*Mn Massachusetts, under Gen. Stat. 1860, p. 483. { 1. In case of the
decease of a married woman administration shall in all cases be granted to
her husband if competent and willing to undertake the trust, unless sliehuM
by marriage settlement or otherwise some testamentary disposition, or sonic
other provision which renders it necessary or proper to appoint some other



by Google


by the enrrogaie bj reason of drnnkennees, improvidence, or want
of understanding, is entitled to administer; bat the husband is
entitled to administer in the right and behalf of his wife; and
with the consent, in writing, of the party entitled, one or more
competent persons may be associated by the surrogate with an
administrator (a). The husband who administers on his wife's es-
tate is now bound (though contrary to the English law, and the
former law of New York) to give a bond, in the same manner as
other administrators; yet he is not bound, in consequence of it,
to distribute the estate after the debts are paid; but he continues

to enjoy it according to the rules of the common law (6).
[ * 413 ] * If letters of administration should happen to have

been unduly granted, they may be revoked; and admin-
istration may be granted upon condition, or for a limited time,
or for a special purpose; as, for the collection and preservation
of the goods of the deceased; and it is the received doctrine, that
all sales made in good faith, and all lawful acts done either by
administrators before notice of a will, or by executors or admin-
istrators, who may be removed or superseded, or become incapa-
ble, shall remain valid, and not be impeached on any vnll appear-
ing, or by any subsequent revocation or superseding of the au-
thority of such executors or administrators (c).

The nearness of kin, under the English law, is computed ac-
cording to the civil law, which makes the intestate himself the
terminus a quo, or point from whence the degrees are numbered;
and, therefore, the children and parents of the intestate are
equally near, being all related to him in the first degree; but in
this instance the surrogate has not his opinion between them,
but must prefer the children (d). And from the children and
parents 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

(a) Ibid. vol. ii. p. 75, sec. 32» 34. Act o/N. K., April 20th, 1730.

(b) New York Revised Statutes, vol. ii. sec. 29. Ibid. vol. ii. p. 98, sec. 79.
See supra ^ p. V.io.

(c) Shep. Touch, by Preston, 464. N. V. RetAsed Statutes, vol. ii. p. 76, aec
38. Hid. vol. ii. p. 79, aec. 46, 47.

(d) 2 ycrn. Rip. 125, arg. 2 Blacks. Com. 504.



by Google


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 (a). 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 (6). If
none of the next of kin will accept, *the surrogate may [ * 414 ]
exercise his discretion whom to appoint; and he usually
decrees it to the claimant who has the greatest interest in the
effects of the intestate (c). If no one offers, he must then appoint
a mere trustee ad colligenduniy 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 incon-
venient want of power is supplied by the New York Revised Sta-
tutes (e) ; and an administrator ad colligendum (and who is called
in the ptatute a collector) may, under the direction of the sur-
rogate, sell perishable goods, after they shall have been ap-

(rt) Shep. T(mch. by Preston, vol. ii. p. 453. Dnrant v. Prestwood, 1 Atk.
Rep. 464.

(6) Blackborough v. Davis, 1 P. Wms. 41.

(c) Tucker v. Westgarth, 2 Addam's Rep, 352.

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

(<•) Vol. ii. p. 76, sec. 39.

^'* In Massachusetts administration mnst be granted to the persons herein-
after mentioned in the following order: First. The widow or next of kin, or
both as the judge thinks fit, and if they do not voluntarily take or renounce
they may be cited. Secondly. If the parties so entitled are incompetent, or
unsuitable or neglect without sufficient cause for thirty days, the judge may
commit it to one or more of the principle creditors. Thirdly. If no creditor
to such person as he shall think fit. Fourthly. See note 14, ante. Fifthly.
If deceased leave no widow or next of kin in the state, administration goes
to the public administrator in preference to creditors. See Gen. Stats, i860,
p. 483, « 1.

In Pennsylvania whenever letters of administration are by law necessary,
the register having jurisdiction shall grant them in such form as the case
shall reqnire to the widow, if any, of the deceased, or to snch other relation
or kindred as by law may be entitled to the residue of his personal estate or
to a share or shares therein after payment of debts, or he may join with the
widow such relation or kindred, or such one or more of them as he shall judge
wUl best administer the estate, preferring always of those so entitled t!:e
nearest in degree of consanguinity, and males to females; and in case of re-
fusal or incompetency to one or more of the principal creditors, or to any fit
person in his discretion; provided that if such deceased be a married woman,
her husband shall administer in preferrence to all other persons; and pn>-
vided further that in all cases where there is an administration with the will
annexed, where there is a general residue of the estate bequeathed, the right
to administer shall belong to those who have the right to snch residue, and
the administration in such case shall be granted by the register to such one
or more of them as be shall judge will best administdr the estate. See



by Google


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

The admiDistrator must enter into a bond before the jad|(e of
probate (under whatever name the competent conrt nay be
known), with snreties, for the faitbfnl execntion of his trust;
and, being thas dnlj appointed, it is his dnty to proceed forth-.
with to the execution of his trast (a). His powers and duties
under the common law of the land may be summarily compre-
hended in the following particulars: 1. He is to make an inven-
tory of the goods and chattels of the intestate, in the presence,
and with the discretion of appraisers, who, in New York, Massa-
chusetts, 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 neighbours. Two copies of this inventory
are t'o be made indented, and one copy is to be lodged with the sur-
rogate, under the attestation of the administrator's oath,
[ * 415] and the other is to be retained (6).'* This ^inventory is

(n) N, r. Revised Statutes, vol. ii. p. 77, sec. 42. Under the N. Y. Revised
Statutes, vol. ii. p. 70, sec. 6, 7, the sarrogat«, if he deem the circumstances
of the case to require it, may require an executor to give security. If be be
about 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 se-
curity equally with administrators, before they can lawfully act Adof 1813.
4 Verger's Rep. 20, By the Massachusetts Revised Statutesof 1836, the executor,
as well as the administrator, before he enters on his trust, must in all cases
give bond with sufficient surety to the judge of probate, for the faithful exe-
cution of his trust; and as a consequence the executor of an executor has no
authority to administer on the estate of the first testator.

(b) 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 respect, the rule

Brightly's Purdon's Digest, p. 410, { 27. Statute 15, March, 1832, { 22, P.
L. 130.

See the statutes of the several states hereon. Letters ad coUfgendum, may
be granted by the orphans' conrt of the county in which the will was proved
or authenticated or where letters ol administration ought to be granted, or
in cases of delay on account of absence from the state of an executor, a eon-
test relating to the will, or right of administration, or the absence or neglect
of an executor or person entitled to administer, to qualify, or from any other
(•siuse. and such letters may be granted to one or more perssns in the discre-
tion of the court in case the personal estate of the deceased shall be supposed
to be in different counties. Vol. i. Md. Code, 1860, p. 630, art. 93, { 60. See
further Rhone's Orphans' Court Prac. Pennsylvania; and the statutes and
laws of the several states.

^^ In Massachusetts he must give a bond and file a true inventory within
three months and render a full account of his doings once a year. He is not
liable during the first year to any creditor of the deceased, unless the de-
mand be such that the insolvency of the estate would not affect, and with
certain exceptions he is not liable to any suit after two years.

Jn New York before letters of administration or testamentary are granted


by Google


intended for the benefit of the creditors and next of kin; and the
administrator will be obliged to account for the property mentioned
in it; and he will also be obliged to show good canse for not col-
lecting the debts that are mentioned to be due, onless 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 execator,.) if an inven
tory 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 administra-
tion, until they redeem their default (a).

of the common law. They Are, the iDterestof 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 se-
cured by mortgage, and moveable property and effects. N, Y. Revined SUt-
men, vol. ii. p. 82. sec. 6. Evans v. £glchart, 6 OiU dt Johnwn, 171, 189, 190,
S. P. In Massachusetts, mortgage debts, before foreclosui*e, are personal
assets in the hands of the executors and administrators of the mortgagee.
MastnehusetU 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 animals, 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 arti-
cles as are exempt from execution. The widow and children in Ohio, if any
under fifteen years of age, or the children only, if 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 served after March 1st, and before December 31st, shall
go to the executor or administrator, if the decedent died within that period;
but tliat those growing on the land on March 1st, or between December 31st
and March 1st, shall go to the heir, devisee, or remainderman or reversioner,
if 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 distribu-
tion of real and personal property is the same, the inventory is to include
equally the real and personal estate.

(a) N. y. Revised Statutes, vol. ii. p. 85, sec 17—23.

all heirs and legatees are cited by the surrogate to appear and object if they
desire so to do.

In Pennsylvania. Security must be given, and an executor who is a non-
resident of the state must give a bond with two or more local sureties. The
debts are payable in the following order: 1. Funeral expenses, medical ser-
vices during last illness, and servants^ wages not exceeding one year. 2.
]{ent not exceeding one year. 3. Debts, except those due to the state which
are paid last. Foreign executors or aidministrators have no power over de-
ceased's property in this state except to transfer public loans of the state or
the city of Philadelphia, and stocks and loans of banks and incorporated
companies and collect interest and dividends.

See the'laws of the different states hereon.

34 VOL. II. KENT. 529


by Google


After completing the inYentory, the duty of the adminiBtraiar
is, to collect the outstanding debts, and convert the property into
money, and pay the debts dae from the intestate. He most sell
the personal property, so far as it may be necessary for the pay-
ment of debts and legacies, beginning with articles not required
for immediate family use, nor specifically bequeathed (a).
[ * 416] In paying *the debts, the order prescribed by the rules of
the common law is, to pay, first, funeral charges (6), and
the ezpenbe at the probate office; next, debts due to the state; then,
debts of record, as judgments, recognizances (c), and final decrees;
next, debts due for rent, and debts by specialty, as bonds and sealed
notes; and, lastly, debts by simple contract. Causes of actiou
arising ex delictOj for wrongs for personal injuries, die with the
person, and do not survive against his representatives. Execu-
tors 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 (d).

{a) The English rale is to convert the assets into cash by a public sale,
and this was the rale declared, in Covenhoven v. Shuler, 2 Paige, 122. But
in Maryland, unless a sale of the assets be necessary to pay debts and lega*
cies, 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 r. Eglehart, 6 Gill dt Johnson, 171. By the N. K.
Hevised Siattttes, vol. ii. p. 87, sec. 25, 26, he 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 English rule in equity is, that the ex-
ecutor 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 de-
pend upon circumstances whether, under the New York statute, an executor
or administrator, acting iu good faith, be bound to answer for the eventual
failure of personal security. See a discussion of the subject in 4 Johns, Ch,
Rep. 284, 629. The weight of the modem English authority is, that invest-
ing trust moneys in personal security is a breach of trast. Lord Hardwicke,
in Ryder v, Bickerton, 3 Sicanst. Rep, 80, note. Lord Kenyon, in Holmefl v.
Dring, 2 Cox^s CaseSy 1. Lord Loughborough, in Adye r. Fauilleteau, 3 Sicanst
Rep. 84, note. Lord Eldon, in Walker v. Symonds, 3 Ibid. 63. But the
executor may place money where the testator had been accustomed to place
it, and withoat being responsible, if he acts with good faith. 1 Tamlyn's
Rep. ^9.

{b) As against creditors, the rule of law is, that no more shall be allowed
for fVineral expenses than is absolutely necessary, regard being had to the
degree and condition in life bf the deceased person. Hancock v. Podmore,
1 5. <fr Adol. 260. Palmes v. Stephens, R. M. Charlton, Geo. R. 66.

(c) A recognizance, as of special bail, is of higher dignity than a debt by
specialty, and has preference. Moon r. Pasteur, 4 Leigh'' s Rep. 35.

(rf) Hambly r. Trott, Cowp. 371. The People v. Gibbs, 9 Wend^l, 29.
Hench v. Metzec, 6 Serg. A Ratcle, 272. But for devastavits, or wrongs to
property, the personal representatives of the deceased, who committed the



by Google


The civil law gave no preference to creditors, except as to debts
incurred for funeral expenses, and the expenses of the adminis-
tration, and debts by mortgage. The heir paid himself first, and
he might paj the first creditor who *came. All the assets were
considered as equitable (a). When debts are in equal degree,
the administrator may pay which he pleases first, and he may

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 67 of 108)