Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Affect Testamentary Dispositions, with Full Reference to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Will Acts, Volume 3

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Bender-Moss, 1918 - Wills - 2904 pages
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Contents

PROBATE JURISDICTION See Page 1180 Necessity of administration of estates
1831
CHAPTER XT TX i
1832
Development of administration of estates in England
1833
Changed by statute
1835
Probate originally affected personal estate only but now both are subject to probate jurisdiction
1836
What courts now exercise probate jurisdiction
1837
Jurisdiction of court as affected by domicile of testator and situs of real property
1839
APPENDIX
1841
Bight of surviving spouse or minor children to have homestead set apart if none had been selected prior to death
2182
Term family defined Loss of right by separation or remarriage
2184
Manner of selection of probate homestead
2185
Value of probate homestead
2187
Insolvency of estate no bar
2189
Nature of the family allowance
2190
Bight to family allowance preferred to all claims against the estate
2191
Doctrine of election
2193

No jurisdiction to administer estates of living persons
1842
What may be probated
1843
Length of time after death of testator that will should be offered for probate
1845
Admissibility of will to probate does not involve the construc tion of its terms
1848
WHO MAY BE EXECUTORS OR ADMINISTRATORS
1849
Executors and administrators defined and distinguished
1850
Legal duties of executors and administrators are the same
1851
Common law rule as to who could act as executors
1852
Statutory changes as to disqualifications of executors
1853
Competency of appointee of testator to act as executor
1855
Effect of failure of appointee to apply for letters testamentary within time specified by statute
1856
English role as to nominees
1859
Common law rule
1860
Statutory regulations as to aliens or nonresidents acting as executors or administrators
1861
Infants as executors or administrators
1863
A married woman as executrix or administratrix
1864
See Page 1203 Corporations as executors
1866
Conviction of an infamous crime as a disqualification
1868
Want of integrity as a disqualification
1869
Want of understanding as a disqualification
1871
Drunkenness as a disqualification
1872
Gross immorality as a disqualification
1873
Improvidence as a disqualification
1874
Insolvency or poverty as a disqualification
1875
Interests adverse to the estate as a disqualification
1877
Creditors
1878
Debtors
1880
Partners
1883
8ec Page
1884
CHAPTER XLIV
1886
Express and constructive appointment of executor
1888
Constructive appointment of executor
1889
Limited conditional and substitutional appointments
1890
Testator may delegate to another the right to appoint executor
1891
Bight of one named as executor in will to the appointment 189?
1892
1863
1893
Renunciation of office by executor named in will
1894
After acceptance executor can not resign except with sanction of court
1895
Manner in which executor may renounce office
1896
CHAPTER XLV
1898
When administrator with will annexed may be appointed
1899
Statutes providing that letters of administration with will an nexed shall issue as in case of intestacy
1900
Right of residuary legatee to letters of administration with will annexed
1903
Right of executor of deceased residuary legatee
1905
See Page 1231 Bight of executor of deceased executor to represent first testator
1907
Bight of nominees to letters of administration with will an nexed
1908
The same subject
1909
As to right of trustee under will to letters
1911
When guardian of an infant beneficiary is preferred
1912
Executor named in will may be granted administration with will annexed
1913
Powers and duties of administrator with will annexed
1914
Powers cease if will be set aside
1915
Powers in trust do not devolve to administrator with will an nexed
1916
Where direction in will is imperative
1918
Where will gives discretionary power of sale
1920
Effect of unauthorized sale of land by administrator with will annexed
1922
CHAPTER XLVL ADMINISTRATION DE BONIS NON 1246 Administrator de bonis non defined
1923
Jurisdiction to issue letters
1924
Next of kin or principal beneficiary under will
1925
Renunciation of right to letters can not be revoked
1927
Assets and accounting
1931
Liabilities of administrator de bonis non
1933
EXECUTOR DE SON TORT 1254 Executor de son tort defined
1935
tort
1937
See Page 1256 Realty and partnership property not involved
1940
Possession of goods under conveyance to defraud creditors
1941
Goods received innocently or through collusion
1943
Possession in good faith under color of title
1945
Acts of conservation or kindness
1946
Acts of servants agents and coadjutors
1947
Foreign executor taking possession of local assets
1949
Executor de son tort can not retain assets to satisfy debt due himself
1951
Duties and liabilities of executor de son tort
1952
Executor de son tort no right to sue
1953
Effect of acts of executor de son tort
1954
Where executor de son tort is subsequently regularly appointed
1955
Who may sue
1956
Forms of action against executor de son tort
1958
Time and venue
1959
Defenses which executor de son tort may interpose
1960
Judgment and execution
1961
Statutes abolishing office do not deprive defendant of former defenses
1963
CHAPTER XLVm SPECIAL OR LIMITED ADMINISTRATION 1276 Special or limited administration
1965
Who are entitled to special or limited letters of administration
1967
Statutory provisions regarding special administration
1968
Administrator durante minore State
1970
Powers and duties
1971
English rule
1972
American rule
1974
Administration pendente lite
1976
Reason for appointment of administrator pendente lite and termination of authority
1977
Powers and duties of administrator pendente lite
1979
Administrator ad litem
1982
Probate jurisdiction over realty as well as personalty
1984
tious and noncontentious business
1989
Distinction between probate of will in common form and in solemn form
1990
Proof of will in common form in England
1992
Who may demand proof of will in solemn form
1995
Procedure for proof of will in solemn form upon suit by inter ested party
1996
American practice as to proving will
1998
How interested parties may contest will
2000
Jurisdiction in matters of probate
2001
Courts of probate have limited powers
2002
Foreign wills
2003
Mental capacity
2005
Dne execution Value of attestation clause
2006
Proof of holographic wills
2008
PART
2009
Probate of lost or destroyed wills
2010
Proof that lost or destroyed will had not been revoked
2011
Proof of due execution of lost or destroyed wills
2014
Proof of contents of lost or destroyed wills
2015
Revocation of former will by subsequent lost or destroyed will
2016
Revocation by implication
2017
What constitutes the last will of a decedent 201S
2018
Instrument presented for probate may be admitted in part
2019
Limited to particular property
2021
CHAPTER L
2022
How and when validity of wills may be contested
2023
Jurisdiction of probate court to modify or vacate its decrees
2024
Admission of will to probate does not preclude probate court from admitting a later will
2026
Procedure
2027
Courts of equity have no inherent jurisdiction in probate matters
2028
Courts of equity may be vested by statute with probate juris diction
2030
Construction of statutes giving courts of equity jurisdiction to hear will contests
2031
Such statutes are special
2032
No right of contest after time limited by statute
2033
Time within which contest must be instituted
2034
Who may contest will
2036
Executors public administrators creditors or the state
2037
Acceptance and retention of benefits
2038
Effect of an agreement release or appear ance
2040
Objections to probate and petition to revoke letters not involv ing validity of will
2041
Grounds upon which validity of wills may be contested
2042
Pleadings in will contests
2044
Trial by jury
2045
What issues submitted to jury
2046
Costs of obtaining letters testamentary or of administration where not contested
2047
English rule as to taxation of costs in will contests
2048
Illustrations of the rule
2049
Points to be considered
2051
Conflicting decisions
2052
Duty to account
2055
Validity of prior acts
2056
Production of later will
2057
CHAPTER LL
2060
that applicant is disqualified
2061
Legality of acts of administrator prior to appointment
2062
Common law rule
2063
Rule under modern statutes
2064
Application for letters and appointment by court
2067
See Tage 1347 Oath of office
2068
Statutory regulations in England
2070
General rules as to bonds of administrators
2072
English rule that bond is required of executor only in special cases
2073
Effect of direction in will that executor serve without bonds
2074
Additional bonds
2076
Execution of bonds
2077
Effect of failure to give bond when so ordered
2079
When appointment is void or bond voluntarily given
2081
When and how surety becomes liable upon bond
2082
When surety is liable for acts of principal prior to bond
2085
Misrepresentations of principal to surety do not release latter
2086
Liability of surety of executor who is also trustee
2088
Power of court to relieve surety from further liability
2089
Liability of surety for debts due from executor to decedent
2090
Bond to pay all debts and legacies
2093
Letters testamentary or of administration
2094
Will of testator can not override statute requiring letters
2095
CHAPTER LIL
2097
ferent laws
2100
Foreign executors may be conferred local rights by statute
2101
Who may apply for ancillary administration
2102
When and how application for ancillary administration may be made
2103
Revocation of ancillary administration
2104
Basis of and reason for ancillary administration
2105
Situs of personalty for purpose of ancillary administration
2107
Apparent exceptions to the general rule
2108
Aj to necessity of local administration in jurisdiction where real property is situated
2110
Construction of will by court of domicile not binding on court of situs of realty
2111
See Page 1379 Bonds of ancillary administrators
2113
General rule is that an administrator can prosecute actions only in jurisdiction where appointed
2115
Assignee of domiciliary representative may bring suit in his own name in other jurisdictions
2119
Voluntary payment of debts or surrender of chattels to domi ciliary representative
2120
Personal representative may be sued only in jurisdiction wherein he is appointed
2122
Exceptions to rule Suits in equity
2124
Voluntary submission to jurisdiction
2125
Judgment against administrator in one jurisdiction of no force against administrator in another jurisdiction
2126
What court may compel the personal representative to account
2127
Conclusiveness of order settling account or discharging admin istrator
2128
Distribution of residue after ancillary administration
2129
INVENTORY AND APPRAISEMENT
2132
Early English practice required filing of inventory
2133
Modern English practice requires inventory only on demand of interested party
2134
Practice in the United States as to requiring the filing of an inventory
2135
When inventory may bo dispensed with
2136
Reasons why inventory is required
2139
Manner of making appraisement
2140
Inventory and appraisement should be signed and verified
2141
What should be included in the inventory
2143
Where title to property is disputed Power of probate court
2144
Including property in inventory does not estop representative from subsequently claiming title thereto
2146
As to assets situated in a foreign jurisdiction being included in inventory
2147
As to including real property in the inventory
2150
by decedent
2151
As to including partnership assets in inventory
2152
Power of court to compel return of inventory
2153
Interested parties may petition to compel return of inventory
2154
Sufficiency of petition and answer
2156
Operation and effect of inventory
2157
Operation and effect of appraisement
2159
Omissions and mistakes in inventory how corrected
2160
Additional or supplementary inventory
2162
Removal from office
2164
Legality of administration not affected
2167
CHAPTER LIV
2168
Instances of statutory allowances
2169
Where net value of estate does not exceed a specified sum
2170
Property exempt from execution may be set apart to the family
2171
When selection and segregation are required
2173
What constitutes a homestead
2175
Eight of surviving husband or wife or minor children to suc ceed to homestead selected prior to death
2176
Title vests without order of the probate court
2179
Effect of testamentary disposition by decedent on right of fam ily to homestead
2180
Effect of antenuptial and other agreements
2194
Effect of divorce or remarriage
2196
See Page 1435 Effect of death of widow
2198
Effect of wifes desertion or misconduct
2199
Comments as to the rule
2200
Application for widows allowance required
2202
Effect of delay in applying for allowance
2204
Right to allowance not dependent upon widows inability to support herself
2205
Allowance may be made to resident widow irrespective of domi cile of husband
2206
Power of court to modify order granting allowance to widow
2207
Order of allowance has no extraterritorial effect
2208
Settlement of estate must not be delayed so as to consume the assets by means of the allowance
2209
CHAPTER LV
2210
ordinate to that of surviving spouse and next of kin
2212
The same subject
2213
Surviving spouse of decedent has primary right to designate place and manner of burial
2214
Effect of directions of decedent as to place and manner of burial
2215
Cremation
2217
As to right of removal of remains once properly interred
2218
Burial plats and interests therein
2220
Erection of tombstone or monument
2221
Common law rule requires surviving husband to bear expense of burial of his wife
2222
Funeral expenses charged against estate of decedent
2223
What comprise funeral expenses
2224
CHAPTER LVL
2226
General purposes of administration
2227
Com mon law rule and statutory changes
2228
Modern rule
2230
Statutory regulations
2236
Common law rule is that realty passes directly to the heir
2242
When purpose is satisfied by a portion
2248
Statutes may give the personal representative the right of pos
2254
Effect where will directs executor to distribute estate in a par
2260
Time when power of sale must be exercised
2267
See Page 1513 Pergonal representative is chargeable with compound interest
2271
See Page 1485 What are generally considered assets of the estate
2273
Debt of personal representative to decedent an asset
2275
Liability of sureties as to proceeds of sale of realty
2276
Claim for damages for death by wrongful act how considered
2278
Is property within the jurisdiction author izing the grant of administration
2280
Eecovery and release of claim
2281
As to property which is not an asset of the estate
2283
Liability where personal representative receives property not an asset of the estate
2284
Torts committed by personal representative render him liable individually
2285
Notice to creditors and presentation of claims
2286
Creditor may establish his claim in a court of equity
2288
Debt due from a distributee may be retained out of his dis tributive share
2290
Effect of bankruptcy or the Statute of Limitations
2292
What debts may be used as a setoff when there are conflicting claims
2294
Mutuality of indebtedness necessary
2295
Personal representative may retain assets of estate to satisfy debt due himself
2297
Bight of personal representative to compromise or compound claims
2299
Bight of personal representative to submit claims to arbitration
2301
As to right or duty of personal representative to plead Statute of Limitations or of Frauds
2302
Claims must be prorated when estate is insolvent
2304
Duty of personal representative regarding uncompleted contracts of decedent
2305
Personally liable on new contracts
2307
Effect of such power given by will or con sent of beneficiaries
2310
No authority to expend funds of estate for improvements
2312
Personal representative can not deal with assets of estate to his personal benefit
2313
Duty of personal representative as to investing the funds of the estate
2315
Personal representative depositing funds of estate in his own name is liable for any loss t
2318
Chargeable with interest
2319
if he uses funds of estate for personal benefit
2320
Liability not dependent upon profit
2322
Use of real property personal representative charged with an nual rent compounded annually
2323
To what extent joint executors or joint administrators are con sidered as one
2325
Right of one of several executors to act for all
2327
The same subject
2328
Suits between coexecutors to compel an accounting
2330
As to the sale of real property
2331
When some refuse to act
2332
Manner in which coexecutors may be held liable for devastavit
2334
General rule as to liability of one executor for acts of coex ecntor
2336
Effect of agreement between coexecutors as to control and man agement of estate
2337
Effect of one executor delivering assets to a coexeeutor
2338
Liability for devastavit by coexeeutor permitted to occur through negligence
2340
As to investments
2342
Effect of insolvency of coexeeutor
2343
Effect of joint or separate inventories receipts or accounts
2344
Contribution
2345
Release of one executor from liability
2347
Division of commissions among coexecutors
2348
The same subject
2349
CHAPTER LLX
2351
General causes for removal from office
2352
What court has jurisdiction
2353
Who may institute proceedings
2354
Nature of the proceedings
2355
Costs and counsel fees in resisting application for removal
2357
See Tage 1540 Effect of removal from office
2358
Discre tion of court
2359
Generally the rule applies alike to execu tors and administrators
2361
Effect of failure to give a bond
2362
Effect of failure to file account
2363
Where appointment is secured through misrepresentation or sup pression of facts
2364
Where personal interests of representative are adverse to the interests of the estate
2365
Insolvency of representative as a ground for removal
2366
Waste or mismanagement a cause for removal
2367
Refusing to take proper steps for the benefit of the estate
2368
CHAPTER LX
2370
Exceptions to the general rule
2372
Costs where personal representative is a party
2373
Right of personal representative to employ his own counsel
2375
Representative is personally liable to attorney for his services
2376
Personal representative entitled to credit or allowance for attor ney fees
2379
As to actual payment of attorney fees prior to allowance
2380
Allowance for attorney fees is limited to reasonable value for necessary services unless fixed by statute
2381
Effect of an agreement as to attorney fees
2383
As to allowance for fees where representative acts also as attorney
2384
Costs and counsel fees in proceedings to construe wills
2386
Allowance made only when the proceeding is brought in good faith
2389
Personal representative not allowed attorney fees for litigation which is result of his own wrong
2390
Attorney fees allowed only for services in interest of the estate
2391
CHAPTER LXL
2393
counting
2395
Advancements to distributees considered only upon distribution
2396
Annual or intermediate accounts and effect of order settling the same
2397
Final account and time when same should be rendered
2399
Settlement of final account and parties concluded by order of confirmation
2400
As to what matters not conclusive
2402
Order settling final account not subject to collateral attack
2403
Duty of personal representative to account
2405
Where burden of accounting and liability rests upon the death resignation or removal of personal representative
2406
Probate court has jurisdiction to compel accounting
2409
Duty of court
2410
How objections to an account should be stated
2411
Statute of Limitations does not apply but laches may be urged
2412
Personal representative may explain loss but can not make a profit out of the estate
2413
Suit on bond
2414
CHAPTER LXIL COMPENSATION Or PERSONAL REPRESENTATIVES 1585 As to personal representative being entitled to compensation
2416
Renunciation of right to compensation
2418
Effect of death resignation or removal from office
2419
At what period compensation may be allowed the representative
2421
Compensation fixed by will or by agreement
2422
Division of commissions among successive administrators
2425
Donble commissions as executor and as trustee not favored
2426
Personal representative guilty of fraud may be denied com pensation
2427
Neglect of duly
2430
Sea Page
2433
As to rights and liabilities where executor pays legacies there
2439
Rights of creditors where beneficiaries have been overpaid
2445
Where a distributee dies prior to distribution
2451
United States and Territories 24822614
2459
No 1Alabama
2462
No 2Alaaka
2464
No 3Arizona
2466
No 4Arkansas
2470
No 6California
2474
No 6Colorado
2479
No 7Connecticut
2481
No 8Delaware
2482
No 9District of Columbia
2484
No 10Florida
2485
No 11Georgia
2487
No 12Hawaii
2489
No 13Idaho
2490
No 14 niinoia
2494
No 15Indians
2496
No 17Iowa
2497
No 18Kansas
2499
No 19Kentucky
2502
No 20Louisiana
2505
No 21Maine
2512
No 22Maryland
2514
No 23Massachusetts
2516
No 24Michigan
2518
No 25Minnesota
2519
No 26Mississippi
2521
No 27Missouri
2523
No 28Montana
2526
No 29Nebraska
2530
No 30Nevada
2532
No 31New Hampshire
2535
No 32New Jersey
2536
No 33New Mexico
2539
No 34New York
2541
No 35North Carolina
2545
No 36North Dakota
2546
No 37Ohio
2551
No 38Oklahoma
2553
No 39Oregon
2557
No 40Pennsylvania
2562
No 41Philippine Islands
2571
No 42Porto Eico
2573
No 43Rhode Island
2579
No 44South Carolina
2581
No 45South Dakota
2583
No 46Tennessee
2588
No 47Texas
2590
No 48Utah
2592
No 49Vermont
2600
No 50Virginia
2601
No 51Washington
2604
No 52West Virginia
2609
No 54Wyoming
2612
H GREAT BRITAIN AND IRELAND AND BRITISH POSSESSIONS No 55Wills Act 1837
2615
No 56Wills Amendment Act 1852
2629
No 57Wills Act 1861
2631
No 58Domicile Act 1861
2632
No 59Navy and Marines Wills Act 1865
2634
No 60Accumulations Act 1892
2637
No 61Navy and Marines Wills Act 1897
2638
No 63Execution of Trusts War Facilities Act 1914 and Amend ment 1915
2639
No 64British Columbia
2641
No 65Manitoba
2643
No 66New Brunswick
2644
No 67Newfoundland
2646
No 68Nova Scotia
2647
No 69Ontario
2651
No 70Quebec
2654
No 71Saskatchewan
2659
Preparation of Wills 26682748
2661
Republication of WiXl by Codicil
2676
Annuities
2684
Directions as to Abatement of Legacies
2694
Words Descriptive of Classes of Beneficiaries
2697
Estates in Fee Simple 2305
2705
Estates in Remainder Vetted and Contingent
2713
Provisions Regarding Marriage Divorce and Separation
2720
Charitable Uses and Trusts
2732
Provisions Affecting Bights of Husband Wife and Children
2743
Table of Cases of Volume Three
2761
Consolidated Index
2813

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