A Treatise on Probate Law and Practice: Embracing the Law of Wills, and the Administration, Settlement, and Distribution of Estates of Deceased Persons: Also the Law Relationg to Married Women, Minors, Insane Persons, Drunkards, Guardian and Ward, and Other Persons Under Disability; Together with Rules of Practice and Forms Adapted to the Laws and Decisions of Arizona, California, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming. Also a Probate Code, Giving the Full Text of the Statutes for All These States, Topically Arranged and Compared with Each Other..., Volume 3

Front Cover
Bancroft-Whitney Company, 1904 - Probate law and practice
 

Contents

Manner of appraisement
10
Notice to state treasurer
11
Report
12
Final settlement of account
13
POWER OF MARRIED PERSON TO CONVEY BY WILL 26 Consent of spouse not necessary
20
CHAPTER 1V MARRIED WOMEN AS SOLE TRADERS 27 Jurisdiction to grant privilege
21
Notice to be givenContents of 29 PetitionWhat to state 30 What community funds may be used
22
Manner of opposing petition 32 Hearing of application 33 Form of decree
23
34 Oath of applicantRecord of decree 35 Rights and liabilities of sole trader
24
36 Maintenance of children of sole trader 37 Liability of husband of sole trader
25
EFFECT OF MARRIAGE ON PROPERTY CHAPTER I NATURE OF OWNERSHIP OF PROPERTY BY MARRIED PERSONS 38 Separate property...
26
Earnings of wife also separate property
27
40 Community property defined
28
DOWER AND CURTESY 41 When and when not allowed
30
Manner of assignment of dower
31
43 Admeasurement of dower after judgment
33
Dower in lands aliened during lifetime 45 How dower barred
34
46 Damages for withholdingHow estimated
35
ElectionWhen necessary
36
Effect of mortgage
37
Right of widow to occupy dwelling house
38
50 Widow liable for waste
39
When widow may be reendowed
51
THE HOMESTEAD 52 In general
52
Conveyance when either spouse is insane
53
Manner of successionLiability for debts
54
Grounds for divorce
55
Proceedings in case of void or uncertain marriages
56
Proceeding in case of insanity
57
69 Effect of discharge of patient
64
INSANITY OF PERSON CALLED FOR SENTENCE
71
85 Commitment and return
85
CRIMINALS
92
WHAT CONSTITUTES RESIDENCE
95
GUARDIAN AND WARD
96
DUTIES AND POWERS OF GUARDIANS Section I Control of Guardian 122 Jurisdiction to control
109
General power to impose conditions 124 Guardian of the person
110
Guardian of the property 126 Guardian of person and property
111
Maintenance Support and Education of Ward 127 Income and profits of estate to be applied for such pur poseSales 128 In what case parent not liabl...
112
129 Enforcement of maintenance Section III Management and Control of Property 130 Inventory of estate
113
Payment of debts
115
Collection and payment of claims
116
Presentation of claim 134 Contesting claims 135 Claims established by judgment
117
Life of lease Section IV Sales of Property of Ward 137 When may be sold
118
Who may apply for and
119
139 Manner of giving notice 140 Manner of service of notice
120
Hearing of application 142 Examination of witnesses
121
143 Costs awarded in certain cases 144 Contents of order of sale
122
Bond 146 Rule governing manner of sales by guardian
123
Report of saleWhen madeProceeds 148 Terms of sale
124
Limitation of order of sale 150 Private sales of estates of persons under disability and decedents Section V Changing AssetsInvestments 151 Applica...
125
Disposition of proceeds of sales
126
Investing proceeds of sales 154 Manner of investment of assets of estate
127
Accounting and Settlement by Guardians 155 When must be renderedAnnual accounts Section VII Termination of Guardianship 156 Manner of ter...
128
Grounds for removal
129
APPOINTMENT POWERS AND DUTIES OF GUARD
133
GUARDIAN OF INSANE AND INCOMPETENT PERSONS
139
GUARDIAN FOR NONRESIDENT INSANE PERSON
148
CHANGE OF NAMES OF PERSONS
158
DECEASED PERSONS
165
CONTESTS
180
LOST OR DESTROYED WILL
187
Ancillary Proceedings
194
REVOCATION OF WILLS
200
261 Revocation by marriage
201
262 Revocation by birth of issue 263 When a conveyance is a revocation Section II What does not Constitute Revocation 264 Effect of encumbrance
202
265 Effect of subsequent will 266 When conveyance is not a revocation 267 Effect of contract for conveyance
203
Revival of Wills 268 Revival by codicil 269 Revocation does not revive CHAPTER VIII WHAT WILLS MAY BE DENIED PROBATE 270 Condit...
204
273 The intention of the testator 274 How testators intention ascertained 275 Several instruments construed together 276 All parts construed with eac...
205
278 Total intestacy to be prevented 279 How ambiguous parts explained 280 When real property deemed personal 281 Mistakes and omissions 282 ...
206
284 Devise of residue of real property 285 Bequest of residue of personal property 286 Effect of devise to a class 287 Conditional disposition define...
207
291 When condition precedent deemed performed Section II Meaning of Words 292 Technical words 293 Technical words not necessary 294 Ordin...
208
Tenancy in common
209
Term heirs not necessary to devise a
210
Legacies 301 How legacies are distinguished 302 Devises etc in common
211
303 When certain legacies become chargeable 304 Abatement of legacy 305 Specific devise of legacy passes by will 306 Proof and record of will n...
212
308 When legacies and annuities are due 309 When legacies bear interest 310 When income accrues in case of bequest 311 When legacy etc may ...
213
315 What gift not revocable 316 Gift in view of death defined 317 When gift presumed 318 Revocation of gift in view of death 319 Gift not affecte...
214
EXTENT AND LIMITATION OF TESTAMENTARY CAPACITY 321 Every estate and interest in property may be devised 322 Devise conveys ent...
215
Interest of insured passes by will etc 325 Insurance may pass by will 326 Notice of bequest of insurance not required 327 Conveyance must be in w...
216
Provisions not to apply to wills 329 Fraudulent transfer except wills invalid CHAPTER XII LIMITATION UPON POWER OF ALIENATION Sectio...
217
Conditions Restraining Alienation 331 When void 332 How long it may be suspended 333 When future interest is suspended 334 Certain leases 33...
218
338 Time of creation 339 Estatestail abolished Section III Future Interests 340 Estates in futuroHow may pass
219
341 Right of possession 342 Perpetual interest 343 Limited interest 344 Kinds of future interests 345 Vested interests 346 Contingent interests 347 Al...
220
349 How future interest defeated Section IV Estates in Remainder 350 Remainder defined 351 Certain remainders valid
221
Effect when limited to heir etc 353 How created 354 Contingent remainder in
222
Upon estates for life or term of years 356 Contingent remainders 357 Upon estates for life 358 Conditional limitation 359 Construction of certain re...
223
361 Estate of inheritance 362 Estate for life 363 Mere possibility not an interest 364 FreeholdsChattels realChattel interests Section VI Disposition of i...
224
367 Certain directions void 368 When income shall commence 369 When directions are void 370 Who entitled to income during limitation 371 For...
225
Wно MAY TAKE BY WILL Section I In General 372 Any person except corporations expressly authorized Section II Bequest of Debt 373 Against ...
226
Right of Children in Testators Estate
229
OFFENSES AGAINST INHERITANCE
235
Proceedings to compel settlement
243
407 CompensationHow paid 408 May administer oath 409 Register and its contents
244
410 The law controlling administrators 411 Penalty for failure to perform duty Section II Appointment Powers and Duties of Executors and Ad mini...
245
Powers of executor of executor Executor administrator defined 413 414
246
415
247
416
248
Competency of married woman as executrix
249
Order in which persons entitled to letters Who incompetent to be executo 418 Who incompetent to be administrator
250
419 Married woman as administratrix 420 Nonresidence and minority disqualifies
251
421 Intention of testator as to appointment is conclusive
252
422 If person entitled is minorGuardian appointed 423 In what case appointment deemed renounced 424 To whom granted when party entitled fail...
253
Appointment when several persons equally entitled
254
Liability of executor etc for debt due estate 451 Effect of bequest of debt against executor 452 Liability for estate
268
Special Administrators 453 When may be appointed
269
454 Letters to issue
270
455 LettersTo whom shall issue 456 Bond 457 Duties
271
When powers cease
272
Accounting by Section IV Partnership Estates 460 Right of surviving partner
273
461 Must give bond
274
491 Penalty for failure to give notice
291
Time for presentation of claims 493 Proof of notice
292
494 When claim barred
293
495 In what case affidavit not necessary 496 Claims barred by statute of limitations cannot be al lowed
294
497 Claims to be sworn toVouchers
295
498 Vouchers in certain cases 499 Hearing and proof of claim 500 Disposition of claims after approval
296
501 Limitation of action upon claim
297
Suspension of limitation 503 Claim necessary in actions pending at decease 504 Manner of allowance or rejection of claims
298
Partial allowanceCosts
300
506 Enforcement of judgment
301
Proof of claim when the judge is creditor
302
Collection of judgment rendered in lifetime
303
509 Reference of doubtful claim
304
Hearing before refereeCompensationAction of court upon report Liability of executor etc for costs 511
305
tation and allowance Statement of claims to be returned 512 513
307
Payment of interest on claims 515 Claims must be presented before suit
308
516 Executor etc cannot purchase claims
309
Sales of Estates 517 With what estate is chargeableFor what may he sold 518 No sale without order of court 519 Application for sale 520 In what ca...
310
336 Suspension of trust
336
Proceedings after order 578 The conveyance on optional contract 579 Forfciture on failure to perform optional contract
353
Sales for Special Purposes 580 For railroad purposes 581 For mining purposes
354
Validity of Sales by Ercutors etc 582 When sale is conclusive
355
MORTGAGING AND LEASING ESTATES Section I Mortgaging the Estates 583 When and how may be mortgaged
357
Manner of leasing estate
362
Specific Performance of Decedents Contracts 585 Executor may perform 586 Application to enforce performance
364
Hearing of applicationNotice 588 Order to convey
365
589 When application to be dismissed 590 Execution of conveyance
366
Effect of conveyance 592 Right of appealEffect of decree 593 Order for conveyance to be recordedEffect
367
594 Substitution on death of applicant
368
595 Order for possession of premises 596 Proceedings when deceased dies out of state
369
Proceedings by heirs to enforce Section III Voluntary Performance of Contract to Convey 598 When executor may perform 599 When contract is jo...
370
Accounts 600 When exhibit of condition of estate to be rendered
371
Objection to accountRevocation of letters
372
Exceptions to report 603 Accounting after claims filed 604 Vouchers to be produced and filed
373
Allowance when no vouchers produced
374
614 Penalty for failure to obey citation
380
Accounting after authority revoked Section VI Proceedings to Enforce the Care of Neglected Estates 616 How instituted
381
617 Notice 618 HearingDuty of court CHAPTER III SETTLEMENT AND DISTRIBUTION Section I Liability of Estate for Debts 619 General liabili...
382
620 Liability of estates of testates 621 Provisions of will as to debtsHow Enforced
383
622 Payment of specific legacies 623 Order of liability for payment of legacies
384
Order of liability for payment of debts
385
Determination of Heirship 654 Who may petition
403
Notice and proof
404
AppearanceDefaultTrial
405
Parties EvidenceDecreeCosts 658 Effect of proceedings
407
Partial Distribution 659 When may be hadWho may apply for 660 Notice of application
408
Who may contest application 662 Decree of distributionBond
409
Order for payment of debtsAction on bond
411
Full Distribution Before Final Settlement 664 Who may apply forWhen and how made
412
Distribution Upon Final Settlement 665 How and to whom made
413
666 What order shall contain
414
essary
415
Decree NoticePartition
416
Partition 669 When partition may be hadCommissioners forWar rant of authority
417
670 When petition may be filed and heard
418
Disposition of interest of heir not to prevent 672 How shares set off 673 Proceedings when partition impracticable
420
674 Rules for making partition 675 Excess share to be paid for before set
421
676 Notice of partitionPowers of commissioners
422
677 Report of commissioners Confirmation and record
423
When may be sold 679 When commissioners may be dispensed with
424
680 Partition when estate in different counties
425
Incompetent person may be appointed at request of per son entitledIdentity of nonresident
426
Objections to appointment of executors
427
Application for letters of administrationPetition
428
Limitation of application
429
430 When letters issued
430
431 Notice of application for letters
431
Contesting application
432
433 Hearing of application and duty of court
433
Proof of notice of application
434
435 OathRecord of letters
435
436 Proof necessary before granting letters
436
437 General power of administrator with the will annexed
437
Inventory and appraisementWhen to be made
438
439 Appointment of appraisersCompensation
439
440 Oath and duties of appraiser
440
Inventory of moneys
441
442 To be subscribed and sworn to Claims
442
Additional inventory
443
444 Inventory as evidence
444
445 Power of executor before qualifying
445
446 Validity of acts of less than all executors
446
Compounding debts
447
448 Not to profit or lose when not at fault
448
449 Liability for uncollectible claims
449
721 TrialCommitment
451
ADMINISTRATION OF ESTATES IN SPECIAL CASES Section I Administration After Distribution 722 Final settlement not to prevent
453
468 Additional bond may be required for sale
468
469 Form and condition
469
Justification of sureties
470
471 Qualifications of surcties
471
Examination of sureties
472
If security insufficient powers cease
473
Petition for further se urity
474
Notice of hearing of application for additional security
475
476 Hearing and order for new bond
476
Penalty for failure to give additional security
477
478 Citation for examination
478
How sureties may be released
479
New bond releases sureties
480
When application may be heard
481
Bond not void on first recovery
482
483 In case of more than one executor
483
Possession and Care of Estate 484 Who entitled to possession
484
Care of estate
485
When possession to be delivered to heirs
486
Investment of funds
487
Continuing business of decedent
488
Claims 489 Notice to creditors
489
490 Form of notice
490
766 Disposition of unclaimed estate 767 Liability of agent
491
768 AccountingSale of estate 769 Payment by treasurer to parties entitled
492
Eschcats 770 In what case estates shall escheat
493
Institution of proceedings to discover and recover escheated estatesNotice
494
772 Appearance pleadings and trialSales and convey ances Counsel and compensation
498
773 Receiver may be appointedBond
502
Proceedings to recover escheated estateLimitation and manner
503
775 Appeal and review of proceedings 776 State may have final decree set aside for fraud
506
Additional counselCompensation 778 Compensation of informer
507
779 Investment of escheated funds
508
Special proceedings in case of aliens 781 Escheated funds in possession of banking corporations
509
SPECIAL RIGHTS AND LIABILITIES OF HEIRS 782 Liability of beneficiaries under will 783 Liability of successors to estate
511
Liability on warranties under conveyance
514
785 Effect of equitable mortgage upon rights of devisees
515
Effect of assignment of mortgageNotice to heirs 787 Devisee entitled to rents of devised premises CHAPTER X RIGHT TO ASSIGN TRANSFER A...
516
789 Release by separate instrument
518
790 Power to release mortgage paid before death of de cedent 791 Release in case of nonresident decedent
519
521 Sales of perishable property
521
When personal property may be sold
522
523 Private sale of personal property
523
Sale of personal in lieu of real property
524
Sales of partnership interests and choses in action
525
526 Order of sale
526
Manner of sale of personal property
527
528 Sales of real estate
528
Order for sale How obtained
529
530 Order for hearingNotice
530
531 One description of real property sought to be sold
531
sufficient 532 Service of notice
532
533 Service in case of minor heirs
533
534 HearingWho may be heardClaims
534
Who may be examined
535
536 When order shall be made
536
537 Order for sale
537
538 What order must contain
538
539 If administrator neglects who may apply for sale
539
540 Manner of service
540
541 Notice of sale
541
Time and place of sale
542
543 Manner of conducting private sale
543
Price at which may be sold at private sale
544
Terms of sale
545
Postponement of sale
546
Notice of postponement
547
Return of saleConfimationVacationResale
548
Penalty for failure to make return
549
Objections
550
Confirmation of sale
551
552 Order of confirmation must show notice
552
553 ConveyancesHow made
553
Contract for purchase of lards may be sold
554
Terms of such sale
555
Conditions of bond
556
557 Confirmation of such saleAssignment of contract
557
Sales of property under mortgageRedemption
558
Holder of lien may become purchaser
559
Sales Without Order 560 When directed by willCorfirmation necessary
560
Where provision by will insufficient
561
Sale of Real Property of Certain Estates 562 Who may maintain proceedings
562
563 PetitionWhat shall state
563
When sale may be directed
564
Who may consent to such sales
565
Report of saleConveyance
566
Disposition of proceeds of sale
567
Investment of proceeds
568
Disposition of income
569
Leasing such estate
570
Sale of certain bequests
571
Who shall be parties
572
Sales of Mines and Mining Interests of Decedents etc 573 When may be sold
573
Petition for sale who may file and what contain
574
575 Order to show causeNotice
575
Order of sale when and how made
576
Redemption 924 Of property of decedents
578
925 Of property of persons under disability TITLE II INHERITANCE ТАХ 926 In California and Montana 1 What property is subject toAmountLi...
580
Appraisement and valuation
582
Estates less than freehold
583
Administrator to set aside amount necessary to pay 5 Administrator to sell estate if necessary 6 When and how to be paid
584
Duty of foreign executor 8 Executors commission subject to tax in certain case 9 When tax is dueWhen discount allowed
585
Penalty remittedWhen 11 How payment enforced
586
Receipt for payment 13 Duty of clerk 14 County attorney to conduct proceedings to enforce pay ments
587
Allowance of expense of enforcing payment 16 Clerk must make statement of property subject to
588
To whom tax paid 18 Rebate of tax in certain cases 19 Receipt to treasurer
589
Compensation of treasurer 21 Misconduct of appraisersPenalty 22 Jurisdiction of proceedings
590
Liability of executor on bond 24 Powers of special administrators 25 Proceedings to enforce payment of tax when estate not administered
591
Scope of statute 927 In Oregon 1 What property subject to tax 2 Rates of
592
Tax when it accrues and is payable 4 Payment when made
593
Tax to whom paidDuplicate receipts 6 Tax a lien 7 Discount interest and penalty
594
Power to sell 9 Duty of heir or devisee when legacy payable out of propertyLegacy for limited periodDuty of admin istrator
595
Tax when foreign executor assigns stock etc 12 Depositaries of securities not to deliver same until no tice given to state treasurerPenalty 13 Deferred ...
596
Taxes upon devises and bequests in lieu of commissions 15 Jurisdiction of the county court 16 Duty of county judgeNotice to state treasurer
597
Duty of executors etc Filing inventory and ap praisement 18 Extension of time to file appraisement 19 Duty of administrator etc to send inventory a...
598
Court may act on first inventory 21 Appointment of appraisers 22 Immediate appraisal when
599
County court to fix time and place of appraisement and clerk to give notice to witnesses 24 Report of appraisers to be filed with county court
600
County court to give notice when 26 Reappraisement when 27 Tax due and unpaidDuty of treasurer
601
Secretary of State to furnish books and forms of re portsEntries by courts
602
Reports by county judges and custodian of deeds and records
603
Duplicate receipts to be furnished by the state treas urer 31 Recording receipts by county officer 32 Compromise of amount of tax due 33 Administra...
604
Appeals 35 Penalty for secreting or willful failure to produce will 36 Penalty for administering personal estate without proving will 37 Duty of admin...
605
Time of settlement of account to be fixed and notice given
606
Proof of notice necessary
607
608 Final settlement
608
609 HearingReference and compensation
609
610 ConclusivenessSettlement of account
610
Compulsory Accounting 611 Manner of enforcing accounting or exhibit
611
612 Who may petition to require
612
613 If petition sustained citation may issue
613
Rate in certain estates
614
Compensation 10 Legacies 11 Tax to be deducted 12 When payable
615
13 Notice to treasurer 14 Shares of stock 15 List of heirs
616
Extension of time for inventory 17 Compromising the tax 18 Report to treasurer 930 In Wyoming 1 Inherited property taxableHow
617
Life estate not taxable
618
Tax payableWhen 4 Duty of person administering estate
619
Sale of property to pay tax 6 Tax payable to treasurerReceipt for 7 Duty of administrator regarding realty
620
Refunding tax in case of debts 9 Transfer of stocks 10 Refunding tax erroneously paid 11 Appraisement of property
621
Penalty for misfeasance of appraiser 13 Court having jurisdiction of realty
622
Duty of court when tax not paid 15 Duty of treasurer when tax not paid 16 Duty of clerk of court
623
625 Order of payments of debts
625
Employees wages
626
Extent of preferential right
627
If estate insufficient debts paid ratably
628
Payment of funeral expenses and expenses of last sickness
629
630 Expenses for monument
630
Payment of debts and discharge of executor
631
Provision for disputed and contingent claims
632
Liability of executor to creditors
633
Contribution among legatees
634
When contribution not allowedDisposition of certain
635
claims 636 When debts paid distribution to be made
636
637 When final account to be rendered
637
638 Neglect to render final account
638
Final settlement decree and discharge
639
Provisions for the Family 640 May remain in possession of homestead wearing apparel furniture etc Allowance
640
Exempt propertyHomestead
641
642 Allowance for maintenance
642
643 Manner of payment of allowance
643
Order of allowance to survivors
644
645 In what case children sole successor
645
646 In whom homestead vests
646
647 How homestead set
647
When appraisers may be appointed
648
Order of saleDistribution of proceeds
649
Report of appraisers
650
Report of appraisersHearingConfirmation
651
CostsConveyances
652
Copy of order to be recorded
653
984 Sale of dower interests
660
985 Securities for purchase money for shares of minor 986 Future or vested interests 987 Investment of share of nonresident
661
988 Investment must be made in name of clerk 989 Equalizing unequal partition 990 Guardian must not be interested in sale
662
Actions Against Unknown Persons 991 In California
663
In Idaho
665
ABATEMENT AND SURVIVAL 994 Death or disability of party
668
REVIVAL
670
Action may proceed as to other parties without revivor 996 When may be revived 997 Revival on motion of successor in interest 998 Conditional O...
671
1002 Assignee may revive 1003 When order may include heirs etc 1004 Limitation for revival
672
If revival cannot be had cause to be stricken 1006 Order to strike may include costs 1007 Revivor not to work postponement CHAPTER VIII LIMI...
673
1009 Action to establish will 1010 On bond of guardian executor
674
1011 Recovery of estate sold by executor or administrator 1012 Recovery of estate sold by guardian
675
1013 Against executor etc for misfeasance etc Section II Computing Time 1014 By disabled persons in actions relating to real prop
676
erty 1015 In actions other than those relating to real property
677
1016 When party is absent from state
678
In case of warAliens 1018 When death occurs 1019 In case of reversal on appeal
679
1020 Not necessary to reserve right of minor 1021 Right of defendant in certain case
680
Partition of estates held in common by devisees and other persons
681
682 Partition after distribution
682
Advancements 683 What are advancements
683
684 What is not an advancement
684
685 Rights of heir when advancement greater or less than share
685
686 Advancements constitute part of estate
686
687 Determination of value
687
688 Hearing and determination of questions as to advance ment
688
689 Effect upon widow with issue
689
PLEADINGS
694
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