CH. 29. Statutes, March 16, 1783. April 8, 1813, &c. &c. April 18, 1819. admission by one of several executors or administrators of a debt due from the testator &c. does not conclude the others. ART. 19. A concise view of the powers and duties of executors and administrators in New York. 1. This subject is very important, not only as it concerns a large part of the Union, but also a very commercial part. And in the laws on this subject there is seen much caution and security in settling the estates of persons deceased, that merits much attention in the other States. While New York was a colony, probate powers were vested in the Prerogative Courts, and after independence, in the Court of Probate. These were continued until 1787. The officers; a judge and surrogate or deputy. As the State increased, it became necessary to make new probate arrangements; and in 1778 the surrogate's office was instituted in the several counties. Since that time executors and administrators have principally settled such estates in the offices of the county surrogates. At first, their powers were limited mainly to proving wills and granting administrations, and from time to time by statutes enlarged, so as to enable them to license executors and administrators to sell and convey real estate whereof the deceased died seized, to pay his debts, as far as his personal estate is deficient: also to enable the surrogate to appoint guardians to minors, and to assign dower; and fully to settle such estates in most cases. §2. Administration how, and to whom granted. In these respects New York has adopted, in substance, as Massachusetts and other States have, the rules and principles of the English statute of Ch. II, before mentioned, with some additions in regard to evidence of certain facts directed to be proved in a specified manner, which facts in Massachusetts are left to be proved as the probate judge's discretion directs. New York directs the surrogate to have proof of the death of the testator or intestate, usually by the oath of the executor or administrator, and by this alone when no other evidence of the death can be had, or when no other evidence is deemed necessary. The administrator solemnly swears, that A. B. of (addition) died without having left any last will or testament, as far as he knows or believes, and that he will well and truly perform the duties of administrator on his estate. This oath, as all the others prescribed, is signed and recorded. Administration is granted to the widow or next of kin in the manner before stated, as soon as it can be done with propriety. The administration granted may be general or special. 3. The administrator's bond with security. After the surrogate has heard the parties interested in the estate to be settled, (where a hearing is requested or deemed proper) as to the person or persons to be administrator or administrators, and desig nated the same, he requires a bond of administration with surety or sureties in the English and Massachusetts form before stated in every material part. The penalty of the bond ought to be from thirty to forty per cent. larger than the amount of the personal estate of every description. To ascertain the amount and situation of the estate, the surrogate may examine witnesses as he may think proper, and he may appoint persons to examine and report the amount on oath, and such circumstances as he may direct. Generally the sureties ought not to be connected with the family; but this rule has its exceptions. The sureties after all their debts paid must be worth the penal sum of the bond when it is taken. And if any doubt arises as to their sufficiency, they must justify before the surrogate vivá voce usually, but affidavits written may be by him required and filed. This last is a good provision, and ought in all cases to be in writing and recorded. In Massachusetts too little attention has been given to the sufficiency of the sureties. 4. Administrator's oath and letters of administration. The oath is as above stated. His letter of administration or commission is in the English form, adopted in Massachusetts. It impowers him to do all acts necessary and proper to be done in settling the personal estate of the intestate. 5. Inventory. This is an instrument indented, and includes the goods, chattels, and credits, which were the intestate's at his decease. This inventory is made in the presence, and with the assistance of the two appraisers, appointed and sworn by the surrogate or person appointed to swear them. The appraiser solemnly swears, that he will truly, honestly, and impartially, appraise the personal property of A. B, of &c. deceased, according to the best of his knowledge and ability. When the two appraisers are sworn, the administrator (or administrators) as the case may be, exhibits to them all the personal property of the intestate of every description, as all moveables, shares in corporations, and partnerships, property in the funds, all debts due to the intestate from all persons and bodies politic, public or private, even debts due to him on book accounts, all they appraise at their true value, and credits usually at par. To the appraiser the administrator must in detail, and fairly shew every part of the said personal property come into his possession or to his knowledge. Some have thought that creditors have the best right to be appraisers, next legatees or distributive heirs; but this is evidently wrong, as it is as much for their interest to appraise too high, as it would be for the administrators to appraise too low. If there be any of the intestate's personal property or credits in a peculiar situation, this peculiar situation ought to be noted by the appraisers, as desperate or depreciated debts &c. In fact, CH. 29. Art. 19.. CH. 29. this inventory must be so made as to afford the surrogate, crediArt. 19. tors, legatees, and distributive heirs, a fair and accurate view of the intestate's personal estate of every kind; and shew as far as practicable, the true amount for which the administrator and his securities must stand responsible. This inventory the appraisers sign, as also the administrator or administrators; this and their oaths must be returned to the surrogate's office, and the administrator there presents them to the appraisers, and the surrogate causes them to swear, that this inventory contains a true and perfect account of the goods, chattels, and credits of deceased, as far as the same have come to their possession or knowledge. All the affidavits and oaths, with the inventory, are received and filed in the surrogate's office. § 6. The administrator's duty to collect all the personal estate, and to convert it into money. This he must do as expeditiously as practicable, and to this end he must pursue all legal and prudent measures; and as fast as he can obtain monies he must pay the debts in legal order, and at the end of the year be ready if possible to pay legacies and distributive shares. But before legatees and heirs are so paid, they must give bonds to the administrator, or proper security to the amount received, to indemnify him from future and other claims which shall appear just, or be recovered by suit. The principle is the same as in Massachusetts, it every where results from the nature of the case. And if he object to its sufficiency when tendered to him, the judge or surrogate must decide, and when approved by him, he makes the proper endorsement. Debts in New York are in grades as in England, not so in Massachusetts. 7. Executors in New York. Their powers and duties are substantially the same as those of administrators, as above stated and explained. The difference is but in this: executors must cause their testators' wills and codicils to be proved in the county in which the testator resided; if a citizen or resident die from home or abroad, it makes no difference, his domicil governs and is found as in other cases; but the will of an alien or non-resident must be proved by the probate judge. Any one appointed in a will to execute it, is an executor, though not called by that name. The executor calls the witnesses to prove it as in Massachusetts, and like evidence is required to prove it as in that state; and as in that, and as before stated, the executor may by common law authority do certain acts before probate, and he must as soon as practicable make the will known &c. in order to expedite the settlement of the estate, and to prevent administration being granted. In proving a will in New York the witnesses (among other things) swear they saw the testator seal and deliver it. When witnesses to a will are interrogated in special disputed cases, their testimony is recorded; and where no other proof of it can be had, the oath alone of the executor will prove it; but this slender proof is admitted cautiously every where. After the will is proved, the surrogate or judge causes the executor to swear, the instrument is the last will and testament of deceased, as far as he knows or believes; that he will truly and faithfully perform the duties of executor to it, by paying his just debts and funeral charges, and then the legacies contained in it, (if any) as far as his goods, chattels, and credits will extend and the law requires; that he will make a true and perfect inventory of &c.; and that he will render a just and true account &c. when thereto required. All the original papers are recorded, and copies made out under the hand of the surrogate, and seal of office affixed. These copies, as far as necessary, are the executor's authority. 8. The deceased's real estate. Executors and administrators in New York have no more to do with this than in Massachusetts; that is, nothing except by the will, or license of court. Where the personal estate is not sufficient to pay the deceased's debts, his executor or administrator by statute, may have power to sell so much of the real estate, or of the rents and profits thereof in certain cases as will pay the debts. This power may be given in the will, or by the surrogate or probate judge: if by the surrogate, several rules must be observed: 1. An inventory must be returned: 2. An accurate account of the personal estate rendered, and of the proceeds of the sales of it: 3. A list of the creditors and of their respective debts, as far as they can be ascertained: 4. A petition to the surrogate or judge, concisely stating the case, and praying for liberty to sell so much of the real estate whereof the testator or intestate died seized, as will pay his debts &c.: 5. The executor or administrator swears, the facts stated in his petition are substantially true, according to his knowledge and belief; the same as to his account and list: 6. The petition, papers, and documents accompanying it are filed by the surrogate, and he gives an order of notice in a prescribed form, by him dated and signed, to all interested in the estate of &c. to shew cause at his office in why so much of the real estate whereof he died seized shall not be sold, as will be sufficient to pay his debts. The order requires full six weeks' notice, and must be published four weeks successively, beginning six weeks before the day appointed to shew cause: 7. When the surrogate &c. orders a sale, he ascertains what part shall be sold, where all need not be sold. His order in each case is very formal and particular. on CH 29. Art. 19. Сн. 29. L. S. At a court held at on- &c., recites the peArt. 19. tition of &c. has been presented &c. stating &c., states he issued an order of notice, &c. the notice how given - states no objection (if none) at the day of hearing that on the petitioner appeared before the said surrogate, whereon he proceeds to hear, &c. and on due examination doth find and adjudge, that the personal estate of &c. is insufficient to pay his debts, that the executor has applied it &c. to pay them, as far as &c., that it is necessary the whole of the real estate of &c. be sold for the payment of his debts and adds, and therefore the said surrogate doth order and direct, that the whole of the real estate whereof the said died seized be sold, that the said executor make return of his proceedings, &c. to the end the same sale be examined &c., and if found to be legally made &c. that the said surrogate shall issue a further order, confirming such sale, and direct conveyances to be made &c. according to the provision of the act (of April 12, 1819) entitled &c., and that the monies arising &c. after the confirmation &c., and the execution of the conveyance &c. be brought into the office of said surrogate of the city and county of New York. Another order of sale, nearly in the form of the last above, except after citing the application of the personal estate, describes the estate the testator died seized of, and adds, it is so circumstanced, that a part cannot be sold without manifest prejudice to the heirs of the said deceased; so orders a sale and return for confirmation &c., as above, and adds, after paying debts &c. to distribute the overplus &c. among the heirs &c. Other forms of long orders of sale, are forms in the New York practice, varying from the above, each as to some particular matter. After an order of sale is so obtained, the executor or administrator must advertise for six weeks the property is for sale at public vendue, in newspapers named, also notices posted. The conditions of sale fully describe the estate to be sold and the terms of sale. The sale must be completed before sunset &c., and the said conditions must be returned to the surrogate with the return of the proceedings of the sale. Proof must be made of the notice to sell, and it is best to add the auctioneer's affidavit, stating the proceedings at the sale and the result of it. The return of the executor or administrator is signed and sworn to by him; it must contain all the facts briefly and clearly stated. The surrogate examines all the proceedings, and if no objection be made, confirms the sale, and gives a further order authorizing a conveyance. This last order very concisely states all the proceedings, beginning with the letter of administration, that the sale has been legal, &c. confirms &c.; then follows the deed |