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though payable in futuro, his executor or administrator is liable if called on in season; for the law transfers the duty and obligation of the deceased in this case to his representative, appointed by himself or by the laws to settle his affairs. All the rights and duties of executors and administrators are materials for a volume, but only the most material can be considered here. To this purpose the party must be such an executor or administrator, as the law requires. Next, he must be liable to the action. This naturally involves the question when he is or is not liable at all; and when once liable, he is discharged by any act of limitation or otherwise. He is known in law as the representative of the deceased, and therefore generally in contracts made by, or to him, this representative need not be named in order to sue or to be sued on such contracts.

2. Under this head there will be found a great mixture of English common law adopted here, and statute law made in the United States. The object in this place is to consider the rights and duties of these representatives in regard to actions, as founded on the laws of the United States, the statutes of Massachusetts &c. and the common law so far as it applies. § 3. Executors and administrators acquire their authority in very different ways. Therefore, their appointments must be treated separately; but after appointed their powers and duties are so nearly the same, that actions by or against them may be treated very well together, as well as their rights and duties.

CH. 29.

Art 1..

4. By the 31 of Ed. III. it is enacted, that in case 21 H. VIII, where a man dieth intestate, an administrator shall be appoint- Ch. 5. ed &c., "who shall have an action to demand and recover as executor the debts due to the person intestate;" "and shall answer to others to whom the said deceased person was bound

in the same manner as executors shall answer." And an ad- 11 Mod 145. ministrator is bound to account without citation, before the last day in the condition of the bond mentioned, at his peril; and if

an administration be granted by one who has no jurisdiction, 12 Mod. 617. it is void, and trover lies for the deceased's goods received under it.

Laws 157, 9158.

5. Administrators, how appointed &c. By a statute pass- Mass. Colony ed in Massachusetts Colony, A. D. 1641, wills were proved, 19 and administrations granted for many years by the county courts, and in the vacation by two magistrates and the county clerk meeting together. Our present laws on this subject being in substance the province laws revised, it is unnecessary to state them. And it is also unnecessary further to notice the English statutes on this subject. The Civil law had no executors till a late period.

Сн. 29.
Art. 1.

March 9, 1784, sects. 8, 10, and A. D. 1818.

6. This act provides," that after the decease of any person intestate, administration of such intestate's goods and estate shall be granted unto the widow or next of kin to the Mass. Acts of intestate, upwards of twenty-one years of age, or both, as the judge of probate may think fit," in thirty days or sooner, and that an inventory of all the estate of the deceased be taken in three months &c., and if the widow or next of kin refuse &c. after the thirty days, the judge may commit administration" to some one or more of the principal creditors," if accepted by them, or others, as he shall think fit upon their refusal; and each administrator so appointed must give bond, as the law directs, to render a true inventory and an account of administration that no administration de bonis non be granted, unless it appear to the judge that there is personal estate of the deceased not administered upon, to the amount of £5, or upwards, and that no “administration be originally granted upon the estate of any person deceased, after the expiration of twenty years from the death of such person." On this law a minor is not entitled to administration. £5 was the sum in the Province act of 1723.

4 Mass. R.
348,

M'Gooch v.
M'Gooch.

12 Mod. 617, Slaughter v.

336.

7. By the 17 Ch. II, if the executor or administrator get judgment in England and die, the administrator de bonis non shall have a scire facias, as well as debt. This act has not been adopted here, as it has been held.

8. In this case it has been decided in construction of the above act, that the intestate's widow is exclusively entitled to the administration on his estate, unless there be among his next of kin a suitable person to be joined with her in the judge's opinion, or to administer alone. As to administration in other States, see s. 17 and art. 4, s. 19.

9. If administration be granted to one not next of kin, it is not void, and all acts done by him before it is repealed, are May-1 Bin. good. Administration may be granted to A, during B's absence, but his absence must be averred in A's declaration; Salk. 42; 2 Ld. Raym. 1071. And administration must be granted where the intestate bas his domicil. So one's will of personal estate must be executed according to the law of the place of his domicil at his death; if void by that law, it will not pass personal estate in a foreign country, though executed according to the law there; 1 Bin. 336, Desesbats v. Berquier; 5 East 131; Toller 387.

5 East 131.

10. Who is next of kin, may often be a question on the As to admin- above act of March 1784, as on the English act of 21 of H. istration dur- VIII, which is in the same words, to wit: "unto the widow or tor's absence, to the next of kin, or to both."

ing execu

So that the construction in

see 8 Cranch this point given of this English statute applies here, and on this

9, 30, can

not be, if he be capable.-3 Salk. 21.-1 Com. 360.-2 Stra. 891, 1111.

CH. 29.

Art. 1.

Chris. Notes

618.-Toller'

English act the order has been determined to be, and so on our act: 1. To the husband on his wife's estate: 2. To her on his 3. If no husband or wife, to the children, sons or daughters of the whole or half blood: if no children, then to 1 Wils. 168. the next of kin, as father or mother, and after them uncle, 2 Bl. Com. aunt, or cousin lastly to a creditor of the deceased, or to 78.-12 Mod. any other person at the judge's discretion; but by our act, this 622.-4 Co. other person cannot have administration till the creditors shall 51.-12 Mod. have refused. But this does not extend to goods the wife L. of Ex'rs. deceased had as executrix to another husband, administra- 118, 122.tion on his goods must go to his next of kin; and administra343, 360.tion goes to the son before the father, though in equal degree. 1 Salk. 28.Where there is a brother and a sister of the half blood, admin- 12 Mod. 618. istration may be granted to her, for she is in equal degree of kindred; but if married, then to the brother, and not to her and her husband. To a feme covert, if next of kin, and if she refuse, to her husband; and though grandfather and uncle be in equal degree, the former has the preference.

1 Com. D.

-12

§ 11. The next of kin are found by the rules of the Civil 2 Bl. Com. Ch. Notes 78; law, including relations both on the paternal and maternal Evelin v. sides, who are to have the benefit of the statute of distributions. Evelin.But brothers and sisters exclude grand parents, though in 12 Mod. equal degree. The grandmother is nearer than the aunt, for 623.-Salk. aunt and neice are related only in the third degree. Brothers 37, Fawtry Fawtry. and sisters are nearer than grandmother, and aunt than great grandmother. It is said, administration of the intestate's goods may be granted to his wife or next of kin, or of part to one, and of part to the other, but of hers must be to the husband; but one entire debt cannot be divided. Part to one, not our practice.

Mass. Act,

Tracy. Diş

§ 12. By this act it is enacted, that when any executor or Feb. 6, 1784, administrator shall reside without the limits of this state at the A. D. 1818. time of taking on him the trust, or shall afterwards remove out, See a. 13, s. 22, Absent and shall neglect or refuse, after due notice from the judge of Executors probate, to render his account and make a settlement of the &c.-2 Mod, estate with the creditors, legatees, and heirs, or their legal 204, Smith v. representatives; or when any executor or administrator shall tribution is become insane, or otherwise incapable of, or evidently unsuit- made equally able to discharge the trust, the judge of probate is authorized among childto grant administration with the will annexed, or otherwise, to whole and such person within the government, as he shall judge meet; half blood. and the administrator so appointed to have the same power, Cooke, so and to do the same duty as if the former administrator or ex- decided in ecutor were dead.

ren of the

the House of Lords, Ch. 17.

13. And when the executor is under twenty-one years of The Surrogate has discretionary power to choose an adm. from those who are next of kin to the intestate, and may grant sole administration to one of them, 2 Caines' Ca., Ch. 143.

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CH. 29.
Art. 2.

age at the time of proving the will, administration may be granted with the will annexed, during the minority of such executor. So if an executor refuse the trust.

§ 14. And "when a feme sole shall jointly with one or more persons be appointed executrix or administratrix, and after such appointment, during the life of the other executor or administrator, marry, such marriage shall not make the baron an executor or administrator in her right, but shall operate as an extinguishment or determination of such woman's power and authority," and the other may proceed as if she were dead.

15. "And the executor of an executor shall not in consequence thereof become an executor of the first testator; but in every such case administration may be granted" on his goods and estate not administered on, with the will annexed, "to such person or persons as the judge of probate may think 2 Vern. 514, fit." So administration may be granted to two, and if one dies, the survivor is sole administrator, or on condition, or till one returns, by the English law.

Hudson v.
Hudson.-

1 Rol. 908.

Stra. 917,

Waller.

16. So if there be a doubt who ought to be adminisWoolaston v. trator, or there is a dispute about the will, administration may be granted during such absence or pendente lite of necessity, and such administrator may bring actions. This was decided on a writ of error after three arguments.

1 Com. D. 362.

3 Mass. R. 514, Good

win v. Jones,

contra 4 Dallas 292, and Kirby 270.2 Bl. Com. 503.

3 Wood's Con. 102.Fearne 308, 309, Allen

17. In this case it was decided, that if A receive administration in another state, as at Hartford in Connecticut, he cannot by virtue thereof sue or defend in the courts in this state. By Mass. act, Feb. 6, 1784, sect. 19, we avoid the very litigated point in England, whether an executrix marrying can administer without her husband's consent; but 1 Cranch 259, agrees with Goodwin v. Jones. Administration in a state is void in the District of Columbia; Fenwick v. Sears' administrators, and 3 Day's Cases 74, 303, agree with Goodwin v. Jones. The case in Kirby 270, was decided on immemorial usage in Connecticut; so had been the usage in Massachusetts till the decision in Goodwin v. Jones, and Morrill v. Dickey, 1 Johns Ch. R. 153.

ART. 2. Executors, how appointed &c. 1. An executor is one appointed by the testator in his will, and has it when proved committed to his care to execute. He represents the adm. v. Dun- testator and is bound by his bond or contract, though not named in it, and if a contract or promise be made to the testator, his heirs or successors, his administrator or executors shall have it; and if a payment be made to an executor under a forged will regularly proved, the debtor is discharged.

dass-3 T. R. 125, 133.2 Phil. Evid. 289, 299.

1 Salk. 103,

2. He is complete executor before probate for all purWakeford v. poses but of bringing actions. He may release and be sued,

Wakeford.

1 Salk. 183.-2 Bl. Com. 503.-5 Co. 28.-Stat. 1783, C. 24-Stat. Feb. 24, 1818.

and alien goods in England. Here if he does these things, as release and alien goods, and afterwards gives bond and proves the will, the probate relates back to protect these acts, but if not proved, they must be acts in his own wrong. If several executors be appointed, none can intermeddle but such as give bonds. If no objection, a will may be proved by one

witness.

CH. 29.

Art. 2.

129.-Cro.

36.-2 Bac.

§ 3. Who may be appointed executors. All persons may be Imp. 46, 47.-executors who can make wills, and many more; an infant Co. L. 128, may be an executor, though he cannot administer till he is Car. 9.-Cro. twenty-one years of age, as above. So a feme covert may be El.142.-Salk. executrix, but not jointly with others, as before; she must Abr 376. sue and be sued with her husband. So one outlawed may sue as an executor. An alien may be an executor or administrator, and even an alien enemy; but idiots and persons non 1 Cranch 259. compos mentis cannot be executors or administrators, for they cannot execute the trust. By the law of Virginia an execu- 5 Cranch 360. tor cannot act till he has given bonds.

---3 Cranch 315.

sect. 16, and

4. Their duties by statute. Executors, by this act, must Mass. act. prove the will within thirty days after the testator's death, and Feb. 6, 1784, cause it to be recorded in the probate office, in the county A. D. 1818. where he last dwelt, and signify his, the executor's, refusal or acceptance; and for his neglect he forfeits £5 a month; and if the executor refuse the trust, the judge must "commit administration of the estate of the deceased, with the will annexed, unto the widow or next of kin, to the deceased, or to one or more of the devisees, or in case of their refusal, to one or more of the principal creditors, as he shall think fit." And a power accompanied with an interest, vests in the executors Kerby 316. and administrators. Kellogg v. Williams. Liable for not proving a will, Ch. 148, a. 10, s. 5, and how.

Frauds, also

§ 5. Executor in his own wrong. By the same section it See post, art. is enacted, "If any person shall alienate or embezzle any of 6, and post, the goods or chattels of the deceased person, before he or she 43 El.hove taken out letters of administration, and exhibited a true Mass. act, June 20,1794. inventory of all the known estate of the person deceased, ev- Post, Insolery such person shall stand chargeable, and be liable to the vency. actions of the creditors and other persons aggrieved, as being executors in their own wrong." The jury must decide if the v. Priest. facts be proved but what acts make this executor, is a question of law. When one is executor of his own wrong by reason of a fraudulent deed, see Fraud, post.

acts that "

2 T. R. 97, 100, Pagget

act of A. D. 1818, in

$6. By the same act executors must give bond, which en- Sect. 17, and every executor named in a will, hereafter to be proved, shall give bond to the judges of probate, with suffi- cludes real estate and cient surety or sureties, to return upon oath, a true and perrights and fect inventory of the testator's estate into the probate office, credits.

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