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EXECUTORS AND ADMINISTRATORS.
1. EXECUTORS AND ADMINISTRATORS-SALE OF CHOSES IN ACTION, -Under
the statute choses in action are to be sold in the same manner as other
personal property. Wickersham v. Johnston, 118.
& NEGOTIABLE INSTRUMENTS. -The executors of the estate of a deceased
person have no authority to sell and transfer notes belonging to the
deceased. They are assets of the estate which can be sold only under
and by order of the probate court. Wickersham v. Johnston, 118.
3. JUDICIAL SALES-ADMINISTRATOR'S SALE WITHOUT APPRAISEMENT
COLLATERAL ATTACK.—The sale of real estate by an executor or adminis-
trator without having it appraised is an irregularity for which the sale
may be set aside in a direct proceeding for that purpose; but it is not
on this account absolutely void in a collateral proceeding after confir.
mation by the probate court; nor is void because appraisement was
made before the entry of the order of sale. Noland v. Barrett, 572.
JUDICIAL SALES. -ADMINISTRATOR'S SALES OF REAL ESTATE, under
orders of the probate court, in those states which require such sales to
be reported to the court for its approval or rejection, are judicial
sales. Noland v. Barrett, 572,
8. JUDICIAL SALES. -ADJOURNMENT BY AN ADMINISTRATOR of a sale of real
estate to a time different from that fixed in the order of the probate
court authorizing the sale does not render void the sale as afterward
made, reported, and confirmed by such court, especially if the adminis-
trator has exercised a wise discretion in adjourning the sale for the pur.
pose of preventing a sacrifice of the property. Noland v. Barrell, 572.
6. JUDICIAL SALES-CONFIRMATION-CONCLUSIVENESS. --The judgment of
the probate court confirming an adjourned sale of real estate made by
an administrator is final and conclusive until set aside in a direct pro.
ceeding, and cannot bo collaterally attacked. Nolund v. Barrett, 572
7. Right OF EXECUTORS TO INVOKE COVENANT NOT TO CONTEST WILL-
PRIVITY. -The executors of the will of a deceased ancestor are in such,
privity with him that they have the right, as against an heir at law,
who petitions to revoke the probate of the will, to invoke the bene-
fit of the heir's covenant in a compromise agreement not to contest the
will. In re Estate of Garcelon, 134.
8. EVIDENCE-JUDICIAL RECORDS-PROOF OF PROBATE OF FOREIGN WILL,
How MADE TO BE EFFECTUAL. - A foreign judicial record of the pro-
bate of a will may be proved by a copy thereof, attested and certified
as provided by statute, and is admissible in evidence, though, in the
absence of proof of the foreign procedure being different from that of
our own courts, it would be insufficient to support a right claiined
under the will, unless an exemplified copy of the pleadings, petitions,
or proceedings leading up to the order of admitting the will to probato
and giving jurisdiction to make it is also introduced to make the record
11. JUDGMENT–PARTIES.-AN ADMINISTRATOR has no authority to act for
or bind the estate outside of the jurisdiction of the state of his appointe ment, and therefore cannot be bound by a judgment entered against an administrator of the same estate in another state on the ground that he participated in the defense of the action in the other state. Braithe waite v. Harvey, 625.
See APPEAL, 2, 3.
See DEEDS, 3; EXECUTION; FRAUDULENT CONVEYANCES, 4.
See Sales, 1.
See WITNESSES, 8-10.
EXTORTION. L ATTEMPT TO Commit. – Tuis CRIME DEPENDS ON THE MIND AND
INTENT OF THE WRONGDOER, and not on the effect or result upon the person sought to be coerced. Hence, a person may be guilty of an attempt to commit it though he does not, as he intends, produce fear on the part of the persou from whom he attempts to extort. People v.
Gardner, 741. 2 WHERE ALL THE ELEMENTS OF THE CRIME OF AN ATTEMPT to commit
extortion are present the person having the guilty intent cannot eso cape conviction on the ground that the person of whom he sought to extort was acting as a decoy, and therefore was not put in fear by
the threats of the accused. People v. Gardner, 741. . CRIMINAL PROSECUTION-EVIDENCE. – Where, on the part of the prosecu.
tion, evidence is received that the accused was frequently in the company of a person whom he is charged with attempting to extort money from, and that he visited her at her house, and in saloons, etc., it is error to exclude evidence on the part of the defendant that in theso acts he was under the direction of the officers of a society for the prevention of crime, and seeking to aid them, and bringing other persons to justice. People v. Gardner, 741.
See MASTER AND SERVANT, 7-12; RAILROADA, 11.
See Lis PENDENS, &
See MORTGAGES, 7, 8; PERSONAL PROPERTY.
Soo JODOMENTS, 14: MECHANIC's LIEN, 8-10; MORTGAGES, L_18
Seo OFFICERS, 6.
See Banks, 3-6; NEGOTIABLE INSTRUMENTI, 3, 4
DECEIT—JOINT PURCHASE OF LAND.-If one party induces another to join
with him in the purchase of land, each to pay one-half of the purchase
price, which the former falsely represents to be greater than it really
is, and the latter gires the former one-half of such excessive price to be
used in paying for his share, and the former pays for the land with a
smaller amount, keeping the remainder himself, the deceit is action.
able and the latter may recover the amount paid in excess of his share
of the actual price, though the land is worth the price represented
Bergeron v. Miles, 911.
Soo FRAUDULENT CONVEYANCES; JUDGMENTS, 11-13, 18; NEGOTIABLE IN.
STRUMENTS; SPECIFIC PERFORMANCE, 12.
1. EVIDENCE-CONCEALMENT OF BUSINESS CARRIED ON IN Son's NAME.
In an action to subject land purchased in the name of the wife of
an insolvent debtor, and paid for out of the proceeds of a business
carried on by him in the name of his son, evidence that the wife had
no separate estate, that the son had made no other contribution to
the business than the use of his name, that he had paid no atten.
tion to the purchase of the real estate, which was made by his
father, and not showing that the son had ever received any of the
proceeds of the business, or that they have ever had an accounting
with reference thereto, sustains findings that the debtor was the real
owner of the business, and carried it on in the son's name for the
purpose of fraudulently concealing it and its profits from his credito
ors, that the real estate was purchased with such profits, and conveyed
to the wife, and accepted by her with like fraudulent intent, and that
it should be conveyed by her to her husband's assignee for the benefit
of creditors. Ansorge v. Barth, 928.
2. FRAUD AGAINST CREDITORS - CONCEALMENT OF PROPERTY UNDER COVER
OF AGENCY.-An insolvent debtor cannot accumulate property under
cover of another's name, acting ostensibly as the latter's agent. If
such a claim is made, it is always a question of fact whether the busi-
ness actually belongs to such other person or to the ostensible agent
and debtor, and whether the alleged agency is a mere scheme and do-
vice to conceal and keep the property used in, or gained by, it from his
creditors. Ansorge v. Barth, 928.
2. ChatreL MORTGAGE, authorizing the mortgagee to take possession forth.
with, and, in addition to the usual power of sale upon default, author-
izing the mortgagee to sell at private sale or in the usual course of
trade, does not vest any actual title in the mortgagee, and is not
inconsistent with the rights of the mortgagors or their creditors who
may acquire liens to redeem at any time. Hence such mortgage is
not void as a general assignment with preferences. Cluett v. Rosenthal,
INSOLVENT DEBTOR-DISPOSITION OF EXEMPT PROPERTY.- As against
creditors, an insolvent debtor has a right to give his exempt property
to his son as well as his time in carrying on and managing his son's
business. Ansorge v. Barth, 928.
& SUFFICIENCY OF PLEADING TO Show. An allegation in a bill in equity
that the payment by the husband of a mortgage note given for the
purchase money of property conveyed to the wife was for the con-
venience of the husband, and for the purpose of defrauding, hindering,
and delaying his just creditors, of which fact complainant was igno-
rant until recently before the filing of the bill, is an allegation of fraud
in fact, and, coupled with a showing that the complainant, at the time
of such settlement, sustained the relation of creditor to the husband,
is sufficient of itself, if true, to maintain the bill and to subject the
property in the hands of the wife to his debt, to the extent of the
amount thus paid by the husband. Reel v. Livingston, 202.
& PURCHASE BY HUSBAND FOR WIFE-RIGHT OF HUSBAND'S CREDITORS
TO ATTACK. — The fact that property is purchased by the wife and
partly paid for by the busband, and the deed taken in the name of
the wife, coupled with an existing indebtedness of the husband, makes
a prima facie case of fraud, and the creditor of the husband can sub.
ject the property in the hands of the wife or her legal representatives
to his debt to the extent of the amount paid by the husband, unless
the presumption of fraud is negatived by the financial condition of
the husband, and the circumstances at the time, or other rebutting ovi.
dene. Reel v. Livingston, 202.
See DEBTOR AND CREDITOR; PARTNERSHIP, 7.
See HOMESTEAD, 7.
See ASSIGNMENT, 7.
8oo ASSIGNMENT, 3; ATTACHMENT.
Soo BOUNDARIES; Publio LANDS, L
GUARDIAN AND WARD.
See HOMESTEAD, 4.
1 IRREGULARITIES_REVIEW OF JUDGMENT.-After the court has acquired
& JURISDICTION OF INFERIOR COURT-EVIDENCE TO IMPEACH.-In a habeas
corpus proceeding for release from custody under a commitment mado
by a justice of the peace evidence is admissible to show that the
record of the court is untrue, and that the justice never obtained ju.
risdiction of the person of the petitioner. Smith v. Clausmeier, 311.
See STATES, 3, 4.
1. A HOMESTEAD EXEMPTION PROTECTS THE LAND, and not any par.
ticular claim of title to it. Perry v. Ross, 66.
2 Possession.-One having possession of land is owner as to all the world
except the holder of the legal title, and is entitled to the benefit of the
Homestead Act. Perry v. Ross, 66.
& ORDER SETTING APART HOMESTEAD TO Widow-ACTION TO ANNOL,
CONCLUSIVENESS OF_FRAUD.--If the complaint in an action to annul
an order setting apart a homestead to the widow of a deceased husband,
out of his estate, merely sets forth the falsity of the widow's stateinent
made in her petition for the order, and again repeated in ber testimony
apon the hearing thereof, concerning the nature of the title to the land
set apart, it does not state a cause of action, as the question of title
was necessarily involved in the homestead proceeding, and was con-
cluded thereby, the plaintiff having had notice of that proceeding, and
not being prevented by fraud from appearing therein and contesting it.
Fealey v. Fealey, 1ll.
JUDGMENT SETTING APART HOMESTEAD TO WIDOW-CONCLUSIVENESS
OF, AS TO INCOMPETENT HEIR AND GENERAL GUARDIAN. — It is the
duty of a guardian to protect the rights of his ward. Hence, if a
person dies leaving a widow and his mother as his only heirs at law,
and the widow obtains an order setting apart a homestead to her out
of the property of the decedent, the mother, previous to such order,
having been adjndged an incompetent person for whom a general
guardian was appointed, and the guardian having had knowledge of
the homestead proceeding, the juilgment in that proceeding is con-
clusive as to the mother in an action by her to annul the order. Fealey
V. Fealey, 111.
6. RES JUDICATA-HOMESTEAD_COMMUNITY PROPERTY.-In a proceeding
to set apart a homestead to the widow of a decedent, the question as to
whether the land set apart to her is or is not community property is
necessarily put in issue, and is concluded by the judgment. Pealey v.
& JUDGMENT - CONCLUSIVENESS AND EFFECT OF ORDER SETTING APART
HOMESTEAD TO WIDOW OF DECEDENT. — An order setting apart a
homestead to the widow of a decedent, no homestead having been
declared during the lifetime of the deceased, operates to vest in her a
title to the land set apart out of the community property. It is in the
nature of a judgment in rem, is conclusive upon all persons interested
in the estate, if the court has jurisdiction to pronounce it, and can be
mccessfully attacked in equity only upon the same grounds that
judgment in personam may be annulled. Fealey v. Fealey, 111.