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or mistake in issuing letters of administration prematurely, the surrogate is required to have satisfactory proof that the person of whose estate administration is claimed is dead, and died intestate; and when application is made to administer, by any person not first entitled, there must be a written renunciation of the party having the prior right to administer, or a citation to show cause is to be first issued to all such persons, and duly served or otherwise published. (d)

According to the provision in the New York Revised Statutes, if none of the relatives, or guardians of infant relatives, (for the guardians of miners who are entitled may administer for them,) will accept the administration, then it is to be given to the creditors of the deceased; and the creditor first applying, if otherwise competent, is to be preferred. (e) If no creditor applies, then to any other person legally competent. (f) In the city of New York the public administrator has preference after the next of kin; and in the other counties the county treasurer has preference next after creditors. (g) In the case of a married woman dying intestate, the husband is entitled to administration in preference to any other person; and he is liable, as adminis

R. 217. The N. Y. Revised Statutes, vol. ii. p. 74, sec. 27, seems to have destroyed this discretion. But the Massachusetts Revised Statutes, 1836, and the New Jersey statute of 1795, Elmer's Dig. 165, leave it as in the English law.

(d) N. Y. Revised Laws, vol. ii. p. 74, sec. 26. Ibid. p. 76, secs. 35, 36. In England, an executor who has renounced, may retract before administration is actually granted to another.2 M'Donnell v. Pendergast, 3 Hagg. E. R. 212. And in New York, the surrogate may, with the consent of the person entitled, join one or more competent persons with him in the administration. When administration is granted to two or more persons, it being an entire thing, if one dies, the entire authority remains with the survivors, the same as in the case of executors. Lewis v. Brooke, 6 Yerger (Tenn.) 167.

(e) In North Carolina the greatest creditor is, in such case, entitled to the preference. Act, 1792.

(f) The same general rules are prescribed in the Massachusetts Revised Statutes of 1836, and exist throughout this country.

(g) N. Y. Revised Statutes, vol. ii. p. 74, sec. 27. Where persons not inhabitants of the state of New York die, leaving assets in the state, if no application for letters of administration be made by a relative entitled thereto, and legally competent, and letters testamentary or of administration have been granted by competent authority in any other state, the person so appointed, on producing such letters, is entitled to letters of administration in preference to creditors, or any other person, except the public adminis trator in the city of New York. Ibid. p. 75, sec. 31.

2 So in New York. Robertson v. McGeoch, 11 Paige, 640.

3 See Randall v. Shrader, 17 Ala. 333.

trator, for the debts of his wife, only to the extent of the assets received by him. If he does not administer on her estate, he is presumed to have assets, and is liable for the debts. (h) Under the English law, at least until lately, if the husband dies leaving the goods of the former wife unadministered, the right of administration de bonis non belongs to the next of kin * 412 of the wife; though the right of property belongs to the representatives of the husband. The principle of the English

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statute of 21 Hen. VIII. was to vest the administration de bonis non in the person who was next of kin at the time of the intestate's death, and who was possessed of the beneficial interest in the personal estate. The case of Hole v. Dolman, in 1736, was an anomalous case, and established an exception to the general rule; for the original administration to a feme covert was granted to her next of kin, in preference to the representative of the deceased husband, who survived her, and in whom the interest was vested. (a)

When there are several persons of the same degree of kindred to the intestate entitled to administration, they are preferred in the following order: first, males to females; second, relatives of the whole blood to those of the half blood; third, unmarried, to married women; and when there are several persons equally entitled, the surrogate, in his discretion, may grant letters to one or more of them. (b) No person convicted of an infamous crime, or incapable by law of making a contract, nor a non-resident alien,

(h) N. Y. Revised Statutes, vol. ii. p. 74, sec. 27. Ibid. p. 75, secs. 29, 33; and vide supra, pp. 135, 136.

(a) 1 Hagg. E. R. 341, in notes. 2 Idem. 631. Suppl. 150, 165. The recent doctrine in Betts v. Kimpton, 2 B. & Adol. 273, is also that administration de bonis non of the wife's choses in action left unadministered by the husband, goes to the next of kin of the wife, to be administered, however, for the benefit of the husband's representa tives. See supra, 136. But in the still later case of Fielder v. Hanger, 3 Hagg. E. R. 769, the more reasonable rule is at last adopted, that the administration on the estate of a deceased wife follows the interest, and on the husband's death goes to his representatives.

(b) N. Y. Revised Statutes, vol. ii. p. 74, sec. 28. The statute law of New Jersey of 1795, follows closely the English law on the subject of administration. Elmer's Digest, 165.

1 But males who are minors and reside out of the state will not be preferred to adult females resident in the state. Wickwire v. Chapman, 15 Barb. (N. Y.) 302.

or minor, or feme covert, or person deemed incompetent by the surrogate by reason of drunkenness, improvidence, or want of understanding, is entitled to administer; but the husband is entitled to administer in the right and behalf of his wife; and with the consent, in writing, of the party entitled, one or more competent persons may be associated by the surrogate with an administrator. (c) The husband who administers on his wife's estate is now bound (though contrary to the English law and the former law of New York) to give a bond, in the same manner as other administrators; yet he is not bound, in consequence of it, to distribute the estate after the debts are paid; but he continues to enjoy it according to the rules of the common law. (d) * If letters of administration should happen to have been unduly granted, they may be revoked, and administration. may be granted upon condition, or for a limited time, or for a special purpose; as for the collection and preservation of the goods of the deceased; and it is the received doctrine that all sales made in good faith, and all lawful acts done either by administrators before notice of a will, or by executors or adminis trators, who may be removed or superseded, or become incapable, shall remain valid, and not be impeached on any will appearing, or by any subsequent revocation or superseding of the authority of such executors or administrators. (a)

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The nearness of kin, under the English law, is computed ac

(c) Ibid. vol. ii. p. 75, sec. 32, 34. Act of N. Y. April 20, 1830.

(d) New York Revised Statutes, vol. ii. sec. 29. Ibid. p. 98, sec. 79. See supra, p. 135.

(a) Shep. Touch. by Preston, 464. N. Y. Revised Statutes, vol. ii. p. 76, sec. 38. Ibid. p. 79, secs. 46, 47. It is a general rule in the English law, that the grant of letters of administration relates back to the death of the intestate, so as to authorize the administrator to bring trover or trespass for goods of the intestate. Year Book, 36 Hen. VI. fo. 7. Long v. Hebb, Sty. 341. Sharpe v. Stallwood, C. B. 7 Jurist, Part 2,

492.

2 Under the laws of Maryland, a married woman may act as executrix or administratrix. Binnerman v. Weaver, 8 Md. 517. And in Mississippi, the husband of a woman, who is entitled to administer upon an intestate estate, does not by the marriage, succeed to her right. Richards v. Mills, 31 Miss. (2 George) 450.

3 See Coope v. Lowerre, 1 Barb. Ch. 45. A professional gambler is such a person. McMahon v. Harrison, 10 Barb. (N. Y.) 659. 2 Seld. 443.

1 Owings v. Bates, 9 Gill, 463. See, also, Stoker v. Kendall, Busbee L. 212. Cole v. Dial, 12 Texas, 100.

cording to the civil law, which makes the intestate himself the terminus a quo, or point whence the degrees are numbered; and, therefore, the children and parents of the intestate are equally near, being all related to him in the first degree; but in this instance the surrogate has not his option between them, but must prefer the children. (b) And from the children and parents the next degree embraces the brothers and grandparents, and so on in the same order. The law and course in those states which follow the English law must be to grant administration, first, to the husband or wife; second, to the children, sons or daughters; third, to the parents, father or mother; fourth, to the brothers or sisters of the whole blood; fifth, to the brothers or sisters of the half blood; sixth, to the grandparents; seventh, to the uncles, aunts, nephews, and nieces, who stand in equal degree; eighth, to cousins. (c) Grandmothers are preferred to aunts, as nearer of kin; for the grandmother stands in the second degree to the intestate, and the aunt in the third. (d) If none of the next of kin will accept, the surrogate may exercise his * 414 discretion whom to appoint; and he usually decrees it to the claimant who has the greatest interest in the effects of the intestate. (a) If no one offers, he must then appoint a mere trustee ad colligendum, to collect and keep safe the effects of the intestate; and this last special appointment gives no power to sell any part of the goods, not even perishable articles; nor can the surrogate confer upon him that power. (b) This very inconvenient want of power is supplied by the New York Revised Statutes; (c) and an administrator, ad colligendum, (who is called in the statute a collector,) may, under the direction of the surrogate, sell perishable goods, after they shall have been appraised.

(2.) Of the power and duty of the administrator.

The administrator must enter into a bond before the judge of probate, (under whatever name the competent court may be known,) with sureties for the faithful execution of his trust; and,

(b) 2 Vern. 125, arg. 2 Blacks. Com. 504.

(c) Shep. Touch. by Preston, vol. ii. p. 453. Durant v. Prestwood, 1 Atk. 454

(d) Blackborough v. Davis, 1 P. Wms. 41.

(a) Tucker v. Westgarth, 2 Addams, 352.

(b) 1 Roll. Abr. tit. Executor. Shep. Touch. by Preston, vol. ii. p. 488. (c) Vol. ii. p. 76, sec. 39.

being thus duly appointed, it is his duty to proceed forthwith to the execution of his trust. (d) His powers and duties under the common law of the land may be summarily comprehended in the following particulars: 1. He is to make an inventory of the goods and chattels of the intestate, in the presence and with the assistance of appraisers, who, in New York, Massachusetts, and probably in other states, are to be appointed by the probate court, and sworn; and under the English law they are selected by the executor or administrator, from the creditors, or next of kin, or discreet neighbors. (e) Two copies of this inventory are to be made and indented, and one copy is to be lodged with the surrogate, under the attestation of the administrator's oath, and *415 the other is to be retained. (f) This inventory is in

(d) N. Y. Revised Statutes, vol. ii. p. 77, sec. 42. Under the N. Y. Revised Statutes, vol. ii. p. 70, secs. 6, 76, the surrogate, if he deem the circumstances of the case to require it, may require an executor to give security. If he be about to remove out of the state, he may, in that case, also require it. See Wood v. Wood, 4 Paige, 299. In Tennessee, executors must give security equally with administrators, before they can lawfully act. Act of 1813. 4 Yerger, 20. By the Massachusetts Revised Statutes of 1836, and the Revised Statutes of Vermont, 1839, p. 260, the executor as well as the administrator, before he enters on his trust, must in all cases give bond, with sufficient surety, to the judge of probate, for the faithful execution of his trust, and, as a consequence, the executor of an executor has no authority to administer on the estate of the first testator. The English rule in equity is, that if an executrix who has infant children marries a second husband in necessitous circumstances, and there is danger of waste, a receiver will be appointed. Dillon v. Lady Mount Cashell, 3 Bro. P. C. 341. Middleton v. Dodswell, 13 Vesey, 268. And this is the rule of equity in South Carolina, (Stairley v. Rabe, 1 McMullan Eq. 22,) and would probably be followed if the case arose in the equity courts in the other states.

(e) The administration bond only binds the administrator to administer the assets within the state, and not goods in another jurisdiction. Governor v. Williams, 3 Ired. (N. C.) 152.

(ƒ) N. Y. Revised Statutes, vol. ii. p. 82, sec. 1. Ibid. p. 84, secs. 15, 16. The New York statute specifies the nature of the assets which shall go to the executor or administrator; and it has followed, in this respect, the rule of the common law. They are the interest of the deceased in leases for years; things annexed to the freehold, for the purpose of trade or manufacture; growing crops raised annually by labor and cultivation, excepting grass and fruit not gathered; rents accrued, debts and things in action, though secured by mortgage, and movable property and effects. N. Y. Revised Statutes, vol. ii. p. 82, sec. 6. Evans v. Iglehart, 6 Gill & Johns. 171, 189, 190, S. P. In Massachusetts, mortgage debts, before foreclosure, are personal assets in the hands of the execu tors and administrators of the mortgagee. Massachusetts Revised Statutes, 1836. Certain necessary domestic articles for family use, as looms, stoves, pictures, school-books, wearing apparel, bedding, table furniture, and a small number of necessary domestic animals, are not to be appraised, but to remain for the use of the widow and children.1

1 The widow of the decedent is entitled to her reasonable support out of the estate during

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