intestate; then brothers and sisters; then uncles and aunts; and, last of all, cousins. If none of these applied, anyone paying general expenses or anyone who was a creditor of the estate could apply for letters. Who shall be appointed is determined in each state by the local statutes, most of which follow the order given in the preceding section, which is the common law rule. The discretion of the court to reject anyone having prior right can be exercised only in case of the proposed party's drunkenness, improvidence, inability to contract, or lack of understanding. In cases of husband or wife, any divorce recognized by the state law would render the parties ineligible. Generally, as between those having equal rights, men are preferred to women, those of the whole blood to those of the half blood, and single women to married women. If anyone renounces his right, the court will pass such right on to those of the same degree of consanguinity, or those immediately next in order of priority. In case all the property has been left to a sole legatee, such legatee would be appointed administrator of the estate coming to himself. In case a minor was entitled to administer an estate, his guardian would be appointed administrator, at least till the minor came of age. In those localities where there is a public administrator, such administrator would come in before any creditors. In New York, in counties where there is no public administrator, any creditor would have a right to the appointment. If there were no creditors or they declined to serve, the county treasurer would administer and settle the estate. In other states any person having the necessary qualifications could be appointed. § 72. Administration by a Corporation Where a suitable person entitled to administer the estate cannot be found or will not accept, or where those interested agree to such action, the court will appoint a trust company or a bank authorized to act as administrator. The advantages of this procedure to all concerned are set forth more fully in Part V of this work. It is usually to the advantage of all concerned. § 73. Objections to Appointment Generally the probate judge would not appoint a person who was insolvent, who was indebted to the estate, or who was a partner of the decedent. He would not appoint one who had been convicted of an infamous crime, nor a person incapable of entering into a contract, nor an alien, unless the alien was a resident of the state. He would not appoint a minor, but might appoint the guardian of the minor. Anyone interested in the estate would have the right to come into court and object to the appointment of anyone who was ineligible, or to object on any of the grounds above mentioned. Such objections would have to be supported by affidavits or other evidence that would satisfy the judge. § 74. The Public Administrator As has been stated, the public administrator, where such office exists, would be appointed in preference to any creditor. The other cases where the public administrator acts have already been given in §14. § 75. Granting Letters of Administration The petition having been presented in due form, and evidence of all jurisdictional facts and of other relevant matters having been made to the satisfaction of the judge of probate, he decides, on consideration of all the facts, whom he will appoint. It should be said here that if the judge is not satisfied with the evidence submitted by the parties concerned, a probate court has the right to issue subpoenas to anyone within its jurisdiction and to examine them as to all facts in the particular matter before the court. All other parties having a prior right to administration having been duly cited, and no sufficient reason appearing why the court should not issue letters, the court will direct issuance of letters, conditioned usually on the giving of a bond in proper amount to secure the interest of all concerned. § 76. Giving Bond In some cases, an executor may not have to furnish a bond, but an administrator is always required to give bond. The bond is executed to the people of the state and is filed with the surrogate. It should be a joint and several bond of the applicant for letters of administration with two other persons as surety or a company approved by the court as a surety. The bond usually should be for an amount not less than twice the value of the property to be administered, although in New York State it need be only for the amount of the personal estate. It should be conditioned that the administrator will faithfully perform the duties of the office to which he has been appointed, and, to the best of his ability, all such acts as touch upon the administration of the estate. The amount to be fixed as a penalty will be decided by the probate judge after examination of the applicant and upon any other relevant testimony. § 77. Issuing Letters of Administration The form of the letters issued to a general administrator is usually general in terms and varies in different parts of the country. The form used in the probate court of New York County is practically the same as that for letters testamentary, which is shown in Form 12. § 78. Settlement Without Administration Where there are no creditors, the heirs or next of kin, if not minors or otherwise incapacitated to contract, may, by private agreement, settle the estate without taking out letters of administration. It is competent for all the heirs of a deceased person, if they are of age, to settle and pay all the debts of the estate and divide the property among themselves without the intervention of an administrator, and neither the creditors nor debtors of the estate have a right to complain.' Where an estate is not in debt, and the heirs at law, being of full age, carry out a settlement upon which they have all agreed, and by which they receive all that they could by virtue of an administration, they are estopped from disturbing it.' Each one who would be entitled to a share under the laws of the state should give a release of his share in form as follows: I, the undersigned, being entitled to a certain share in Attest: IRVIN REYNOLDS (L. S.) If there are registered stocks and bonds which must be transferred on the books of the respective corporations, it will be necessary, as a rule, to take out letters in order to transfer them. Where there are inheritance or transfer taxes to be paid it may be necessary to secure formal administration. If moneys belonging to the deceased were on deposit, they could not be withdrawn except by a duly appointed executor or administrator. If any claims had to be collected by suit, it would 1 Taylor v. Phillips, 30 Vt. 238. Needham v. Gillet, 39 Mich. 574. be necessary to take out letters in order to sue. reasons it is usually necessary to resort to the courts. For these REVIEW QUESTIONS 1. What is the difference between the functions of an executor and those of an administrator? Where does an administrator look for his authority? When is an administrator appointed? Who appoints an administrator? 2. What facts give a probate court jurisdiction to appoint an administrator? When a person is missing, what is the presumption as to death? What probate court would have jurisdiction? 3. Who may petition for the appointment of an administrator? If no such person applies, who may apply? What should the petition show? Who would be cited? When would no citation be issued? 4. Who are concerned and in what order? What would be ground for rejecting anyone having a prior right? If anyone having prior right renounces, what is done? If a minor were entitled to be appointed, what would be done? When the office of public administrator exists, where would he rank? 5. What are the advantages of administration by a corporation? When will a court appoint a bank or a trust company administrator? 6. What would be proper objections to urge against the appointment of any particular person as administrator? Who would have the right to interpose such objections? How would these objections be proved? 7. In what cases would the public administrator be entitled to act? 8. Who appoints an administrator? How does he determine whom to appoint? How is the fact of appointment shown? 9. What is the usual form of bond? In what amount? Why is a surety company's bond better? What is the usual consideration of an administrator's bond? 10. What are the essential features of letters of administration? II. Under what circumstances can the heirs settle an estate out of court? What circumstances would make due administration in court essential? |