ing the minor, properly and according to his condition, he is entitled to have refunded to him out of the ward's estate. Ordinary personal property coming into the hands of the guardian, which does not bring in income or interest, it is his duty to sell, and so invest it that it shall produce such income. This rule, however, does not apply to family pictures, plate, watches, ornaments, and other property of like nature, which is usually kept on account of the memories connected with it, rather than as a subject of profit.

SECTION 2.

Guardians Appointed by Will or Judicial Decree. The father has general power to appoint a guardian to his minor children by his will. This power was given in England by a statute passed in the reign of Charles II., which has been quite extensively adopted in this country; and such a guardian may be appointed by a father, who is himself a minor. These testamentary guardians have substantially the same powers, and are subject to the same responsibilities, as those differently appointed. Guardians are also appointed by decree of court, to take care of the interests of a minor depending in any suit before such court. These are called guardians ad litem. Idiots, lunatics, and spendthrifts, and such persons generally as are laboring under mental incapacity disqualifying them from the care of their own estates, may have guardians appointed, upon the applications of their friends or of the officers of the towns where they live, under statute provisions in most of the States; and in the absence of such provision, courts of probate or chancery would exercise jurisdiction over such cases, upon proper application made to them. Such guardianships are, however, generally controlled by local statute regulations, which may be easily referred to, but which differ so much in detail in the different States, and are so liable to be changed from time to time, that it is not desirable to refer to them here.

CHAPTER XXXV I.

OF EXECUTORS AND ADMINISTRATORS.

SECTION 1. Of Executors, their Powers, Duties, and

Liabilities.

When a person dies, it is necessary that some one be authorized to settle his affairs. This may have been provided for by the deceased by will, in which case the party so appointed is designated the executor, and the party making the appointment is called the testator. If no such provision is made before death, the law makes it. The person appointed is then called the administrator, and the person deceased, the intestate.

The first duty of an executor is, to have the will proved; and when so proved, it becomes the charter of his powers and authority, subject always to the regulations of the local law. An executor is usually required to give bond, for the care and preservation of property, the payment of debts, and for the due exercise, in all respects, of the powers and authority reposed in him by the law, and by the will of the testator.

The bond may, in many of the States, be dispensed with by express provision in the will, except so far as is required to secure payment of debts. Such bonds may also be legally dispensed with, where all the persons interested in the estate certify their consent thereto. In some of the States, where the executor is also a residuary legatee (a residuary legatee is one who is entitled to the balance of the estate, after the payment of debts and specific legacies and devises,) he is permitted, instead of giving the general bond, which includes, in its condition, the preparing and filing a true inventory of all estate and property, to file a general bond for the payment of debts and legacies, and to omit the filing of an inventory.

Ordinarily, one of the earliest duties is, the preparing and filing of an inventory, which must be enlarged and supplemented whenever additional assets come to the hands of the executor.

Unless specially empowered by the will, the executor has no authority to make sale of real estate, even for the payment of debts, without special direction from the court.

It is the duty of the executor, to take immediate measures for the collection of the debts due the deceased, and for the recovery of any money, goods, effects, or estate, in the fraudulent possession of other persons. He may, ordinarily, settle and compound debts by arbitration or compromise; but, for his own safety, should usually first procure the sanction of the probate court. In some of the States, the time in which he is bound to settle the estate is limited by law; in others, the time is fixed in each case by special decree of the court of probate, having reference to the circumstances of each particular estate and to the time which would probably be required in its proper settlement. When a time is so limited by a decree of the court, it may usually be enlarged from time to time for cause shown.

It is one of the first duties of an executor to give notice of his appointment, by posting and publication, in such manner as may be required by the local statutes or by the decree of the court in a particular case. The executor should carefully preserve evidence of the giving of the notice in the manner required, so that proof thereof may be made, should it be required.

Actions against executors are usually limited by special statutes: but the time is sometimes fixed under statute regulation, by the decree of the court in each particular case. In either case, all persons having claims must present and prove them, or bring an action thereon, within the period so limited. An exception to the rule is sometimes made in favor of creditors whose actions will not accrue within the limited time.

All creditors having such claims should, however, make application to the executor, and to the court of probate, for such action and decrees in relation thereto, as will secure

final payments of their debts. Legacies are usually paid under authority given the executor in the will, without special diIn the absence of such special prorection of the court. vision, the time usually fixed for the payment of legacies, by general law, is one year. Interest is usually allowed the legatees after the expiration of the year, and computation thereof will sometimes be made with annual rests.

If the estate is insolvent, it is the duty of the executor to represent that fact to the probate court, and his neglect to do He is not so may make him personally liable to creditors.

held to answer the suit of any creditor till a year shall have elapsed in some of the States; and, in all of them, ample time is allowed him to satisfy himself of the condition of the estate. Upon representation that an estate is insolvent, commissioners are appointed by the court, who examine, and allow or reject, all claims which are presented: from their decision, either party has a right of appeal usually secured to him by statute; and, at the term of the court at which the appeal is to be entered, the appellant must enter his papers, which should be a brief statement in writing, setting forth distinctly all the material facts which would be required in a declaration in an original writ for the same cause of action; and similar proceedings are thereupon had to those which belong to the pleadings, trial, and determination, of an action at law prosecuted in the usual manner, except that no execution is awarded against the executor, if a debt be found due to the claimant. Final judgment is conclusive; and, if the conclusion of the commissioners is reversed, the list of debts When allowed by them is altered so as to conform thereto.

a creditor, for any cause, omits to prove his claim, and even where he had no actual notice of the proceedings, he must lose his debt, unless additional assets subsequently come to the hands of the executors, in which case the probate court has authority to open the commission and permit him to come in and prove his debt, and all the assets are then applied to such newly proved claim, till its amount of dividend shall equal that previously paid on debts already proved, and the balance is equally divided.

When a man dies leaving estate, to be administered in a State other than that in which he had his home, such estate will not, ordinarily, be transmitted to the home administrator, till citizens of the State in which the estate is found, whether creditors, a widow, or under whatever form their claims may arise, are fairly provided for. This is especially true of cases in which the estate is insolvent: but, in every case, a debtor, or person having possession of the personal estate of the deceased, may refuse to pay over or deliver up, except to an administrator duly appointed in the place where he resides. When there is a will and executor, the executor is usually allowed by statute to file a copy of the will in the State in which the additional estate is found, and authority is granted him thereupon to proceed in its collection. In either case, after the claims of home creditors and citizens are fairly provided for, the balance is transmitted to the administrator where the deceased had his home, and died.

An executor has usually no official authority to collect the rents of real estate, unless authorized by the will of the testator, but as a general rule, such estate vests in the heirs or devisees, immediately upon the death of the owner, and all rents which accrue subsequently to his death belong to them. If an executor is himself indebted to the estate, the debt due from him should be regarded as assets, to be accounted for. He should charge himself with its amount as if he had actually received it from a third person, and is bound to answer upon oath all facts in relation to it, even as to facts which take the case out of the bar of the statute of limitations. See Sigourney vs. Wetherell, 6 Met., 533; Leland vs. Felton, 1 Allen, 531.

An executor of a solvent estate is allowed to credit himself in his account with all sums paid by him in satisfaction of debts due from the deceased at the time of his death. But the estate is not liable for money paid, in pursuance of a promise, the consideration of which arises after the death of a testator or intestate. Upon such a promise, the executor is personally liable, and whether he is to be repaid from the estate, is a question to be determined by the probate court