It would be necessary

upon the settlement of his account. for him to show, in support of his application for an allowance in such a case, that the payment was beneficial to the estate, or was made with the assent of the parties interested. Cobb vs. Mussey, 13 Gray, 57; Luscomb vs. Ballard, 5 Gray, 403.

As against creditors, an executor is allowed reasonable funeral charges, expenses of last sickness, and such other claims as are preferred by the local statutes. The expenses

of administration, found to have been necessary by the judge of probate, are always allowed him; and he is entitled to be allowed for the amount of any debts inventoried as due to the deceased, if it appears to the court that they remain uncollected without his fault. He will also be allowed, if he has sold property for less than the appraised value, if it appear that the sale was expedient and for the interest of all concerned. If he is himself a creditor, he should either procure the assent of all parties in interest to payment of his debt, or file a statement thereof in the probate court and take the direction of the judge thereupon.

SECTION 2.

Of Executors in their Own Wrong.

A stranger, that is, one who has no right to act as executor, but who takes upon himself to act therein without authority, is called an executor of his own wrong, and is liable to all the trouble of an executorship, without any of its profits or advantages. Such a person cannot bring an action himself in right of the deceased, but actions may be brought against him. He is chargeable with the debts of the deceased, so far as assets come to his hands; and, as against general creditors, will be allowed payments made to any other creditor in a superior degree, (that is, having priority of claim,) but will not usually be allowed the payment of his own debt. He is liable to account to an authorized executor, though not to the next of kin. A sale of goods by him will be voidable, in favor of an administrator duly appointed, even though he himself becomes such administrator.

SECTION 3.

Of Administrators, and their Powers and Duties.

We have seen, that when a person dies, without a will, he is said to die intestate, and the law prescribes the manner in which his estate shall be settled and his property disposed of. Where the testator left a will and omitted to name an executor thereof; or the executor named is dead, or neglects or refuses to accept the trust, or is a minor, or for other cause incompetent, administration, "with the will annexed," is granted. Such an administrator is governed, as an executor would have been, by the directions of the will, and not by the general law which regulates the settlement of intestate estates.

When a sole executor, or an administrator with the will annexed, dies after entering upon the duties of his trust and before it is discharged, or is removed, or resigns, or becomes incompetent, an administrator is usually appointed to complete the settlement of the estate according to the directions of the will. Special administration is sometimes granted, for the purpose of preserving and protecting the estate for the executor or administrator who may be afterwards appointed, where, by reason of controversy over proof of a will or for other cause, there is delay in the granting of letters testamentary or of administration.

We have spoken of a case in Section 1, in which administration will be granted in a State or country other than that in which the deceased had his home at the time of his death. Such administration is auxiliary (technically termed ancillary,) to the principal executorship or administration granted where the deceased dwelt. The appointment of such an administrator, however, will not necessarily await administration in the place of the domicil of the deceased, but will be granted upon proper case made, though no administrator has been appointed in the foreign State; and even if the deceased left a will, which has never been offered for probate in the place where he lived.

The persons who are entitled to a grant of administration are usually pointed out in the local statutes. They are generally the next of kin; and if they renounce administration, or are incompetent, or neglect for a stipulated period to apply for administration, a principal creditor, or any other competent person, may be appointed. Application for administration must be made in writing, to the probate court having jurisdiction. The petition should set forth the fact of the death of the person, the time of his death, the county in which he was last resident, and the grounds on which the petitioner asks to be appointed. It should also state the name and residence of the widow, if any, and the names, residences, and degree of kindred, of his next of kin. If they have neglected or declined to administer, that fact should be stated. If the petitioner is a stranger to the estate, the reason upon which he bases his application should be stated. If the petitioner is widow, or next of kin to the deceased, or if such parties appear and request the appointment of a stranger, who is evidently a fit and proper person, the appointment may properly be made in the discretion of the judge, without notice to creditors or other persons interested. But, if application be made by a creditor, or a stranger to the estate, without the special assent to his appointment of persons having the prior right, notice should be given to persons interested, that their objection may be heard.

Renunciation of administration, or assent to the appointment of another, should properly be in writing, in all cases. The appointment of an administrator is made effective and complete by the approval of the bond required of him by statute. The general duties of an administrator are similar to those of an executor, except that the latter is guided in his action by the will which he executes, while the former is governed entirely by the local statutes which regulate the settlement of intestate estates.

Of the rules of distribution of intestate estates, we have spoken in Chapter XXVI.

CHAPTER XXXVII.

OF APPRENTICES.

SECTION 1. General Principles.

APPRENTICES are a class of employés, usually minors, who are bound to service for a term of years, to learn some art or trade. The contract of apprenticeship is, therefore, one, the substantive elements of which are, an agreement that the apprentice shall serve for a term of years, and receive, as a principal return therefor, instruction in his master's business. It is strictly a personal contract, not assignable or terminable, without the assent of all the parties to it.

The binding is usually by the father, if there be one living, and it has been held that he may, at common law, bind his infant son to service as an apprentice, independently of statute provisions. In many of the States, however, there are statute regulations prescribing the manner in which apprentices shall be bound, the substantial provisions of which are as follows the indenture of service is usually to be executed by the father, or in case of his death or incapacity, by the mother; but if there be neither father nor mother, then by guardians, or by selectmen, trustees, or other public officers. The statutes usually require that the minor's assent shall be expressed in the indenture.

An indenture, at common law, is usually executed by the father, with the assent of the minor expressed thereon. Sometimes, however, an agreement is made directly with the minor, and a guaranty taken from the father or other friend, that he shall perform it. While the agreement of the minor

is voidable, the guaranty rests upon sufficient consideration; and, if signed by a responsible party, may be enforced.

It is competent for the legislature to authorize a binding of the minor by his own agreement of indenture, which, if executed with the assent of the father or mother, or, in case of their death or incapacity, by some public officer, shall be valid and obligatory. Some of the States have such provisions.

An apprentice may be discharged by the courts, under the regulations existing in most of the States, from service, or the master from his contract, for good cause shown. The death of the master discharges the apprenticeship, in most cases; for the trust is a personal one, and the apprentice cannot be passed over by assignment, either by the master in his lifetime or by his executors after his death, unless in pursuance of express statute provisions. A master, taking an apprentice in any particular trade or art, has no authority to employ him in ordinary menial service, unconnected with the trade.

Apprentices are not entitled to wages, unless expressly stipulated for but the master is, by his relation to the apprentice, bound to pay for his medical attendance; and, in the absence of any stipulation for wages, he is ordinarily bound to furnish him with suitable food and clothing, and other necessaries.

The master is entitled to the earnings of the apprentice, under all circumstances, and it will be no defence that the money was not earned in the master's line of business, that the employment was without the consent of the master, that the employer had no knowledge that he was an apprentice, or even that he has paid the apprentice his wages. If there be a valid indenture, an action will lie for the master to recover the whole; the ground of recovery being that the master, having contracted for his time, is entitled to its avails.

The power of the master over the person of the apprentice is similar to that of a parent or guardian. The statutes of the different States frequently provide also for complaint to a magistrate by the master or apprentice, upon departure from