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VERMONT. – Every person of full age and sound mind may make a will. A will must be in writing, signed by the testator, or for him, in his presence, and by his direction, and attested and subscribed by three or more credible witnesses, in his presence, and in presence of each other. Wills may be typewritten. Nuncupative wills allowed under certain restrictions.
VIRGINIA. - Every person twenty-one years of age, and of sound mind, may make a will of real estate, and persons of eighteen years may bequeath personal property. The will must be signed by the testator, or some one for him, by his direction, and in his presence, and, unless holographic, attested in his presence, and in the presence of each other, by two or more competent wit
WASHINGTON.- Every male above the age of twenty-one years, and every female above the age of eighteen, may dispose of property, real and personal, by will. The will must be in writing, signed by the testator, or by some person under his direction, and attested by two or more competent witnesses, subscribing their names in the presence of the testator. Nuncupative wills are valid only when the provisions of the restrictive statute are complied with.
WEST VIRGINIA. — The testator disposing of real estate must be twenty-one years of age, and of sound mind. The will must be in writing, signed by the testator, or by some one for him, in his presence, and by his direction, and unless holographic, the signature must be made and the will acknowledged in the presence of two competent witnesses, present at the same time, and who subscribe in the presence of the testator. Testators, eighteen years of age, may dispose of personal property by will. Holographic wills require no witnesses. Wills may be typewritten.
WISCONSIN.- Every person of full age, and any married woman of the age of eighteen years, may make a will. Wills must be in writing signed by the testator, or some one in his presence, and by his direction, and attested and subscribed in his presence by two or more competent witnesses.
WYOMING. — Any person of full age and sound mind may make a will. The will must be in writing, signed by the testator, or by some other person, in his presence and by his direction, and attested by two competent witnesses.
For Statutes of Hawaii, the Philippines and Porto Rico see Appendix.
EXECUTORS AND ADMINISTRATORS.
An executor is a person named in the will of a deceased person, to settle his or her estate. There may be one or more; and they may be male or female. An administrator is one
appointed by the court to settle the estate of a deceased person. If the deceased left a will, but did not appoint an executor, or the appointed executor refuses to act, or resigns, or dies, or for any reason fails to act, an administrator is appointed by the court " with the will annexed." The husband of a deceased wife, or the wife of a deceased husband, has generally the right to be appointed administrator; after them the next of kin in the order of relationship. But the courts have some discretion in the matter.
They act as the personal representatives of the deceased, having in their hands his means, for the purpose of discharging his liabilities, or executing his contracts, and of carrying into effect his will, if he have left one; and, in general, they are liable only so far as these means (called assets), in their hands, are applicable to such a purpose. But they may become personally liable; and a clause in the statute of frauds refers to this subject, making them not liable to pay any debt out of their own means, unless they give a promise to that effect, in writing, signed by them.
In this country, the judicial officer, or judge who has the charge of the settlement of estates, of the proof of wills, and of proceedings under them, is generally called the Judge of Probate. But in some States he is called Surrogate, Register or Registrar of Wills or of Probate, Judge of the Orphan's Court, etc. His powers and duties are very similar all over the coun. try. From his decrees or decisions an appeal may generally be taken, by a party who thinks himself aggrieved, to some higher court. The Judge of Probate is usually a county officer, and his jurisdiction is limited to his county.
If an executor or administrator receives, as such, a promissory note or bill of the deceased, and indorses the same with his name, without adding “executor,” or “administrator," he is liable upon it personally. If he makes a note or bill, signing it
as executor," he is personally liable, unless he expressly limits his promise to pay, by the words, “out of the assets of my testator,” or, “ if the assets be sufficien?," or in some equivalent way; but a note or bill so qualified would not be negotiable, because on condition. If an executor or administrator submits
a disputed question to arbitration, in general terms, and without an express limitation of his liability, and the arbitrators award that he shall pay a certain sum, he is liable to pay it whether he has assets or not. But if the award be merely that a certain sum is due from the estate of the deceased, without saying that the executor or administrator is to pay it, he is not precluded from denying that he has assets.
Where a contract of the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so, and enforce the contract. But where an executory contract is of a strictly personal nature—as, for example, with an author for a specified work, or with an artist for a painting, the death of the writer before his book is completed, or of the artist before the painting is finished, absolutely determines the contract, unless what remains to be done-as, for example, in the case of a book, the preparing of an index, or table of contents, etc., can certainly be done as well and to the same purpose and effect by another.
If executors or administrators pay away money of the deceased by mistake, or enter into contracts for carrying on his business for the benefit of his estate, and to wind up his affairs, they may sue on such contracts either in their individual or their representative capacities; but they should sue in the latter capacity, in order to avoid a set-off against them of their indi. vidual debts.
The title of an administrator does not exist until the grant of administration. Then it goes back to the death of the deceased; but only in order to protect the estate, and not for any other purpose. And if an agent sells goods of the deceased, after his death, and in ignorance of his decease, the adminis. trator may adopt the contract, and sue upon it.
On the death of one of several executors, either before or after probate, the entire right of representation survives to the others. But if an administrator dies, or a sole executor dies, no interest and no right of representation is transmitted to his per. sonal representatives.
An executor derives his authority from the will, and his duties begin at the death of the testator. They may be stated thus:
1. He should cause the deceased to be buried in a suitable manner.
2. He should offer the will for probate as soon as he can with a reasonable regard to his convenience; and in proving the will, filing bonds, giving notice, making and returning an inventory, and the like, he must conform to the law of the State and the rules of the probate; and he will obtain at the office sufficient information on all these points.
3. He must collect the property, and after paying the debts, he must distribute or dispose of the remainder as the will directs.
4. He must render his account from time to time, until a final settlement of the estate is made, and will be directed at the Probate Office when and how to file his accounts.
An administrator derives his authority from the court. But his duties are then substantially similar to those of an executor; excepting, that he must distribute and dispose of the estate as the law requires, as he has no will to direct him, unless he is an administrator with the will annexed. The debts must be paid in a certain order. This is not precisely the same in all the States; but it is very generally as follows:
1. Funeral expenses, charges of the last sickness, and probate charges.
2. Debts due to the United States.
3. Debts due to the State in which the deceased had his home.
4. Any liens attaching to the property by law. 5. To creditors generally.
If the estate is insufficient to pay all the debts due from it, as soon as the executor or administrator finds this to be the case, he should represent the case as insolvent at the Probate Court, and thereafter follow the requirements of the law of the State and the rules of the Probate Office, in reference to insolvent estates of deceased persons.
most of the States, all the necessary forms or instruments are given to applicants at the Probate Office.
GUARDIANS. GUARDIANS of all descriptions are treated by courts as trustees ; and in almost all cases they are required to give security for the faithful discharge of their duty, unless the guardian be appointed by will, and the testator has exercised the power given him by statute, of requiring that the guardian shall not be called upon to give bonds. But, even in this case, such testamentary provision is wholly personal ; and if the individ. ual dies, refuses the appointment, or resigns it, or is removed from it, and a substitute is appointed by court, this substitute must give bonds.
The guardian is held, in this country, to have only a naked authority, not coupled with an interest. His possession of the property of his ward is not such as gives him a personal interest, being only for the purpose of agency. But for the benefit of his ward he has a very general power over it. He manages and disposes of the personal property at his own discretion, although it is safer for him to obtain the power of the court for any important measure. He may lease the real estate, if appointed by will or court; he cannot, however, sell the real estate with. out leave of the proper court.
Nor should he convert the personal estate into real, without such leave.
As trustee, a guardian is held to a strictly honest discharge of his duty, and cannot act in relation to the subject of his trust for his own personal benefit, in any contract whatever. And if a benefit arises thereby, as in the settlement of a debt due from the ward, this benefit belongs wholly to the ward. And it has been held that if a guardian makes use of his own money to erect buildings on the land of his ward, without having an order of the court therefor, he cannot charge the same in account with his ward, or recover the amount from the ward. But we doubt whether a rule so severe would be applied unless for special reasons. He must neither make suffer any waste of the inheritance, and is held very strictly to a careful management of all personal property. He is respon