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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.

In most of the States, all the necessary forms or instruments are given to applicants at the Probate Office.

CHAPTER. XXXIX.

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 individual 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 without 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 nor suffer any waste of the inheritance, and is held very strictly to a careful management of all personal property. He is respon

sible not only for any misuse of the ward's money or stock, but for letting it lie idle; and if he does so without sufficient cause, he must allow the ward interest or compound interest in his

account.

To secure the proper execution of his trust, he is not only liable to an action by the ward, after the guardianship termi. nates, but, during its pendency, the ward may call him to account by his next friend, or by a guardian appointed by the court for the action. The courts have gone so far as to set aside transactions which took place soon after the ward came of age, and which were beneficial only to the former guardian, on the presumption that undue influence was used, and on the ground of public utility and policy.

A guardian cannot, by his own contract, bind the person or estate of his ward; but if he promise, on a sufficient consideration, to pay the debt of his ward, he is personally bound by his promise, although he expressly promises as guardian. And it is a sufficient consideration if such promise discharge the debt of the ward. And a guardian who thus discharges the debt of his ward may lawfully indemnify himself out of the ward's estate, or if he be discharged from his guardianship, he may have an action against the ward for money paid for his use. An action will not lie against a guardian on a contract made by the ward, but must be brought against the ward, and be defended by the guardian.

The guardianship is a trust so strictly personal, or attached to the individual, that it cannot be transferred from him, either by his own assignment or devise, or by inheritance or succes< sion.

A married woman cannot become a guardian without the consent of her husband; but with that she may. A single woman who is a guardian generally loses her guardianship by marriage; but she may be re-appointed. In some States, she loses it by statute; in others, not.

CHAPTER XL.

CONSTRUCTION AND INTERPRETATION OF CONTRACTS.

SECTION I.

GENERAL PURPOSE AND PRINCIPLES OF CONSTRUCTION.

THE importance of a just and rational construction of every contract and every instrument, is obvious. If any one contract is properly construed, justice is done to the parties directly interested therein. But the rectitude, consistency, and uniformity of all construction, enables all parties to do justice to themselves. For then all parties, before they enter into con tracts, or make or accept instruments, may know the force and effect of the words they employ, of the precautions they use, and of the provisions which they make in their own behalf, or permit to be made by other parties.

It is obvious that this consistency and uniformity of construction can exist only so far as construction is governed by fixed principles, or, in other words, is matter of law. And hence arises the very first rule; which is, that what a contract means is a question of law. It is the court, therefore, that determines the construction of a contract. They do not state the rules and principles of law by which the jury are to be bound in constru ing the language which the parties have used, and then direct the jury to apply them at their discretion to the question of construction; nor do they refer to these rules unless they think proper to do so for the purpose of illustrating and explaining their own decision. But they give to the jury, as matter of law, what the legal construction of the contract is, and this the jury are bound absolutely to take.

A distinction is to be observed between the construction of a contract and the correction of a mistake. For, if it were in proof that the parties had intended to use one word, and that another was in fact used by a mere verbal error in copying or writing, such error might be corrected by a court of equity upon bill tied for that purpose, and the instrument so corrected

would be looked upon as the contract which the parties had made, and be interpreted accordingly. But this jurisdiction is confined strictly to those cases where different language has been used from that which the parties intended. For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties sup posed and intended them to bear, still this actual meaning would, generally, if not always, be held to be their legal meaning. Upon sufficient proof that the contract did not express the meaning of the parties, it might be set aside; but a contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make.

SECTION II.

SOME OF THE GENERAL RULES OF CONSTRUCTION.

THE subject-matter of the contract is to be fully considered. There are very many words and phrases which have one mean. ing in ordinary narration or composition, and quite another when they are used as technical words in relation to some spe. cial subject; and it is obvious that, if this be the subject-matter of the contract, it must be supposed that the words are used in this specific and technical sense.

So, too, the situation of the parties at the time, and of the property which is the subject-matter of the contract, and the intention and purpose of the parties in making the contract, will often be of great service in guiding the construction, be cause this intention will be carried into effect so far as the rules of language and the rules of law will permit. So the moral rule may be applicable, that a party will be held to that meaning which he knew the other party supposed the words to bear,. if this can be done without making a new contract for the parties.

Indeed, the very idea and purpose of construction imply a previous uncertainty as to the meaning of the contract; for where this is clear and unambiguous, there is no room for construction, and nothing for construction to do. A court would not, by construction of a contract, defeat the express stipulations

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