the goods of the deceased; and it is the received doctrine, that all sales made in good faith, and all lawful acts done either by administrators before notice of a will, or by executors or administrators, who may be removed or superseded, or become incapable, shall remain valid, and not be impeached on any will appearing, or by any subsequent revocation or superseding of the authority of such executors or administrators. (a)

The nearness of kin, under the English law, is computed according to the civil law, which makes the intestate himself the terminus a quo, or point from whence the degrees are numbered; and, therefore, the children and parents of the intestate are equally near, being all related to him in the first degree; but in this instance the surrogate has not his option between them, but must prefer the children. (b) And from the children and parents the next degree embraces the brothers and grandparents, and so on in the same order. The law and course in those states which follow the English law must be to grant administration, first, to the husband or wife; second, to the children, sons or daughters; third, to the parents, father or mother; fourth, to the brothers or sisters of the whole blood; fifth, to the brothers or sisters of the half blood; sixth, to the grandparents; seventh, to the uncles, aunts, nephews, and nieces, who stand in equal degree; eighth, to cousins. (c) Grandmothers are preferred to aunts, as nearer of kin; for the grandmother stands in the second degree to the intestate, and the aunt in the third. (d) If none of the next of kin will accept, the surrogate may exercise his discretion whom to appoint; and he usually decrees it to the claimant who has the greatest interest in the effects of the intestate. (e) If no one offers, he must then ap

414

(a) Shep. Touch. by Preston, 464. N. Y. Revised Statutes, vol. ii. p. 76, sec. 38. Ibid. vol. ii. p. 79, sec. 46, 47. It is a general rule in the English law, that the grant of letters of administration relates back to the death of the intestate, so as to authorize the administrator to bring trover or trespass for goods of the intestate. Year Book, 36 Hen. VI. fo. 7. Long v. Hebb, Sty. 341. Tharpe v. Stallwood, C. B. 7 Jurist, Part 2, 492.

(b) 2 Vern. Rep. 125, arg. 2 Blacks. Com. 504.

(c) Shep. Touch. by Preston, vol. ii. p. 453. Durant v. Prestwood, 1 Atk. Rep.

454.

(d) Blackborough v. Davis, 1 P. Wms. 41.

(e) Tucker v. Westgarth, 2 Addams's Rep. 352.

point a mere trustee ad colligendum, to collect and keep safe the effects of the intestate; and this last special appointment gives no power to sell any part of the goods, not even perishable articles; nor can the surrogate confer upon him that power. (a) This very inconvenient want of power is supplied by the New York Revised Statutes; (b) and an administrator, ad colligendum, (who is called in the statute a collector,) may, under the direction of the surrogate, sell perishable goods, after they shall have been appraised.

(2.) Of the power and duty of the administrator.

The administrator must enter into a bond before the judge of probate, (under whatever name the competent court may be known,) with sureties for the faithful execution of his trust; and being thus duly appointed, it is his duty to proceed forthwith to the execution of his trust. (c) His powers and duties under the common-law of the land may be summarily comprehended in the following particulars: 1. He is to make an inventory of the goods and chattels of the intestate, in the presence and with the discretion of appraisers, who, in New York, Massachusetts, and probably in other states, are to be appointed by the probate court, and sworn; and under the English law they are selected by the executor or administrator, from the creditors, or next of

(a) 1 Rol. Abr. tit. Executor. Shep. Touch. by Preston, vol. ii. p. 488. (b) Vol. ii. p. 76, sec. 39.

(c) N. Y. Revised Statutes, vol. ii. p. 77, sec. 42. Under the N. Y. Revised Statutes, vol. ii. p. 70, sec. 6, 76, the surrogate, if he deem the circumstances of the case to require it, may require an executor to give security. If he be about to remove out of the state, he may, in that case, also require it. See Wood v. Wood, 4 Paige's Rep. 299. In Tennessee, executors must give security equally with administrators, before they can lawfully act. Act of 1813. 4 Yerger's Rep. 20. By the Massachusetts Revised Statutes of 1836, and the Revised Statutes of Vermont, 1839, p. 260, the executor as well as the administrator, before he enters on his trust, must in all cases give bond, with sufficient surety, to the judge of probate, for the faithful execution of his trust, and, as a consequence, the executor of an executor has no authority to administer on the estate of the first testator. The English rule in equity is, that if an executrix who has infant children marries a second husband in necessitous circumstances, and there is danger of waste, a receiver will be appointed. Dillon v. Lady Mount Cashell, 3 Bro. P. C. 341. Middleton v. Dodswell, 13 Vesey, Jr., 268. And this is the rule of equity in South Carolina. Stairley v. Rabe, 1 McMullan, Eq. 22, and would probably be followed if the case arose in the equity courts in the other states.

kin, or discreet neighbors. (a) Two copies of this inventory are to be made and indented, and one copy is to be lodged with the surrogate, under the attestation of the administrator's *415 oath, and the other is to be retained. (b) This inven

tory is intended for the benefit of the creditors and next of kin; and the administrator will be obliged to account for the property mentioned in it;1 and he will also be obliged to show

(a) The administration bond only binds the administrator to administer the assets within the state, and not goods in another jurisdiction. Governor v. Williams, 3 Iredell's N. C. Rep. 152.

(b) N. Y. Revised Statutes, vol. ii. p. 82, sec. 1. Ibid. vol. ii. p. 84, sec. 15, 16. The New York statute specifies the nature of the assets which shall go to the executor or administrator; and it has followed, in this respect, the rule of the common law. They are the interest of the deceased in leases for years; things annexed to the freehold, for the purpose of trade or manufacture; growing crops raised annually by labor and cultivation, excepting grass and fruit not gathered; rent accrued, debts and things in action, though secured by mortgage, and movable property and effects. N. Y. Revised Statutes, vol. ii. p. 82, sec. 6. Evans v. Iglehart, 6 Gill & Johnson, 171, 189, 190, S. P. In Massachusetts, mortgage debts, before foreclosure, are personal assets in the hands of the executors and administrators of the mortgagee. Massachusetts Revised Statutes, 1836. Certain necessary domestic articles for family use, as looms, stoves, pictures, school-books, wearing apparel, bedding, table furniture, and a small number of necessary domestic animals, are not to be appraised, but to remain for the use of the widow and children.? New York Revised Statutes, vol. ii. p. 83, sec. 9, 10. There is a similar exception in Massachusetts, Connecticut, Ohio, and probably in other states, in favor of the widow and family; and it extends to such small necessary

1 An executor de son tort (i. e., a stranger who takes upon himself to act as executor without any just authority, 2 Bla. Com. 507,) is only liable for assets which comes to his hands, and is not chargeable for not reducing assets to possession. Kinard v. Young, 2 Rich. Eq. 247. Such executor is liable to account only to the executor or administrator, and not to the next of kin. Muir v. Trustees of L. & W. Orphan House, 3 Barb. Ch. R. 477. His sale of goods will not change the title, though he afterwards administer. Wilson v. Hudson, 4 Harring. R. 168. A fraudulent donee, in possession after testator's death, is liable as executor de son tort. Sturdivant v. Davis, 9 Ired. R. 365. He cannot sue (when there is a rightful executor) nor be sued, except for fraud. Francis v. Welch, 11 Ired. R. 215. For his powers as to persons dealing with him bona fide, see Thompson v. Harding, 20 Eng. L. & Eq. 145.

An administrator may compound with the creditor, and receive a less sum than is due the estate, if such a course was judicious and beneficial, or not prejudicial to the estate. Wyman's Appeal, 13 N. Hamp. R. 18. Kee v. Kee, 2 Gratt. R. 116. Mitchell v. Trotter, 7 Gratt. 136. Woolfork v. Sullivan, 23 Ala. 548. One of several executors may enter into an amicable action, and submit to arbitration, so as to bind the estate. Lank v. Kinder, 4 Harring. R. 457. Kendall v. Bates, 35 Me. 357.

2 The widow of the decedent is entitled to her reasonable support out of the estate during her quarantine; but there is no statute provision in New York for the support of the children of an insolvent decedent. Johnson v. Corbett, 11 Paige's R. 265.

good cause for not collecting the debts that are mentioned to be due, unless he had the precaution to note them in the inventory as desperate. He is liable also to have the letters of administration revoked, (and it is the same with the letters testamentary of an executor,) if an inventory be not duly made and returned. And if any one or more of the executors or administrators returns the inventory, those who neglect to do it cannot afterwards interfere with the administration until they redeem their default. (a) 1

After completing the inventory, the duty of the administrator is, to collect the outstanding debts, and convert the property into money, and pay the debts due from the intestate. He must sell the personal property, so far as it may be necessary for the payment of debts and legacies, beginning with articles not required for immediate family use, nor specifically

3

bequeathed. (b) 3 In paying the debts, the order pre- *416

family articles as are exempt from execution. The widow and children in Ohio, if any under fifteen years of age, or the children only, if no widow, are entitled to sufficient provisions or other property for their support for twelve months from the intestate's death, without having the same accounted for as part of the inventory. Statutes of Ohio, 1831. The Ohio statutes as to emblements, declare that those sowed after March 1st, and before December 31st, shall go to the executor or administrator, if the decedent died within that period; but that those growing on the land on March 1st, or between December 31st and March 1st, shall go to the heir, devisee, or remainderman, or reversioner, if the decedent died within that period.

In Massachusetts, Connecticut, (Revised Statutes of Massachusetts, 1836, and of Connecticut, 1821,) and probably in those other states where the distribution of real and personal property is the same, the inventory is to include equally the real and personal estate.

(a) N. Y. Revised Statutes, vol. ii. p. 85, sec. 17-23.

(b) The English rule is to convert the assets into cash by a public sale, and this was the rule declared in Covenhoven v. Shuler, 2 Paige, 122. But in Maryland, unless the sale of the assets be necessrry to pay debts and legacies, or to make a satisfactory distribution, the rule is for the executors and administrators to divide the property specifically in kind between legatees and distributees. Evans v. Iglehart, 6 Gill &

1 Jeroms v. Jeroms, 18 Barb. 24.

2 He has no right to take land in payment of debts due the testator; and if he takes bills, it will be at his peril, if he neglects to convert them into some property less perishable. Weir. Humphries, 4 Ired. Eq. R. 264. Bailey v. Dilworth, 10 S. & M. R. 404. See Powell v. Stratton, 11 Gratt. 792.

8 In New York, the administrator of a person who made a sale of property fraudulent as to creditors, may maintain an action against the vendee, as his possession is made wrongful by statute. McKnight v. Morgan, 2 Barb. S. C. Rep, 171.

scribed by the rules of the common law is, to pay, first, funeral charges, (a) and the expense at the probate office; next, debts due to the state; then debts of record, as judgments,

Johnson, 171. By the N. Y. Revised Statutes, vol. ii. p. 87, sec. 25, 26, the executor is allowed, except in the city of New York, to sell on credit not exceeding one year, with approved security; and he will be exempted from responsibility for losses, if he acts in good faith and with ordinary prudence. The statute has not defined what was intended by approved security. The English rule in equity is, that the executor must not rest on personal security; and if he does, it is at his own peril. But there are exceptions to the severity of that rule; and it will depend upon circumstances whether, under the New York statute, an executor or administrator acting in good faith, be bound to answer for the eventual failure of personal security. See a discussion of the subject in Smith v. Smith, 4 Johns. Ch. Rep. 284, 629.1 The weight of the modern English authority is, that investing trust moneys in personal security is a breach of trust. Lord Hardwicke, in Rider v. Bickerton, 3 Swanst. Rep. 80, note. Lord Kenyon, in Holmes v. Dring, 2 Cox's Cases, 1. Lord Loughborough, in Adye v. Feuilleteau, 3 Swanst. Rep. 84, note. Lord Eldon, in Walker v. Symonds, ibid. 63. Where the will directed the executors to put on interest, to be well secured, £500, and they invested it in stock of the Bank of the United States, and it was lost by the bankruptcy of the bank, it was held to mean security by mortgage or judgment on realty, and that the bank security was no better than personal security, and the executors were held responsible for the money. Nyce's estate, 5 Watts & Serg. R. 254. An executor is responsible if he invests trust moneys otherwise than upon real security or in government stock. Bank stock will not do. Ackerman v. Emott, by Parker, V. Ch., in 4 Barb. S. C. Rep. 626. But the executor may place money where the testator had been accustomed to place it, and without being responsible, if he acts with good faith. Tamlyn's Rep. 279. In Gray v. Fox, Saxton's N. J. Ch. Rep. 259, the question what is due security in respect to trustees loaning money was learnedly discussed; and it was declared to be a well settled rule in the English chancery, and was adopted in New Jersey, that the loaning of trust moneys, and especially where infants were concerned, on private or personal security, was not due security, and such loans were at the risk of the trustees. The trustee must take adequate real security, or an investment in public stocks or funds. This was the opinion of the chancellor of New York, in Smith v. Smith, above cited. In Stickney v. Sewell, 1 Mylne & Craig. 8, executors were empowered to lend money on real or personal security, and it was held that money should be advanced to the amount only of two thirds of the value of freehold land, of a permanent value, and not upon houses or buildings, which are fluctuating, and the executor was held answerable for the deficiency.

(a) As against creditors, the rule of law is, that no more shall be allowed for funeral expenses than is absolutely necessary, regard being had to the degree and condition in life of the deceased person. Hancock v. Podmore, 1 B. & Adol. 260. Palmes v. Stephens, R. M. Charlton's Geo. Rep. 56. In Louisiana, the privileged claim of the lessor, as against the estate of the deceased lessee, comes in immediately after the funeral charges. Devine v. Pecquet, 4 Rob. Rep. 366.

1 Bogart v. Van Velsor, 4 Edw. Ch. 718. Moore v. Hamilton, 4 Flor. 112. Hogan v. De Peyster, 20 Barb. 100. Smyth v. Barns, 25 Miss. 422.