ing neglect to make such provision before death, the law undertakes to make it for them. When a person dies without a will, he is said to die intestate, and the person designated by law to settle his affairs is called administrator. In most places, there is a distinct court for the cognizance of all probate and testamentary matters, under the name of an orphan's court, or court of probate. But here the court of common pleas discharges all these functions. The powers and duties of executors and administrators are here chiefly regulated by statute; and I shall give a synopsis of its provisions.

The only persons incapable of appointing executors are infants, idiots, and lunatics, who are prohibited from making wills. And any person, except a married woman, may be appointed executor, to whom the testator is willing to commit the trust; though a minor cannot act during his minority. As to administrators, the directions of the statute are, that the widow of the intestate shall be first entitled to letters of administration; next, the nearest of kin who are competent; next, any creditor who will accept the trust; and lastly, any other suitable person. The fidelity both of executors and administrators is secured by an official oath, and by bond and sureties, in such amount as the court shall determine; usually double the value of the personalty coming into their hands. If from any cause the executorship becomes vacant, the court appoints an administrator with the will annexed. If the administratorship becomes vacant, the court appoints an administrator de bonis non; that is, of the estate yet unsettled. (a) If there be a contest concerning a will or other good cause, a special administrator is appointed. If a will be discovered after an administrator has been appointed, he is compelled to surrender in favor of the. executor therein named. The executor of an executor has no authority, as such, to settle the estate of the first testator. The time within which administration may be originally granted is limited to twenty years from the death of the testator or intestate. Both executors and administrators are removable for good cause. If a single woman be appointed executrix or administratrix, and afterwards marry, her authority ceases; and her husband does not acquire the power in her right, as is generally the case elsewhere. If a minor be appointed executor, he cannot act as such until majority, and provision must be made by court for the intermediate period. The proper county to make the appointment, is that in which the deceased resided; but if he were a non-resident, then any county in which he left property.

§ 120. Their Course of Proceeding. The first duty of an execu

(a) Without legislative provision an administrator de bonis non cannot maintain an action either against the representatives of the deceased administrator nor against the sureties in his official bond. Blizzard ". Filer, 20 Ohio, 479; Card v. Tracy, 2 Ohio St. 431. Under the act of April 7, 1864, such an action may be maintained against the sureties on the official bond, but not against the personal representatives. Curtis, Adin'r e. Lynch's Adm'r, 19 Ohio St. 392.

tor is to have the will proved. (a) Until this is done, he has no authority to act. The mode of making probate will be described when we come to speak particularly of wills. After probate of the will, the executor is to follow its directions as far as they go; and for the rest, he is to be governed by the law regulating administrators. The next duty of an executor or administrator, is to have the personally of the intestate appraised by three persons under oath, who are appointed by the court; and a sworn inventory thereof must be returned to court, within three months from the day of appointment. Five days' notice of taking this inventory and appraisement must be given to those interested in the estate. If the court so order, this inventory must also include an appraisement of the realty; but generally, it will only include the movables, debts due the estate, and money on hand, all which must be specifically set forth; and the annual crops and emblements, whether severed from the land or not, are to be treated as movables and included in the inventory. The only case where an inventory is not required, is when an executor is residuary legatee, and has given bond to pay all the debts and legacies. If there be property in another county requiring appraisement, a justice of the peace may appoint the appraisers. If there be a widow or minor child, certain specified articles, including clothing, pictures, books, utensils, and furniture, are given to them, and not made assets. These, therefore, are inventoried, but not appraised. If, after making the first inventory, new assets be discovered, a further inventory must be made. It is also the duty of the appraisers to make an allowance for the widow and children under fifteen years of age, sufcient for their support one year. The items of this allowance are returned in a separate schedule; and if the personalty be not sufficient for this purpose, they certify what further sum should be allowed, and this must be made up out of the realty. The next duty of the executor or administrator, is to take measures for paying the debts. For this purpose, he must notify the public of his appointment by advertisement within three months. He then proceeds to collect the debts due to the estate, which, if need be, he may compound by leave of court; (b) and to convert the chattels into money by a sale at public auction, upon fifteen days' notice; unless the widow will take him at the appraisement, and secure the payment. Our statute requires that all such sales, to an amount exceeding three dollars, shall be on a credit of from three to nine months, to be secured by note or bond with two or more approved sureties. When the sale is by an executor, the chattels

(a) An executor is not bound to assume the burden of defending a will against the heirs-at-law, but may throw the same on the legatees or devisees; and where the will is adjudged invalid, he is not entitled to charge the estate in his account with the expense of maintaining the defence. Executors of Andrews v. His Administrators, 7 Ohio State, 143.

(b) He has, at common law, authority to submit a claim to arbitration. The statute of Ohio giving them special power to submit to references does not take away this common-law right. Child's Exr's v. Updyke, 9 Ohio State, 333.

specifically bequeathed are only to be sold when the other personalty is insufficient to pay the debts. The sale bill must be made out in the same order as the inventory, and specify the disposition. made of each article. A return of the sale must be made within three months; and if the proceeds thus realized from the debts. and chattels prove insufficient to pay the debts due from the estate, application is made to the court for leave to sell enough of the realty to make up the deficiency. The mode of doing this will be explained hereafter. If all the property of the deceased, which for this purpose is called assets, be insufficient to pay the debts, the estate is declared insolvent, and the entire proceeds, being converted into money, are applied in the following order: First, to pay the expenses of the last sickness, funeral, and administration. Secondly, to make up the year's allowance for the widow and children under fifteen. Thirdly, to pay debts entitled to a preference under the laws of the United States. Fourthly, to pay public rates, duties, and taxes. Fifthly, to pay debts due to individuals, which are liens upon the estate either by judgment, decree, or mortgage. Sixthly, to pay all other debts pro rata. When a claim is presented against the estate, the executor or administrator may require, in addition to the usual vouchers, an affidavit that the claim is justly due. If such claim be allowed, the allowance is indorsed thereon. If rejected, it may by agreement be referred to arbitrators; and if not so referred, and the estate has not been declared insolvent, it must be sued within six months, or it will be barred. Debts due to an executor or administrator must be allowed by court, and are not entitled to a preference. Debts not yet due may be paid, deducting interest for the unexpired time. If due notice of appointment has been given, and claims have not been presented within one year sufficient to show the estate insolvent, debts may be paid without liability to any creditor who has not given notice of his claim, except for his pro rata share of what may remain. But if the estate prove solvent, then, after paying the debts which have the first claim, the residue is to be distributed v as follows: First, the surplus proceeds of the personalty are given to the widow, if there be no children; and to the children, if there be no widow. But if there be both, the widow has one-half of the first four hundred dollars, and one-third of the residue, and the children have the rest. If there be neither widow nor children, the distribution is made according to the law of descent and distribution, to be described hereafter. Secondly, the realty over which the administrator has no control, except it be given him by the court, for the purpose of paying debts, is divided among the widow and heirs, according to the law of dower and descent, which will be described hereafter.

The time allowed to executors and administrators, for settling estates, is eighteen months, within which time the first account must be rendered; but if there be good cause, the court may extend this time from year to year, not exceeding five in all; and

even after this period the office does not expire until the estate has been entirely settled. Within the time thus allowed, they are required to present to the court from time to time their accounts, with proper vouchers for all money disbursed where the sum exceeds ten dollars; and in case of delay, they may be compelled so to do by citation and attachment. Their final account is continued open for one term, subject to examination by all persons interested, who are notified thereof by advertisement of the clerk, and may file written exceptions to any of the items. The account is then audited by the court, and such order made thereon as the case requires. Upon final distribution made pursuant to such order, a return is made thereof, with proper vouchers, and the same proceedings are had as before. If the court allow the final settlement, an order is made to that effect; and the executor or administrator, and his sureties, are thenceforth discharged, unless within five years good cause be shown for setting such allowance aside. (a) If the compensation of an executor has been fixed by the will, and he acquiesce therein, he can receive no other; but he may renounce that, and take the compensation fixed by law for an executor or administrator; which is, on the personalty and the proceeds of realty sold by them, six per centum on the first thousand dollars; four per centum on the excess up to five thousand dollars; and two per centum on the excess above five thousand; together with such special allowance as the court may see proper to make for extraordinary services. But in no case can they speculate upon the funds of the estate; and they are chargeable with interest when they have or ought to have made interest.

§ 121. Their Powers and Liabilities. (b) Executors and administrators may sue and be sued in their official capacity; but the general rules relating to actions for and against them will be considered hereafter. I will only remark, that our law presents no motive for suing them, until after the time fixed by the statute or the court for the settlement of the estate, unless the claim be one which would not be affected by the insolvency of the estate, or have been presented and disallowed; for in no other case would the person suing recover costs. All suits are barred after four years from the date of appointment, if notice thereof has been duly given, unless assets have since come to hand, or the claim accrued since, or a new administrator has been appointed; in which latter case, one year is added to the four. In no case can execution issue against an executor or administrator, without special permission of the court, and then it runs against the assets in his hands, unless he has been guilty of waste. If execu

(a) For proceedings against executors, administrators, and guardians, on the part of creditors, legatees, and distributees, see act of April 17, 1857.

(b) It is against the policy of the law for administrators to purchase the property of the deceased at a public sale for the purpose of raising money to pay debts; and such a sale may be set aside in equity by the cestui que trust, without proof of fraud or actual injury. Barrington v. Alexander, 6 Ohio State, 189; Sheldon v. Newton, 3 id. 494.

tors or administrators waste the estate of the deceased, that is, wilfully or carelessly diminish the amount of assets, they and their sureties become liable for such deficiency: but in no other case do they become personally liable, unless they voluntarily undertake so to be; and by the statute of frauds, this undertaking must be in writing. Express provision is made, that judgments against them shall specify that they are to be satisfied out of assets in their hands; and that if they have occasion to appeal, they need not give bonds as in other cases. Executors and administrators from other States are expressly authorized to act here, upon making application with proper exhibits; (a) but this is an exception to the general rule, which is, that they must derive their authority from the law of the place where the property is, without regard to the domicile of the deceased.

Here terminates our view of the law of persons. There is, indeed, one other relation, and a very important one too, which might have been embraced in this division of lectures: I mean the relation of debtor and creditor; but the title is so comprehensive, that, had I undertaken to discuss it, I should hardly have known where to stop. It includes, in fact, the greater part of what remains to be said, except that relating to crimes. Nor is it usual to class this among the personal relations, since it belongs quite as properly to the law of property, and the law of procedure, as to the law of persons.

(a) As to proceedings against foreign executors and administrators appointed in this State, see Laws of Ohio, vol. 54, p. 3.