Guthrie v. Welch, 24 D. C.

sec. 14.

sion as the court shall allow, not exceeding ten per centum on the principal inventory, and the personal estate and money turned over by him shall be assets in the hands of the administrator de bonis non, to be accounted for by him as such.

Sec. 304. LETTERS AD COLLIGENDUM.-Letters ad colliApp., 562; Md. gendum may be granted to one or more persons in case act 1798, ch. 101, of a contest in relation to a will, or the absence of the executor from the District, or his delay in qualifying, or for other sufficient cause, and the form of such letters shall be as follows:

Md. act 1798,

ch. 101, sec. 26.

3;

Ib., sec. Comp. Stat., p.

of

To all persons to whom these presents shall come, greeting:
Know ye that, whereas
deceased, had, as is said, at his
decease, personal property within the District of Columbia, administration whereof
can not immediately be granted, but which, if speedy care be not taken, may be lost,
destroyed, or diminished, to the end that the same may be preserved for those who
may appear to have a legal right or interest therein, we do hereby request and authorize
to secure and collect said property, wheresoever the same
may be, in said District, whether the same be goods, chattels, debts, or credits, and to
make a true inventory thereof and exhibit the same with all convenient speed, with an
account of his collections, into the office of the register of wills.

of

Witness (A B) the chief justice of the supreme court of the District of Columbia.
Test:

C D, Register of Wills.

Sec. 305. Every collector, except corporations authorized to act as such, before letters shall be issued to him, shall execute a bond to the United States, in a penalty and with security to be approved by said court, with the following condition:

"The condition of the above obligation is such that if the above bounden shall well and honestly discharge the office of collector of the goods, chattels, and personal estate of deceased, in the District of Columbia, and shall make or cause to be made a true and perfect inventory or inventories of such of said goods, chattels, personal estate, and debts as shall come to his possession or knowledge and make return of the same to the probate court of the District, and shall also deliver to the person or persons who shall be authorized by the court to receive them such of said goods, chattels, personal estate, and debts as shall come to his possession, except such as shall be allowed for by said court, then the said obligation shall be void; it shall otherwise be in full force and virtue at law." And he shall also take and subscribe the following oath: "I, do swear that I will well and truly discharge the office of collector of the goods, chattels, and personal estate of deceased, according to the tenor of the letters granted me by the probate court of the District of Columbia and the directions of law, to the best of my knowledge, so help me God."

Sec. 306. DUTIES OF COLLECTOR. The collector shall 10; 30 Stat., 434. collect the goods, chattels, and personal estate of the deceased, including the debts due him, and cause the same to be appraised and return an inventory thereof, as an administrator is required to do, and may, under the authority of the court, sell perishable articles and bring suits for debts or other property, as an administrator may do, and shall account for the money recovered. Said collector may be allowed a commission on the property and debts actually collected, and afterwards delivered to the executor or administrator, not exceeding three per centum and said collector may be authorized and directed by the court to discharge, pendente lite, all or any of the duties of an administrator, including the payment of debts.

20;

Ib., sec. Comp. Stat., p. 10.

Sec. 307. WHEN POWERS TO CEASE. On the granting of letters testamentary or of administration the power of any such collector shall cease, and it shall be his duty to deliver, on demand, all the property and money of the decedent in his hands, except as before excepted, to the person obtaining such letters, and the executor or administrator

may be permitted to prosecute any suit commenced by said collector as if the same had been begun by said executor or administrator.

Sec. 308. If the said collector shall neglect or refuse to Ib. deliver over the property and estate to the executor or administrator, the court may, by citation and attachment, compel him to do so, and the executor or administrator may also proceed, by civil action, to recover the value of the assets from him and his sureties by action on his bond. Such collector shall not be liable to an action by any creditor of the deceased.

Subchapter II.-INVENTORY.

16.

119, 124,

Sec. 309. INVENTORY TO BE MADE. Every executor, 128b1ec. 21; administrator, or collector shall, within three months Comp. Stat., p. after his appointment, or such longer time as the court may allow, make and return, upon oath, into court a true inventory of all the goods, chattels, moneys, and credits of the deceased which are by law to be administered and which shall have come to his possession or knowledge; and if the court shall think fit it may also order him to include in the inventory all the real estate of the deceased: Provided, That this section shall not apply to the cases provided for in sections two hundred and sixty-four and two hundred and seventy-five of this code.

sec. 2, Comp. Stat., p.

Sec. 310. APPRAISERS.-On the granting of letters tes-Ib., tamentary or of administration, except in the aforesaid 16. excepted cases, a warrant shall issue to two suitable persons not interested in the estate, to appraise the estate of the deceased, known to them or shown to them by the executor or administrator, and they shall severally take and subscribe an oath well and truly, without partiality or prejudice, to value the goods,chattels, and personal estate and real estate (if so directed) of the deceased, as far as the same shall come to their knowledge, to the best of their skill and judgment.

Sec. 311. On the death, refusal, or neglect of any ap- Ib. praiser to act another person may be appointed in his stead.

Sec. 312. NOTICE.-It shall be the duty of the executor, administrator, or collector [and] or of the appraisers to give notice to the persons immediately interested in the administration, or at least two of them, if they are numerous, of the time and place of making said appraisement, and thereupon they shall proceed at said time and place to value said property and estate, setting down each article or item separately, with the value thereof, in dollars and cents, and when such appraisement shall have been completed they shall certify the same under their hands and seals, and the same shall be returned with the inventory.

Ib. sec. 5.

Ib.,

sec. 8;

Sec. 313. CONTENTS OF INVENTORY.-The inventory comp. Stat., p. shall contain a particular statement of all bonds, mort- 17. gages, notes, and other securities for the payment of moneys belonging to the deceased, and of all other debts

Sec. 1105. Brown v. Easter

478.

and accounts due him, which are known to the executor, administrator, or collector, who shall designate those debts which he considers sperate and those which he considers desperate, and also an account of all moneys belonging to the deceased which shall come to his hands. And whenever, after an inventory has been returned, assets not therein included shall come to the knowledge of the executor, administrator, or collector an additional inventory and appraisement shall be promptly prepared and filed in the manner aforesaid.

Sec. 314. EXCEPTIONS.-There shall be excepted from hazy, 25 L. R., the inventory the wearing apparel of the deceased, family pictures, the family Bible, and schoolbooks used in the family, and provisions for the support of the family on hand at the time of decedent's death. But if said decedent shall have been the head of a family, or a householder, the property exempt under chapter twenty-seven, as therein stated, shall so continue exempt from all claims against said decedent, and shall be distributed by the court to such members of the family or household as in the judgment of the court the necessity and exigencies of the particular case may require.

Md. act 1798, ch. 101, sec. 11;

18.

Sec. 315. COLLECTOR'S INVENTORY.-In case an invenComp. Stat., p. tory shall be returned by a collector, duly appointed, the executor or administrator thereafter administering shall, within three months after his appointment, either return a new inventory in place of the collector's inventory or an acknowledgment in writing that he has received from the collector the articles contained in the first inventory, and consents to be answerable for the same, as if said inventory had been made out by him as administrator, unless it shall appear that he has been prevented from making such return by the improper detention of the personal estate of the deceased by the collector.

Ib.

Sec. 372, 1015;

Tucker v. Nebe

326; 15 D. C. App.

572; 1 D. C. App.,

p. 19.

Sec. 316. EXECUTOR, AND SO FORTH, NEGLECTING.If there be more than one executor or administrator, any one or more of them, on the neglect of the rest, may, if authorized by the court, return an inventory.

Subchapter III. ASSETS.

Sec. 317. WHAT ARE ASSETS.-Leases for years, estates ker, 2 D. C. App., for the life of another person or other persons, and all 125; 34 L R., 261; goods, wares, merchandise, utensils, furniture, things 10 D. C. App., annexed to the freehold which may be removed without 44; Comp. Stat., prejudice thereto, the growing crop on the land of the deceased, and every other species of personal property, not including the clothing of the widow and minor children of the deceased and personal ornaments suitable to their station, and not including the property exempted by section three hundred and fourteen, shall be included in the inventory, and, together with the proceeds of any real estate sold for the payment of debts, shall be considered assets to be administered by an executor or administrator. (32 Stat., 529.)

v.

Thompson, 18 D.

Sec. 318. DEBTOR APPOINTED EXECUTOR.-The dis- Mitchel charge or bequest, in a will, of any debt or demand of a C., 130. testator against any executor named in a will, or against any other person, shall not be valid as against the creditors of the deceased, but shall be construed only as a specific bequest of such debt or demand, and the amount thereof shall be included in the inventory of the effects of the deceased and be assets for the payment of his debts, if necessary for that purpose, and, if not so necessary, shall be paid in the same manner and proportion as other specific legacies.

act

Ib.; Md. 1798, ch. 101, sec.

p. 26.

Sec. 319. The naming of any person as executor in a will shall not operate as a discharge or bequest of any 20; Comp. Stat., just claim which the testator had against such executor; but such claim shall be included among the credits and effects of the deceased in the inventory, and the executor shall be liable for the same, as for so much money in his hands, at the time such debt or demand becomes due; and he shall apply and distribute the same, in the payment of debts and legacies and among the next of kin, as part of the personal estate of the deceased: Provided, That in such cases the sureties of the executor shall not be liable if the claim against the executor would have been uncollectible if some other person had been executor. (32 Stat., Part I, p. 529.)

act 1798, ch. 101,

Sec. 320. On the failure of the executor to give in sucht, sec.20; Md. claim in the list of debts due the deceased, any person sec. 21. interested in the administration may allege the same by petition to said probate court, and the said court, with consent of the parties, may decide on the same, or it may be referred by the parties, with the court's approval; or at the instance of either party the court may direct an issue to be tried by a jury; and if said claim shall in any of such proceedings be decided to be a just claim of the decedent against the executor, said executor shall be charged with the amount thereof as aforesaid.

Sec. 321. DEBT DUE BY ADMINISTRATOR.-In like manner it shall be the duty of every administrator to give in a claim against himself, and on his giving it, or failure so to do, there shall be the same proceeding as above described with regard to an executor; and the same rule shall apply to his sureties. (32 Stat., 529.)

Subchapter IV. SALES.

Md. act 1798

4

Sec. 322. SALES OF PERSONAL ESTATE. In case any ch. 101, secs. 3, 4 executor or administrator shall not have money sufficient to discharge the just debts of and claims against the decedent, the probate court shall, on his application, made after the return of an inventory, direct a sale of the personal property therein contained, or of such part as the court may think proper, and in such manner and on such terms as the court may direct. The court shall have power to direct a sale as aforesaid, if deemed by the court advantageous to the persons interested in the

lany

v.

administration, on the application of any of the said persons.

Sec. 323. ORDER FOR SALE.-No executor or administrator shall sell any property of his decedent without an order of the probate court authorizing such sale; and any such sale made without a previous order authorizing it shall be void and pass no title to the purchaser. If any executor or administrator shall sell, pledge, or dispose of any property without such previous order, his letters may be revoked and an administrator appointed, whose duty it shall be immediately to recover possession of said property, and such removed executor or administrator may be proceeded against by attachment; but where there are two or more executors or administrators, and a sale, pledge, or disposition of property has been made without the consent of all, the revocation shall only extend to the person or persons so offending, and the remaining executors or administrators shall have power to discharge the duties of their office and institute proceedings for the recovery of the property and attachment as afore

said.

Sec. 324. The preceding section shall not be construed to apply to any case where an executor shall be authorized by will of his testator to make sale of any property. (See Armo Code Sec. 325. POWER OF SALE TO EXECUTOR. In all cases Md., p. 1406, sec. 282); sec. 94; Du- in which a testator has directed his real estate to be sold Wagga for the payment of his debts or legacies, the executor may man, 37 L. R., 370; sec. 94. sell and convey the same, and shall account for the proceeds thereof to the probate court in the same manner that he is bound to account for the proceeds of personal estate; but such sale shall not be valid unless ratified by said court after notice given by publication according to the practice in equity. In case the executor shall refuse or decline to act, or shall die without executing the power vested in him, it shall be lawful for the court, on the application of any person interested, to appoint an administrator de bonis non with the will annexed to execute such power in the same manner in which the executor appointed by the will might have done.

Sec. 94.

Sec. 326. SURVIVOR OF SEVERAL TRUSTEES.-In all cases where two or more trustees shall be appointed by last will to execute a trust, or shall be empowered to sell, dispose of, or convey lands or other property devised to them jointly, upon the death of any one or more of them the survivor or survivors shall be held authorized to execute such trust or power; and if any one of such trustees shall in writing, signed by him and attested by a witness, relinquish or disclaim said trust or refuse to act under said will, and shall deliver such writing to the probate court of the District for record, the right of such trustee to act shall cease, and the remaining trustee or trustees appointed by said will shall be authorized to execute the trusts of said will and make all sales and execute all conveyances and other acts necessary for that purpose.