Relief against Executions. 704. Surety. Where the judgment was on a debt incurred for the sole benefit of one of the defendants, and the other had sufficient security, and plaintiff had offered to assign the judgment to any one he might name, upon payment,-Held, that an order that it be levied only against the former, should be denied. Supreme Ct., 1845, Dodge v. Passage, 1 How. Pr., 158. 705. Validity of discharge. Although on a motion to set aside execution on the ground that the defendant had been discharged in bankruptcy subsequent to the recovery of the judgment, the court will not try the validity of the discharge [1 Cai., 249; 1 Cow., 50; 9 Johns., 259; 9 Wend., 431.], yet where the affidavits disclose facts strongly tending to impeach the discharge, the plaintiffs should have an opportunity to try its validity by action, and the execution and levy be ordered to stand as security. Supreme Ct., 1845, Bangs v. Strong, 1 How. Pr., 181. Consult, also, Dis CHARGE. 706. An execution issued after defendant's bankrupt discharge, upon a judgment rendered before the discharge, and levied on property alleged to have been acquired afterwards, may be allowed to stand until an action can be brought upon the judgment, to try the validity of the discharge, where fraud is alleged in procuring the discharge. Supreme Ct., 1845, Bangs v. Avery, 2 How. Pr., 49. To the same effect, Bangs v. Strong, 1 Id., 181. N. Y. Superior Ct., 1851, Cramer v. 3 Sandf., 700. The contrary held, Supreme Ct., Sp., T., 1852, Dresser v. Shufeldt, 7 How. Pr., 85. 707. A wrong indorsement on an execution, for a larger sum to be collected than was due, is not ground for setting aside judgment and execution, where the execution has been returned nulla bona. Supreme Ct., 1845, Barnard . Darling, 1 How. Pr., 223; and see Green . Beals, 2 Cai., 254. 708. A delay of five years, on the part of the sheriff, after levying, and leaving the property in possession of defendant,—Held, fatal to a motion against a junior execution-creditor. Supreme Ct., 1845, Platt v. Burckle, 1 How. Pr., 226. 709. Judgment on default. A motion to set aside a judgment by default, and execution thereon, on the ground that the default had been opened and new judgment entered, was denied, for the reason that the new judgment Su was to the same effect as the default. preme Ct., 1845, Tucker v. Black, 1 How. Pr., 249. 710. Withdrawal. That a motion to set aside an execution is unnecessary, after notice that it has been withdrawn; and if so made, should be denied, without costs. Brown v. Ferguson, 2 How. Pr., 179. 711. Execution against the person. The defendant was arrested on charges of fraud in contracting the debt sued for, and he gave bail, and after judgment, was charged in execution. Held, that on his motion for discharge from commitment, the facts were to be examined in the same manner as if the motion were to discharge from arrest. Supreme Ct., Sp. T., 1854, Moore v. Calvert, 9 How. Pr., 474. 712. Several executions. A motion to restrain the sheriff from selling property upon execution, upon the ground that execution on the same judgment had already been issued in another county,-denied, where it appeared doubtful whether the execution in such other county produced any satisfaction. Supreme Ct., Sp. T., 1853, Mills v. Thursby, No. 4, 11 How. Pr., 119. 713. Protection to plaintiff. Where execution was set aside for irregularity, the court directed defendant not to bring any action for any thing done under it. Boyd v. Vanderkemp, 1 Barb. Ch., 273. As to what resort to an execution is sufficient to sustain a Creditor's suit, or Supplementary proceedings, see those titles. As to the cases relating to executions on Justices' judgments, see JUSTICE'S COURT. As to the effect of a Mortgage, and the right of a mortgagee to proceed by judgment and execution on the bond, see MORTGAGE. As to the effect of executions and 'other process in Protecting the officer, see OFFICER, As to the powers and duties of Sheriffs and Constables, see, also, those titles. EXECUTORS AND ADMINISTRATORS. [Under this title is presented the subject of the administration of the estates of deceased persons, including the der which it is to be applied to the payment of debts and care and management of the property, the regulations unlegacies, and the proceedings peculiar to this object, as well ministrators. The law of succession to property, both real as the powers and responsibilities of the executors and adand personal, must be sought under DESCENT and DISTRIBU TION, respectively, while that of Wills, including probate of wills, and that of Devises, Powers, and Legacies, is to be General Principles of Administration. sought under those several titles. In respect to the marshalling securities, and equitable priorities among creditors, reference should also be had to DEBTOR AND CREDITOR, and the titles of various personal relations there referred to, such as HUSBAND AND WIFE; PARTNERSHIP; PRINCIPAL AND SURETY, while the principles governing the duty of Executors and Administrators, in common with all other trustees, are presented under the title TRUSTS.] I. GENERAL PRINCIPLES OF ADMINIS TRATION. II. APPOINTMENT OF EXECUTORS AND 2. Of administrators.... 3. Of administrators with the will 4. Of collectors.. I. GENERAL PRINCIPLES OF ADMINIS- 1. Position of executors and administrators. Under the provisions of the Revised Statutes, executors and administrators are not p. 68 the mere representatives of their testator or intestate,—they are constituted trustees, and the property in their hands is a fund, to be 70 disposed of in the best manner, for the benefit 72 of the creditors. Supreme Ct., 1834, Dox v. Backenstose, 12 Wend., 542. To the same 76 effect, Babcock v. Booth, 2 Hill, 181; and see 77 Schultz v. Pulver, 11 Wend., 361; affirming 5. The administrator's bond..... 78 S. C., 3 Paige, 182. III. ASSETS. 1. What are..... 2. Articles to be set apart for 3. The inventory... IV. CARE AND MANAGEMENT OF THE ESTATE. 1. The general powers of executors 2. Their rights...... 3. Their duties.. 4. Their responsibilities...... 5. Actions by and against them... 6. Interference of strangers..... V. PAYMENT OF DEBTS AND LEGACIES. 1. Of debts and their preferences. 2. Presenting and referring claims 3. Payment and delivery of legacies.... 4. Marshalling assets.... VI. ACCOUNTING AND DISTRIBUTION. 78 81 2. Title by succession. Though title to the goods of an intestate can be made only through the medium of an administrator, and 80 the next of kin have no legal title to the assets, they nevertheless have a vested interest in the surplus of the estate, after the payment of the debts, which cannot be taken away by legislative act. N. Y. Surr. Ct., 1855, Ferrie 82. Public Administrator, 3 Bradf., 249. 86 88 91 96 96 99 3. What law governs succession. The 87 succession to, and distribution of, personal property is regulated by the law of the owner's domicil, and not by the lex loci rei sitæ. Chancery, 1832, Shultz v. Pulver, 3 Paige, 182; affirmed, S. C., 11 Wend., 361. To the same effect [citing, also, 2 Bos. & P., 229; 3 Ves., 198; Story's Confl. of L., 403; 4 Burge Confl. of L., 156], 1844, Vroom v. Van Horne, 10 Paige, 549. A. V. Chan. Ct., 1844, Swarez v. Mayor, &c., of N. Y., 2 Sandf. Ch., 173. N. Y. Surr. Ct., 1850, Public Administrator v. Hughes, 1 Bradƒ., 125; 1856, Graham v. Public Administrator, 4 Id., 127. S. P., Chancery, 1820, Holmes v. Remsen, 4 Johns. Ch., 460. 100 4. administration. The effects of a decedent are to be administered under the authority of the local jurisdiction in which they are situated, and, in such administration, respect should be had to the aggregate amount of the estate, and debts foreign and domestic. [Story's Confl. of L., § 524; 3 Pick., 128; 2 1. When and how ordered....... 115 Kent, 434; 3 Penn., 185; 3 Rawle, 312; 1 2. Debts, how established...... 120 Const., 292; 6 Verm., 374; 1 Mas., 381; 7 121 Johns. Ch., 49.] Supreme Ct., Sp. T., 1848, 123 Lawrence v. Elmendorf, 5 Barb., 73. 123 5. The grant of administration is governed 124 by the law of the place where the assets are 124 situated. N. Y. Surr. Ct., 1852, Matter of General Principles of Administration. Texidor, 2 Bradf., 105; 1850, Public Admin- State, and who has not brought assets here, is istrator v. Hughes, 1 Id., 125. 6. As a general rule, the laws of a foreign State where the parties interested were domiciled, will be regarded and respected in another jurisdiction, unless they are in conflict with the rights of its citizens, or, from reasons of inconvenience or public policy, it would seem unwise to recognize them. N. Y. Surr. Ct., 1855, Sherwood v. Judd, 3 Bradf., 419. 7. Domicil The intestate was born in Connecticut, and, after attaining full age, pursued the calling of a mariner, generally sailing from, and returning to, the port of New York, and then visiting his native place. He married in the city of New York, and became master and owner of a vessel, and, until his decease, made that city his principal place of abode and business when not at sea;-Held, notwithstanding he made occasional visits to his place of birth, that New York was his domicil at the time of his death, and that the distribution of his estate was to be governed by the laws of New York. N. Y. Surr. Ct., 1855, Sherwood v. Judd, 3 Bradf., 267. As to what constitutes Domicil, see DOMICIL. 8. The civil law in Louisiana, in relation to succession to estates of intestates, considered. Sherwood v. Wooster, 11 Paige, 441. 9. Foreign letters. The court cannot take notice of letters-testamentary, or of administration granted abroad; they give no authority to sue here. [3 P. Williams, 369; 8 Ves., 44; 3 Tyng's Rep., 514; 3 Day's Rep., 74; 1 Cranch, 259.] Morrell v. Dickey, 1 Johns. Ch., 153; 1823, Doolittle v. Lewis, 7 Id., 45; and see Williams v. Storrs, 6 Id., 353; Vroom £. Van Horne, 10 Paige, 549; Brown v. Brown, 1 Barb. Ch., 189. not liable to account here. The modern rule is in favor of the exercise of jurisdiction upon the sole basis of assets of a foreign decedent coming into the State after his decease. N. Y. Surr. Ct., 1850, Kohler v. Knapp, 1 Bradf., 241. 13. An administrator appointed here, of the estate of a decedent who was domiciled abroad at his death, who brings his personal property into the State and inventories it here, must account for it before the surrogate. Chancery, 1845, Sherwood v. Wooster, 11 Paige, 441. 14. Foreign executors allowed to foreclose a mortgage in this State, under a power of sale contained therein. [7 Johns. Ch., 45.] Averill v. Taylor, 5 How. Pr., 476. 15. Of the jurisdiction of a surrogate of this State, over assets in this State, voluntarily delivered to the foreign executor. Lyman o. Parsons, 20 N. Y. (6 Smith), 103; modifying S. C., 28 Barb., 564, and 4 Bradf., 268. 16. Subsequent letters relate back. Where a foreign administrator compromises and releases a mortgage of lands situated in this State, and subsequently takes out letters here, the letters relate back and legalize the release [Andr., 333; 8 Durn. & E., 590]; and the administrator cannot maintain a bill to set it aside for want of power to make it. Chancery, 1844, Vroom v. Van Horne, 10 Paige, 549; and see Rattoon v. Overacker, 8 Johns., 126. 17. Ancillary administration. Where foreign executors have qualified, an administrator with the will annexed, appointed here, is not independent of the foreign executors, but ancillary to them [3 Pick., 141; 2 Rawle, 436], and is bound by a judgment recovered abroad against them. Supreme Ct., Sp. T., 1848, Cummings v. Banks, 2 Barb., 602. 18. Where the foreign administration is ancillary and subordinate to the administration granted here, the foreign administrator, when within jurisdiction, may be called to account, here, to the domestic executor or administra 10. One appointed executor in another State and bringing the assets into this State, or receiving assets here, is liable, as executor, de son tort to the amount of the assets which he does not show to have been duly administered in such other State, or not applied to the payment of debts here. Supreme Ct., 1827, Camp-tor, for the assets received by him abroad, bell . Tousey, 7 Cow., 64. 11 A foreign executor cannot be made liable here, as such, in a court of law. So held, where he was not shown to have been in possession of any assets of the testator within this State. Supreme Ct., 1849, Vermilya v. Beatty, 6 Barb., 429. and remaining after the payment of expenses and the discharge of debts in due course, in the foreign State. [7 Paige, 239; 3 Pick., 128; Story's Confi. of L., § 514.] A. V. Chan. Ct., 1846, Ordronaux v. Helie, 3 Sandf. Ch., 512. 19. But in such case, the foreign adminis12. An administrator appointed in another trator was held not liable to account for prop Appointment of Executors and Administrators;-Of Executors. erty which was delivered to him as his own, by the United States consul, before he obtained letters. Ib. 20. Foreign decree. A decree under the laws of the decedent's domicil, awarding a fund which was held by the subsidiary administrator here,-Held, conclusive here. A. V. Chan. Ct., 1844, Suarez v. Mayor of N. Y., 2 Sandf. Ch., 173. 21. In such a case, the fund may be paid over here, without transmitting it to the place of domicil. Ib. 22. A decree of the proper tribunal in the place of the intestate's domicil and of the principal administration, is conclusive upon the parties thereto, on an accounting in an ancillary administration in another State, in respect to assets realized at the time of the former accounting, or claims against the administrator which might have been adjudicated at that time. N. Y. Surr. Ct., 1855, Churchill . Prescott, 3 Bradf., 233. issue letters-testamentary to the persons named as executors, who are competent by law to serve, and who appear and qualify. 2 Rev. Stat., 69, § 1. 29. Staying the grant of letters. After probate of a will, a creditor may stay the grant of letters to the executor named in the will, by making an affidavit of his intention to file objections to such grant. [Laws of 1837, ch. 460, § 22.] A general statement that the objector is a creditor is sufficient, unless the executor allege ignorance of the debt or deny it, and then the objector must set forth sufficient to show the nature and basis of the demand; but the merits of the demand will not be tried. N. Y. Surr. Ct., 1853, Burwell v. Shaw, 2 Bradf., 322. 30. The surrogate may fix a time for filing the objections, and may dispose of them within thirty days. [Laws of 1837, ch. 460, § 22.] Ib. 31. Incompetency. No person competent as executor who, at the time the will is proved, shall be-1. Incapable in law of making a con3. An alien, not being an inhabitant of this tract (except married women). 2. Under age. State. 4. Convicted of an infamous crime. 5. Adjudged incompetent by the surrogate, by reason of drunkenness, improvidence, or want of understanding. Where there is no competent executor, letters of administration, with the will annexed, may issue. 2 Rev. Stat., 69, § 3, as amended, Laws of 1830, ch. 230, § 17. 23. The place of domicil is the place of the principal administration, and other administrations are merely ancillary. The law of the place of ancillary administration governs as to the payment of debts there, but the distribution among the next of kin, or legatees, is made according to the lex domicilii. A decree against the primary administrator, at an testamentary, unless her husband's consent be intestate's domicil, is conclusive upon the sub-filed with the surrogate; and then he is responsidiary administrator. Ib. sible for her acts, jointly with her. 2 Rev. Stat., 70, § 4. 32. No married woman entitled to letters 24. In all cases of double administration, a court of equity should marshal the different 33. Marriage after letters. Where a feme funds under administration, as to produce sole takes out letters-testamentary, as an exequality among all creditors, whether foreign ecutrix, and afterwards marries, it is not or domestic. Supreme Ct., Sp. T., 1848, Law-necessary for her husband to file a written rence v. Elmendorf, 5 Barb., 73. 25. Form of letters. Letters testamentary and of administration, to issue in the name of the people, tested, signed, and sealed. 2 Rev. Stat., 80, § 55, 26. Oath. Executors, administrators, and collectors, required to take. 2 Rev. Stat., 71, § 13; 77, § 41. 27. Valid acts. Sales in good faith, and lawful acts by administrators before notice of a will, or by executors or administrators who may be removed or superseded, or who may become incapable, remain valid. 2 Rev. Stat., 79, § 47. consent with the surrogate, to render him liable for her acts as such executrix. The provision of the Revised Statutes which requires the written consent of the husband, to render him jointly liable with his wife for her acts as executrix, only applies to cases where she is a feme covert when she applies for letters-testamentary. Chancery, 1839, Bunce v. Vander Grift, 8 Paige, 37. 34. If after letters-testamentary granted to a female she marry, the husband, by the marriage itself, without filing any consent, becomes jointly liable with her for her acts as executrix; and if the wife require it, he must be joined in proceedings before the surrogate to compel an account. N. Y. Surr. Ct., 1852, Woodruff v. Cox, 2 Bradf., 153. Appointment of Executors and Administrators;-Of Executors. 35. After disability removed, supplement-circumstances of the executor, so as to make ary letters may be issued. 2 Rev. Stat., 70, § 5. a prima-facie case of doubt whether the estate is safe in his hands; otherwise it should be dismissed. Chancery, 1844, Colegrove v. Horton, 11 Paige, 261. 36. Objections to granting letters. Under the provisions of 2 Rev. Stat., 70, §§ 6, 7,-which directs that if any person interested in the estate, objects to a person named as executor, the surrogate shall inquire into the objections, and may refuse letters until such executor gives security,—it is not material to inquire whether the testator was aware of the want of responsibility in the executor at the time of making the will. If he has been so improvident as to commit the administration of his estate to one whose circumstances are such as not to afford adequate security for the faithful discharge of his trust, the court must interfere for the protection of the estate. Chancery, 1884, Wood v. Wood, 4 Paige, 299. 37. Removal of executor. After grant of letters, if any person interested object that the executor is incompetent, or his circumstances are so precarious as not to afford due security, or that he has removed, or is about to remove, from the State, the surrogate shall inquire into the objections, and may require security or may supersede the letters, if the executor is incompetent or refuses to give the security required. 2 Rev. Stat., 72, § 18-21. 38. Who may object. The application to remove an executor, or require him to give security, cannot be made by the executors of his deceased co-executor. Such an application by them, should be dismissed by the surrogate with costs to be paid by the petitioners personally. It is erroneous to direct the costs of the proceedings to be paid out of the estate of the first testator. Supreme Ct., 1855, Shook . Shook, 19 Barb., 653. 39. If the claimant swears positively to a demand prima-facie valid, this establishes a sufficient interest to authorize the court to proceed on his application, to require the executor to give security under the statute, for the dae administration of the estate. The validity of the demand, and the plea of limitations, should not be tried on such application. N. Y. Surr. Ct., 1850, Cotterell v. Brock, 1 Bradf., 148. 40. Petition. It is not enough that a petition, seeking security from an executor, merely alleges, in the words of the statute, irresponsibility, &c., upon information and belief. It should set forth particulars as to the situation and valuation of the estate, and the pecuniary 41. If the petition is sufficient, the executor may deny its allegations on oath; and if he do so, the burden of proof rests upon the petitioner. N. Y. Surr. Ct., 1850, Cotterell v Brock, 1 Bradf., 148. 42. The costs of the application to require an executor to give security, if granted, should, as a general rule, be charged on the fund. Chancery, 1847, Holmes v. Cock, 2 Barb. Ch., 426. 43. Who should be required to give security. Where the executor had no property except an unliquidated demand, and he was about to remove from the State, and the trust created by the will was to continue for many years,-Held, that the surrogate should have required him to give security. Chancery, 1884, Wood v. Wood, 4 Paige, 299; and see Holmes v. Cock, 2 Barb. Ch., 426. 44. An executor ought not to be required to give security merely because he does not own property to the full value of the estate, and where there is no ground for supposing that the trust-fund is in danger. Chancery, 1840, Mandeville v. Mandeville, 8 Paige, 475. 45. The main point is, whether, the circumstances being considered, it is doubtful whether the trust-fund will be safe in his hands to be administered as directed. N. Y. Surr. Ct., 1850, Cotterell v. Brock, 1 Bradf., 148. 46. The bond of an executor is for the benefit of all the distributees, not alone of those who apply to have it required; and it must be taken in the name of the People; and in a sum which will secure the whole fund. Chancery, 1847, Holmes v. Cock, 2 Barb. Oh., 426. 47. When a clear vested interest in a part or all of the fund is shown to exist in the trustee, security ought to be required only for the residue. [2 Barb. Ch., 427; 4 Paige, 304.] N. Y. Surr. Ct., 1850, Cotterell v. Brock, 1 Bradf., 148. 48. Where the executor is empowered to sell the real property, the security should be for double the amount of the proceeds which may come to his hands for the benefit of others, unless they are very large, in which case, security to a limited amount beyond the |