Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Wills Acts, Volume 3

John Edmundson Alexander

Bender-Moss Company, 1918 - Wills - 2904 pages

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CHAPTER XLIL PROBATE JURISDICTION Sec Page 1180 Necessity of administration of estates	1831

Development of administration of estates in England	1833

ACCOUNTING	1834

Changed by statute	1835

Probate originally affected personal estate only but now both are subject to probate jurisdiction	1836

What courts now exercise probate jurisdiction	1837

Jurisdiction of court as affected by domicile of testator and situs of real property	1839

APPENDIX	1841

Including property in inventory does not estop representative from subsequently claiming title thereto	2146

As to assets situated in a foreign jurisdiction being included in inventory	2147

As to including real property in the inventory	2150

Interested parties may petition to compel return of inventory	2154

Omissions and mistakes in inventory how corrected	2160

Legality of administration not affected	2167

Title vests without order of the probate	2179

Manner of selection of probate homestead	2185

No jurisdiction to administer estates of living persons	1842

What may be probated	1843

Length of time after death of testator that will should be offered for probate	1845

Admissibility of will to probate does not involve the construc tion of its terms	1848

CHAPTER XLIII	1849

Legal duties of executors and administrators are the same	1851

Common law rule as to who could act as executors	1852

Statutory changes as to disqualifications of executors	1853

Competency of appointee of testator to act as executor	1855

Effect of failure of appointee to apply for letters testamentary within time specified by statute	1856

English rule as to nominees	1859

Common law rule	1860

Statutory regulations as to aliens or nonresidents acting as executors or administrators	1861

Infants as executors or administrators	1863

A married woman as executrix or administratrix	1864

Sec Page 1203 Corporations as executors	1866

Conviction of an infamous crime as a disqualification	1868

Want of integrity as a disqualification	1869

Want of understanding as a disqualification	1871

Drunkenness as a disqualification	1872

Gross immorality as a disqualification	1873

Improvidence as a disqualification	1874

Insolvency or poverty as a disqualification	1875

Interests adverse to the estate as a disqualification	1877

Creditors	1878

Debtors	1880

Partners	1883

Page I	1884

CHAPTER XLIV	1886

Express and constructive appointment of executor	1888

Constructive appointment of executor	1889

Limited conditional and substitutional appointments	1890

Testator may delegate to another the right to appoint executor	1891

Right of one named as executor in will to the appointment 189?	1892

Acceptance of office by executor named in will	1893

Renunciation of office by executor named in will	1894

After acceptance executor can not resign except with sanction of court	1895

Manner in which executor may renounce office	1896

CHAPTER XLV	1898

When administrator with will annexed may be appointed	1899

Statutes providing that letters of administration with will an nexed shall issue as in case of intestacy	1900

Right of residuary legatee to letters of administration with will annexed	1903

Right of executor of deceased residuary legatee	1905

Sec Page	1907

Executor named in will may be granted administration with	1913

Where will gives discretionary power of sale	1920

Renunciation of right to letters can not be revoked	1927

Liabilities of administrator de bonis non	1933

Sec Page 1256 Realty and partnership property not involved	1940

As to legal executor and one de son tort existing at same time 1940 + 1258 Possession of goods under conveyance to defraud creditors	1941

Goods received innocently or through collusion 1943 t 1260 Possession in good faith under color of title	1945

Acts of conservation or kindness	1946

Acts of servants agents and coadjutors	1947

Foreign executor taking possession of local assets	1949

Executor de son tort can not retain assets to satisfy debt due himself	1951

Duties and liabilities of executor de son tort	1952

Executor de son tort no right to sue	1953

Effect of acts of executor de son tort	1954

Where executor de son tort is subsequently regularly appointed	1955

Who may sue	1956

Forms of action against executor de son tort	1958

Time and venue	1959

Defenses which executor de son tort may interpose	1960

Judgment and execution	1961

Statutes abolishing office do not deprive defendant of former defenses	1963

CHAPTER XLVIII	1965

Who are entitled to special or limited letters of administration	1967

Statutory provisions regarding special administration	1968

Administrator durante minore �tate 1970 1	1970

Powers and duties	1971

English rule	1972

American rule	1974

Administration pendente lite	1976

Reason for appointment of administrator pendente lite and termination of authority	1977

Powers and duties of administrator pendente lite	1979

Administrator ad litem	1982

CHAPTER XLIX	1984

realty as well as personalty	1985

What courts exercise probate jurisdiction in England	1987

Division of matters of probate and administration into conten tious and noncontentious business	1989

Distinction between probate of will in common form and in solemn form	1990

Proof of will in common form in England	1992

Who may demand proof of will in solemn form	1995

Procedure for proof of will in solemn form upon suit by inter ested party	1996

American practice as to proving will	1998

How interested parties may contest will	2000

Jurisdiction in matters of probate	2001

Courts of probate have limited powers	2002

Foreign wills	2003

Mental capacity	2005

Due execution Value of attestation clause	2006

Proof of holographic wills	2008

PART	2009

Probate of lost or destroyed wills	2010

Proof that lost or destroyed will had not been revoked	2011

Proof of due execution of lost or destroyed wills	2014

Proof of contents of lost or destroyed wills	2015

Revocation of former will by subsequent lost or destroyed will	2016

Revocation by implication	2017

What constitutes the last will of a decedent	2018

Instrument presented for probate may be admitted in part	2019

Limited to particular property	2021

CHAPTER L	2022

How and when validity of wills may be contested	2023

Jurisdiction of probate court to modify or vacate its decrees	2024

Admission of will to probate does not preclude probate court from admitting a later will	2026

Procedure	2027

Courts of equity have no inherent jurisdiction in probate matters	2028

Courts of equity may be vested by statute with probate juris diction 2030	2030

Construction of statutes giving courts of equity jurisdiction to hear will contests	2031

Such statutes are special	2032

No right of contest after time limited by statute	2033

Time within which contest must be instituted	2034

Who may contest will	2036

Executors public administrators creditors or the state	2037

Acceptance and retention of benefits	2038

Effect of an agreement release or appear ance	2040

Objections to probate and petition to revoke letters not involv ing validity of will	2041

Grounds upon which validity of wills may be contested	2042

Pleadings in will contests	2044

Trial by jury	2045

What issues submitted to jury	2046

Costs of obtaining letters testamentary or of administration where not contested	2047

English rule as to taxation of costs in will contests	2048

Illustrations of the rule	2049

Points to be considered	2051

Conflicting decisions	2052

Duty to account	2055

Validity of prior acts	2056

Production of later will	2057

CHAPTER LL	2060

that applicant is disqualified	2061

Legality of acts of administrator prior to appointment	2062

Common law rule	2063

Rule under modern statutes	2064

Application for letters and appointment by court	2067

Sec Page 1347 Oath of office	2068

Statutory regulations in England	2070

General rules as to bonds of administrators	2072

English rule that bond is required of executor only in special cases	2073

Effect of direction in will that executor serve without bonds	2074

Additional bonds	2076

Execution of bonds	2077

Effect of failure to give bond when so ordered	2079

When appointment is void or bond voluntarily given	2081

When and how surety becomes liable upon bond	2082

When surety is liable for acts of principal prior to bond	2085

Misrepresentations of principal to surety do not release latter	2086

Liability of surety of executor who is also trustee	2088

Power of court to relieve surety from further liability	2089

Liability of surety for debts due from executor to decedent	2090

Bond to pay all debts and legacies	2093

Letters testamentary or of administration	2094

Will of testator can not override statute requiring letters	2095

CHAPTER LII	2097

ferent laws	2100

Foreign executors may be conferred local rights by statute	2101

Who may apply for ancillary administration	2102

When and how application for ancillary administration may be made	2103

Revocation of ancillary administration	2104

Basis of and reason for ancillary administration	2105

Situs of personalty for purpose of ancillary administration	2107

Apparent exceptions to the general rule	2108

As to necessity of local administration in jurisdiction where real property is situated	2110

Construction of will by court of domicile not binding on court of situs of realty	2111

Sec Page 1379 Bonds of ancillary administrators	2113

General rule is that an administrator can prosecute actions only in jurisdiction where appointed	2115

Assignee of domiciliary representative may bring suit in his own name in other jurisdictions	2119

Voluntary payment of debts or surrender of chattels to domi ciliary representative	2120

Personal representative may be sued only in jurisdiction wherein he is appointed	2122

Exceptions to rule Suits in equity	2124

Voluntary submission to jurisdiction	2125

Judgment against administrator in one jurisdiction of no force against administrator in another jurisdiction	2126

What court may compel the personal representative to account	2127

Conclusiveness of order settling account or discharging admin istrator	2128

Distribution of residue after ancillary administration	2129

INVENTORY AND APPRAISEMENT	2132

Early English practice required filing of inventory	2133

Modern English practice requires inventory only on demand of interested party	2134

Practice in the United States as to requiring the filing of an inventory	2135

When inventory may be dispensed with	2136

Reasons why inventory is required	2139

Manner of making appraisement	2140

Inventory and appraisement should be signed and verified	2141

What should be included in the inventory	2143

Where title to property is disputed Power of probate court	2144

Sec Page 1435 Effect of death of widow	2198

Effect of wifes desertion or misconduct	2199

Comments as to the rule	2200

Application for widows allowance required	2202

Effect of delay in applying for allowance	2204

Right to allowance not dependent upon widows inability to support herself	2205

Allowance may be made to resident widow irrespective of domi cile of husband	2206

Power of court to modify order granting allowance to widow	2207

Order of allowance has no extraterritorial effect	2208

Settlement of estate must not be delayed so as to consume the assets by means of the allowance	2209

CHAPTER LV	2210

ordinate to that of surviving spouse and next of kin	2212

The same subject	2213

Surviving spouse of decedent has primary right to designate place and manner of burial	2214

Effect of directions of decedent as to place and manner of burial	2215

Cremation	2217

As to right of removal of remains once properly interred	2218

Burial plats and interests therein	2220

Erection of tombstone or monument	2221

Common law rule requires surviving husband to bear expense of burial of his wife	2222

Funeral expenses charged against estate of decedent	2223

What comprise funeral expenses	2224

CHAPTER LVI	2226

General purposes of administration	2227

Com mon law rule and statutory changes	2228

Provisions of owners will may give executor powers as	2245

Statutes which merely subject realty to payment of debts vest	2251

Power to mortgage not generally implied because power to sell	2258

Manner in which power of sale may be exercised	2265

What are generally considered assets of the estate	2270

Nature of duties and care required of personal representative	2271

As to property which is not an asset of the estate	2283

Debt due from a distributee may be retained out of his dis	2290

Mutuality of indebtedness necessary	2297

No authority to expend funds of estate for improvements	2313

Chargeable	2319

Liability not dependent upon profit	2322

Suits between coexecutors to compel an accounting	2330

General rule as to liability of one executor for acts of coex	2336

As to investments	2342

Division of commissions among coexecutors	2348

Who may institute proceedings	2354

Sec Page 1540 Effect of removal from office	2358

Discre tion of court	2359

Generally the rule applies alike to execu tors and administrators	2361

Effect of failure to give a bond	2362

Effect of failure to file account	2363

Where appointment is secured through misrepresentation or sup pression of facts	2364

Where personal interests of representative are adverse to the interests of the estate	2365

Insolvency of representative as a ground for removal	2366

Waste or mismanagement a cause for removal	2367

Refusing to take proper steps for the benefit of the estate	2368

CHAPTER LX	2370

Exceptions to the general rule	2372

Costs where personal representative is a party	2373

Right of personal representative to employ his own counsel	2375

Representative is personally liable to attorney for his services	2376

Personal representative entitled to credit or allowance for attor ney fees	2379

As to actual payment of attorney fees prior to allowance	2380

Allowance for attorney fees is limited to reasonable value for necessary services unless fixed by statute	2381

Effect of an agreement as to attorney fees	2383

As to allowance for fees where representative acts also as attorney	2384

Costs and counsel fees in proceedings to construe wills	2386

Allowance made only when the proceeding is brought in good faith	2389

Personal representative not allowed attorney fees for litigation which is result of his own wrong	2390

Attorney fees allowed only for services in interest of the estate	2391

Verification	2393

counting	2395

Advancements to distributees considered only upon distribution	2396

Annual or intermediate accounts and effect of order settling the same	2397

Final account and time when same should be rendered	2399

Settlement of final account and parties concluded by order of confirmation	2400

As to what matters not conclusive	2402

Order settling final account not subject to collateral attack	2403

Duty of personal representative to account	2405

Where burden of accounting and liability rests upon the death resignation or removal of personal representative	2406

Probate court has jurisdiction to compel accounting	2409

Duty of court	2410

How objections to an account should be stated	2411

Statute of Limitations does not apply but laches may be urged	2412

Personal representative may explain loss but can not make a profit out of the estate	2413

Suit on bond	2414

CHAPTER LXII	2416

Renunciation of right to compensation	2418

Effect of death resignation or removal from office	2419

At what period compensation may be allowed the representative	2421

Compensation fixed by will or by agreement	2422

Division of commissions among successive administrators	2425

Double commissions as executor and as trustee not favored	2426

Personal representative guilty of fraud may be denied com pensation	2427

Neglect of duty	2430

Sec Page	2433

As to rights and liabilities where executor pays legacies there	2439

Rights of creditors where beneficiaries have been overpaid	2445

Where a distributee dies prior to distribution	2451

LEADING WILLS ACTS AND SYNOPSES OF STATUTES	2457

UNITED STATES AND TERRITORIES 24622614	2459

No 1Alabama	2462

No 2Alaska	2464

No 3Arizona	2466

Arkansas	2470

No 5California	2474

Colorado	2479

No 7Connecticut	2481

No 8Delaware	2482

No 9District of Columbia	2484

No 10Florida	2485

No 11Georgia	2487

No 12Hawaii	2489

No 13Idaho	2490

No 14Illinois	2494

No 15Indians	2496

No 17Iowa	2497

No 18Kansas	2499

No 19Kentucky	2502

No 20Louisiana	2505

No 21Maine	2512

No 22Maryland	2514

No 23Massachusetts	2516

No 24Michigan	2518

No 25Minnesota	2519

No 26Mississippi	2521

No 27Missouri	2523

No 28Montana	2526

No 29Nebraska	2530

No 30Nevada	2532

No 31New Hampshire	2535

No 32New Jersey	2536

No 33New Mexico	2539

No 34New York	2541

No 35North Carolina	2545

No 36North Dakota	2546

No 37Ohio	2551

No 38Oklahoma	2553

No 39Oregon	2557

No 40Pennsylvania	2562

No 41Philippine Islands	2571

No 42Porto Rico	2573

No 43Rhode Island	2579

No 44South Carolina	2581

No 45South Dakota	2583

No 46Tennessee	2588

No 47Texas	2590

No 48Utah	2592

No 49Vermont	2600

No 50Virginia	2601

No 51Washington	2604

No 52West Virginia	2609

No 54Wyoming	2612

GREAT BRITAIN AND IRELAND AND BRITISH POSSESSIONS No 55Wills Act 1837	2615

No 56Wills Amendment Act 1852	2629

No 57Wills Act 1861	2631

No 58Domicile Act 1861	2632

No 59Navy and Marines Wills Act 1865	2634

No 60Accumulations Act 1892	2637

No 61Navy and Marines Wills Act 1897	2638

No 63Execution of Trusts War Facilities Act 1914 and Amend ment 1915	2639

No 64British Columbia	2641

No 65Manitoba	2643

No 66New Brunswick	2644

No 67Newfoundland	2646

No 68Nova Scotia	2647

No 69Ontario	2651

No 70Quebec	2654

No 71Saskatchewan	2659

Preparation of Wills 26682746	2661

Commencement of Will	2669

Republication of Will by Codicil	2676

Annuities	2684

Directions as to Abatement of Legacies	2694

Words Descriptive of Classes of Beneficiaries	2697

Estates in Fee Simple 2305	2705

Estates in Remainder Vested and Contingent	2713

Provisions Regarding Marriage Divorce and Separation	2720

Charitable Uses and Trusts	2732

Provisions Affecting Rights of Husband Wife and Children	2743

and feebleness of mind	2759

2187	2761

2319	2763

2189	2778

2193	2788

2196	2795

Consolidated Index	2813

Doctrine of election	2856

Copyright

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Commentaries on the Law of Wills: Embracing Execution ..., Volume 3
John Edmundson Alexander
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Commentaries on the Law of Wills: Embracing Execution, Interpretation and ...
John Edmundson Alexander
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Common terms and phrases

admin admitted to probate Admr allowance ancillary administration Appeal apply appointment assets attested attorney authority beneficiary bequeath bequest bond charged child claim codicil coexecutor common law competent contest court of equity creditors death deceased decedent decedent's devise direction dispose distribution domicile duties effect entitled equity executed executor or administrator Exrs fee simple fees gift granted heirs homestead husband intention interest intestacy intestate inventory Iowa issue istrator jurisdiction legacies legatee letters of administration letters testamentary liable Matter Misc N. J. Eq N. Y. Supp named nuncupative personal estate personal representative personalty probate court real estate real property realty revocation revoked rule Smith statute statute of distribution subscribing witness sureties testament testator's therein thereof thereto tion tort trator trust unless valid vested widow wife will.-Section witness.-Section

Bibliographic information

Title	Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix ..., Volume 3 Commentaries on the Law of Wills: Embracing Execution, Interpretation and Administration, Including Those Rules of Real Property and Principles of Equity which Effect Testamentary Dispositions, with Full References to American and English Statutes and Decisions, and Also an Appendix Containing Forms and Precedents, and the Leading Wills Acts, John Edmundson Alexander
Author	John Edmundson Alexander
Publisher	Bender-Moss Company, 1918
Original from	the University of Michigan
Digitized	28 Jun 2012
Length	2904 pages

Export Citation	BiBTeX EndNote RefMan

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