CH. 29. this inventory must be so made as to afford the surrogate, crediArt. 19. tors, legatees, and distributive heirs, a fair and accurate view of the intestate's personal estate of every kind; and shew as far as practicable, the true amount for which the administrator and his securities must stand responsible. This inventory the appraisers sign, as also the administrator or administrators; this and their oaths must be returned to the surrogate's office, and the administrator there presents them to the appraisers, and the surrogate causes them to swear, that this inventory contains a true and perfect account of the goods, chattels, and credits of deceased, as far as the same have come to their possession or knowledge. All the affidavits and oaths, with the inventory, are received and filed in the surrogate's office. $6. The administrator's duty to collect all the personal estate, and to convert it into money. This he must do as expeditiously as practicable, and to this end he must pursue all legal and prudent measures; and as fast as he can obtain monies he must pay the debts in legal order, and at the end of the year be ready if possible to pay legacies and distributive shares. But before legatees and heirs are so paid, they must give bonds to the administrator, or proper security to the amount received, to indemnify him from future and other claims which shall appear just, or be recovered by suit. The principle is the same as in Massachusetts, it every where results from the nature of the case. And if he object to its sufficiency when tendered to him, the judge or surrogate must decide, and when approved by him, he makes the proper endorsement. Debts in New York are in grades as in England, not so in Massachusetts. 7. Executors in New York. Their powers and duties are substantially the same as those of administrators, as above stated and explained. The difference is but in this executors must cause their testators' wills and codicils to be proved in the county in which the testator resided; if a citizen or resident die from home or abroad, it makes no difference, his domicil governs and is found as in other cases; but the will of an alien or non-resident must be proved by the probate judge. Any one appointed in a will to execute it, is an executor, though not called by that name. The executor calls the witnesses to prove it as in Massachusetts, and like evidence is required to prove it as in that state; and as in that, and as before stated, the executor may by common law authority do certain acts before probate, and he must as soon as practicable make the will known &c. in order to expedite the settlement of the estate, and to prevent administration being granted. In proving a will in New York the witnesses (among other things) swear they saw the testator seal and deliver it. When witnesses to a will are interrogated in special disputed cases, their testimony is recorded; and where no other proof of it can be had, the oath alone of the executor will prove it; but this slender proof is admitted cautiously every where. After the will is proved, the surrogate or judge causes the executor to swear, the instrument is the last will and testament of deceased, as far as he knows or believes; that he will truly and faithfully perform the duties of executor to it, by paying his just debts and funeral charges, and then the legacies contained in it, (if any) as far as his goods, chattels, and credits will extend and the law requires; that he will make a true and perfect inventory of &c.; and that he will render a just and true account &c. when thereto required. All the original papers are recorded, and copies made out under the hand of the surrogate, and seal of office affixed. These copies, as far as necessary, are the executor's authority. § 8. The deceased's real estate. Executors and administrators in New York have no more to do with this than in Massachusetts; that is, nothing except by the will, or license of court. Where the personal estate is not sufficient to pay the deceased's debts, his executor or administrator by statute, may have power to sell so much of the real estate, or of the rents and profits thereof in certain cases as will pay the debts. This power may be given in the will, or by the surrogate or probate judge: if by the surrogate, several rules must be observed: 1. An inventory must be returned: 2. An accurate account of the personal estate rendered, and of the proceeds of the sales of it: 3. A list of the creditors and of their respective debts, as far as they can be ascertained: 4. A petition to the surrogate or judge, concisely stating the case, and praying for liberty to sell so much of the real estate whereof the testator or intestate died seized, as will pay his debts &c.: 5. The executor or administrator swears, the facts stated in his petition are substantially true, according to his knowledge and belief; the same as to his account and list: 6. The petition, papers, and documents accompanying it are filed by the surrogate, and he gives an order of notice in a prescribed form, by him dated and signed, to all interested in the estate of &c. to shew cause at his office in why so much of the real estate whereof he died seized shall not be sold, as will be sufficient to pay his debts. The order requires full six weeks' notice, and must be published four weeks successively, beginning six weeks before the day appointed to shew cause: 7. When the surrogate &c. orders a sale, he ascertains what part shall be sold, where all need not be sold. His order in each case is very formal and particular. on CH 29. Art. 19. Сн. 29. Art. 19. L. s. At a court held at on &c., recites the pe tition of &c. has been presented &c. stating &c., states he -, states that on the petitioner appeared before the said surrogate, whereon he proceeds to hear, &c. and on due examination doth find and adjudge, that the personal estate of &c. is insufficient to pay his debis, that the executor has applied it &c. to pay them, as far as &c., that it is necessary the whole of the real estate of &c. be sold for the payment of his debts: and adds, and therefore the said surrogate doth order and direct, that the whole of the real estate whereof the said — died seized be sold, that the said executor make return of his proceedings, &c. to the end the same sale be examined &c., and if found to be legally made &c. that the said surrogate shall issue a further order, confirming such sale, and direct conveyances to be made &c. according to the provision of the act (of April 12, 1819) entitled &c., and that the monies arising &c. after the confirmation &c., and the execution of the conveyance &c. be brought into the office of said surrogate of the city and county of New York. Another order of sale, nearly in the form of the last above, except after citing the application of the personal estate, describes the estate the testator died seized of, and adds, it is so circumstanced, that a part cannot be sold without manifest prejudice to the heirs of the said deceased; so orders a sale and return for confirmation &c., as above, and adds, after paying debts &c. to distribute the overplus &c. among the heirs &c. Other forms of long orders of sale, are forms in the New York practice, varying from the above, each as to some particular matter. After an order of sale is so obtained, the executor or administrator must advertise for six weeks the property is for sale at public vendue, in newspapers named, also notices posted. The conditions of sale fully describe the estate to be sold and the terms of sale. The sale must be completed before sunset &c., and the said conditions must be returned to the surrogate with the return of the proceedings of the sale. Proof must be made of the notice to sell, and it is best to add the auctioneer's affidavit, stating the proceedings at the sale and the result of it. The return of the executor or administrator is signed and sworn to by him; it must contain all the facts briefly and clearly stated. The surrogate examines all the proceedings, and if no objection be made, confirms the sale, and gives a further order authorizing a conveyance. This last order very concisely states all the proceedings, beginning with the letter of administration, that the sale has been legal, &c. confirms &c.; then follows the deed containing all the orders verbatim from first to last. If the estate sold be not sufficient to pay all the debts, the surrogate assigns to each creditor his proportion as in cases of insolvency, after several months' delay, occupied by proceedings as prolix and expensive as those above stated in this article. But as dilatory and expensive as these proceedings, in selling the real estate, or in leasing or mortgaging it to raise monies in certain cases where minors are interested, are, the security found in such proceedings may more than balance the evils arising from such delay and expense. 9. It will be observed, that these proceedings in New York in the cases of executors and administrators, are founded on statutes of that state principally, and are to be considered in connexion with the common law there in force on these subjects, which common law is largely stated in the preceding articles in this chapter, and in chapter 149, in which probate bond and many probate matters are considered. This portion of the common law, with many New York decisions as to executors and administrators stated in this work, with said statute matters, will afford a pretty full view of the law of New York in relation to the powers and duties of executors and administrators, and suits and proceedings by and against them. These proceedings valuable in principle, but in form prolix, may easily be shortened by avoiding numerous repetitions in almost every paper, the less necessary as almost every part becomes a matter of record. See the Laws of Maine as to Executors, Administrators, and Guardians, Ch. 51 and 52, pp. 159 to 197. CH. 30. Art. 1. CHAPTER XXX. ASSUMPSIT BY AND AGAINST FACTORS. Mer. 81, 82, ART. 1. 1. A factor is created by merchants' letters, and 2 Mod. 100.has a salary or factorage, and must answer a loss incurred by his exceeding his commission; as by shipping goods to a wrong port, selling below the price ordered, or buying above, &c. 2. A factor's rights and duties, or powers and obligations, result not only from the principles of contracts in general, but from his peculiar trust and situation in commerce. He may sell perishable articles without instructions. Mal. Lex. Abr. 369.- Сн. 30. Jones 145.- 130.-Imp. M. P. 205. Bul. N. P. 130, Gonsales 3. A factor is not liable in all events, as a carrier is; but is liable on the principles of bailment, before stated, in general; therefore, he is not liable when robbed, if he do the best in his power; and such is his interest, he is a witness for either party to prove the contract, though he has 1s. in the pound on the sales. He is a mere go-between. An agent for collecting debts merely, is not one within the Virginia limitations act. 3 Cranch 454. § 4. The nature of a factor's contracts. If my factor bev. Sladen.yond sea, buy goods for me, assumpsit lies against him, and if 2 Stra. 1182. he sell my goods, he may have assumpsit in his own name; for -1 Esp. 107, the credit will be presumed to be given to him, and the promise made by him, and the rather, as it is so much for the benefit of trade. His implied powers considered, 13 Mass. R. 178, 182. 1 East 48, 53. 1 Esp. 108, Milward. 5. By a general rule of law, however, his sale creates a contract, between me and the buyer. Hence, if a factor sell for payment at a future day, and the owner give notice to the buyer to pay him, and not the factor, the buyer cannot, after this, pay the factor. This rule may not hold if the factor sell at his own risk, and so is liable to the owner, though the buyer never pay; "for in such case he is debtor to the owner, and not the buyer:" but this last position has been questioned since, and on the whole overruled. § 6. For where in June, 1783, a cargo of wheat was con109, Escot v. signed from Ostend to the plts., and they employed one Farrer, as their factor, to sell it; it was proved that factors in this trade have a del credere commission, besides factorage, and never, except the factor fails, make the buyer's name known to the owners. June 9, Farrer sold two hundred quarters of this wheat to the deft. June 16, Farrer delivered to the plts. the wheat not sold, and the names of those who bought the rest; among others, the deft. Milward's name. June 20, Farrer failed. The deft. claimed a right to off-set with Farrer, but judgment was for the plts. See 2 Stra. 182. 3 Wils. 73. v. Saunders. § 7. In this case it was decided, that every consignment to 94, Godfrey two factors jointly, imports the consignor's assent for them to trust each other, with all the goods; but both are accountable for the whole, and joint factors are as co-obligors, and answerable for one another for the whole. 2 Selw. 718, 719.-Willes 109. 8. A factor, to act faithfully, must do with his principal's 406.-1 Esp. goods and debts, as a prudent man would do with his own; and he is a factor del credere, when he guarantees the credit of the buyer; and he may sell on credit, though not specially authorized by his commission, when according to the usage of trade in the place. 2 W. Bl. 1154, Tinch v. ART. 2. His lien. 1. A factor has a lien on goods consignWalker, cited 1 Esp, 109-1 Burr. 493.-2 East 227.-3 D. & E. 119, 123. See Lien.. |