by the law of his domicile, etc., and it follows as a necessary consequence that the result of testacy or intestacy must depend upon the fact whether the testator left a valid will.1 (a) Concerning the distribution of the estate, it is a general rule that this must also follow the law of the domicile, unless there be opposing statutes in the State where the property happens to be situated. This rule means the law of the domicile at the time of death, and does not include any change in the law of the domicile after death.3 SECTION III. Executors and Administrators. Having considered the two ways of acquiring title by succession, it now remains to speak of the administration and settlement of estates, and also of their distribution, according to the principles of succession heretofore discussed. The rules of law governing executors and those governing administrators have a general similarity, and will be treated under one title. There are, however, certain important points of difference which must be pointed out. These differences concern especially the appointment and qualification of executors and administrators to office, and these will now be mentioned. Before entering on the duties of administration, an executor receives from the probate court "letters testamentary," constituting evidence of authority to proceed and settle the estate. These letters do not issue until after the will has been proved. This evidence is for most purposes conclusive; so that the validity of the probate could not be questioned in an action brought by or against the executor. The only recourse is to appeal from the decree of the court admitting the will to probate. A single illustration will suffice. Should the executor bring an action on a note found among his testator's assets, the debtor would not be allowed to show in defence that the letters testamentary ought not to have been issued. The decree does not, however, conclusively establish the domicile of the testator. A court of equity has in general no power to set aside a probate, unless obtained by fraud.5 This does not include fraud in the 4 Whicker v. Hume, 7 H. of L. Cas. 1 Moultrie v. Hunt, 23 N. Y. 394. 2 Stanley v. Bernes, 3 Hagg. Ecc. 373; Doglioni v. Crispin, L. R. 1 H. of L. Cas. 301. 124. 5 Barnesley v. Powell, 1 Ves. Sr. 284, and even in that case with great caution; 3 Lynch v. Gov't of Paraguay, L. R. 2 Ryves v. Duke of Wellington, 9 Beav. 579, P. & D. 268. (a) Cross v. United States Trust Co., 131 N. Y. 330; Dammert v. Osborn, 140 N. Y. 30. But it has been held that a trust created by will, to be administered by trustees in a foreign country and valid 599. there, will be upheld, even though invalid in the testator's domicile. Hope v. Brewer, 136 N. Y. 126. See also Chamberlain v. Chamberlain, 43 N. Y. 424; Matter of Huss, 126 Id. 537. execution of the will. Where parties agree that a will shall not be proved, a court of equity may enforce the agreement, and prevent probate.2 The letters testamentary cannot be used to recover property in a foreign country or another State of the Union. (a) The executor may assign to another, who may bring the action. As a usual rule, a purchaser from the decedent is not bound to pay the purchase money until the will is proved and letters issued, as, until that time, the executor cannot give complete indemnity.* I. Distinctions peculiar to executors. — (1) An executor is not in general bound to give bonds for his fidelity, on the principle that as he was trusted by the testator, he may properly be trusted by the court. In special cases, bonds may be exacted.5 (2) The executor's title dates from the testator's death. The administrator's title dates from appointment, though after appointment it will for some purposes, by a legal fiction, relate back to the death. (3) The executor, where there is no statute to the contrary, may by will bequeath his executorship to his executor. On the other hand, on the death of a sole administrator there must be a new appointment. (4) Executor de son tort. There is a peculiar rule in the common law that if one, without being appointed executor, interferes with the management of a decedent's estate, he may be treated as an executor, and will be precluded from denying that he is such. He may, however, discharge himself by turning over to the rightful executor any property in his hands before action is brought against him. Such a person is subject to all the liabilities, but is entitled to none of the privileges of an ordinary executor. He may, accordingly, be sued by a creditor of the estate.8 A similar rule is applied to one who, having been appointed executor, does not prove the will.9 The doctrine of executorship de son tort does not apply to goods received in a foreign country.10 (b) This 7 Carmichael v. Carmichael, 2 Ph. 101, 1 Melwish v. Milton, L. R. 3 Ch. D. 27. 2 Wilcocks v. Carter, L. R. 10 Ch. App. 440. 8 Scott v. Bentley, 1 Kay & J. 281. 4 Newton v. Met. R'way Co., 1 Dr. & Sm. 583. 5 This matter is regulated by statute. Hill v. Curtis, L. R. 1 Eq. 90. (a) See also Petersen v. The Chemical Bank, 32 N. Y. 21; Stone v. Scripture, 4 Lans. 186; Schluter v. Bowery Savings Bank, 117 N. Y. 125; Wilkins v. Ellett, 9 Wall. 740; s. c. 108 U. S. 256; Gilman v. 103. 8 Coote v. Whittington, L. R. 16 Eq. 534. In re Lovett, L. R. 3 Ch. D. 198. 10 Beavan v. Lord Hastings, 2 Kay & J. 724. Gilman, 54 Me. 453. So, at common law, (b) Cf. Emery v. Berry, 28 N. H. 473. species of executorship has been abolished in some States; and the "wrongful executor" simply made a trespasser, and liable for his conduct in an action of trespass. The old rule was more convenient, as it enabled the owners of the estate to hold him liable on an accounting in equity.2 (5) Special rules apply where one appointed an executor is under a disability. In the case of an infant, an administrator is appointed to manage the estate during the minority. A married woman acting as executrix involves her husband in liability if she wastes the estate during their joint lives. The husband also stands in a fiduciary relation to the estate. The liability of the husband must be understood at the present time as subject to the changes produced in the law of any State by the statutes enlarging the legal capacity of married women. II. Distinctions applicable to administrators. — Administrators are appointed by the probate court to settle a decedent's estate, either when there is no will, or, if there be a will, when there is no executor. The appointment is made by the issuance of "letters of administration" to the person entitled thereto, upon his filing a bond prescribed by law. Administration is of two classes,-general and limited. The first is the ordinary case. Limited administration is granted under a variety of instances. Limited administrators are either (1) with the will annexed (cum testamento annexo); (2) de bonis non; (3) durante absentia; (4) durante minore ætate; (5) pendente lite. (1) Cum testamento annexo. This case occurs where there is no executor, either by reason of death, renunciation, or other cause. Administration is then committed to some person entitled by law, who must, in settling the estate, follow the directions of the will. Such an administrator has the same general powers as an executor. A point of difficulty, however, is whether he can execute a special trust devolved upon the executor. The better opinion is, that he can, except where the testator has granted discretionary powers to his executor, in which case he cannot. (2) De bonis non. This expression refers to the case where an original administrator has died or became incapaciated without fully settling the affairs of the estate. In this case a supplementary administrator is appointed to finish the business, or to admin 1 See in New York 2 R. S. 449, § 17. 2 Sharland v. Mildon, 5 Hare, 469. Until the enactment of 38 Geo. III. c. 87, an infant could act as executor on arriving at the age of seventeen. Williams on Executors, 7th ed. p. 231. 4 The executorship is presumed to have been accepted with the husband's consent. Adair v. Shaw, 1 Sch. & Lef. 243, 266; Williams on Executors, 7th ed. pp. 1836, 1837. See also Soady v. Turnbull, L. R. 1 Ch. App. 494. 5 Re Peperell, 27 W. R. 410. ister upon the estate so far as it has not been already administered (de bonis non administratis). (3) Durante absentia. This case refers to an appointment while an executor is abroad. The object is to provide a person who may be a party to a suit in equity, and represent the estate. Should the executor return in the progress of the suit, he is substituted in place of the administrator. This appears to have originated in statute.2 (4) Durante minore ætate. This applies to the case of a minor. Such an administrator is an ordinary administrator, except that his office terminates when the executor attains majority.3 The administration then ceases, and a suit begun by the administrator cannot be continued, but must be commenced anew, unless the case has reached judgment. (5) Pendente lite. The object of such an administration is to secure the property while a suit is pending concerning disputed wills or the right to the office of administrator. Such a person resembles a receiver appointed by a court of equity. His duty is to protect the fund rather than to administer upon the estate. Accordingly, if holding in the case of a litigation concerning a will, he ought not to pay legacies. A person of this character is in some States termed a collector. (a) In addition to the foregoing there may be mentioned the case where the person appointed executor, or who is entitled to administration, is of unsound mind, though not so declared by the courts. An administrator durante animi vitio may then be appointed." The classes of persons from whom administrators are to be taken, have long been established by law. The principal change in modern times is, that the membership of the classes has been enlarged, and the duties of the probate court more strictly defined. The statutes of the respective States must be examined for details. The principles upon which the selection of administration has been made to rest are, first, proximity of relationship; second, interest in the estate,- that is, the relation of debtor and creditor; and third, the interest of the State, to be represented by one of its officers. Those of the first and second classes may renounce their rights, whereupon the office may come to the third class. 1 Rainsford v. Taynton, 7 Ves. 460. 2 38 Geo. III. c. 87. 8 In re Cope, L. R. 16 Ch. D. 49; Stubbs v. Leigh, 1 Cox Eq. 133. 4 Adair v. Shaw, 1 Sch. & Lef. 243, 254. 5 Ex parte Evelyn, 2 M. & K. 3. (a) Such an officer in New York is now called a temporary administrator. See Code of Civ. Pro. §§ 2670-2683. A grant of letters of administration, even though ex parte, is conclusive evidence of the facts necessary to be shown in order to obtain it, e. g., that the administrator is next of kin. It is a judicial act. An action in equity cannot be brought to rescind the letters on the ground that the necessary facts do not exist. The correct remedy is, to apply in the probate court to have the letters recalled or revoked.1 An administrator, like an executor, cannot bring an action in another State or country without taking out letters of administration there, called "ancillary letters."2 The appointment has only a local effect.3 This rule does not apply when he has recovered a judgment, for then he need not sue in the foreign country on the judgment in his character as administrator, but in his individual capacity. (a) III. Rules common to both executors and administrators. Executors and administrators have, strictly speaking, only to do with personal property, and with this only by way of settlement of the estate. Though they hold in a fiduciary character, their trust is implied. An express trust of personal property may be given to an executor, but in that case he is really a trustee. In the same way, he may have the title to real estate, or authority over it. On the first of these suppositions, he will be deemed a trustee, and in the second, the donee of a power. In discussing this subject, notice will only be taken of the duties of executors and administrators strictly as such, except that their statutory power to dispose of land to pay the testator's or intestate's debts will be briefly noticed. It should be said, by way of preliminary, that the interest of two or more executors is joint, and cannot be divided into distinct powers.5 Each, however, has entire control of the personal estate, and may release a debt or transfer a right of action without the others. The same rule seems to be applicable to administrators, though it was at one time thought otherwise. The receipt of one executor is sufficient, though he forges the signature of the coexecutor to the receipt, and embezzles the amount paid. So one may settle an account though his associates dissent.8 1 In re Ivory, L. R. 10 Ch. D. 372; Barrs v. Jackson, 1 Ph. 582. 2 See post, p. 667. 5 Owen v. Owen, 1 Atk. 494. 6 Jacomb v. Harwood, 2 Ves. Sr. 265; Charlton v. Earl of Durham, L. R. 4 Ch. Fernandes' Executors' Case, L. R. 5 App. 433. Ch. App. 314. See ante, p. 644. 7 Charlton v. Earl of Durham, supra ; 4 Talmage v. Chapel, 16 Mass. 71; Barry v. Lambert, 98 N. Y. 300. In re Macnichol, L. R. 19 Eq. 81. 8 Smith v. Everett, 27 Beav. 446. (a) See Tittman v. Thornton, 107 Mo. 500; Barton v. Higgins, 41 Md. 539. |