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peal, 109 Pa. St. 383 ; Sanderson v. San- creditors must resort to the refunding derson, 17 Fla. 820; Johnston v. Fort, 30 bonds or to any residue of the estate Ala. 78. A bond to inde nify against not accounted for. Schaeffer's Appeal, debts will cover administration ex- 119 Pa. St. 640. Recovery may be bad penses also, Springsteen v. Samson, on such bond, although the deficiency is. 32 N. Y. 714 ; although the failure to due to the failure to complete a sale of require bond may not render the decree property of the estate, Lowery v. Perry, of distribution invalid. Chapell v. 85 N. C. 131 ; or to a depreciation in the Shuee, 117 Ind. 481. So, a refunding value of the property of the estate. bond is necessary, whether payment Stokes v. Goodykoontz, 126 Ind. 535. is made to the distributee in his own So, though the distributees received their right or to another as guardian, Keith shares in securities instead of cash. v. Jolly, 26 Miss. 131 ; Chandler v. Mor- Ashurst o. Potter, 2 Stew. (N. J.) 625 ; rison, 123 Ind. 254 ; or trustee. Simp- Hawthorne 0. Beckwith, 89 Va. 786. son's Appeal, 109 Pa. St. 383. So, But not where the failure is due to the an assignee may be required to give neglect or oversight of the adminissuch bond, and such requirement will trator in regard to debts outstanding at not excuse his neglect in collecting the the time he made distribution. Don. share, if loss is occasioned by it. Davis nell v. Cooke, 63 N. C. 227. If the v. Newton, 6 Met. 537. And the Court persons receiving the share are not of Chancery may require such bond in entitled as distributees, they will be a proper case irrespective of the statute. liable for the entire amount received, Estate of Palmer, 16 Phila. 261. In although the bond only calls for the California, it is discretionary with amount in excess of their shares. Moss the Probate Court to require bond or v. Foulkes, 14 Lea 382. dispense with it. Estate of Levison, In some states it is dispensed with, 98 Cal. 654. Without a refunding bond if the estate is solvent and without the administrator of a deceased guardian debts. Chambers o. Wright, 52 Ala. will be liable to the ward for a balance 444. And the failure to take such bond due on his account, although the ward is not a devastavit, in Connecticut. had at his maturity given the guardian a Davis v. Van Sands, 45 Conn. 600. receipt on which the administrator had Where no bond is given, a distributee is relied. Musser v. Oliver, 21 Pa. St. 362. personally liable to refund an excess of The statute sometimes requires such payment, but the liability is not a charge bond to be given even after the time on his share. Wilcoxon 0. Donelly, for limiting creditors is expired, Woer- 90 N. C. 245. On the other hand, he ner on Admn. 560 : Willeford o. Wat- may be excused from refunding after son, 12 Heisk. 476 ; and it must be the value of the property taken in distendered on petition for distribution. tribution (slaves) was destroyed by their Richmond v. Delany, 33 Miss. 83 ; Gam- legal emancipation, Worthy v. Brower, mage v. Noble, 24 Miss. 150 ; Crosby v. 93 N. C. 344; or where the payment was Covington, 24 Miss. 619. In bringing voluntary and the action is barred by suit on the administrator's bond for ordinary lapse of time. Montgomery's non-payment of a distributive share, Appeal, 92 Pa. St. 202. And, in general, the plaintiff must aver the tender of a without such bond or other express refunding bond. Ordinary 0. Wbite, obligation, there is no legal liability to 14 Vroom 22.
refund a voluntary payment, Miller Where the distribution is made on v. Hulme, 126 Pa. St. 277 ; especially order of court and security given, where the distributee was a married
woman, and the payment was made without her knowledge or consent to her husband, Jones v. Commercial Bank, 78 Ky. 413; although refund. ing of overpayments may be required by adjudication on final accounting. Estate of Grim, 147 Pa. St. 190; but not by an affirmative judgment against the distributee for the excess received by him. Echols v. Almon, 77 Ga. 330. Without any refunding bond a court of equity may compel the distributee to refund for the purpose of paying debts afterward allowed, Cutright o. Stanford, 81 Ill. 240 ; but not to protect a cestui que trust who has proved no
claim as a creditor against the estate, and whose funds have been mingled with those of the intestate beyond the possi. bility of identification, McComas o. Long, 85 Ind. 549 ; nor to enforce & verbal promise of the distributee to pay the debts which he had neglected to pay. Breining v. Schneider, 46 Mich. 385 ; nor until the creditor's remedy is exhausted against the administrator and his sureties. Tifto. Collier, 78 Ga. 194. So, distribution may have to be refunded on the subsequent establishment of a will. Sewell 0. Slingluff, 62 Md. 592.
Of the rights of the husband and his representatives, with respect
to the personal property of his intestate wife.t
administrator to his wife :
It has been shown, in a former part of this treatise, that the husband is entitled to the grant of administration of his
Husband's rights wife's effects ; and consequently, before the Statute of as Distributions, he was entitled, as all administrators were, to the exclusive enjoyment of the residue : Doubts, however, arose, whether the husband's right was not superseded by the force of that statute ; and whether he was not thereby bound to distribute her personal estate among her next of kin : To obviate which, it is provided by the 29 Car. II. c. 3, s. 25 (the Statute of Frauds), that neither the Statute of Distributions or anything therein contained “shall be construed to extend to the estates of feme coverts that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover *and enjoy the same, as they might have done before the making of the said Act” (p).
In case the wife dies intestate, and afterward the husband dies, without having taken out administration to her, the
rights of the hus. Ecclesiastical Court, until a late period, considered itself band's represen.
tatives, he dies bound by the statute 21 Hen. VIII. c. 5, to grant admin- without taking istration to the next of kin of the wife, and not to the tion to her ; representative of the husband (9). But such administrator was regarded, in equity, with respect of the residue, as a trustee for the representatives of the husband (r): For the husband surviving the wife, her whole estate vested in him at the time of her death, and no person could possibly be entitled to the rights of his wife but himself ; so that her whole property belonged to him (8). And the practice of the Prerogative Court of Canterbury, on this head, was altered in Sir John Nicholl's time ; and the rule established was, that the administration shall be granted to the representatives of the husband,
+ See American note at end of this Section.
(p) See ante, pp. *754_*759, as to the extent of the husband's rights as his wife's administrator. See also ante, pp. *612, *613.
(9) See ante, p. *349.
(7) Cart 0. Rees, 1 P. Wms. 381, (cited in Squib v. Wyn). Humphrey 0. Bullen, 1 Atk. 458. S. C. 11 Vin. Abr. 88. Elliott v. Collier, 3 Atk. 526. S. C. 1 Ves. Sen. 15. 1 Wils. 168.
(8) Elliott v. Collier, 3 Atk. 527.
unless it can be shown that the next of kin of the wife are entitled to the beneficial interest (t). So in a case where the husband takes out administration to his wife,
and dies without having administered to all her estate, or without having fully adminis: the ecclesiastical courts, for a long period, thought
themselves obliged to commit administration de bonis non of the wife, if required, to the next of kin of the wife at the time of her death (u): Still the beneficial interest in her effects has always been held to be in the representatives of her husband (v).
It may be a question, what shall constitute the legal relations of husband and wife, so as to confer the rights *above discussed : This subject has already been considered, incidentally to the investigation of the husband's right to the administration ().
(1) See ante, p. *350.
(c) Humphrey o. Bullen, 1 Atk. 458. () Ante, pp. *346_*352.
† American statutes. The statute 29 Car. II. c. 3, § 25, has been re-enacted, in Delaware (1898 R. C. c. 89, $ 32), Kentucky (1887 G. S. c. 31, § 11), Nero Jersey (1877 Rev. 785, § 148), Oregon (1892 An. L. $ 3099), Pennsylvania (1883 Purd. Dig. 930, $ 4), and Virginia (1887 Code, $ 2557). In Colorado (1891 An. Stats. & 3010), the husband takes onehalf of the estate. In Rhode Island (1882 P. S. c. 166, § 14), he not only takes the whole estate as at common law, but if his wife survives him and dies without next of kin, his next of kin take the whole (Id. c. 187, § 4). In some of the other states he takes all if there are no issue, and a child's share if there are issue. This is so, in Georgia (1882 Code, 8 1761); and, except that he takes onehalf if there are issue, in Massachusetts (1882 P. S. c. 135, § 3), and a life estate in the whole if there are children, in Maryland (1888 P. G. L. Art. 45, $ 2); Engel v. State, 65 Md. 539. He takes the same share that is given to the surviving wife, in Florida (1892 R. S. $ 1820), Indiana (1894 Rev. SS 2643– 46), Illinois (1891 R. S. c. 39, § 1),
Iowa (1888 R. C. & 2440), Kansas (1889 G. S. & 2619), Maine (1883 R. S. c. 75, § 9), Minnesota (1891 Stats. § 5694), Mississippi (1892 An. C. $ 1545), New Hampshire (1891 P. S. c. 195, $ 10), Ohio (1890 R. S. SS 4160, 4188), South Carolina (1882 G. S. S 1845), Vermont (1880 R. 'L. & 2230), West Virginia (1891 Code, c. 78, S 9). So too, in California (Civ. Code, S 1386), except that he takes the whole community property (Id. $ 1401); Connecticut (1888 G. S. & 623), except her allowance for support; Michigan (1882 An Stats. $ 5847), without her $1000 restriction ; New York (1889 R. S. 8th ed. 2567, S 79; L. 1867, c. 509), if she leares descendants ; Texas (1888 R. S. Art. 2165), as to their community property. In Iowa, where the wife survives her husband, the share that he would take goes to his heirs and is divided with the heirs of a former husband, if any (1888 R. C. $ 2458). In Indiana, a husband living in adultery takes no part of his wife's estate (1894 Rev. § 2658). So, in Pennsylvania, a husband who has deserted his wife for a year
(1883 Purd. Dig. 1154, S 30). In Missouri (1887 R. S. § 4465), he takes the whole if there are no descendants, parents, brother or sister, or their descendants.
For a particular statement of the American statutes enabling married women to make wills and the restrictions requiring consent of the husband or saving his right to all or part of the property, see 3 Jarm, on Wills 752, American note. Such consent is required, in Delaware, Massachusetts, Nebraska, and Oregon ; and his consent to her procuring a collusive divorce and marrying another man is not a consent to her subsequent will, and does not cut off his distributive right as her lawful husband. Hardy V. Smith, 136 Mass. 328. She may make a will only under certain circumstances, in Georgia, New Hampshire, and North Carolina.
Against the provisions of her will the husband may take one-third of her property, in Iowa (1888 R. C. & 2436); May v. Jones (Ia.), 54 N. W. Rep. 231 ; and one-half, in Colorado (1891 An. Stats. $ 3010), Kansas (1889 G. S. & 7239), Massachusetts (1882 P. S. c. 147, § 1); and his share as in case of intestacy, in Ohio (1890 R. S. § 5963), and Pennsylvania (1883 Purd. Dig. 1712, § 21). But where the husband has a right to elect to take his half of the personal property in lieu of the provisions of his wife's will, he cannot take half of the property disposed of by her will and all of the property not disposed of by the will (his distributive share where there are no issue). Lee's Appeal, 124 Pa. St. 74.
Common-law right. In New York, the surviving husband's marital right to the personal property of his wife (which has been changed by the statute only where she leaves descendants) has remained unaffected by the legislation as to married women where the wife
failed to exercise the testamentary power conferred on her by those statutes, Barnes v. Underwood, 47 N. Y. 351 ; McCosker 0. Golden, 1 Bradf. 64; Ransom v. Nichols, 22 N. Y. 110 ; or failed effectually to dispose of property by reason of legacies in her will lapsing, Robins v. McClure, 100 N. Y. 328, affg. 33 Hun 368; even though the legacy that lapsed was a remainder in the residue after a life estate to her , husband. Fry v. Smith, 10 Abb. N. C. 224. But see, contra (in an earlier case in the same court), as to a similar remainder which was void in part because of the incapacity of the corporate legatee to take the whole amount bequeathed. Kearney v. Missionary Society, 10 Abb. N. C. 274. An insurance policy on the husband's life payable to a trustee for the wife's separate benefit goes to him by right of survivorship. Olmsted v. Keyes, 85 N. Y. 593. So, he takes her choses in action by right of survivorship, and his personal representatives can sue as such for them without administering on the wife's estate, Roosevelt v. Ellithorp, 10 Paige 415 ; even where the husband had not taken out letters on her estate, or reduced the chose in action to possession. Gilman v. McArdle, 12 Abb. N. C. 414. So, Albee v. Carpenter, 12 Cush. 382 ; Brown v. Critchell, 110 Ind. 31 (by act of 1843, then in force). But if she survived him, her distributive share of another estate not reduced to possession by him survives to her. Hayward o. Hayward, 20 Pick. 517. The husband is the only party entitled to be heard, in New York, as next of kin in case of intestacy (without descendants) on application for probate of the wife's will. Valence v. Bausch, 28 Barb. 633.
At common law no other next of kin could administer on and recover the wife's personal property.
Weeks v. Jewett, 45 N. H. 540. And if any other administered, after the husband