EXECUTORS AND ADMIN-
ISTRATORS.

See, also, Descent and Distribution; Wills.
Assets.

1. Money awarded to an executor out of the es-
tate of his co-executor, to reimburse him for money
paid on a balance due the estate by both executors,
is not assets of the estate, but of the executor to
whom it is paid.-Appeal of Miller, (Pa.) 866.

2. N. was cashier of B., the state treasurer, and
used in speculations funds of the state for which
B. was responsible, and which he afterwards re-
paid. Upon N.'s death this fact was discovered,
and it was also learned that N. had margins on ac-
count of purchases made through brokers. Owing
to a decline in prices his margins were exhausted,
and B., in order that the estate might not suffer
loss, advised N.'s administrators to still carry the
account until a rise in price. should come, and of
fered to advance the margins, if necessary. He
was not called upon to do so, but the administra-
tors carried the account until a profit was realized.
Held, that B. was not entitled to the profit, which
was an asset of N.'s estate.-Appeal of Brecken-
ridge, (Pa.) 874.

3. N.'s administrators having wrongfully paid
to B. the amount of the profit, with which on their
accounting they were charged, they should be sub-
rogated to B.'s claim against the estate for the de-
ficit in the treasury funds made good by him, and
should receive the dividend to which B. was enti-
tled on the distribution of N.'s assets.-Id.
Powers and duties.

4. Land devised to be set apart by the executors
may be set apart by such of the executors as qual-
ify, under Pub. St. R. I. c. 184, § 21, authorizing a

less number than all of the executors named to ex-

ecute the trust, if the others decline it.-Wood v.
Hammond, (R. I.) 324.

5. All choses in action belonging to a testator at
the time of his death pass, on his death, to his ex-
ecutor, even though they are given as a specific
legacy.-Hayes v. Hayes' Ex'x, (N. J.) 634.

6. An executor has an absolute power of dis-
posal over the whole of his testator's personal ef-
fects, including such things as are given by way
of specific legacies; but he should preserve the
things specifically given, so that they may be de-
livered in kind to the legatees, unless their con-
version into money for the payment of the testa-
tor's debts is absolutely necessary.-Id.
Administrator de bonis non.

7. An administrator d. b. n. cannot sue the ex-
ecutor of the former administratrix, on her bond,
for maladministration, and failure to pay over to
her successor the moneys, etc., of her intestate,
such action being authorized neither by the com-
mon law nor by Pub. St. R. I. c. 184, § 27, giving
an action to an administrator appointed to suc-
ceed a personal representative, who has resigned
or been removed, to recover of his predecessor,
his heirs, personal representative, or guardian,
the effects, books, papers, etc., of the intestate; as
the statute only applies to goods, etc., unadminis-
tered by the former representative, and only where
such former representative has resigned or been
removed, and not where he has died in office.-
Court of Probate v. Smith, (R. I.) 56.
Allowance of claims.

8. Under R. L. Vt. §§ 2121, 2123, providing that
the probate court shall, subject to certain limita-
tions, prescribe the time within which claims
against a decedent's estate must be presented to
the commissioners appointed by said court to audit
such claims, and that at the expiration of the time
limited, or as soon thereafter as they can complete
the hearing of the claims, the commissioners shall
report to the court, an order directing the payment
of a claim included in such report is not void
though the report was filed before the expiration
of the time prescribed.-Sowles v. Quinn, (Vt.) 493.

Claims by executors.

9. R. L. Vt. § 2115, provides that commissioners
shall be appointed to examine claims against es-
v.17 A.-72

tates of decedents. By section 2117 they are to de-
cide claims in favor of or against executors and ad-
ministrators. Under sections 2123, 2124, they are
to report to the court, after giving notice of any
disallowances. Section 2125 declares that all
claims not presented to the commissioners shall be
forever barred. Section 2277 provides for appeals
by executors from decisions of the commissioners,
which right is also given by a general provision to
all parties. Held, that the provisions include the
claims of an executor against the estate he repre-
sents, and, unless presented and allowed by the
commissioners in like manner as those of other
creditors, they are barred, and cannot be presented
by the executor to the probate court on filing his
final account. TAFT, J., dissenting.-Riley v. Mc-
Inlear's Estate, (Vt.) 729.

Settlements and accounting.

10. Rents and profits of real estate of a deceased
insolvent debtor go to the devisee or heir, and not
to the executor.-Brown v Fessenden, (Me.) 709.
11. Where an executor did not become chargea-
ble as such for rents of real estate taken by him
for the devisee, he was not required to account
therefor in the settlement of his account with the
probate court.-Id.

12. Where it appears that a widow, who is an
executrix of a will, has no other source of income
than her claim under the will, the presumption is
that securities held by her at her death in her own
name resulted from investment of amounts col-
lected by her under the will, though she also re-
ceived large sums as interest on such amounts.
Vreeland v. Westervelt, (N. J.) 695.

13. An executor included in the inventory of the
in the possession of testator at death. In account-
estate commercial paper made by him, and found
ing the executor did not charge himself with the
plain away and overcome the presumption arising
amount of such paper. Held, that evidence to ex-
admission of liability arising from proving the in-
from the possession of such paper, and the solemn
Ventory, ought to be clear, consistent, and pre-
ponderating. In the absence of such evidence the
executor should be charged therewith.-Tichenor
v. Tichenor, (N. J.) 631.

for several years, and the commissioner reports
14. Where an executor holds money of an estate
that there were banks which would have allowed
him interest on the money during that time, a
judgment of the county court charging him with
interest will be sustained. - Riley v. McInlear's
Estate, (Vt.) 729.

15. The costs of an audit, caused by unfounded
charges of an executor, are properly charged to
him.-Appeal of Barhite, (Pa.) 617.

16. Where the court at the time it fixes the
amount of the commissions to be allowed also de-
termines, upon due notice, the proportions in
which they shall be divided, and records its de-
termination on the account, the action of the court
amounts to a judgment, and will not be changed
except fraud or mistake be first shown. -Mount v.
Slack, (N. J.) 297.

17. The review of a decree adjudicating an ac-
count of executors to allow the filing of exceptions
is ex gratia, resting in the discretion of the court,
and should not be allowed a year after the adjudi-
cation, at the instance of a party who with knowl-
edge of it declined to appear.-Appeal of Fletcher,
(Pa.) 340.

the orphans' court decree on final settlement of an
18. Revision N. J. p. 775, § 108, providing that
executor's accounts shall be conclusive on all par-
ties, and shall discharge such executor from all
demands, protects the executor; but where the
widow has no notice of the proceedings other than
cation of the statutory notice, and is not heard,
such constructive notice as arises from the publi-
she is not concluded by the settlement or decree of
distribution as between her and the legatees and
distributees. Following 14 Atl. Rep. 575.-Adams
v. Adams, (N. J.) 775.

19. The question at issue was whether the wid-
ow of decedent as executrix should have been
charged with a certain sum of $1,500. The day be-
fore the death of decedent that amount was drawn

from the bank on decedent's check, and delivered
to the wife inclosed in an envelope, and, at the
time of the death of decedent, there were $1,700
in money in the house. The widow claimed that
before the death of decedent she gave him back
the envelope containing the $1,500, at his request;
that she never saw it again; and that there were
several strangers in the room at the time, whom
she did not know. She further testified that the
$1,700 belonged to her on her marriage with de-
cedent; and that while he had used the money in
his business he had always paid her interest on
it, and about six months before his death paid her
the principal. But it appeared that at the time of
the marriage the law in force did not enable a wife
to hold personal property distinct from her hus-
band, except through the intervention of a trus-
tee; and that, at the time of the alleged payment
of the $1,700 to the wife, she had no need of it, and
her husband had. She made contradictory state-
ments with reference to deposits by her in bank,
and to the amount of money in the house. Ac-
cording to her statement the $1,700 lay idle and in-
secure in the house for more than a year, part of
it having been given to a servant to take care of.
Held, that a decree charging the executrix with
the $1,500 would be sustained. — Green v. Butter-
worth, (N. J.) 949.

Settlements and accounting-Credits.

20. A will, after various provisions, gave the res-
idue of testator's property to his widow during
her widowhood. Held, that the allowance of a
credit by the surrogate in the account of the exec-
utors, of whom the widow was one, of a certain
amount for "personal property bequeathed to wid-
ow, "did not operate to vest that amount absolute-
ly in the widow, so that it could not be reclaimed
by the surviving executor after her death, where
it does not appear that the construction of the will
was in question.-Vreeland v. Westervelt, (N. J.)
695.

21. An allowance to executors of a commission of
4 per cent. will not be disturbed, where it appears
that the estate was successfully managed, and
that the labor and responsibility were consider-
able.-Appeal of Harbster, (Pa.) 204.

22. Neither will an allowance of $2,000 for serv-
ices of counsel rendered to the executors, and to
the decedent in his life-time, be disturbed; there
being nothing in the record showing that such al-
lowance is excessive.-Id.

23. In a proceeding to surcharge, it appeared
that a claim for a monument, etc., for testator's
burial lot was allowed to the creditor filing it,
though none had been furnished, and that admin-
istratrix knew that fact. The creditor testified
without being contradicted that his previous tes-
timony was misunderstood; and that he never in-
tended to state that the work was actually done at
the cemetery; but that it was done ready to be
put up, and was not, by his agreement with ad-
ministratrix, to be placed in the cemetery until
the bill was allowed. Held, the amount of the
bill should not be surcharged, as there was no evi-
dence of fraud.- Appeal of Crosson, (Pa.) 423.

24. Disagreements having arisen between exec-
utors, two of them engaged appellant to prepare
an answer to a citation requiring them to show
cause why they should not account. Appellant at-
tempted to prepare an account for the two execu-
tors, and in doing so conferred with the other ex-
ecutor and his attorneys, whose account was ut-
terly irreconcilable with that of the other two.
Five or six accounts were prepared, but before a
settlement could be reached new items of dif-
ference arose which nullified them. Appellant
claimed for these services $1,000, and the auditing
judge allowed $500, without prejudice to appel-
lant's claim against the executors individually.
Held proper, as part of the services were ren-
dered for the executors personally. Appeal of
Fox, (Pa.) 451; Appeal of Smyth, (Pa.) 453.
25. Testator directed his executors to manage
and carry on his business, as then conducted by
him, for the benefit of his wife and children, until
a certain child should become of age, and to ac-
count to them for the net profits, first retaining a

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certain weekly salary, together with a given per-
centage of the net profits. The majority of those
interested were empowered to close the business
at any time, but failed to do so. After making the
will, testator had taken the executor into partner-
ship, giving him one-fifth of the profits, and lived
three years after doing so. One-fifth of the profits
would amount to $2,000, while the salary and per-
centage would amount to $1,500 only. By a statute
of Pennsylvania a will speaks and takes effect as
if executed immediately before testator's death.
Held, that the executor was entitled to the salary
and percentage in addition to his interest as part-
ner.-Appeal of Allen, (Pa.) 453.

26. An executor is not entitled to commissions on
an advancement, concerning which he has nothing
to do but take a receipt, nor on a debt due by him
to the estate, and a commission of 5 per cent. on
the balance of the estate is sufficient, where the es-
tate is large, there are no debts, and the estate can
be distributed in kind between the legatees, of
whom the executor is one.-Appeal of Barhite,
(Pa.) 617.

Payment of legacies-Interest.

27. Where the executors were ordered to set

apart a specified sum to pay certain specific lega-
cies, and to be "safely invested for the legatees,
and one of the executors had paid to the specific
legatees the respective amounts due them on their
becoming entitled thereto, he was not liable to
residuary legatees for interest on the sum set apart,
though such sum had never been invested in ac-
cordance with the order.—Appeal of Miller, (Pa.)
866.

Sale under power-Use of proceeds.
28. Though an executor, instead of exercising in
the manner prescribed by statute a power of sale
of land conferred upon him by the will, negotiates
the sale, and procures the deed to be executed by
the heirs, and receives the proceeds, he has a right
to use such proceeds for the purposes specified in
the will and required of him by law.-Roberts v.
Roberts, (Md.) 568.

29. Where, having received such proceeds, the
executor stated his account in the proper court, by
which he was charged with the whole of the pro-
ceeds, and credited with the amount of debts and
expenses paid and commissions allowed, the cor-
rectness of that account cannot be called in ques-
tion by a suit in another court against him in his
individual capacity.—Id.

Sales under order of court.

30. An order of sale of realty to pay debts creates
no trust to pay debts then existing, and a judgment
afterwards obtained against the administrator, the
lien of which expires before sale, is not entitled to
participate in the distribution.-Appeal of Will-
iamson, (Pa.) 8.

31. There being no evidence that the administra-
trix was interested in the purchase of the land ex-
cepting a vague statement by her that "something
might turn up" by which she would get the money
and buy the land of the purchaser, he having paid
his own money for it, and held possession since the
purchase, her commissions on the sale should not
be refused on the ground of such interest.-Ap-
peal of Crosson, (Pa.) 423.

32. An administratrix sold land incumbered by
mortgage, subject to which the sale was ordered
to be made, and other liens, and that fact was
stated in the advertisements. The auctioneer an-
nounced that, as the exact amount of the mort-
gage could not be ascertained at the time, the sale
would be made as if there were no mortgage,
and the price for which it should be struck off
would be the price of the same incumbered only by
the gronnd-rent to which it was subject. The ad-
ministratrix allowed the purchaser to deduct the
amount of the mortgage, which was about half his
bid. Held, that while the rule of caveat emptor
applies to such sales, the administratrix was jus-
tified in allowing the deduction, and her account
should not be surcharged therewith.-Id.

33. The administratrix has, under such circum-
stances, no power to allow the purchaser a deduc-

tion of the taxes on the mortgages subject to
which the land was sold.-Id.

34. Gen. Laws N. H. c. 201, gives the judge of pro-
bate the power, on petition of an administrator, to
grant license for sale of land of the intestate for
payment of debts. Held, that the right of a cred-
tor of a decedent to have his debt satisfied out of
land formerly owned by decedent will not be de-
termined on a bill in equity by another to foreclose
a mortgage on the land, though no administrator
has been appointed, as the statutory proceeding in
the probate court is the proper remedy.-Lebanon
Sav. Bank v. Waterman, (N. H.) 577.

35. On bill by a surviving executor against the
administrator and heirs of the widow, a co-execu-
trix, to recover certain securities, it appeared that
one of the securities was a note given by the wid
ow's administrator, who was one of the benefi-
ciaries under the will, for an amount exceeding
his interest, and that he was unable to pay it. It
also appeared that another of the securities was a
note given by complainant's wife, who was an
heir of defendant's intestate, and a legatee under
the will, for an amount exceeding her interest in
the estate. Held, that the facts that the legatees
took equal shares under the will, and were the dis-
tributees of the estate of defendant's intestate,
constituted no defense to the bill.-Vreeland v.
Westervelt, (N. J.) 695.

FALSE PRETENSES.

See, also, Deceit; Fraudulent Conveyances.
Indictment.

1. Under Code Md. art. 27, § 288, providing that
in an indictment for false pretenses it shall not be
necessary to state the particular false pretense to
be relied on in proof, but defendant, on application
to the state's attorney, shall be entitled to a state-
ment thereof, and of the names of the witnesses,
such an indictment is not demurrable for failure
to set out the false pretenses intended to be relied
on.-State v. Blizzard, (Md.) 270.

2. Code Md. art. 27, § 291, providing that in such
indictment it is sufficient to allege that defendant
did the act with intent to defraud, without alleging
his intent to have been to defraud any particular
person, and that it is sufficient to describe the in-
strument by any designation by which it is usually
known, or by its purport, relates only to the man-
ner of alleging the facts and bringing them in the
record, but does not dispense with the necessity
for their averment.-Id.

3. The indictment must distinctly allege the own-
ership of the property or securities obtained.-Id.

False Representations.

Probate practice.

38. Where there are two or more executors of a
will, all of them should join in any application that
may be made to have the estate declared insolvent;
and the court should not take favorable action up-
on such an application, when made by one of sev-
eral executors, unless sufficient reason therefor
shall be alleged in the application, and established
to the court's satisfaction.-Hutchinson v. New-
bold, (N. J.) 691.

Auditors-Fees.

39. Where an auditor appointed by the orphans'
court, at the nomination of all parties in interest,
to make distribution of an estate, is employed more
than 20 full days in making the audit and prepar-
ing his report, $300 is not an excessive fee.-Ap-
peal of Geissinger, (Pa.) 222.

Exemplary Damages.

See Damages, 1, 2.

EXEMPTIONS.

From taxation, public charity, see Taxation, 6.
Of pension money, see Pension.

Waiver.

Where an attachment is levied on the share of
a debtor in a fund in the hands of the trustees of
an estate which he cannot receive, and the cred-
itor cannot take, until the death of debtor's moth-
er, and an accounting by the trustees, the neglect
of the debtor to claim his exemptions for 13 years
will constitute a waiver thereof, although the
events on the happening of which the debtor was
to be entitled to said fund have not occurred.
Harlan v. Haines, (Pa.) 248.

Experts.

See Evidence, 13, 14.

Express Trusts.

See Trusts, 1, 2.

Fees.

Of attorney, see Attorney and Client, 4–6.
auditors in probate, see Executors and Admin-
istrators, 39.

county officers, see Counties, 1, 2.
tax collector, see Towns, 6, 7.

Fellow-Servants.

Negligence of, see Master and Servant, 6-8.

Fines.

Collection by indictment or action, see Intoxicat-
ing Liquors, 25, 26.

FISHERIES.

Arrest without warrant.

1. The provision of Code Md. art. 72, authorizing
the fishery police to arrest, without delaying to
procure a warrant, offenders detected in the act
of violating the law, applies to the police force on
the water as well as on land.-Kane v. State, (Md.)
557.

2. Where one was arrested without a warrant
for violation of fishery laws, if nothing appears to
the contrary, it will be presumed that he was ar-
rested in the act, so as to give the court jurisdic-
tion to try the offense.-Id.

Information.

3. Act Vt. 1884, No. 73, prohibiting the taking or
catching of pond pickerel in any of the waters of
the state between certain dates, applies to any
"taking or catching, "irrespective of what is done
with the fish after they are taken, and an informa-
tion therefor need not aver that the fish were de-
stroyed.-State v. Smith, (Vt.) 492.

4. Act No. 245, approved on the same day that
No. 73 was, provides that No. 245 shall not be con-
strued to prohibit fishing with hook and line in
mation for taking and catching pond pickerel from
Lake Bomoseen at any time. Held, that an infor-
Lake Bomoseen during the prohibited period need
not negative the idea that they were taken with
hook and line, as that is matter of defense.-Id.

FORCIBLE ENTRY AND DE-
TAINER.

New Trial.

Under supplement to the New Jersey act consti-
tuting district courts, approved April 14, 1884,
(Supp. Rev. 259,) as amended by a further supple-
ment, April 23, 1888, (Laws 1888, p. 470,) the judge

Foreclosure.

Of lien, see Mechanics' Liens, 9.
mortgages, see Mortgages, 24-27.

Foreign Corporations.

See Corporations, 14.

Foreign Laws.

Construction, see Stare Decisis.

Forgery.

See Alteration of Instruments.

Former Acquittal.

See Criminal Law, 5.

Former Conviction.

3. A bona fide arrangement by which the lessee
of a farm puts another farmer, who is insolvent,
into possession of it, and supplies him with stock
and implements for working it as his agent, which
stock, etc., formerly belonged to the insolvent, but
was purchased by the lessee at sheriff's sale, and
left in possession of the insolvent for the above pur-
pose, is in no sense a fraud upon creditors of the
insolvent whose judgments antedated the arrange-
ment.-Rohland v. Rooke, (Pa.) 805.

4. Where, by agreement between husband and
wife, the husband takes title to land in his own
name, and pays part of the purchase price with his
own money, and agrees to hold for the wife's bene-
fit, and she afterwards pays the balance of the
price, the husband's judgment creditors have a
right to resist the assertion of a resulting trust in
favor of the wife, though the husband joins with
the wife in maintaining its validity.-Zeller v.
Light, (Pa.) 433.

5. Where a feme trader conveys land to her hus-

FRAUDS, STATUTE OF.
Promise to answer for debt of another.
1. Defendant B. contracted debts, which he had
charged to himself and defendant M. Both being
sued, B. defaulted, and it was shown that M. had
ratified the transaction. Held, that the ratification
was not a promise to pay the debt of another.-
Bundy v. Bruce, (Vt.) 796.

Contract of sale of goods.

2. The surrender of the legal control of a farm,
and the tools thereon, by plaintiff, as administra-
tor, to defendant and others, heirs, and the taking
possession of and carrying on the farm by all the
heirs as tenants in common, constitute a sufficient
delivery of the tools, and acceptance thereof by de-
fendant, to make the sale of the tools enforceable
under the statute of frauds.-Wilkinson's Adm'r
v. Wilkinson, (Vt.) 795.

FRAUDULENT CONVEYANCES.
See, also, Creditors' Bill.

Change of possession, see, also, Chattel Mortga-
ges, 1.

Gift by husband in fraud of creditors, see Husband
and Wife, 1.

What constitutes.

tion, though less than the value of the land, and
the husband has no notice of the existence of any
creditors of hers, the conveyance is good as against
such creditors.-Claflin v. Batchelder, (N. H.) 1060.

wife, the husband engaged in hazardous business
6. Shortly after a conveyance of property to a
appeared that the wife had a claim against the hus-
undertaking, which proved unsuccessful. But it
band nearly equal to the value of the property con-
veyed, and that the husband had been induced to
engage in the business in question by assurances
that it was perfectly safe. He testified that he
had some properly left. Held, that the evidence
did not show that the conveyance to the wife was
fraudulent.-Hagerman v. Buchanan, (N. J.) 946.
7. A covenant from which the covenantor may
be relieved on account of the failure of a transfer
for which it was made, is not a good consideration
within the statute against fraudulent conveyances.
-Arnold v. Hagerman, (N. J.) 93.

Change of possession.

8. Where the question is as to the validity of the
assignment of property by a debtor to plaintiff,
the refusal of an instruction asked by the defend-
ants, who are execution creditors of the assignor,
that if the "transfer of the business" from the
debtor to the plaintiff was not accompanied by an
actual change of possession, "the verdict should
be for defendants," is proper.-Widdall v. Garsed,
(Pa.) 418.

Fraud of grantee.

9. Where creditors seek to set aside a convey-
ance by a debtor as fraudulent as to them, fraud
will not be imputed to the grantee by any rule of
law, but it must be shown that the latter was
guilty of actual fraud, which is to be found as a
fact by the jury.-Knower v. Cadden Clothing Co.,
(Conn.) 580.

10. Where the conveyance is voluntary it is not
necessary that the grantee should actually partici-
pate with the grantor in his fraudulent purpose, or
be privy to it.-McKenna v. Crowley, (R. I.) 354.
Actions to set aside.

11. In New Jersey, an attaching creditor, having
a lien on the property of his debtor by force of the
attachment act, is entitled, prior to the recovery
of judgment, to the aid of a court of equity in set-
ting aside a fraudulent conveyance or incumbrance.
Cocks' Adm'r v. Varney, (N. J.) 108.

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12. But in such case, as his right to a lien rests
on his own act, and not on a judgment, he is bound
to show affirmatively that he is a creditor, and
also that as a creditor he has, in the mode pointed
out in the statute, acquired the lien which he as-