10. A provision in a mutual will,
that the survivor shall remain in
full possession of all the estate,
without the interference of any
court, has the effect of devolving
upon the survivor the whole ad-
ministration of the estate. It is
a constructive executory appoint-
ment according to the tenor.
Ex parte Mc Cormick.
169

11. An executrix, after letters is-
sued and before the will was ad-
judged to have been revoked,
having, under the testamentary
directions, paid out of the per-
sonal estate a mortgage on the
realty,-Held, that having acted
in good faith, the payment must

5. The mother, after the father's
death, may change the domicil
of her children, provided it be
without fraudulent views to the
succession of the estate. The
domicil of the children does not
necessarily follow that of the
surviving mother; for, although
changing her own, she may, from
wise motives, refuse to alter that
of the child. The presumption,
however, is, that their domicil
follows hers. But this rule does
not obtain on the second mar-
riage of the mother. By that act
she acquires the domicil of her
husband, and loses all power to
control that of her children. Ib.

6. Although the forum of the minor
may follow that of the surviving
mother, yet on her decease the
forum of the minor is restored to
the place of his domicil. Ib.

7. Where the father was guardian
of his children, and, possessing
limited means, was compelled to
labor for their support, and in
consequence of the decease of
their mother was put to increased
expense-Held, that it was rea-
sonable, under the circumstances,
to charge a portion of the expense
for their maintenance upon the
income or interest of the shares
of his wards. Harring v. Coles.
349

HEIRS.

See BEQUEST, 4.

REAL ESTATE, 12, 13, 16,
20, 21, 22, 24, 25, 26.

HUSBAND AND WIFE.

See ACCOUNTING, 5.

EXECUTOR, 6, 7, 8, 9.
MARRIED WOMEN, 1, 2, 3.

INSANITY.

See WILL, 52.

INTEREST.

See BEQUEST, 1, 2, 11.
EXECUTORS, 5.

INVENTORY.

1. If, on taking the inventory, the
property directed by statute to
be set apart for minor children,
was not so apportioned, the error
may be corrected on the account-
ing. Clayton v. Wardell. 1

2. The statute which directs the
appraisers, on taking an inven-
tory, to set apart for the use of
the widow and minor children-
in addition to certain specified
articles-other personal property
to the value of not exceeding one
hundred and fifty dollars, does
not vest an absolute discretion in
the appraisers. They cannot set
apart property exceeding one
hundred and fifty dollars in
value. The appraisers are offi-
cers appointed by the Surrogate
to estimate and appraise; and
their appraisement is not conclu-
sive, but may be reviewed, ex-
amined, and corrected. Apple-
gate v. Cameron.
119

3. If the appraisers neglect to set
apart property for the widow and
minor children, or make a valua-
tion palpably erroneous, whether
from fraud or mistake, the Sur-
rogate may direct the error or
mistake to be rectified. Ib.

4. Where articles were set apart,
valued at a sum exceeding one
hundred and fifty dollars—Held,
that the act was, on its face, a
violation of the statute, and in-
valid.
Ib.

2. Where no promise of any kind
was proved, except that the
claimant declared after the de-
cedent's death, that she was not
married to him, but he had said
that he had some trouble on his
mind, and when that was settled
would marry her; and where
the parties, though having con-
nection and children, did not
live together, but their relation
was clandestine, and there was
no open acknowledgement or
common reputation, and both
parties denied marriage-Held,
that there was not sufficient in
the circumstances from which
to infer a marriage.
Ib.

Where necessaries are furnished
to a person of weak or impaired
capacity, and no fraud or impo-
sition is practised, a debt is cre-
ated, which, on his decease, will
be a charge against his estate;
provided the articles furnished
were suitable to his circum-
stances, pecuniary and social, and
to his ordinary mode and habit
of living. Skidmore v. Romaine.

122

MARRIED WOMEN.

1. Married women, by the act of
1849, are competent to devise
and bequeath real and personal

NEXT OF KIN.

See ADMINISTRATOR, 3.

PARENT AND CHILD.

See CREDITOR, 4.
GUARDIAN AND WARD, 2,
3, 4, 5, 6.

PARTNERSHIP.

See INVENTORY, 8.
EXECUTORS, 9.

PER CAPITA.
See DEVISE, 2, 3, 4.

PER STIRPES.

See DEVISE, 2, 3, 4.

PERSONAL ESTATE.

See EXECUTORS, 5.

REAL ESTATE, 2, 11, 17,
19.

PLEADINGS AND PRACTICE.

See ACCOUNTING, 1, 6, 7, 9, 10,
11, 12, 13.
ADMINISTRATION WITH WILL
ANNEXED, 1, 2, 3.
ADMINISTRATOR, 2.
APPEAL, passim.
CREDITOR, 2, 3.

EXECUTOR, 6, 7, 8.
INVENTORY, 3, 7.
MARRIED WOMEN, 2, 3.
REAL ESTATE, 8, 9, 10, 12,
13, 14, 15, 16, 20, 21,
22, 26.

WILL, 9, 20, 28, 29, 36.

1. Several suits may proceed in
the same court or in courts of
concurrent jurisdiction, by plain-
tiffs seeking an account of ex-
ecutors and administrators, and
payment of their respective
claims; but when a decree for a
general account and distribution
is made in one suit, and the other

4. The code of procedure does not
apply to proceedings in Surro-
gates' Courts, further than has
been expressly provided therein.
In the first part, Surrogates'
Courts are enumerated in the 9th
class of courts of justice; and
the second part relates only to
civil actions. The 471st section
declares that the second part
shall not affect proceedings upon
mandamus or prohibition, nor
appeals from Surrogates' Courts,
nor any special statutory remedy
not heretofore obtained by ac-
tion. Proceedings in Surrogates'
Courts are not actions, but are
special statutory proceedings.
Woodruff v. Cox.
223

5. After probate and before issue
of letters testamentary, a cred-
itor or other party in interest
may file an affidavit of intention
to present objections against the
grant of letters. Burwell v. Shaw.

322