Page images
PDF
EPUB

;

manner as to render the work a perspicuous and interesting manual, as well of the principles as the decided cases, both for the student and the practitioner.

We have not attempted to refer to every case, even in the English Reports; but have contented ourselves with giving the present state of the law, and tracing the history of its development, by the decided cases, so far as seemed desirable, either for accuracy or instruction; and we trust the profession will find it an accurate and reliable statement of the law, and especially the English law, upon the topics discussed.

We have endeavored to embrace, in the two Parts of the work, all the topics discussed either in Jarman, Williams, or Roper, so far as applicable to the American practice. In doing so, we have necessarily felt compelled to abbreviate the discussion of some of the less important of those topics, but not, we trust, in such a manner as to render it obscure or unsatisfactory.

In regard to the American Decisions, we have intended to present them, to such an extent, upon all controverted questions, as to afford a clear indication of their direction and results. And in regard to some of the older states, whose jurisprudence has served the purpose of a leader and guide to those states whose origin is more recent, we trust our analysis of the cases will be found nearly complete upon all the important topics discussed. But when it is considered that probably more than a hundred volumes of American Law Reports are published annually, all professing to follow in the same line of precedent with the English Common Law, and thus presenting the same

point in different states, year after year, and all the same way, it could answer no good purpose to encumber the pages of a law book with a constant multiplication of citations upon points never controverted. Unless, therefore, where some conflict existed in the English decisions; or else, where the rules of the English law were regarded inapplicable to our circumstances and condition, or were evidently founded in misapprehension or false constructions; unless, in one or other of these exceptional views, we have not regarded it important to multiply references to cases throughout the country. But we believe our citation of American Cases will be found entirely satisfactory to the profession, as showing the present state of the law in the several states.

We have had to rely, to a considerable extent, upon the assistance of others in the collection of American cases, and in the verification of the references upon the proof-sheets; but we have such confidence in the accuracy and faithfulness of those who have given that aid to our labors, that we believe few inaccuracies will be found upon these points.

In conclusion we can only say, that if the work should prove as useful to the profession as it has been laborious and difficult in the preparation, the author will feel that he is amply repaid; and he will, in any event, have the consolation of having attempted to produce a good book upon an important subject, and in a field hitherto but little occupied by American law writers.

I. F. R. Boston, May 1, 1866.

[ocr errors]

ANALYSIS OF THE CONTENTS.

CHAPTER I.

THE PROBATE OF WILLS.

SECTION I.

PRELIMINARIES TO THE PROBATE.

PAGI

[ocr errors]

1

2

.

1. The death of the testator is requisite to give the court of probate juris

diction D.I. The modes of establishing this proposition. Presumptions of survi

Torship 2 The will should be presented for probate in the shortest convenient

time 3. The executor should prove the will, or produce it and resign his trust 12. Discussion of the early English practice upon these points 4. Any person interested, or who believes himself interested, may petition

for citation to have the will brought into court 2. 3. The court may appoint an administrator ad interim 5. Any one having custody of will may be cited to produce the same 2. 6. An attorney or solicitor can have no lien upon will 6. Mode of proving lost wills 2. 11. Cautions in regard to admitting such wills, except apon clear proof 7. Where will is purposely soppressed, legatees may have redress in equity . 8. AD papers referred to in will to be deposited in registry of probate 1. 14. Original will may be taken out of registry by order of court 9, and n. 16. Courts of equity will not assume or control the probate of

wills, but will set aside probate fraudulently obtained

5 5 6

6 7

7

8 10 10

10, 11

SECTION II.

JURISDICTION OF MATTERS AFFECTING THE SETTLEMENT OF ESTATES.

1. The primary probate jurisdiction is in the place of the domicil of de

ceased

12

PAGZ

12

2. No one can justify interfereing with the estate, except by letters testa-

mentary

3. The executor can only do necessary acts, admitting no delay, before

probate

4. Letters testamentary relate to the time the decease.

n. 6. Executors de son tort; the nature and extent of their responsibility

5. The authority of the executor or administrator is limited to state where

granted

6. There are some apparent objections to the rule

(1.) Where perfect title has been acquired by the personal repre-

sentative

(2.) Where any other person has so acquired title

7. With these, and similar exceptions, the authority is local

8. Creditors and effects give jurisdietion for aneillary administration

9. Such administration considered wholly independent

10. Where no creditors, beyond the principal administration, debtors every-

where may pay the personal representative there.

11. Where there are no remaining creditors, the ancillary administration

may remit to the principal administration

12. But so long as there remain creditors, they may insist apon a distribu-

tion there.

13. The ancillary administration strictly restricted to its own jurisdiction .

14. The principal administration may collect effects belonging to the estate

in any jurisdiction where no creditors of the estate remain

n. 16. The effect of bona notabilia in England, explained

15. After payment of debts, funds should be remitted to principal adminis-

tration

16. The final distribution can be more conveniently made there

17. Consideration of points discussed in Redfield's edition of Story's Con-

flict of Laws

(1.) Citation of cases to show that there is no privity between the

representatives of an estate in different states

(2.) The jurisdiction of the national courts not excluded, but essen.

tially modified, by state proceedings in settlement of estates

(3.) Foreign creditors may recover judgment in national courts,

but must present it to probate court before decree of distri-

bution.

(4.) But where assets are sufficient to pay all debts, the United

States courts will, in equity, direct the personal representa-

tive to pay a judgment in those courts, before making dis-

tribution to legatees and next of kin

(5.) . Discussion of the question of the necessity of universal heir

having administration in foreign forum

[ocr errors]
« PreviousContinue »