12. Duties. The following is a brief sum mary of an executor's duties:— First. He must bury the deceased in a manner suitable to the estate left behind. 2 Blackstone, Comm. 508. But no unreason able expenses will be allowed, nor any un necessary expenses if there is risk of the estate's proving insolvent. 1 Barnew. & Ad. 260 ; 2 Carr. & P. 207 ; 14 Serg. & R. Penn. 64; 1 Ashm. Penn. 314. In England the present limit to funeral expenses appears to be twenty pounds where the testator dies insolvent.
Second. Within a convenient time after the testator's death, be should collect the goods of the deceased, if he can do so peace ably ; if resisted, he must apply to the law for redress.
Third. He must prove the will, and take out administration. In England there are two ways of proving a common form, and in form of law, or solemn form. In the former, the executor propounds the presents it to the registrar, in the absence of all other interested parties. In the latter, all parties interested are summoned to show cause why execution should not issue. Fon blanque, Rights and Wrongs, p. 313.
Fourth. Ordinarily, he must make an in ventory of personal property at least, and, in some states, of real estate also. 5 N. H. 492; 11 Mass, 190 ; 9 Me. 53 ; 1 Browne, Penn. 87.
Fifth. He must next collect the goods and chattels, and the claims inventoried, with reasonable diligence. And be is liable for a loss by the insolvency of a debtor, if it re sults from his gross delay. 6 Watts, Penn. 46 ; 15 Ala. N. s. 328.
13. Sixth. He must give notice of his appointment in the statute form, and should advertise for debts and credits. 2 Ohio, St. 156. See forms of advertisements, 1 Chitty, Pract. 521.
Seventh. The personal effects he must deal with as the will directs, and the surplus must be turned into money and divided as if there was no will. An administrator must at once collect, appraise, and sell the whole. The safest method of sale is a public auction. Eighth. lie must keep the money of the estate safely, but not mixed with his own, or he may be charged interest on it. lie is also charged when he has misemployed funds or let them lie idle, provided a want of ordinary prudence is proved against him. 4 Mass. 205; 2 Bland, Ch. Md. 306 ; 1 Sumn. C. C.14; 2 Rand,Va. 409 ; 4 Harr. N.J. 109 ; 3 Des. So, C. 241. And, generally, interest is to be charged on all money received by an executor and not applied to the use of the estate. 1 Bail. Eq. So. C. 98 ; 1 Dev. Eq. So. C. 369; 6 J. J. Marsh. Ky. 94. But an administrator can not be charged with interest on money allowed him for commission. 10 Penn. St. 408 ; 2 Jones, No. C. 347.
Ninth. He must be at all times ready to account to the proper authorities, and must actuctlly file an account within the year gene rally prescribed by statute.
Tenth. He must pay the debts and lega. cies in the order required by law. Funeral expenses are preferred debts, and so are debts to the United States, under certain limitations respecting insolvency, by act of congress. 2 Kent, Comm. 418-421. Otherwise there is no one order of payment universal in the United States.
14. Legacies. Bequests to charitable uses are legal and valid. 2 Roper, Leg. 1115, Am. note ; 1 Jarman, Wills, 197 ; 4
Kent, Comm. 285, 508; 2 Williams, Exec. 908, Am. note. The executor must give his assent to a legacy before the legatee's title is complete and perfect. 8 How. 170 ; 19 Ala. N. s. 666; 4 Fla. 144. If without cause he refuse this assent, he may be compelled to give it by a court of equity. But assent may be implied and presumed. 10 Hare, Ch. 177 ; 9 Exch. 680 ; 1 Bailey, Eq. So. C. 504 ; 6 Call, Va. 55 ; 10 Johns. N. Y. 30. A legates cannot sue for his legacy until the time given to the executor for payment has expired. This time is commonly one year. 16 Beay. Rolls, 298 ; 15 Ala. 507 ; 2 Edw. Ch. N. Y. 202.
A legacy made to an infant must be paid to his guardian, and not to.him or his father.
3 Atk. Ch. 629 ; 9 Vt. 41. A legacy made to a married woman must be paid to her hus band ; but to herself if it be to her sole and se rate use.
lapsed legacy is one which is made to a legatee who dies before the testator. 1 Eq. Cas. Abr. 295. An ademption occurs when a specific legacy does not remain in specie as it was described in the will. 2 Story, Eq. Jur. I 1115; 1 Johns. Ch. N. Y. 262. The great rule in legacies is, that if the testator's estate is not sufficient for paying all his debts and legacies,, first, the debts must be paid in full ; secondly, the specific legacies are to be paid; thirdly, general legacies are to be paid, in full if possible, if not, pro rata.
15. Pay. Commissions are not allowed on • legacy given in trust to an executor. 1 Bradt. Surr. N. Y. 198, 321. Reasonable ex penses are always allowed an executor. 5 Gray, Mass. 26 ; 28 Vt. 765 ; 3 Cal. 287 ; 1 Brad'. Surr. N. Y. 248.; 2 id. 291 ; 29 Miss. 72. When one of two co-executors has done nothing, he should get no commission. 20 Barb. N. Y. 91. In England, executors can not charge for personal trouble or loss of time, and can only be paid for reasonable expenses.
In England the jurisdiction of probate, until recently, belonged to the ecclesiastical courts. It is now exercised in the new court of probate, which holds its sittings in West minster Hall. There is a principal registry of wills, situated in Doctors Commons, and forty district registries, scattered throughout England and Wales, each presided over by a district registrar, by whom probate is granted where the application is unopposed. See Fonhlanque, Rights and Wrongs, 311. In the United States the jurisdiction is vested in surrogates, judges of probate, registrars of wills, county courts, etc. See Aninxis TRATION.
See, generally, Bouvier, Inst. Index ; 1 Suppl. to Yes. Jr. 8, 90, 356, 438 ; 2 id. 69 ; 2 Phillipps, Ev. 289 ; Roper, Leg. Am. ed. pas sim; Williams, Executors, 4th Am. ed.; Teller, Exec.; Wentworth, Exec.; Jarman, Wills, Perkins' notes ; Chitty, Pract. Index. For the complete New York law, and much of the general law, see Willard, Executors. For the origin and progress of the law in rela tion to executors, the reader is referred to 5 Toullier, n. 576, note; Mackeldy, Civ. Law, b. iv. sect. 4, chap. 3 ; Glossaire du Droit Francais, par Delauriere, verb. Ex6cuteurs testamentaires ; id. art. 297, de la Coutume de Paris ; Poth. des Donations testamentaires.