Sec. XV. Declares that sections 10, 11, 13, 14 and 15, of the present law, (p. 58,) which now apply only to wills of real estate, shall also be applicable to wills of personal, or both real and personal estate. The fitness of this provision, if a uniform rule of proving wills is adopted, is too obvious to require explanation.

Sec. XVI. There can be no necessity for recording a will more than onee, where the proof establishes its validity as well in reference to real as personal property.

Sec. XVII. Provides for a case which cannot often happen; the proof of a will in reference to the personal estate, where all the witnesses are dead, insane, out of the State, or incompetent to testify. The proof in such cases, so far as the will relates to real estate, and the legal effect of the proof, are prescribed by sections 16, 17 and 18 of the present law. (P. 59.) Those sections have no relation to the personal estate; and cases may arise where letters testamentary will be required, which could not be granted without some provision like that contained in the proposed section.

Sec. XVIII. The surrogate ought to make a record of all his decisions, whether for or against the validity of a will offered for probate. Where he decides against the validity, a brief statement of the grounds of his decision, will be useful on a review or appeal.

This completes the sections having for their object a uniform rule of proving wills. Most of them are so connected, that the principle of any one could not be rejected without danger of impairing the harmony of the system.

SECOND. The granting of letters testamentary and of administration, and the revocation of letters of administration-Sections 19 to 30.

Sec. XIX. (See scc. 2, p. 69 of the present law.) This section. declares that letters testamentary shall not be granted until the expiration of thirty days after the proof of the will. The object of this delay was to give time for filing objections against granting letters, or against the persons named as executors. Such objections are not probably filed in one case in a hundred. The provision occasions great delay, and in many instances, very injurious consequences. It is generally agreed that the provision is a bad The proposed substitute retains all the benefits of the provi

one.

sion, where an affidavit shall be made of an intention to file objections; and where that is not done, allows letters testamentary to issue immediately.

sec. XX. Authorizes the surrogate, ir. his discretion, where there shall be any necessary delay in issuing letters of administration, to issue special letters of administration, authorizing the collection and preservation of the goods of the deceased. There is already a similar provision in relation to the case of wills. (P. 76, sec. 38.) The fitness of the last period of the proposed section will be obvious on referring to the sections which it mentions. (P. 76, 77, sec. 39, 40, 41, 43.)

Sec. XXI. Cases have arisen, and may probably happen again, where the sureties of an administrator, although sufficient at the time they were taken, have become insolvent, or removed beyond the jurisdiction of our courts. In such cases the surrogate ought to have power, on the application of any person interested in the estate, to inquire into the matter; and, if proper, to require the administrator to give new sureties, or be removed from his trust. Such is the object of this section. A provision similar in principle but applicable only to executors, will be found, p. 72, sec. 18.

Sec. XXII. XXIII. and XXIV. are necessary to carry out the principle. Sec. XXIX. is also connected with the subject.

Sec. XXV. This, (with some following sections,) is intended for the benefit of the sureties of an administrator. It may happen that an administrator executes his trust in a manner calculated to involve his sureties in difficulty; or, that an administratrix intermarries with some person for whose acts the sureties are unwilling to be answerable. They have no means of requiring the administrator to account, or of discharging themselves from the consequences of his future misconduct. It is not perceived that third persons can be injured by allowing the sureties to call on their principal to find new bail for his future good conduct.

The sureties, (should this and the following sections be adopted,) will still remain liable for all the past improper acts or omissions of their principal, and will only be relieved against future misconduct, and that, either by the revocation of his power, or his finding new and sufficient sureties.

It is not proposed to require the sureties to show cause why they

not uniformly, the friends of their principal; and would not be likely to ask relief through any wish to impair his credit or do him an injury. Again, the application of the sureties might not improbably lead to unkind feelings towards them on the part of the principal: and as the sureties would still remain liable for previous acts and omissions until the final settlement of the estate, they will not be disposed to ask relief, without some urgent motive.

Sec. XXVI. XXVII. and XXVIII. are sufficiently explained by what has been said in relation to section 25.

Sec. XXIX. Provides for requiring an administrator whose letters have been revoked, to render an account; and confers the necessary jurisdiction on the surrogate. (See the law to which the section refers, p. 92.) For a provision similar to the proposed section, though not so full-See p. 95, sec. 68.

Sec. XXX. (See sec. 33. p. 88 of the present law.) An executor or administrator cannot retain for his own debt, until the debt has been proved to, and allowed by the surrogate. The section does not point out the time or manner of making the proof. This is thought defective by some surrogates, and a very loose practice seems to have obtained with others, of allowing the executor or administrator to prove his debt by an ex parte proceeding. The proposed section declares that the proof may be made on the service and return of a citation directed to the proper persons; or on the final account of the executor or administrator, rendered pursuant to law. (See p. 92, 95, sec. 52, 70.) If the principle of the 33d section, (p. 88,) is retained, it can only be made efficacious by giving the persons interested in the question, an opportunity of contesting the demand of the executor or administrator.

THIRD. The sale of the real estate of testators and intestates for the payment of debts-Sec. 31 to 35.

Sec. XXXI. (See present law, p. 100, sec. 3.) Before ordering the sale of real estate for the payment of debts, the surrogate is required to appoint special guardians for all the minor heirs or devisees. The proposed change is, that the general guardian, if there be one in the county, shall act for the minor. The general guardian must understand the condition of the estate, and the interest of the minor, much better than a person appointed for the single purpose contemplated by this branch of the law. And besides,

the general guardian would more probably give careful attention to the proceeding.

Sec. XXXII. The 4th section of the present law, (p. 100,) requires a personal notice of ten days to the minor, of the intention to apply for the appointment of a guardian. Ten days notice occasions unnecessary delay; and it is proposed to alter this to five days. Again, personal service upon an infant of a few months or years old, is an idle ceremony. It is proposed, therefore, to confine the personal notice to minors of fourteen years and upwards, (that being the age at which they have a voice in the selection of their guardians, see p. 150, sec. 4, 5:) And when the minor is under fourteen years of age, the proposed section requires notice to the person having the custody, or with whom the minor resides. Such persons usually have an interest in the welfare of the child, and would be likely to see that a proper person was selected for guardian.

Sec. XXXIII. See present law, p. 100, 111, Sec. 1,. 66. Accordding to section 1, executors and administrators could not apply for the sale of real estate to pay debts, until they had filed an inventory, nor until their account had been allowed and settled. The provision requiring a previous settlement of their account, was repealed in 1830,on the suggestion of the revisors. [3 R. S. app. 151, sec. 22.] But the 2d, 5th, 10th and 14th sections of the present law, (p. 100, 102,) were not modified: and on referring to those sections it will be seen, that a sale cannot be ordered, until all the personal estate which has come to the hands of the executor or administrator, has been applied to the payment of debts. This provision, although well intended, operates in many cases most injuriously. The necessity for selling real estate to pay debts, is often times apparent as soon as the executor or administrator enters upon his duties. Where such is not the fact, the necessity of a sale must frequently be evident, long before the personal property can be applied to the payment of debts. Time is always required to convert the personal property into money, on terms beneficial to the estate. One or two years, or even a longer period may elapse, before the choses in action of the testator or intestate can be collected. The delay incident to the present rule is always injurious to creditors, and not unfrequently proves alike prejudicial to the heirs and devisees. These remarks are equally applicable to the sale of lands held under a contract of purchase. (P. 111, scc. 66.) It is

The proposed section allows the executor to apply for an order to mortgage, sell, &c., whenever he shall discover that the personal estate is insufficient to pay the debts.

Sec. XXXIV. This gives the surrogate a discretion to order a sale in such cases, but guards its exercise in such a manner that there can be little reason to apprehend any injury to third persons.

Sec. XXXV. See present law, p. 111, sec. 66. The first period of the proposed section declares, that a sale may be ordered as well where the deceased was the assignee of a contract for the purchase of land, as where he was the original purchaser. Such is believed to be the true construction of the present law; but some surrogates understand it differently.

contract.

The second period in the proposed section, declares that the sale may be made, subject to all payments due or to become due on the As the law now stands, the sale is made subject only to payments which may thereafter become due: and out of the moneys received on the sale the surrogate is to satisfy the payments which had fallen due before the sale. (See p. 111, 112, sec. 67, 73.) It is not perceived that any benefit can result from the present rule, but it may operate to the prejudice of those interested in the estate of the deceased. It requires the purchaser to pay on the sale, a larger amount of money than would be necessary if he took the contract subject to the payment of all the moneys due or to grow due upon it: and he might be willing to pay a better price where he could hope for some forbearance. The purchaser would be able in many cases to make arrangements beforehand with the original vender, for an extension of the time of payment. It often happens that the whole contract price is due. In such cases the whole purchase money must be paid at once to the surrogate; and if this amounts to nearly the value of the land, a sale cannot be effected. But a purchaser might be found who would give something for the interest of the deceased in the land, and take the chance of making some arrangement with the only original vender. The operation of the present law is said to be particularly injurious in the western counties, where more land is holden under contracts than in the older counties.

The remaining part of the proposed section is necessary to carry out the provision which has been mentioned. See the section to which it refers, p. 111, sec. 67; also sec. 68.