11 EXECUTIVE DEPARTMENTS, EXECUTORS, ETC. 5. Lien. A lien attaches in favor of the plaintiff upon the property of the judgment debtor sought to be reached at the time of the service of the first order of the court commencing the proceedings, and requiring the defendant to appear and answer.1 EXECUTIVE DEPARTMENTS, POWERS, ETC.-See CONSTITUTIONAL LAW. EXECUTORS AND ADMINISTRATORS. I. Definition, 170. II. Origin of Office, 170. III. Necessity of Grant of Letters 3. Delegation of Power to name an Executor, 180. 4. Qualified, Limited, Conditional, and Substitutional Appointments, 180. Appointment of Administrators.Who are entitled to administer. - Construction of 31 Edw. III. and Derivative and Analogous Statutes, 182. 1. Who is capable of becoming Execu- VII. Officiating without Appointment, tor, 171. 2. Who may be Administrator, 174. V. Appointment of Executors, 177. 1. By what Words Executors may be appointed.-Appointment by Codi tiss, 8 How. (N. Y.) 56; Baker v. State, 109 Ind. 47. What is subject to execution in ordinary cases, and what is exempt therefrom, has already been shown. See ante, under "Property Subject to Execution," and "Property exempt from Execution." But the following cases may also be consulted as showing the far-reaching power of supplementary proceedings. Where the judgment debtor is a widow, her right of dower may be reached, even before it is admeasured or assigned. Payne v. Becker, 83 N. Y. 153; Tompkins v. Fonda, 4 Paige (N. Y.), 448. Money in the hands of a commissioner in partition, arising from the sale of the real estate. Sherman v. Carvill, 73 Ind. 123. A legacy in the hands of an executor. Bacon 7. Bonham, 27 N. J. 209. The interest of the judgment debtor in a contract for the purchase of real estate. Figg v. Snook, 9 Ind. 202; Ellsworth v. Cuyler, 9 Paige (N. Y.), 418. The interest of the debtor in an estate as next of kin, McArthur . Hoysradt, 11 Paige (N. Y-), 495,- -or his distributive share in the hands of an administrator. Rand v. Rand, 78 N. Car. 12. Choses in action of many kinds. Butler v. Jaffray, 12 Ind. 504; Gillet v. Fairchild, 4 Denio (N. Y.), 80; Crouch v. Gridley, 6 Hill (N. Y.), 250; McKee v. Judd, 12 N. Y. 622; Fowler z. Griffin, 83 Ind. 297. 182. For other illustrations, see Stevenson v. Stevenson, 34 Hun (N. Y.), 157; Crosby v. Stephan, 32 Hun (N. Y.), 478; Manning v. Monaghan, 23 N. Y. 539; Powell v. Waldron, 89 N. Y. 328; Gillett v. Bates, 86 N. Y. 87; Barker v. Dayton, 28 Wis. 367. 1. Cooke v. Ross, 22 Ind. 157; Hoadley v. Caywood, 40 Ind. 239; Lynch v. Johnson, 48 N. Y. 27; Edmonston v. McLoud, 16 N. Y. 545; Brown v. Nichols, 42 N. Y. 26. See also Coleman v. Roff, 45 N. J. L. 7; Union Bank v. Union Bank, 6 Ohio St. 254. But the rights of bona fide purchasers without notice, either actual or constructive, will be protected. Riddle & Bullard's Sup. Pro. 420; Lynch v. Johnson, 46 Barb. (N. Y.) 56; Hoadley v. Caywood, 40 Ind. 239. Priorities are the reward of diligence, and usually attend upon liens in order of time; so that he who first commences proceedings, and prosecutes them with due diligence, usually has priority of lien. Riddle & Bul. Sup. Pro. 434: Edmeston v. Lyde, 1 Paige (N. Y.), 637; Myrick v. Selden, 36 Barb. (N. Y.) 15; Hall 2. Kellogg, 12 N. Y. 332. But he may lose his priority by laches. Bridgman v. McKissick, 15 Iowa, 260; Edmeston v. Lyde, 1 Paige (N. Y.), 637. - a. Mode of Payment, Retainer, and Set-off, Personal Liability. Priority of Debts over Legacies. Distribution of Residue, Executor's Right thereto.-Time of Payment.-Nature of Interests of Distributees and Residuary Legatees before Distribution.. Liability of Representative for Debts of which he had no Notice at Time of paying Legacies or Distributive Shares. Contingent Claims.-Retaining or impounding Assets. Refunding Bonds. When Legatee or Distributee compellable to refund, although no Bond is taken. When Advance to Legatee or Distributee will be ordered, 315. b. To whom Legacies or Distributive Shares should be paid.-Deceased Legatees. Absentees. Infants.- Married Women.Testamentary Trustees, 323. rency. -- c. Distribution in Kind, 325. d. Legacies when due. Title of Legatee.- Assent of Executor. Demand. - Interest. -Abatement. Payment or Delivery of Specific Legacies. -Actions and Proceedings to compel Payment. Appropriation of Legacies payable in Futuro, 325. e. Distribution of Intestate Estates, 325. 11. Power of Election by Executor, 301. XV. Liabilities, 325. a. Claims founded upon Contract. Joint Contracts. Covenants concerning Realty.- Liability of Executor of Deceased Lessee, 325. b. Claims founded upon Tort, 332. c. Liability of Representative of Husband for Debts of Wife, 335. d. Liability of Executor to exonerate Specific Legatees. Whether Specific Legacies are taken cum onere, 335. e. Work and Labor with a View to a Legacy, 335. f. Liability to complete Imperfect Gifts of Testator, 335. 2. Liability of an Executor or Administrator upon his Own Contracts, 335. a. In his Representative Capacity and to the Extent of Assets, 335. b. In his Individual Capacity and c. Funeral Expenses, 340. e. Liability of Representative for Acts f. Carrying on Testator's Trade, 342. 3. Liability of Executor or Administrator for his own Tortious or Negli gent Acts, 344. a. To Third Persons, 344. Responsibility in the Care, (2) Loss by Casualty. - Failure of Banker. Loss caused by Acts of Attorney or Agent.— Effect of following Erroneous Advice of Counsel, 350. (3) Investments.-Depreciation of Securities. Effect of Direc tion in Will upon Represen tative's Liability, 353. (4) Mingling Trust and Individual Funds, 358. (5) Effect of Advice of Parties or Direction of Court upon Rep resentative's Liability for Acts otherwise improper, 359. (6) Rule when Control is taken out of Representative's Hands, 360. (7) Distinction as to Executor's Liability between Creditors and Legatees, 360. (6) Plea of Statute of Limitations, 370. (7) Plea of Set-off, 372. (8) Admissions, 374. (9) Costs, 374. (10) Writs of Error, 375. b. Actions against Executors and Administrators, 376. (1) What Actions survive against (2) Actions for Legacies, 376. (6) When Suit to be brought against Ne unques Execu or Administrator.Plea of an Administrator whose Letters have been revoked. Plea of Executor of Revoked Will, 380. (11) Pleas. Admitting Assets. Effect of Judgments as Admissions. Pleading a Debt of a Higher Nature. Plene Administravit, Repli cation, and Evidence thereunder, 382. (12) Plea of Retainer, 387. (14) Plea of Set-off, 388. (18) Proceedings upon Judgments 2. Other Remedies, 393. a. Attachment, 393. b. Distress, 393. c. Proceedings against Executors upon Promissory Notes and Bills of Exchange, 393. 3 Remedies in Equity, 394. a. For Executors and Administrators, 394. (1) What Bills may be maintained by an Executor or Adminis trator, 394. (a) Bills to restrain the Publication of Letters, 394. (b) Bills for Discovery of Assets, 394. (c) Bills to recover Property fraudulently obtained from the Deceased, 394(d) Bills to recover Property aliened by the Deceased in Fraud of Creditors, 394. (e) Bills to compel Creditors, Legatees, and Distributees to refund, 394. in (f) Injunctions. - Relief Equity from Judgments at Law, 394. (g) Bills of Conformity, 396. (h) Bills for Instruction, 397. (i) Bills filed before Probate or Letters, 398. (j) Bills against a Co-Executor, 398. (2) Parties, 398. (3) Allegation of Character, 399. (4) Pleas, 399. b. Remedies against Executors and Administrators, 399. (1) Nature of Equity Jurisdiction, 399. (a) What Bills may be maintained, 399. (b) Bills for Account and Discovery, 400. (c) Bills by Creditors, Legatees, and Distributees. - Administration Suits, 401. (d) Bills by Debtors, 402. (2) Time within which Suit to be brought, 402. (3) Parties, 402. |