of the mere failure to return the inventory is not of itself sufficient to charge the executor with the debts of the estate.1 The rule is that no recovery can be had on the bond of an executor or administrator because of failure to file an inventory unless damage has resulted,52 and the liability is generally limited to assets proved to have been received by the executor or administrator or lost because of his negligence." But if the executor or administrator attempts to defend on the ground that the assets of the estate are insufficient to pay the claims, he must exhibit an inventory and a settlement of his accounts.54 If no assets have come into the possession or to the knowledge of the executor or administrator, an inventory is useless, but interested parties always have their remedy by compelling an accounting.55

as ordered by the court, he will not be discharged upon filing the inventory, but must first pay the costs incurred.-Marshman v. Brookes, 32 L. J. (N. S.) P. M. & A. 95, 11 Week. Rep. 549.

51 Leeke's Admr. v. Beanes, 2 Har. & J. (Md.) 373.

Compare: Forbes v. McHugh, 152 Mass. 412, 25 N. E. 622.

52 Reynolds' Admrs. v. Reynolds' Distributees, 11 Ala. 1023; State v. Gregory, 119 Ind. 503, 22 N. E. 1. 53 Appeal of Connelly, 1 Grant's Cas. (Pa.) 366; M'Call v. Peachy's Admr., 3 Munf. (Va.) 288.

In Connecticut a fixed penalty is imposed by statute at the rate of twenty dollars per month for failing to file the inventory; however, this remedy is not exclusive, and

suit on the bond may be brought for damages incurred.-State v. French, 60 Conn. 478, 23 Atl. 153.

54 McKim v. Haley, 173 Mass. 112, 53 N. E. 152. See, also, Hodge v. Hodge, 90 Me. 505, 508, 60 Am. St. Rep. 285, 40 L. R. A. 33, 38 Atl. 535; Ellis v. Johnson, 83 Wis. 394, 53 N. W. 691.

55 Walker v. Hall, 1 Pick. (18 Mass.) 19; Estate of Langton, 16 Phila. (Pa.) 368.

As to remedy by accounting, see Greenhough V. Greenhough, 5 Redf. (N. Y.) 191; Matter of Mullon, 145 N. Y. 98, 39 N. E. 821; Grant v. Reese, 94 N. C. 720.

As to sufficiency of answer of executor or administrator in a proceeding to compel him to file an inventory, see § 1409.

of itself

ts of the

ad on the

of failure

and the

to have

or lost

Tadri

e assets

be mast Counts

§1416. The Same Subject: Legality of Administration Not

Affected.

The failure of an executor or administrator to return an inventory does not affect the legality of other proceedings in the matter of the administration of the estate; it does not affect the purchaser's title to property duly purchased from the executor, nor affect the jurisdiction of the probate court to order a sale of real property, although the court may properly refuse to make such order until the inventory has been returned."7

56 Cooper v. Horner, 62 Tex, 356,

56

57 Schneider v. McFarland, 4 Barb. (N. Y.) 139.

CHAPTER LIV.

HOMESTEAD, EXEMPTIONS, AND FAMILY ALLOWANCE.

§ 1417. Instances of statutory allowances.

§ 1418. Where net value of estate does not exceed a specified

sum.

§ 1419. Property exempt from execution may be set apart to the

family.

§ 1420. Property exempt from administration: When selection and segregation are required.

§ 1421. What constitutes a homestead.

§ 1422.

Right of surviving husband or wife, or minor children, to succeed to homestead selected prior to death.

§ 1423. The same subject: Title vests without order of the probate court.

§ 1424. Effect of testamentary disposition by decedent on right of family to homestead.

§ 1425. Right of surviving spouse or minor children to have homestead set apart, if none had been selected prior

to death.

§ 1426. The same subject: Term "family" defined: Loss of right by separation or remarriage.

§ 1427. The same subject: Manner of selection of probate home

stead.

§ 1428. The same subject: Value of probate homestead.

§ 1429. Allowance for support of family pending settlement of estate: Insolvency of estate no bar.

§ 1430. Nature of the family allowance.

§ 1431. Right to family allowance preferred to all claims against

the estate.

§ 1432. Legacy given in lieu of allowance: Doctrine of election. § 1433. Effect of antenuptial and other agreements.

§ 1436. Effect of wife's desertion or misconduct.

§ 1437. The same subject: Comments as to the rule.

$1438. Application for widow's allowance required.
§1439. Effect of delay in applying for allowance.

$1440. Right to allowance not dependent upon widow's inability to support herself.

§ 1441. Allowance may be made to resident widow irrespective

of domicile of husband.

§1442. Amount of allowance, how fixed.

§1443. Power of court to modify order granting allowance to

widow.

$1444. Order of allowance has no extraterritorial effect.
§1445. Settlement of estate must not be delayed so as to con-
sume the assets by means of the allowance.

§1417. Instances of Statutory Allowances.

Modern statutes in the various jurisdictions generally provide that the family of a decedent shall have the right to certain property of the estate for its care and support. This right is based primarily upon necessity in order that the family may be relieved from temporary want because of its head having been removed by death. But the statutes do not require that proof of the necessity for support be given, but authorize and direct certain allowances to be made under specified conditions. The surviving spouse or family of a decedent is entitled to receive all or a part of the estate in certain instances, which may be segregated into four general classes: (1) allowance of all of the estate when the net value thereof does not exceed a specified sum; (2) allowance of property designated by statute to be exempt from 'execution or exempt from administration; (3) allowance of a homestead when one has been selected during the joint lives of the husband and wife or, if none has therefore been selected, of a homestead to be selected and set apart out of the estate by the probate court; and (4) an immediate allowance out of the general assets of the estate for the support of

the widow or minor children pending the settlement of the estate.

Provisions for the temporary support of the widow and family of a decedent are of purely statutory origin. They did not exist at common law, the only provision being that clause in the Magna Charta1 which allowed the widow to remain in the principal dwelling of her deceased husband for the period of forty days, within which time her dower was to be assigned to her. Similar provisions exist today in most jurisdictions. But allowances out of the estate of a decedent for the use and benefit of the surviving spouse or minor children depend wholly upon statute,2 and the laws of the particular jurisdiction must be consulted in every case. However, such statutes in general intendment are alike and general principles may be announced.

§ 1418. Where Net Value of Estate Does Not Exceed a Specified Sum.

In most jurisdictions statutes have been enacted which provide that if a decedent leave a widow or minor children, and the inventory and appraisement of the estate shows its net value to be less than a sum designated in the statute, such as £500, under the English statute, or

19 Henry VIII, ch. 7.

2 In re Walkerley, 77 Cal. 642, 20 Pac. 150; Hubbard v. Wood, 15 N. H. 74; Woodbury v. Woodbury, 58 N. H. 44; Matter of Williams, 31 App. Div. 618, 52 N. Y. Supp. 700.

3 In England, by the Intestates' Estates Act, 1890, statute of 53 & 54 Vict., ch. 29, where the net value of the estate of an intestate

decedent leaving a widow and no issue does not exceed £500, it belongs to the widow absolutely; if it exceeds £500 the widow shall be entitled to £500 absolutely, which shall be a lien upon all of the estate until paid. This does not affect the right of the widow to share in the residue of the real and personal estate of the decedent after the payment