CHAP. V. PRECAUTION. ARY MEASURES, 3. Of the fune ral expenses. to the funeral; but the most discreet course is to convene all the near relations who are within a reasonable distance to be present when the will is first read. (p) 3. Of the Funeral.-It is the duty of the appointed executor or expected administrator in due time to bury the deceased, (unless he has directed his body to be delivered for disse ction,) (q) and we have seen that the ceremony cannot legally be prevented; (r) and it is a legal as well as a moral duty for a husband to bury his wife; and if a party, in his absence, cause the ceremony to be performed in a proper way, he may sue the husband for the expense, although he never expressly authorized it. (s) And a husband is even liable to pay the funeral expenses of his wife though she lived separate from him and had a separate maintenance. (t) The funeral should be conducted in a style suitable to the quality, rank and station of the deceased if he died solvent; but if he died insolvent, then funeral expenses exceeding twenty pounds would not be allowed against creditors. (u) Extravagant charges in reference to these criteria are not allowed even against legatees or next of kin entitled to a distributive share of, or the residue of, the property. (x) But these greatly depend upon particular circumstances, and even 6007. for funeral expenses have been allowed, (y) and 1937. 12s. 6d. for mourning rings, where a general discretion was given to the executors, and the deceased left assets much more than sufficient to pay debts. (~) But if there be the least risk of ultimate insolvency appearing in the estate, then any funeral expenses beyond twenty pounds will be at the personal risk of those who authorize it. 797. for the funeral expenses of a captain in the army were, in a late case, disallowed against a creditor, the executor having received only 1297. on account of assets; (a) and Bayley, J. seemed to think that the old rule which, in Lord Hardwicke's time, limited the sum to ten pounds for the funeral expenses of a person of condition against creditors would in the present day be extended to, but probably not beyond, twenty pounds. (b) Lord Holt, in his time, said, " in strictness no funeral expenses are allowed in the case of an insolvent estate, except for the coffin, ringing the bell and the fees of the parson, clerk and bearers, but not for the pall or ornaments; (c) but Dr. Burn observes, that the expense of the shroud and digging the grave ought to be added; (d) but clearly no allowance is to be made for feasts or entertainments. (e) If the executor be absent, a stranger may order a suitable funeral, and the executor, if he have assets, will be liable to pay the expenses, the law implying his promise under such circumstances. (f) The act of a stranger, in directing a proper funeral and paying the amount out of his own monies, or from the assets of the deceased, will not render him liable to be sued or otherwise as an executor de son tort.(g) At all events, a demand for mourning for the widow and family of the deceased, cannot be ranked or allowed as part of the necessary funeral expenses. (h) The circumstances of a funeral having been permitted to pass over private property not in the line of a public or private way, will afford no presumptive evidence of a right of passage on other occasions, and therefore there is no risk of creating a right by granting permission to pass on a particular occasion. (¿) CHAP. V. PRECAUTION ARY MEASURES. acts an execu ministration. 4. Before probate an executor may effectually do most acts 4. What other that he could enforce afterwards, (k) because by the very tor or adminis appointment the testator has evinced personal confidence in his trator may do before probate nominee, and therefore the interest of an executor arises not or letters of adfrom the probate, but from the will, and for the same reason it has been held that he may release a debt or assign a term for years before probate; (7) he may collect and secure assets; (m) receive debts, and give effectual receipts; (n) and he may even effectually assent to a legacy, (o) or issue a commission of bankruptcy. (p) So he may issue a writ and arrest a debtor, though in strictness he cannot declare, because he cannot truly make the necessary profert of the probate. (q) But if probate should be obtained after a declaration, containing an averment that the (c) Shelly's case, 1 Salk. 296; Stag v. Punter, 3 Atk. 119. (d) 4 Burn. Ec. L. 348, 8th ed. (e) Went. Off. Ex. 31. (f) Rogers v. Price, 3 Y. & J. 28; but see 2 Wms. 1100. If the executor has ordered the funeral, he may be sued by the undertaker either in his private character or as executor, Tugwell v. Heyman, 3 Campb. 298, S. P. (g) 1 Williams on Ex. 139. 207, cor. Best, C. J. (i) 2 Burn's J. 870. (k) Toller, 6 ed. 45, 46, in general. (n) Went. Off. Ex. 35; Toller, 45. (p) Ex parte Paddy, 3 Maddex, 241. h) Johnson v. Baker, 2 Car. & Payne, 47; 1 Williams' Ex. 165. CHAP. V. plaintiff then was executor, that allegation will be sustained PRECAUTIONARY MEASURES. upon the trial, if the plea should take issue on that allegation, for it relates back, unless the defendant crave oyer and set out the subsequently dated probate. (r) The proper course, therefore, on behalf of a defendant, is not merely to plead, denying that the plaintiff is executor, but to crave oyer, and thereby to suspend the proceedings until it has been complied with. (r) The same rule prevails in equity, so that in strictness an executor should not file a bill until he has previously proved; for if the defendant should plead that the complainant had not obtained probate as alleged, such plea, if true, might prejudice the proceedings. (s) If there be any risk of the statute of limitations becoming a bar to a proceeding for a debt, in case of further delay, or of a debtor escaping out of the jurisdiction, then a writ and arrest before probate would be proper. A person appointed executor, although he has not proved, may and ought to present for payment bills and notes, the property of the deceased, at the exact time when they will fall due, though it is said that the neglect before probate would not discharge the drawer or indorsers. (t) He should also give due, that is immediate, notice of dishonour, so as to prevent loss. (t) An executor may be sued before probate, if he have acted in that character. (u) And a notice to quit, served upon the widow of a deceased tenant, if no other person has already obtained probate or administration, is sufficient. (r) It has been said, that the next of kin, or a person who expects to obtain letters of administration, can do no act whatever before he has actually obtained the same. (y) But it has been considered that he might file a bill in Chancery, although he may not be able to commence an action at law. (z) Certainly both an appointed executor or an expected administrator may, before probate or administration, have power to do many acts, such as collecting, securing, and ascertaining the value of the property, so as to enable him to make affidavit (r) Thompson v. Reynolds, 3 Car. & P. 123. The same rule extends in equity to a bill filed before letters of administration, and in equity it suffices to obtain them before the hearing, Fell v. Lutwidge, 2 Atk. 120. (s) Simons v. Milman, 2 Sim. 241; but see Toller, 95. And it should seem that in general, probate before hearing suffices, Humphreys v. Humphreys, 3 P. Wms. 351. (t) Poth. pl. 46; Molloy, S2, c. 10, pl. 24; Marius, 134; Chitty on Bills, 8 ed. 389. But semble, the want of probate might excuse delay, Roscoe on Bills, 147; 2 Williams, 1171. (u) Wentw. 86; Toller, 47, 49; Douglas v. Forrest, 4 Bing. 704. (x) Rees v. Perrott, 4 Car. & P. 230. (y) Toller, 6 ed. 95, cites 11 Vin. Ab. 202; Winkford v. Winkford, Salk. 301; 4 Burn's Ecc. L. 242. (z) Fell v. Lutwidge, Barnardis. 1326; 4 Burn's Ecc. L. 95; Toller, 95. that the same do not exceed a certain value, as required by statute; (a) and such preliminary steps may obviously be necessary, as letters of administration do not usually issue till after the expiration of fourteen days from the death of the intestate, unless for special cause. (b) It is also clear, that if a person reasonably expecting to obtain letters of administration as an administrator, before he is formally invested with that character, so as to subject himself to be sued as executor de son tort, he may, if so sued, and in case he obtained lettters of administration pending the action, plead a retainer, and support such plea by rejoining that he has puis darrien continuance duly obtained such letters of administration. (c) CHAP. V. PRECAUTION ARY MEASURES. 5. Of the Inventory and valuing the Property.-An executor 5. Of the inor administrator should, immediately after the funeral, if not ventory and valuing the before, cause an inventory and valuation to be made, upon property. stamped paper, of all the personal property of the deceased at the time of his death, (d) by two competent and disinterested persons, usually sworn appraisers, who should sign the same, and whom he might afterwards, if necessary, call as witnesses to the authenticity and fairness of the valuation, before any sale or disposition has been made. (d) This is a duty enjoined by the statute 21 Hen. 8, c. 5, s. 4, and in effect repeated by the 55 Geo. 3, c. 184, s. 38, which require the executor or administrator to swear that the value is under a named amount; and it is obvious that the neglect to make a full inventory is calculated to excite suspicion, and expose the personal representative to difficulty in regard to the claims against the estate, whether of creditors or others. It is not, however, now usual to exhibit an inventory or valuation to the spiritual court, except upon the citation of an interested party, as a creditor or legatee. The executor or administrator is however compellable, upon such citation, to exhibit the inventory, even at the instance of a person clothed with the colour or appearance of any interest. (e) But the right to call for an inventory may be lost by the neglect to require it for a great number of years; (f) and the spiritual court exercise a discretion as to the sort of inventory it will accept, particu 55 Geo. 3, c. 184, s. 38. (b) Toller, 6 ed. 96. (c) 2 Stra. Rep. 1106. (d) Toller, 6 ed. 248. It seems the profits of carrying on a trade after his death need not be noticed, Pitt v. Wood ham, 1 Hagg. R. 250. (e) Phillips v. Bigwell, 1 Phill. Ec. C. 241; Middleton v. Rushout, 2 Id. 57; Toller, 6 ed. 249; 2 Williams, 642. (f) Ritchie v. Rees, 1 Add. 144; Pitt v. Woodham, 1 Hagg. 247. CHAP. V. larly in complicated cases. (g) In the present state of the ARY MEASURES, practice, and in order to save the commission of a per-centage, PRECAUTION (g) Reeves v. Freeling, 2 Phil. 56. It is usual to file a declaration where the executors have not reduced all the property into possession, and to file an inventory when they have. In substance the form of the inventory is the same as the declaration, excepting in the introductory words. In the latter it is termed "a true, full, plain, perfect, and particular inventory," and the parties exhibiting it are called throughout" exhibitants," instead of "declarants." In many cases, upon a citation in the Prerogative Court, an executor has to deliver what is termed a declaration, accompanied with an account, upon oath, as in the subscribed form. Form of executors' declaration of assets, as in lieu of a full inventory. In the Prerogative Court of Canterbury. First, Also, Also, Also, A Declaration (instead of a true, full, plain, perfect, and particular Inventory) of all and singular the goods, chattels and credits of A. B. late of, &c. party in this cause, deceased, which at any time since his death have come to the hands, possession or knowledge of C. D. widow, the relict, and E. F. and G. H., three of the executors named in the will of the said deceased, made and given in by virtue of the corporal oaths of the said C. D., E. F. and G. H., follows, to wit, These declarants declare that the said deceased was, at the time' of his death, possessed of sundry articles of wearing apparel, the particulars of which these declarants are unable to set forth, but the whole of which did not together exceed in value the sum of ten pounds, as these declarants verily believe.... These declarants declare, that the said deceased was, at the time of his death, possessed of cash in the house in which he resided amounting to the sum of nineteen pounds...... These declarants declare, that the sum of two pounds nine shillings was due to the said deceased, at the time of his death, from the banking department of the Bank of England...... 10 0 0 19 0 0 290 These declarants declare, that the said deceased was, at the time` of his death, possessed of sundry articles of household furniture, plate, linen, china, and other effects, in the house and premises at Mill Wall, Poplar, in the county of Middlesex, in which he resided at the time of his death, the whole of which were, shortly after the death of the said deceased, valued by J. K. of Ratcliffe Highway, sworn appraiser, as being together of the value of eight hundred and twenty-five pounds fifteen shillings, and these de-> 290 0 0 clarants have since sold part of the said effects, consisting of some of the effects on the wharf and out-door premises, for the sum of two hundred and ninety pounds, and the remainder of the said effects still remain in the possession of these declarants, but the declarants decline to charge themselves with the difference between the said two last-mentioned sums until they shall have received the same ..... Here followed the statements and account of several other items of On the 14th January, 1833, the said } Before me, John Danberry, Surr. Pres. Wm. Slade, Not. Pub. [Names subscribed in full.] C. D. G. H. E. F. |