Slike strani

circumstances or in any other manner. Those who deal with fiduciaries and trustees on the faith of the trust estate, must be aware that they exercise only limited and delegated powers, and are bound, at their peril, to take notice of such powers and see to it that the trustees confine themselves within their scope. 38

The lands of deceased persons are frequently conveyed through the media of what are known as “personal representatives,” consisting of executors, or persons specifically designated for that purpose by the decedent, and administrators, who act by virtue of an appointment under the law. An executor may sell and convey lands held in special trust without the intervention of a court, but not such lands as are sold in due course of administration to pay decedent's debts, while an administrator can do no act affecting lands without the special order of a court. In case of sales by either officer no title passes until the execution and delivery of a deed.

Guardians and conservators frequently make conveyances of the real estate of their wards, either to pay debts or for the support and education of the ward, or for the purpose of investing the proceeds. Such conveyances, if attended by all the statutory requisites, are effectual to convey all the title which the ward may have possessed at the time of sale. Sales of this kind are made under the direction of the Probate Court upon petition by the guardian stating the jurisdictional facts, and after notice of such application, in the manner provided by law. Such sales must further be reported to and confirmed by the court granting the license, but the title of the ward will not be divested until a deed has been ordered and actually executed. 37 Hunt vs. Townshend, 31 Md., 38 Owen vs. Reed, 27 Ark., 122; The deed should be preceded in the abstract by brief recitals of the antecedent steps or references to all jurisdictional facts.

Ventres vs. Cobb, 105 Ll., 33.



Conveyances by way of will, or, as they usually are termed, testamentary conveyances, occur in every title of long standing, and give rise to more questions in construction than any other species of conveyance. As muniments of title wills should be of equal dignity with deeds, after proper probate and administration, but the subtleties which have been incorporated into the laws governing their construction have rendered them less so, except in cases of direct, absolute and unincumbered gifts.

One who takes under a will is regarded as a purchaser equally with him who takes under a deed, but the estate and title in the hands of a devisee, while as full and ample as though derived by deed, does not always possess that indefeasible character which attaches to it in the latter case. An innocent purchaser by deed takes the title unaffected by latent equities, and the undisclosed rights of third persons, but the devisee acquires only the title of the testator as it existed at the time of his death, with all its infirmities and imperfections, and subject to all equities and liens in favor of strangers. Such title is further liable to be defeated during the course of administration by sale made by the executor in satisfaction of the debts of the decedent; or by the very instrument of conveyance, when legacies thereby given are expressly charged upon the land and there exists a deficiency of personal assets.

An eminent English conveyancer once said, that he could scarcely admit of a will being abstracted at all, and strongly recommended that it be copied instead, in order that counsel might have an opportunity of judging by the context as well as by the particular words of a devise or bequest. The reason assigned by the English conveyancer is a good one, yet, in preparing the abstract of a will it is not usually necessary that the entire instrument should appear, but only such parts as have special reference to the property in question. Modern wills, in many instances, and ancient wills uniformly contain a preamble dedicating the testator's soul to God, expressing the soundness of their minds, the health or debility of their bodies, and other particulars of no special importance, and which have no necessary connection with or relation to the subject of the examination, and may in all cases be safely omitted. The bequests and gifts of personalty are always omitted, except where a legacy constitutes a charge upon the land, in which case it, of course, becomes material. Devises of realty, other than the subject of the examination, may be advantageously omitted, but the residuary clause, though couched in general terms, should, as a rule, be inserted.

In an abstract the language employed by the will, aside from the strictly formal parts, should be closely if not literally followed, as well in respect to the property devised as the particular estate therein granted. The execution, if regular, may be passed without notice, as the proof of probate constitutes proof of the due and proper execution and publication of the will.

There are two methods of showing abstracts of wills: one, in case of record as a conveyance, as an independent circumstance, the same as other instruments of conveyance, and forming a separate link in the chain; the other, in connection with the proceedings had in the Probate Court relative to the proof of the will and the administration of the estate. Either method may be adopted as will best serve the purpose, but it is believed the former method possesses advantages over the latter, and is that which should be adopted whenever the will has been recorded in the registry of deeds as provided by law. In the event of the first named method being used, the proof adduced before the Probate Court, or a summary thereof, should also be appended, such proof being required by statute to be recorded with the will. The proceedings relative to the settlement of the estate then follow as a separate showing. When the latter method is employed, a digest of the will should be inserted at the beginning of the synopsis of the proceedings. When conveyances have been made by devisees prior to probate or record, the chronological arrangement should follow the dates of execution, rather than of proof or record, except in the case of what are known as post obit conveyances.

Probate of a will has been defined as: the proof before an officer authorized by law, that an instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be.40 It is the authentication of the instrument, and that which gives to it its legal effect and validity as a conveyance. A will, therefore, which has not been admitted to probate, though admissible perhaps in connection with proof of adverse possession, is not evidence of title in a court of law,41 nor would it afford constructive notice if recorded.

But, though probate establishes the sufficiency of * Warvelle on Abstracts, 498.

6 Oreg., 175; Wood vs. Mato Pettit vs. Black, 13 Neb., 142.

thews, 53 Ala., 1; Pitts Vs. u Willamette, etc., Co., vs. Gordon,

Melser, 72 Ind., 469.


the will, and confirms the claims of those holding under it so far as to make it evidence of title, it does not determine the title to the property, nor establish the validity of any devise given by it, a will having no greater effect after probate than any other legal conveyance.

In order to enable a devisee of lands under a will, probated in a foreign jurisdiction, to deduce legal title to the same in the courts of the State where the land is located, it is frequently necessary that the will be also probated in the local courts. This matter is governed by statute, which generally provides that the copy of the will presented must be accompanied by a certificate of the foreign probate duly authenticated, these together constituting the one instrument or subject matter to be acted upon under the statute; and all are, as a rule, essential to authorize the Probate Court to exercise jurisdiction. Whenever this ancillary probate is resorted to it is generally allowed as a matter of course, and without inquiring into the validity of the will or the sufficiency of the proofs upon which the Court granting the original probate acted, provided such original probate was granted by a court of competent jurisdiction and is properly authenticated.4

SECTION 21. PROBATE PROCEEDINGS. It is estimated that about once in every twentyfive years, all the real property in the country passes under the supervision of the probate courts, and whether the estimate be based on correct or incorrect data, it is certain that there are but few titles of twenty-five years duration that do not show testa« Brock vs. Frank, 51 Ala., 89;

418; Newman vs. Willetts, 52 Apperson vs. Bolton, 29 Ark.,

IH., 98.

« PrejšnjaNaprej »