children of the deceased heir have his or her share of the real property divided among them. The descent here is per stirpes, that is, by the roots. In the case cited, if a brother were dead and had left one child, it would have a full share, or one-fifth of the estate. If another brother died and left four children, each of these would get one-fourth of a fifth, or one-twentieth of the estate. It is to be remembered that it is only in case of intestacythat is, where there is no will-that these rules of descent work. In some states the rules of descent have been varied, and in cases where there are no children there is variation in the law as to who takes title. § 13. Appointment of an Administrator The person appointed by the court of probate to settle the estate of a person who dies intestate receives letters of administration authorizing him to settle the estate, and is called an "administrator," or, if a woman is appointed, an "administratrix." Such a court will not grant letters of administration unless the deceased had property in the county or was a resident therein at the time of his death. If a person presumably dead at the time letters were granted, is later proved to be alive, the appointment is without jurisdiction. So too, if letters were granted in ignorance of the fact that there was a will. Presumption of Death-Proof of Death. Before any step can be taken in the settlement of an estate, it must be proved that the person whose estate is to be settled is in fact dead. Where no actual proof can be obtained, the court will accept certain facts as presumptive death. For the purpose of this latter rule, it has been settled in the majority of the states that when a party has been absent seven years since any information concerning him has been received, he is, in contemplation of law, presumed to be dead. The first step in the settlement of the estate of one who leaves no will is the filing of a petition by some interested party, an heir, next of kin, or a creditor, who sets up the death of the intestate, the fact that he died intestate, and that he left property which should be administered subject to the jurisdiction of the probate court that is petitioned to administer. The petition should also state the amount of property so left and the names of the persons entitled to inherit it, and ask that the petitioner or some person having a prior right be appointed administrator. Anyone who has not an interest in the property of the decedent may not make such a petition to the court. Usually a relative makes such a petition, but an unpaid creditor is considered to have such an interest in the settlement of the estate as to entitle him to ask for the appointment of an administrator. In some cases he himself may be appointed. After a petition has been filed by an interested party, a citation is issued by the probate court notifying all other interested parties of the petition, so that if they desire they may object to the granting of letters as asked, and may ask for another appointment. A petition for administration should be brought within a reasonable time, and in some states a specific time is set, after which a delay in bringing such petition must be satisfactorily explained. A husband or a wife has the first right of administration. The misconduct or incapability of a husband or a wife will be a bar to his or her appointment. In the United States the courts will, for the most part, grant letters to a surviving wife in preference to children or the next of kin. After a wife's or a husband's right to the appointment comes the right of next of kin. Next of kin are those persons related by blood, who would take the personal estate of one who dies intestate, and this includes persons claiming per stirpes, or by representation. The court, if possible, will grant letters to some one next of kin who is a distributee under the Statute of Distribution, which designates the order of preference among kinsmen. As between next of kin with equal rights in the distribution of the decedent's estate, "moral fitness and integrity may well be considered in the selection; also efficiency of mind and body; also business habits and experience in the management of estates.' "1 Sex and age also count to some extent and therefore, all else being equal, a male might be preferred to a female or an older person to one younger and less capable. If there is no wife or husband, or no relative to be appointed, the court may at its discretion appoint a stranger, both in blood and interest, as administrator. In these days such appointee would probably be a trust company or a bank authorized to act as administrator. (See Chapters XII and XIII.) § 14. Public Administrator In some states, what is called a "public administrator" is appointed in each county for the purpose: (1) of administering the estate of any decedent where there is no person entitled and willing to administer; or (2) of acting as conservator of the estate in certain cases, while the court is ascertaining to whom administration ought to be confided.2 In New York a public administrator is appointed for the county of New York and county of Kings. This official when authorized by the surrogate takes over entire charge of the personal estate, corresponding with husband or wife, or any relative, if such can be found or may later appear, settling and distributing the personal property according to the statutes of the state, and turning any property of an absent distributee or any unclaimed surplus of the estate into the state treasury Schouler, Wills, Executors and Administrators, Vol. II, p. 1104. to await the rightful claimant. In New York City, the property of an absent distributee would be placed in charge of the City Chamberlain. Such an administrator is absolutely reliable because he is at all times under the careful scrutiny of state and probate court executives, who fix the amount of his bond, and his records and accounts are regularly examined. His bond may always be examined as to its sufficiency, by a creditor or other interested party, and furthermore his bond of office does away with the necessity of finding bondsmen for many various estates. In other counties of the state, the county treasurer is authorized to act as public administrator. Practically all the states now provide for a stranger to become the administrator of a decedent's estate where there is no one else, but, as in New York, the states of Louisiana, Alabama, Georgia, Wisconsin, Missouri, Illinois, and California, expressly provide for a public administrator to fill such position in times of necessity instead of a stranger selected specially for each case. The public administrator performs the same functions and has only the same powers as an ordinary administrator, but more than this, he is a representative of the state and likewise of all persons interested as distributees in the administration of the decedent's property. § 15. Letters of Administration If the death of the party is proved, if it is shown that there are assets of the estate in the county where letters are sought, if there is no will, and if the proposed administrator is not unsuitable or disqualified, the letters usually are issued as a matter of course. The court then asks for a bond, the amount of which is determined by the size of the estate the administrator is to handle. This bond must be executed and filed before letters will be issued. A bank or a trust company acting as administrator is not required to give bond, it being considered that such institutions are as financially responsible as any bonding institution could be. Letters of administration will then be issued and will be authenticated under the seal of the court. Certified copies of the letters of administration will also be put on record at the registry of the probate court where all such papers and letters are kept. They are general in terms and grant administration of all goods, chattels, and credit belonging to the intestate. A copy certified by the clerk of the probate court is customarily used by the administrator to prove his authority to act for the estate. REVIEW QUESTIONS 1. What does "intestacy" mean? What other words are we using from the same root? In what four ways may a man be intestate? What happens to the property of an intestate? 2. Who has the first claim on a man's estate? How do most states distinguish between the disposition of real property and the disposition of personal property? Is this distinction made in your state? What is the legal distinction between the words "descent" and "distribution"? 3. In your state, when a man dies intestate what is done with land in the following cases: (a) When he leaves a wife and children? (b) When he leaves a wife but no children? (c) When he leaves no wife but children and grandchildren? (d) When he leaves a wife and brothers and sisters? (e) When he leaves a wife, a father, and brothers? 4. In each of the five cases, would it be different if a woman died leaving or not leaving a husband and relatives as has been described in Question 3? 5. In your state, what would be done with personal property in cases like those given under the two preceding paragraphs? What is meant by inheriting per capita and per stirpes? 6. In cases of intestacy, who distributes the property of the intestate? Who appoints an administrator? What facts must be shown to |