appoint some competent person. When appointed, the administrator is required to take an oath and give a bond for the faithful performance of the duties of his trust. He is at all times under the direction and control of the court, to whom he is required to report all his doings in the management of the property which comes to his hands. When he is ready to close the estate, he files his final accounts, and if no objections are made by the parties in interest, he is discharged. If an administrator dies, resigns, or is removed, the court appoints a successor, who is called an administrator de bonis non, and his duty is, as the name implies, to administer so much. of the estate as was left unsettled by his predecessor. The authority issued by the court under its seal to an administrator is called letters of administration.

§ 181. Executor.-An executor named in a will is the person appointed by the testator to carry out his purpose as expressed in the will. It is usual for the executor to give bond and take an oath, though the giving of the bond is sometimes dispensed with where the testator in his will indicates a desire to that effect, and no objection is made by the parties in interest. The authority issued to an executor is called letters testamentary. It is the duty of the executor to carry out the wishes of the testator in the distribution of such articles of personal property as are disposed of by the will. The gift of personal property by will is termed a bequest or legacy, and the person to whom it is given is called a legatee; the gift of real property by will is termed a devise and the person receiving it is termed a devisee. If the executor has cause to fear that the property of the

testator will not be sufficient to discharge the debts of the estate and to pay the legacies, he may require the legatee to give bond that, in case such deficiency should occur, he will refund to the estate so much as may be necessary to pay his share of such deficiency. The devisees take the real estate according to the terms of the will as soon as the will is admitted to probate, subject to the debts remaining after the personal estate is exhausted. The executor,

as the administrator, does not meddle with the real estate of the testator unless it is shown to the court that it is necessary to sell a portion of it to pay debts. The reports and accounts of the executor are made and disposed of in the same way as the reports and accounts of the administrator. If the person named as executor renounces the trust the court appoints an administrator as in the case of an intestate, and the administrator is called administrator with the will annexed, and if this administrator dies, resigns or is removed, a successor is appointed who is called an administrator de bonis non with the will annexed. Executors and administrators receive such compensation as the court may allow, or as may be provided for in the will.

CHAPTER XV.

CONTRACTS IN GENERAL.

§ 182. Growth of right to contract.—In primitive societies, and under the ancient laws, the rights and liabilities of persons, so far as they had rights and liabilities, were largely fixed and determined by their stations in life, whether as lord or vassal, husband or wife, parent or child, master or slave. The individual, unless he were lord, master or head of a family, had little or no voice in fixing his rights and obligations. Status, a word which is used to designate the personal condition of the individual under these old laws, has been gradually succeeded and almost supplanted by conditions which are the immediate or remote result of agreement, and the great movement of the progress in society has been a movement from status to contract. Societies are civilized and progressive to the extent that the individual can for himself establish such relations as he chooses, work for whom he pleases, and for what he pleases, buy and sell what and where he can, having no superior to control his will or direct his action, except so far as the necessary restraints of public law impose limits upon such action.

§ 183. A large portion of the field of jurisprudence is devoted to the subject of contracts. Contracts from their very nature imply that men are disposed in

good faith to keep agreements which they have entered into voluntarily. And the multiplication of the different forms of contract indicates in a marked manner how the confidence and faith of man in his fellow-man have increased. Society is shocked by the great frauds which are sometimes perpetrated by cunning and powerful men, but the great current of commercial and business life is pure. Men as a rule are faithful in the performance of their agreements. Where men from an honest misunderstanding as to their rights under their contracts or from a dishonest motive to evade them disagree, the aid of the law is invoked to settle the controversy. Some idea of the immense stride society has made may be formed from the language of Sir Henry Maine, who says, "The only form of dishonesty treated of in the most ancient Roman law is theft. At the moment at which I write (1861) the newest chapter in the English criminal law is one which attempts to prescribe punishment for the frauds of trustees." Without dwelling further upon this interesting branch of the subject, we will now proceed to a consideration of the law of contracts as it exists at present.

§ 184. Contract defined.-First as to what constitutes a contract. Blackstone's definition is as follows: "A contract is an agreement upon sufficient consideration to do or not to do a particular thing," which is concise and comprehensive. Judge Metcalf preferred the definition of Chief Justice Marshall, as it is given in Sturges v. Crowningshield, 4 Wheat. 197. It is in these words: "A contract is an agreement in which a party undertakes to do or not to do a particular thing." In this definition the element of

consideration is omitted. The efforts to improve upon these definitions by later learned writers show a great deal of ingenuity and a large command of words, but it is questionable whether their efforts to make things clear have not tended rather to darken counsel. For the student who is trying to master the elementary principles of the law, the definitions of Blackstone and Marshall will be quite sufficient. Chancellor Kent approved Blackstone's definition substantially as we have given it.

§ 185. Capacity of parties.-It is essential to the validity of a contract that the parties should have the capacity to contract; they must be of sound mind, of adequate age and under no legal disability. The following persons are incapacitated: Insane persons, drunkards, infants, persons under duress, and alien enemies during war. In some of the states married women are still incapacitated from making contracts, but these harsh rules are yielding to the demands of an enlightened public opinion, which insists upon enlarging the sphere of woman's rights and increasing her control over her own property.

§ 186. Void and voidable contracts.-The terms void and voidable are often confused. A contract is void when its terms are so uncertain that it can not be enforced, or where there is a total lack of capacity in one or both of the parties, or where the contract is illegal, being in contravention of some positive law forbidding it; to these are to be added. contracts to refrain from doing what the law requires, contracts which are impossible of performance, contracts based upon an immoral consideration, and contracts contrary to public policy. Contracts legal