ecutor or administrator, and of his proceedings thereon; and if the person so cited shall refuse to appear and render such account, the court may proceed against him, as provided in the preceding section.

[Forms No. 64 to 66, Appendix.]

Under a section of the Texas Probate Act, (article 1,228, of Hartley's Texas Digest,) the chief justice is authorized, upon complaint filed, to cause any person (including previous administrators) to appear before him and deliver up any papers, evidences of debt, &c., which he may have in his possession belonging to an estate, or show cause to the contrary.

It was held that this section did not empower the court to require an ad ministrator who had been removed, to surrender his vouchers, or any papers necessary to his own defence. Miller v. Jasper, 10 Texas R., 513.

Cases not Noted under the Sections of the preceding Division of the Statute. (a.)

A probate judge ought not to reject an inventory exhibited by an executor or administrator, because it contains property, the title to which is disputed. Gold's case, Kirby's Conn. R., 100.

Executors and administrators are bound to inventory and account for provisions belonging to deceased at the time of his death. Griswold v. Chandler, 5 New Hampshire R., 492.

Appraisers are officers appointed to estimate and appraise; but their appraisement is not conclusive. It may be reviewed, examined and corrected. Appleton v. Cameron, 2 Bradford's R., 119.

If they neglect to set apart property for the widow or minor children, or make a valuation palpably erroneous, the Surrogate may direct the error to be rectified.

lb.

The valuation made by the appraisers in the inventory, is not conclusive against the executor or administrator, but may be shown to have been erroAmes v. Downing, 1 Bradford's R., 321.

neous.

It may be shown on the accounting of the administrator or executor, that the assets were not correctly stated in the inventory. Montgomery v. Dunning, 2 Bradford's R., 220.

The rule that the inventory cannot be impeached or reformed, relates to proceedings in relation to the inventory itself. But it may be shown, on the accounting, that the assets were not correctly stated in the inventory. Ib.

In the ecclesiastical courts, an inventory cannot be falsified; and if allegations pleading omissa are entertained, yet if the allegations are denied in the answer, evidence will not be received against the answer. If the answer confesses more assets, the inventory may be amended. Thomson v. Thomson, 1 Bradford's R., 24.

The administrator of a surviving partner, stands in the same position as the surviving partner in his life time, and although he has the legal title to the prrtnership effects, yet they are assets of the firm, and not of his intestate, and should neither be inventoried nor accounted for as property of his intestate. Ib.

(a.) See also the cases under chapter X., respecting accounting by executors, etc.

It is only the interest of the deceased partner in the surplus after the payment of the partnership debts which is assets in the hands of his administrator. It is not usual, therefore, to make a specific inventory of copartnership assets, but it is deemed sufficient to note the interest of the deceased in the partnership, generally upon the inventory. Ib.

If, on taking the inventory, the property directed by statute to be set apart for minor children was not so apportioned, the error may be corrected on the accounting. Clayton v. Wardell, 2 Bradford's R., p. 1.

The provisions of the statute directing certain articles to be set aside in the inventory for the benefit of the widow and minor children of the deceased, are not limited to cases where the deceased was a resident of this State. These articles are not assets-do not belong to the executor or administrator, and are not the subject of administration or distribution. Kip v. Pub. Admr., 2 Bradford's R., 258.

Lands descended in another State, cannot be considered as assets. Austin v. Gage, 9 Mass., R. 395.

The right of enjoyment of possession of public lands, may descend among the effects of a deceased person to the executor or administrator, and the right of the deceased be conveyed by a regular sale to another. Grover v. Hawley, 5 Cal. R., 485.

A note and mortgage made to a husband and survives, and not to the administrator as assets. 480.

wife, goes to her in case she Draper v. Jackson, 16 Mass.,

Specific personal property held by deceased in trust, is not assets in the executors hands, but is held by him as his testator held it; otherwise, if the property have no ear-mark, in which case the person entitled must come in as a general creditor. Johnson v. Ames, 11, Pickering, 173.

The administrator should inventory property belonging to the estate, though in the hands of a stranger. Potter v. Titcomb, 1 Fairf., 53.

And if there are promissory notes belonging to the estate, made by the administrator, deposited in the hands of a third person, he must inventory them, though he denies them to be due the estate. Ib.

CHAPTER V.

PROVISION FOR THE SUPPORT OF THE FAMILY.

Provision for widow and minor

§ 120. When a person shall die, leaving a widow or a minor child or children, the widow, child or children, shall, children. until letters have been granted and the inventory has been returned, be entitled to remain in possession of the homestead, and of all the wearing apparel of the family and of all the household furniture of the deceased, and shall also be entitled to a reasonable provision for their support, to be allowed by the probate judge.

[Forms No. 67, and 68, Appendix.]

§ 121. Upon the return of the inventory, the court shall set apart for the use of the widow, or minor child or children, all property which is by law exempt from execution, or so much of such property as may have belonged to the deceased.

[Forms No. 69 and 72, Appendix.]

See Sec. 124, infra, and note to that section, and cases cited.

Property set

apart.

cient.

§ 122. If the whole property exempt by law be not inclu- If property set ded in the inventory, and if the amount set apart be insuffi- apart be insufficient for the support of the widow and child or children, the probate court shall make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the pro- tate to be settled gress of the settlement of the estate; which, in case of an insolvent estate, shall not be longer than one year after granting letters of administration.

[Forms No. 69, 70, 72 and 73, Appendix.]

Insolvent es

within one year.

Preference of

§ 123. Any allowance made by the court, in accordance allowance. with the provisions of the preceding section, shall be paid by the administrator in preference to all other charges, except funeral charges and expenses of administration.

[Forms No. 69, 70, 72 and 73, Appendix.]

set apart for wid

ow, etc.

124. If there is no law in force exempting property Property to be from execution, the following shall be set apart for the use of the widow, or minor child or children, and shall not be subject to administration : 1st., all spinning wheels, weaving looms, and stoves put up or kept for use; 2d., the family bible; family pictures, and school books and library, not exceeding in value two hundred dollars; 3d., all sheep, to the number of twenty, with their fleeces, and the yarn or cloth manufactured from the same; two cows, five swine, with the necessary food for them for six months; 4th., all wearing apparel of the widow and children, and all household goods, furniture and utensils, not exceeding in value seven hundred and fifty dollars; 5th., the homestead, consisting of any quantity of land not exceeding twenty acres, and the dwelling house thereon, with its appurtenances, not being included in any incorporated town or city; or instead thereof, a quantity of land, not exceeding one lot, in any incorporated town or city, and the dwelling house thereon, and its appurtenances, to be selected by the widow; or if there be no widow, to be designated by the probate judge, and not to exceed in any case, more than five thousand dollars in value.

The homestead.

[Forms No. 69 and 73, Appendix.]

See section 121, ante; also section 219 of the Practice Act, and sections 1 and 10 of the Homestead Act.

It would seem that it is under these latter provisions, and not under section 124, that the probate court now acts in setting apart property for the use of the widow or minor child, etc. (a.)

A widow who has once applied to the probate court to have the last resi

(a.) Sec. 219 of the Practice Act, passed April 29, 1851, as amended May 15, 1854, provides for the exemption of certain property from execution. Compiled Laws, p. 559; Amended section Statutes of 1854, p. 62; Wood's Digest, p. 195.

Sections 1 and 10 of the Homestead Act, passed April 21, 1851, (Compiled Laws, p. 850; Wood's Digest, pp. 483, 484,) provide as follows:

§ 1. The homestead, consisting of a quantity of land, together with the dwelling house thereon and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the owner thereof, shall not be subject to forced sale on execution, or on any other final process from a court, for any debt or liability contracted or incurred after thirty days from the passage of this act, or if contracted or incurred at any time in any other place than in this State.

$10. The homestead and other property exempt from forced sale, upon the death of the head of the family, shall be set apart by the probate court for the benefit of the surviving wife and his own legitimate children; and in case of no surviving wife or his own legitimate children, for the next heirs at law; provided, that the exemption as provided in this section, shall not extend to unmarried persons, except when they have charge of minor brothers or sisters, or both, or brothers' or sisters' minor children, or a mother or unmarried sisters living in the house with them.

dence of her husband and herself set aside as a homestead, and has acquiesced for eighteen months in the order so setting it aside, is concluded by her own acts, from afterward claiming a lot on which they formerly resided, merely because she has ascertained that there are liens on the lot first set aside. Holden v. Pinney, 6 Cal. R, 234.

As to whether buildings used for hotels, stores, etc., are susceptible of dedication to homestead purposes. Quaere. Geary v. Eastbrook, 6 Cal. R., 457.

A husband and wife may, by joining in a conveyance of an undivided portion of premises in which a homestead right is acquired, destroy its character as a homestead. Kellersberger v. Kopp, 6 Cal. R., 563.

The homestead right is not affected by the foreclosure of a mortgage signed by the husband alone. Cook v. Klink, 7 Cal. R., Oct. term; Revalk v. Kramer, 7 Cal. R., July term, and see Von Reynegam v. Kramer, 7 Cal. R., July term.

To whom the propertyset apart

§ 125. When property shall have been set apart for the use of the family in accordance with the provisions of this chapter, if the deceased shall have left a widow and no mi- to belong. nor child, such property shall be the property of the widow. If he shall have left also a minor child or children, the onehalf of such property shall belong to the widow and the remainder to the child, or in equal shares to the children, if there be more than one. If there be no widow, the whole shall belong to the minor child or children.

See Sec. 127, post.

[Forms No. 69, 71 and 72, Appendix.]

Where whole

§ 126. If, on the return of the inventory of any intestate estate, it shall appear that the value of the whole estate, estate does not does not exceed the sum of five hundred dollars, the probate exceed $500. court shall, by a decree for that purpose, assign for the use and support of the widow and minor children of the intestate, or for the support of the minor child or children, if there be no widow, the whole of the estate, after the payment of the funeral charges and expenses of the administration, and there shall be no further proceedings in the administration unless further estate be discovered.

[Form No. 71, Appendix.]

In case widow

§ 127. If the widow has a maintenance derived from her own property equal to the portion set apart to her by the has maintenance. one hundred and twenty-fifth and one hundred and twentysixth [124th and 125th ?] sections of this act, the whole property so set apart shall go to the minor child or children.

[Form No. 71, Appendix.]