The fact that a husband is a lega- | whose only interest therein is contee under the will does not render tingent upon a possible termination the wife an incompetent or interested of the corporation and division of its witness thereto: Hawkins v. Haw-assets, has no such interest as to be kins, 54-443. disqualified from being a witness to a will in which a bequest to such corporation is made: Quinn v. Shields, 17 N. W. Rep., 437. A corporator in a charitable corporation, in which it is not contemplated that any profits shall arise, SEC. 2329. When the statute provides the manner in which a will may be revoked, that manner must be pursued. Scrolls drawn across the signature, which do not obliterate it nor render it illegible, do not constitute a destruction of the will, and, therefore, do not amount to a revocation unless witnessed, as required in the following section: Gay v. Gay, 60-415. When an act of destruction or cancellation is sufficient to work a revocation, if done with that intent, the declarations of the testator may SEC. 2340. be admissible to show the intent, but when the act does not amount to a revocation, the declarations of the testator are not admissible to prove the revocation: Ibid. The birth of a child to the testator operates as a revocation of a will previously made: Alden v. Johnson, 18 N. W. Rep., 696; and the same rule holds in case of the birth and recognition of an illegitimate child by its father: Milburn v. Milburn, 60-411. 637. The ancillary administrator should [31, held, that a person appointed by proceed without reference to the con- a proper court of this state as execudition of the principal estate, at least of a foreign will, might exercise the until such condition is shown: Ash-powers of discretionary sale conferred ton v. Miles, 49-564. by such will upon the regular execuUnder provisions of Rev. §§ 2328- tors: Lees v. Wetmore, 58-170. SEC. 2353. 640. The probate of a foreign will may be set aside in an original proceeding, on the ground that the will is not in conformity to the requirements of the law of this state: Lynch v. Miller, 54-516. In a proceeding in probate court to obtain an interpretation of the will, a minor defendant, represented by a guardian ad litem, may, by cross-bill, seek to have the will set aside as invalid: Kelsey v. Kelsey, 57-383. Under particular facts, held, that the supreme court would not interfere with an order refusing to make an allowance to the widow: Caldwell v. Estate of Caldwell, 54-456. The allowance provided herein for temporary support where necessary, is no part of the widow's dower or inheritance, but something entirely distinct, and the right thereto is not relinquished by an ante-nuptial release of all rights of dower and inheritance as the widow and heir of deceased: Mahaffy v. Mahaffy, 17 N. W. Rep., 46. While the primary idea of the statute is that specific property must be set off, yet, in case it is not possible, the court may charge the executor with making money payments, and that, too, regardless of the question as to whether he has the requisite amount of money in his hands at that time, if there is property which the executor may convert into money for the purpose of making such payments. Sec. 2377 contemplates that the allowance may, upon a proper application and showing, be reduced, It should not ordinarily be paid in advance, but a reasonable opportunity should be left to modify and reduce the allowance in case it should be found necessary to do so: Estate of McReynolds, 61-585. SEC. 2377. A reduction of the allowance can be required to account for or pay only operate upon an unexpended back any portion already expended: balance thereof. The widow cannot | Harshman v. Slonaker, 53-467. SEC. 2379. 644. The finding of the court upon such | recover the property of the estate: proceeding cannot be pleaded in bar Ivers v. Ivers, 17 N. W. Rep., 149. of an action by the administrator to SEC. 2388. 645. Although the general rule as to time within which application to sell real estate is to be made be as stated in McCrary v. Tasker, 41-255, nevertheless matters excusing a delay beyond that time may be set up in the petition making application for leave to sell, and proved: Conger v. Cook, 56-117. And a judgment ordering a sale cannot be collaterally attacked, although rendered nine years or more after the death of intestate: Stanley v. Noble, 59–666. Allegations in a petition that no personal estate had come into the hands of the administrator, and that there were debts remaining unpaid, held, sufficient to sustain the jurisdiction of the court in ordering sale: Ibid. SEC. 2389. a The judgment of the court, where application for a sale has been properly made, as to the sufficiency of notice of the application as here required, and of the sale, is conclusive as against a collateral attack: Lees SEC. 2408. Where the records show that claims were filed against the estate, proceedings for sale of property will be upheld against collateral attack, although it does not appear that such claims were ever paid: Lees v. Wetmore, 58-170. Where an application to sell real estate was made more than fifteen years after administration was grant ed, held, that this long delay required the plaintiff to establish circum stances causing the delay: Wilson v. Stanton, 58-404. In a particular case, held, that the circumstances were not such as to constitute an exception to the rule announced in McCrary v. Tasker, 41-255; Hadley v. Gregory, 57–157. v. Wetmore, 58-170. A notice in a particular case, attacked on the ground of error in naming the decedent and in describ ing the land to be sold, held sufficient: Stanley v. Noble, 59–666. 648. The claim filed takes the place of a petition, and is to be regarded as a statement of the cause of action against the estate, and must contain all the averments necessary to show such cause of action: Bremer Co. v. Curtis, 54-72. All that is required in the first instance of the claimant is to make out, verify and file his claim. The administrator may then approve or allow it, if he sees proper; otherwise it is deemed denied (§ 2410). But before the court can obtain any juris There being no statutory bar as to the proving of claims of the third class, they may be proved up after the expiration of the twelve months: Smith v. McFadden, 56-432. A claim of fourth class must be filed and proved within the twelve months: Brownell v. Williams, 54353. Where the claim is filed in time to have it properly allowed within the year, the fact that its allowance is postponed beyond the year, by a confinuance granted to defendant to enable defense to be made, will be a ground of equitable relief from the bar of the statute: Ingham v. Dudley, 60-16. Where it appeared that a claim expended therefor, may very properly be left to the court having the supervision of the settlement of the estate, and unless the provision thus made shall appear to be unreasonable or excessive, the persons in interest should be bound thereby: Crapo v. Armstrong, 17 N. W. Rep., 41; Lutz v. Gates, Id., 747. may be brought to enforce payment by sale of real estate. See $3092: Bayliss v. Powers, 17 N. W. Rep., 907. The fact that a contingent claim is allowed does not entitle the claimant to an order of payment until the right of the claimant becomes absolute: Blanchard v. Conger, 61–153. against the estate was placed in the hands of attorneys in due time for filing, and that they delayed filing upon request of an attorney who had been acting for the administratrix, upon representation by him that he would see the administratrix with a view to an adjustment of the matter, and was then filed three months before the expiration of the limitation, but at such time that the term of court, in which it would come up for allowance, did not couimence until a few days after the expiration of the year, held, that in view of the fact that the estate remained unsettled and was solvent, a sufficient excuse was shown for the slight delay and that the court erred in rejecting |
