of course I will admit what the lawyers say—I
do not admit that it might not happen that
the executor might have something to do with
the real estate in a case where be acts as
guardian for the heirs during the time he is
executor or administrator.
Mr. MILLER. The executor does not act as
guardian.
Mr. PUGH. Is not the executor the guar-
dian of the heirs ?
Mr. MILLER. No. sir; he administers the
estate. The business of the executor is to
realizes much out of the estate as possible.
Mr. PUGH. The executor during the time
he is executor, and until a guardian is ap-
pointed and qualified acts in the capacity of
executor and guardian.
Mr. STIRLING. Not at all. It is an ordi
nary principle of law that where a man dies
his real estate goes to his heirs. And if his
executor is appointed trustee of the real es-
tate, then as trustee, but not as executor, he
can go into a court of equity.
Mr. PUGH. I will admit, as I said before,
that when an estate is complicated in this
way there may be some difficulty about it.
But in that case the parties interested in the
estate can select the better jurisdiction. Now
I claim, in order to avoid entailing upon the
estate all the expenses which necessarily ac-
crue from going into an equity court, that
executors should have the right to settle up
the real estate as well as the personal proper-
ty of the parties whose estates they have con-
trol of. Much has been said here about get-
ting rid of the lawyers. I do not intend to
state that it is our object to get rid of Law-
yers where they are necessary. But where
lawyers are altogether unnecessary, I claim
that persons who are settling up the estates
committed to their care, shall have the privi-
lege of doing so without incurring the ex-
pense of lawyers, for the mere formalities
which have been made necessary by the pres-
ent system tor the settling up of real estate
in connection with the personal estate. That
is all that has ever been claimed by those
who are in favor of adopting this section as
it stands; simply that those having charge
of estates, shall have the choice of selecting
the least expensive mode of settling up the
estates committed to their care.
It is notorious that now no question at all
can be raised in regard to real estate of a
party deceased, without making it necessary
to go into an equity court. And what is the
result? First you make up acase for the
circuit court—I do not know the legal terms,
but I know the result. The first thing you
know somebody is appointed trustee—I do not
say he is always alawyer, but that has always
been my experience—who is not at all inter-
ested in the estate; having no interest what-
ever in it in any possible way. The result is
the estate loses to that extent; the tees of the
trustee are taken out; that slice is lost to |
these orphans, for the protection of whom
the orphans' court was instituted. I know
he practical result from my own experience;
have seen it worked out. And I know
there is no possible way to avoid it under
the present system, even when all the parties
interested in the estate are united as to what
is best to be done. The heirs, if they are old
enough to know what is best, and everybody
else interested in the estate, may come for-
ward and say—"It is a perfectly plain mat-
ter, and we want it settled so and so." But
that cannot now be done without going into
an equity court, and in going into an equity
court you must entail all these expenses upon
the estate.
Mr. MILLER. If the heirs are of age they
can settle it without going into court.
Mr. PUGH I say if they are old enough to
know for themselves what is best, and to
come forward and say that they are willing
to have the estate settled in this manner.
There are plenty of heirs who are under age,
and yet who are old enough to know very
well it is better fur them to submit to a cer-
tain settlement suggested to them, and to
which they agree, it is to such heirs that I
referred; to a case where all the parties in-
terested in the estate are satisfied with a cer-
tain plan of settlement, and who if permitted
could settle the whole matter in a quarter of
an hour.
Mr. STIRLING. How can they do that with-
out giving some notice to creditors? The
heirs do not own the whole estate.
Mr. PUGH, I refer to cases where there are
no creditors.
Mr. STIRLING. The court cannot take it for
granted that there are no creditors.
Mr. PUGH. The orphans' court has know-
ledge of all the circumstances of the estate,
and can give notice to the creditors, if there
are any, to file their accounts.
Mr. THRUSTON. If the heirs are under age,
can the orphans' court make a different settle-
ment from a court of equity ?
Mr. PUGH. I do not say that.
Mr. THRUSTON. Can it release the execu-
tor?
Mr. PUGH. I do not say that.
Mr. THRUSTON. Then what will it amount
to?
Mr. PUGH. It will not amount to anything
as the law now stands. But it will amount
to something if the orphans' court bad the
power to do what we wish them to do.
Mr. THRUSTON. They will have no power
to do so; they must do the same as now.
Mr. PUGH As I stated in the outset, all I
want in this matter is, if possible, to avoid
expense to persons interested in an estate. I
know that all the lawyers think differently
about this matter, and favor the present sys-
tem of filing a bill, having a trustee appoin-
ted, and that trustee one of the craft, who
will come in and get his share of the estate. |
