« PreviousContinue »
establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court.]
Publication may be substituted for personal service of process upon any defendant who cannot be found and who is shown by affidavit to be a nonresident, or to have been absent from the District for at least six months, or against the unknown heirs or devisees of deceased persons, in suits for partition, divorce, annulment, by attachment, foreclosure of mortgages and deeds of trust, the establishment of title to real estate by possession, the enforcement of mechanics' liens, and all other lines against real or personal property within the District, and in all actions at law and in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court.
Personal service of process may be made by any person not a party to or otherwise interested in the subject matter in controversy on a nonresident defendant out of the District of Columbia, which service shall have the same effect and no other as an order of publication duly executed. In such case the return must be made under oath in the District of Columbia, unless the person making the service be a sheriff or deputy sheriff, a marshal or deputy marshal, authorized to serve process where service is made, and such return must show the time and place of such service and that the defendant so served is a nonresident of the District of Columbia. The cost and expense of such service of process out of the District of Columbia shall be borne by the party at whose instance the same is made and shall not be taxed as a part of the costs in the case; but where such service of process is made by same authorized officer of the law in this section mentioned, the actual and usual cost of such service of process shall be taxed as a part of the costs in the case.
AMENDING THE CODE OF LAW, DISTRICT OF COLUMBIA, TO PROVIDE FAMILY ALLOWANCE AND A SIMPLIFIED PROCEDURE IN SETTLEMENT OF SMALL ESTATES
JUNE 7, 1949.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
Mr. HARRIS, from the Committee on the District of Columbia, submitted the following
(To accompany S. 1135]
The Committee on the District of Columbia, to whom was referred the bill (S. 1135) to amend the act entitled "An act to establish a Code of Law for the District of Columbia," approved March 3, 1901, to provide a family allowance and a simplified procedure in the settlement of small estates, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.
The purpose of this bill is to grant a $500 family allowance to the surviving spouse, if any, for the use of such spouse and any minor children, or if there be no spouse surviving then to the minor children (payable to the person having their custody) for their care and maintenance, said allowance being subject only to payment of funeral expenses not exceeding $200.
Section 1 of the act provides a family allowance of $500 from the estate of any person who leaves a surviving spouse and minor children, or who leaves just a spouse, or who leaves just a minor child or minor children. This allowance is in addition to the respective share or shares of the spouse and minor child or children. This allowance is exempt from all debts of the decedent, and is subject only to funeral expenses not exceeding $200.
Section 2 of the act concerns the procedure when there is a person (spouse or minor children) entitled to the family allowance, and the decedent leaves only personal property of a value not in excess of $500. In that event the spouse or the minor child (through its next friend) files a petition in the probate court, under oath, declaring: (a) the time and place of decedent's death; (b) the known next of kin; (c) the known assets and by whom held; (d) the amount of funeral ex
penses and to whom due; and (e) that petitioner has made a diligent search to discover all assets of the deceased and that said assets do not exceed $500 in value. Thereupon the probate court, if satisfied that said allegations are true, shall pass a final order: (1) declaring that no formal administration is necessary and no probate is required of any will, (2) fixing the amount of funeral expenses allowable, to whom due, and out of what property to be paid, (3) vesting title to the remainder of the property in the surving spouse or minor children, as the case may be, in satisfaction of his, her or their family allowance, and (4) directing the person or persons having possession of said property to pay over, transfer, and deliver the same as allotted. The probate court may also, in said order, or by further order, authorize the sale of said property as the exigencies of the situation may require.
Section 3 of the act provides the procedure when anyone dies without a will, and without a spouse or minor children, and leaves only personal property of a value not in excess of $500. In that event the person preferred for appointment as administrator may petition the probate court, reciting the pertinent facts-which are detailed in the act and the probate court, if satisfied that the allegations in said petition are true, shall pass a preliminary order declaring that no formal administration is necessary, and instructing the petitioner to publish, once, in substantially the usual form a notice to creditors to exhibit their claims duly authenticated, within 30 days after such notice, and which notice shall be inserted in one newspaper of general circulation in the District of Columbia as said (probate) court shall direct.
It is to be noted that, under section 2 of the act covering the estate of a married person who leaves a spouse or minor children entitled to the family allowance created by section 1 of the act, there is no publication, there are no debts paid, only funeral expenses up to $200 are allowed, and the family allowance is then allotted. By contrast, under section 3, when there is no spouse or minor child surviving (hence no one entitled to the family allowance) in that event the petitioner is directed to publish a 30-day notice in one newspaper of general circulation. Section 3 then continues to provide a summary procedure, after this publication and following the expiration of the 30-day period provided for presenting claims. The petitioner shall file, under oath, a statement, with the usual proof of publication attached, that the notice has been published, and that the said time has expired, and listing all then known creditors, including contingent and disputed claims, and the amount of each claim. If satisfied that said statement is true, and after hearing and disposing of any objections filed in the probate court by anyone interested in the estate, the probate court shall pass a final order (1) directing the petitioner to pay from the estate all of said claims, in the order of priority provided by law, and (2) authorizing any person having possession of any property of the decedent's estate to transfer, pay over, and deliver the same in accordance with petitioner's directions, and (3) decreeing that, after the Register of Wills certifies upon said final order that he has seen the vouchers for the payment of said claims and is satisfied that said claims, as well as the fees hereinafter provided for, have been paid, then the remaining balance of the estate, if any, shall be vested as follows: First, in the adult surviving children equally, and secondly,
if there be no adult surviving children, then in those persons who would be entitled thereto under the statute of distributions. Under this section 3 also the court is given authority to provide for sale of any property upon such terms as it deems advisable.
Section 4 of the act protects, in the absence of fraud, those who pay over or deliver any property pursuant to a court order made pursuant to the act, without liability to see to the application of the property so paid over and it provides further that distributees become vested with the property received absolutely.
Section 5 of the act reads:
No petitioner under this act shall be required to be represented by an attorney, or to give bond. nor receive any commission for performing any work or service hereunder
Section 6 of the act provides that the Register of Wills shall prepare and make available forms, whereby the pleadings required by the act shall constitute in each case one connected instrument. He is allowed in each case for all services a fee of $5 plus a fee of 25 cents for each certified copy.
Section 7 of the act covers the procedure in the event of the discovery of additional property of the decedent after the filing of the petition, either under section 2 or under section 3. In substance it provides that regular administration shall be ordered if decedent's estate is thus discovered to exceed $500. If decedent's estate, augmented by the assets discovered late, still is within $500 then the procedure is consonant with the other provisions of the act.
Section 8 of the act provides a fine not exceeding $500 for each offense for any person who makes a false affidavit or willfully violates any order of the court under the act or any provision of the act.
Section 9 of the act repeals all acts or parts of acts inconsistent with this proposed "Family Allowance and Small Estates Act" to the extent only that they are inconsistant.
Section 10 of the act provides that it shall apply to the estates of all persons dying after the date of the approval of the act.
This bill was endorsed by the District of Columbia Bar Association which presented the following justification:
This act (bill) grants, upon the death of any person, a $500 family allowance to the surviving spouse, if any, for the use of such spouse and any minor children, or if there be no spouse surviving then to the minor children (payable to the person having their custody) for their care and maintenance, said allowance being subject only to payment of funeral expenses not exceeding $200.
When a person dies leaving only personal property of a value not in excess of $500 and not leaving anyone entitled to said family allowance, upon a showing to that effect, the probate court can enter an order of "no administration" and "no probate" and direct distribution of said estate in accordance with the allowance, by anyone having possession of the property, and the court can order sale thereof as the situation may require
When a person dies leaving such small estate, but no one entitled to the family allowance, the person preferred as administrator may secure an order for publication for 1 month against creditors, and thereupon pay them and account, and the court then vests the balance, if any, in the adult surviving children equally, otherwise to those entitled as next of kin.
No petitioner shall be required to be represented by attorney, nor to give bond, and the Register of Wills shall prepare and make available the needed forms, and shall receive $5 for all services, plus 25 cents each for copies. The act (bill) is set out in full, Bar Journal, May 1948, page 216.
All agree that the widow, minor children, or other next of kin of persons dying leaving no more than $500 in personalty should not any longer be required to pay $10 court costs, $10 bond premium, and $25 to $50 attorney fees, and then wait
12 months before securing what, if anything, remains after paying those expenses, funeral bills, and creditors. Only if the estate is insolvent is the exemption statute applied (Cogswell, Bar Journal, September 1936, p. 14). See Proceedings of the Judicial Conference, District of Columbia Bar Journal (1947), pages 458-468,
Like most local probate law, this act (bill) is modeled on the Maryland Small Estates Act of March 29, 1945. Theodore Cogswell, Register of Wills, is in accord with the sentiment for a minimum figure of $1,000 (Bar Journal, 1947, p. 463). This act (bill) follows the Judicial Conference topic (id., p. 458) and its vote (id., p. 504); and if so enacted it will admit fewer estates to be thus handled during the period the Register of Wills is initiating the procedure, than if the limit were higher. This bar association committee will agree to passage of the act (bill) with a higher limit, but the act (bill) should not be lost, nor longer delayed, through any issue as to the limit to be applied.
The Commissioners of the District of Columbia approved this bill.