$1047. funds, and the amount actually paid to each person, and Oct. 11, 1862, when paid; Books and records relat ing to probate 6. A record of the appointment of admeasurer of dower, with all orders and decrees relating to the same, matters. and the admeasurer's report; 7. An order-book, in which shall be entered orders directing the conduct of executors, administrators, or guardians; orders for publication of notice to creditors; orders in behalf of creditors directing debts to be paid, or allowing an execution to be issued; appointments of special guardians, appraisers, and referees; orders relating to the production of a will, to removal of executors, administrators, or guardians, or to sureties therefor; and generally, all other orders not required to be entered in some other book. Ø 1048. § 1080. [1048.] To each of such books there shall be Oct. 11, 1862, attached an index, securely bound in the volume, referring to the entries or records in alphabetical order, under such books. the name of the person to whose estate or business they relate, and naming the page of the book where the entry or record is made. $1049. Costs and ments. § 1081. [1049.] Costs may be awarded in favor of one oct. 11, 1862, party against another, to be paid personally or out of the estate or fund, in any proceedings contested adversely, disbursebut such costs cannot exceed those allowed in the trial of a civil action in the county court. Witness's fees and other disbursements similar to those allowed on the trial of a civil action may also be allowed, to be paid in like manner. Amount of costs: See § 552 [542]. $ 1050. Orders or § 1082. [1050.] Orders or decrees for the payment of Oct. 11, 1862, money may be enforced by execution or otherwise, in the same manner as orders or decrees for the payment decrees for of money in the circuit court. the payment of money. TITLE II. OF THE PROOF OF WILLS, AND THE APPOINTMENT OF EXECU- § 1083. In what county will may be proven, and when. § 1084. Who is to be appointed executor or administrator with the will annexed. § 1085. In what court administration to be granted, and who is entitled § 1090. § 1091. § 1089. Qualification and justification of sureties. A non-resident or minor may qualify as executor after the removal of the disability. Appointment of special administrator. Death, resignation, or removal of one or all the executors or administrators, effect of. § 1098. § 1099. New administrator may maintain action against former one, his sure § 1100. § 1101. ties or representatives. Power of the court over an administrator. When deceased a member of a copartnership, inventory and appraisement of estate. § 1102. Partnership property may be administered by surviving partner. Application therefor. § 1103. Denominated an administrator of the partnership, his powers and duties. § 1104. Undertaking of administrator of the partnership. When administration of partnership property devolves upon the general administrator. § 1105. Oct. 11, 1862, 1051. In what county will may be proven, and when. § 1111. Resignation of executor or administrator. § 1083. [1051.] Proof of a will shall be taken by the county court as follows: 1. When the testator, at or immediately before his death, was an inhabitant of the county, in whatever place he may have died; 1051. 2. When the testator, not being an inhabitant of this Oct. 11, 1862, state, shall have died in the county, leaving assets therein; In what 3. When the testator, not being an inhabitant of this county will state, shall have died out of the state, leaving assets in proven, and the county; 4. When the testator, not being an inhabitant of this state, shall have died out of the state, not leaving assets therein, but where assets thereafter came into the county; 5. When real property, devised by the testator, is situated in the county, and no other county court has gained jurisdiction under either of the preceding subdivisions of this section. One sentenced to life imprisonment is may be when. $ 1052. Who to be Proceedings in administering on the estate of a live person are void: Stevenson v. Superior Court, 62 Cal. 60. § 1084. [1052.] When a will is proven, letters testa- Oct. 11, 1862, mentary shall be issued to the persons therein named as executors, or to such of them as give notice of their ac- appointed ceptance of the trust and are qualified. If all the persons administrato. therein named decline to accept, or be disqualified, letters annexed. of administration with the will annexed shall be issued 16 Or. 148, to the person to whom the administration would have. been granted if there had been no will. moving an administrator cannot be executor or with the wil Probate of will. Where a will has been probated in common form, and the validity of the will is attacked by a direct proceeding, it lies upon the person seeking to maintain the validity of the will to reprobate the same by original proof, in the same manner as if no probate thereof had been had, except as to such matters as are admitted by the pleadings. In every such proceeding the onus probandi is upon the party propounding the will: Hubbard v. Hubbard, 7 Or. 42. An order appointing or re§ 1085. [1053.] Administration of the estate of an Oct. 11, 1862, intestate shall be granted by the county court, authorized 1053. In what court administration to be granted, to take proof of a will as prescribed in section 1083 [1051], in case such intestate had made a will. Administration and who is enshall be granted, and letters thereof issued, as follows: 1. To the widow or next of kin, or both, in the discretion of the court; titled thereto. Oct. 11, 1862, 1053. 2. Oct. 11, 1862, $ 1054. To one or more of the principal creditors; or, 3. To any other person competent and qualified whom the court may select. Right to administer. - Granting letters of administration out of the order prescribed in this section would be erroneous, but not a nullity; the person claiming the right to administer should apply to be appointed, or the right will be waived: Ramp v. McDaniel, 12 Or. 108. § 1086. [1054.] The persons named in the subdivisions of the last section, if qualified and competent for entitled must the trust, shall be entitled to the administration in the apply. When person Oct. 11, 1862, 1055. Administration, when granted to the husband. Oct. 22, 1870, $1. order therein named. If those named in subdivision 1 do not apply for the administration within thirty days from the decease of the intestate, they shall be deemed to have renounced their right thereto; but the court or judge thereof in its discretion may, if they reside within the county, direct that a citation issue to them, requiring them within such period to apply for or renounce their right of administration; and if the persons named in subdivision 2 do not make such application within forty days from such decease, they shall be deemed to have renounced their right to the administration also. § 1087. [1055.] If the deceased were a married woman, the administration of her estate shall in all cases be granted to her husband, if he be qualified and competent for the trust, and apply therefor within thirty days from her decease, unless by force of a marriage settlement, or otherwise, she shall have made some testamentary disposition of her property which shall render it necessary and proper to grant the administration to some other person. § 1088. [1056.] No executor or administrator is authorized to act as such until he shall file with the clerk administrator. of the county court having jurisdiction of the estate an St. 1870, p. 318. undertaking in a sum not less than double the probable value of the estate, with one or more sufficient sureties, to be approved by the county judge, to be void upon the condition that such executor or administrator shall faithfully perform the duties of his trust according to law; provided, that when by the terms of his will a testator 15 Or. 115. of executor or shall expressly declare that no bonds shall be required Oct. 22, 1870, § L of his executors, such executors may act upon taking an Undertaking oath to faithfully fulfill his trust without filing the un- administrator. dertaking in this section mentioned; provided further, that such executor shall be criminally and civilly liable as other executors and administrators are for any dereliction of duty. his removal for misconduct does not Bonds of executors or administrators. An administrator's bond expressing no amount, and containing no blank therefor, is not a binding obligation: Evarts v. Steger, 6 Or. 55. The authority of the administrator ceases if he fails, after order, to file a new undertaking: Levy v. Riley, 4 Id. 492. An administrator cannot be sued on his bond until final settlement of his account, and § 1089. [1057.] Whenever the penal sum mentioned Oct. 22, 1870, § 2. in the undertaking prescribed in the preceding section when underexceeds two thousand dollars, three or more sureties may given with become severably liable for portions of said sum, if the sureties. aggregate sum for which such sureties become liable St. 1870, p. 319. shall equal the penal sum required in the undertaking. taking may be three or more $1058. A non-resident qualify as or minor may removal or § 1090. [1058.] If a person be named in a will as ex- Oct. 11, 1862, ecutor who is a non-resident of the state or a minor, upon the removal of such disability he is entitled to qualify as such executor, if he apply therefor within executor after thirty days from the removal of such disability, if other- disability. wise competent. If, in the mean time, an administrator with the will annexed has been appointed, his powers and duties cease with the qualification of such executor; but if another executor has qualified and is acting as such, they thereby become joint executors. Right to administration. The rule that if the persons entitled to administration as a matter of right fail to apply within thirty days the right is deemed to be waived, is a principle of evidence rather than of positive law, and the court may ap- 1059. § 1091. [1059.] When for any reason there shall be Oct. 11, 1862, delay in issuing letters testamentary or of administration, and the property of the deceased is in danger of of special being lost, injured, or depreciated, the court or judge Appointment administrator. |