of the estate.15 His account must be prepared and approved by the court, and all the property remaining in his hands must be turned over to his successor.16 The fact that the appointment of the administrator was void is no ground for such appointee to evade an accounting.17 Where the probate of a will is annulled, it must be annulled in its entirety; it can not be annulled in part.18 § 1340. The Same Subject: Validity of Prior Acts.

The general rule is that where letters testamentary or of administration are revoked, the executor or administrator is not personally liable for any acts done in the due course of administration, and that such acts are valid if they are such that the person to whom administration may be thereafter granted might have lawfully performed them. In England, the rule is covered by § 77 of the Court of Probate Act, 1857, statute of 20 & 21 Victoria, ch. 77, which provides that "where any probate or administration is revoked under this Act, all payments bona fide made to any executor or administrator under such probate or administration, before the revocation thereof, shall be a legal discharge to the person making (N. Y.) 417, 63 N. Y. Supp. 678; Rutenic v. Hamakar, 40 Or. 444, 67 Pac. 196.

15 Glenn's Admr. v. Billingslea, 64 Ala. 345; Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737; Francisco v. Wingfield, 161 Mo. 542, 61 S. W. 842; Aldridge v. McClelland, 34 N. J. Eq. 237; Matter of Hood, 104 N. Y. 103, 10 N. E. 35; In re Morrison's Estate, 68 Ohio St. 252, 67 Pac. 567.

An administrator can not evade his liability to account on the

ground that his appointment was a nullity. Dobler v. Strobel, 9 N. D. 104, 81 Am. St. Rep. 530, 81 N. W. 37.

16 Pinney v. Barnes, 17 Conn. 420; Aldridge v. McClelland, 34 N. J. Eq. 237.

17 Appeal of Ela, 68 N. H. 35, 38 Atl. 501; Dobler v. Strobel, 9 N. D. 104, 81 Am. St. Rep. 530, 81 N. W. 37.

18 Estate of Dolbeer, 149 Cal. 227, 246, 9 Ann. Cas. 795, 86 Pac. 695.

the same; and the executor or administrator who shall have acted under any such revoked probate or administration may retain and reimburse himself in respect of any payments made by him which the person to whom probate or administration shall be afterwards granted might have lawfully made." Section 78 of the same Act provides that "all persons and corporations making or permitting to be made any payment or transfer bona fide, upon any probate or letters of administration granted in respect of the estate of any deceased person under the authority of this Act, shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of such probate or letters of administration."

§ 1341. The Same Subject: Production of Later Will.

It was at one time held that a grant of letters testamentary or of administration was absolutely void upon the production of a valid will of the decedent, or of a subsequent will revoking the former will and appointing another executor. Thus a debtor might be compelled to pay his debt twice.19 This rule was subsequently limited to those cases where the one entitled to letters testamentary under the last will of the decedent had been deprived of some material right, and not to include cases involving only the rights of others interested in the estate or under the will. Today, by statutory regulations, the executor or administrator whose letters are revoked, and those dealing with him, are protected if the acts in question are

19 Bacon's Abr., tit. Exrs. & Admrs., E, 13; Abram v. Cunningham, 2 Lev. 182.

Contra: Allen v. Dundas, 3 Term R. 125. See, also, Kittredge v. Folsom, 8 N. H. 98; Chinn v. Taylor, 64 Tex. 385.

such as might have been performed by the one to whom letters testamentary or of administration are thereafter granted. The discovery of a later will merely renders the original proceedings voidable.20 But where letters of administration are obtained because of the applicant suppressing the valid will of the testator wherein executors are appointed, the grant of administration is void ab initio, and any disposition made of the assets by the administrator is void except such as the executor under the will would have been compelled to make.21 If the will suppressed contained no appointment of an executor a grant of letters of administration is merely voidable and the revocation is effective only from the time that the letters of administration are annulled.22

Under the English statute above mentioned,28 it would appear that if an executor under a will thereafter declared invalid should pay a legacy, he would be personally responsible for such payment since the administrator thereafter appointed could not pay a legacy under an invalid will. But it was held that the bona fide payment. by an executor of a charitable bequest without knowledge or notice of the invalidity of the will did not allow the administrator appointed after the revocation of probate to collect from the one to whom the bequest had been paid the moneys paid him under the charitable bequest

20 Fidelity & Casualty Co. v. Freeman, 109 Fed. 847, 48 C. C. A. 692, 54 L. R. A. 680; Sands v. Hickey, 135 Ala. 322, 33 So. 827; Rebhan v. Mueller, 114 Ill. 343, 55 Am. Rep. 869, 2 N. E. 75; Jones' Exr. v. Jones' Widow, 14 B. Mon. (Ky.) 464; Succession of Robertson, 49 La Ann. 80, 21 So. 197;

Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122; Perkins v. Owen, 123 Wis. 238, 101 N. W. 415.

21 Ellis v. Ellis, (1905) 1 Ch. 613. 22 Boxall v. Boxall, 27 Ch. Div. 220; Craster v. Thomas, (1909) 2 Ch. 349.

23 See preceding section.

and which he had applied in accordance with the directions in the will.24 In some jurisdictions by statute the executor or administrator whose letters are revoked is not liable for any act done in good faith previous to revocation.25

24 Fitzpatrick v. M'Glone, (1897) 2 Ir. Rep. 542.

A legacy paid under a will, the probate of which is thereafter an

nulled, is void.-Hinkle v. Eichelberger, 2 Pa. St. 483.

25 Cal. Code Civ. Pro., § 1331.

CHAPTER LL.

APPOINTMENT, OATH AND BOND OF EXECUTOR OR

ADMINISTRATOR.

§ 1342. Objection may be made to the granting of letters on the ground that applicant is disqualified.

§ 1343. Legality of acts of administrator prior to appointment. § 1344. Powers of executor before probate: Common law rule. § 1345. The same subject: Rule under modern statutes.

§ 1346. Application for letters, and appointment by court. § 1347. Oath of office.

§ 1348. Bonds of administrators: Statutory regulations in Eng

land.

$1349. General rules as to bonds of administrators.

§ 1350. English rule that bond is required of executor only in special cases.

§ 1351. Effect of direction in will that executor serve without

bonds.

§ 1352. The same subject: Additional bonds.

§ 1353. Execution of bonds.

§ 1354. Effect of failure to give bond when so ordered.

§ 1355. When appointment is void or bond voluntarily given.

§ 1356. When and how surety becomes liable upon bond.

§ 1357. When surety is liable for acts of principal prior to bond. § 1358. Misrepresentations of principal to surety do not release

latter.

§ 1359. Surety liable only for acts of principal in line with duties of office.

§ 1360. Liability of surety of executor who is also trustee.

§ 1361. Surety paying claim is entitled to subrogation.

§ 1362. Power of court to relieve surety from further liability.

§ 1363. Liability of surety for debts due from executor to dece

dent.