from the will, not from the probate; it is only to enable him to sue as executor that the will must be probated.2 For it is held that, prior to probate, an executor may receive and dispose of the personal estate of the testator,23 or release a cause of action, dispose of goods, or enter upon or sell a term, and the release, entry or sale will be valid although he die before probate, so long as the will is subsequently proved.24

When letters testamentary have been granted to an executor, they relate back to the date of the testator's death and validate the acts therefore done by him as executor and in line with the duties of the office.25 While a will becomes operative from the time of the testator's death, the person therein named as executor does not by reason thereof become immediately qualified with all the powers and duties incident to that office.26 The appointment of an executor is not complete until after the will has been admitted to probate and, since his right to the appointment depends upon the will. If the will is denied probate, his right to the appointment fails. 27

22 Hill V. Tucker, 13 How. (U. S.) 458, 14 L. Ed, 223; Thiefes v. Mason, 55 N. J. Eq. 456, 37 Atl. 455; Bambrick v. Webster Groves etc. Church Assn., 53 Mo. App. 225, 236.

23 Thiefes v. Mason, 55 N. J. Eq. 456, 37 Atl. 455.

24 Richards v. Pierce, 44 Mich. 444, 446, 7 N. W. 54.

25 Smith v. Milles, 1 Term R. 475, 480; Rogers V. James, 7 Taunt. 147; Ingle v. Richards, 28 Beav. 366, 6 Jur. N. S. 1178; Nance

v. Gray, 143 Ala. 234, 5 Ann. Cas. 55, 38 So. 916; Mettler v. Warner, 243 Ill. 600, 134 Am. St. Rep. 388, 90 N. E. 1099; Allison v. Cocke's Exr., 106 Ky. 763, 51 S. W. 593; Richardson v. Bailey, 69 N. H. 384, 76 Am. St. Rep. 176, 41 Atl. 263; In re Murray's Estate, 56 Ore. 132, 107 Pac. 19.

26 Gall v. Stoll, 259 Ill. 174, 102 N. E. 225.

27 Estate of Warfield, 22 Cal. 51, 66, 83 Am. Dec. 49; Estate of Richardson, 120 Cal. 344, 346, 52 Pac. 832.

At common law an executor might commence an action before probate and could maintain the same if probate had been granted prior to the time that he was called upon to declare.28 But in the United States the rule is that the declaration is filed before writ issues, and it follows that the will must be admitted to probate before suit can be commenced.29 Nor can the one named in the will as executor be sued at law or in equity until after his due appointment and qualification.80

§ 1346. Application for Letters, and Appointment by Court. After a will has been duly proved and accepted for probate, the next step is the appointment of the executor. It is the general practice that the petition for the probate of the will be filed for or on behalf of the one named therein as executor and that in such petition he pray his appointment. Notice of such application is given concurrently with notice of petition for the probate of the will. If no executor be named in the will or if the one therein named be unwilling or incapable of acting, then the demand for probate may be made by the one first entitled to letters of administration, and in asking for letters the facts should be stated. In applying for letters of administration of the estate of an intestate, the applicant should show in his petition that he is entitled to such letters. In all cases, whether the application be for let

28 See § 1344.

29 Wood v. Cosby, 76 Ala. 557; Cocke v. Walters, 6 Ark. 404; Call v. Ewing, 1 Blackf. (Ind.) 301; Ratrie v. Wheeler's Exr., 6 Har. & J. (Md.) 94; Matter of Claim of Flandrow, 92 N. Y. 256; Thomas V. Cameron, 16 Wend. (N. Y.) 579.

"The reason why probate was

necessary before the plaintiff declared, is that he was required to make profert of his letters in his declaration."-Cocke v. Walters, 6 Ark. 404.

30 Wheeler v. Chicago Title etc. Co., 217 Ill. 128, 75 N. E. 455; Fay v. Reager, 2 Sneed (34 Tenn.) 200.

ters testamentary, of administration with the will annexed, or of administration, the jurisdictional facts should be set forth. In applications for letters of any character, the jurisdictional facts and the competency of the applicant to act must be shown to the court and, whether after contest or not, the court in a proper case makes its order granting letters testamentary or of administration to the applicant. This is the first judicial sanction of authority. However, other formalities are required, for the appointment by the court must be followed by the appointee taking the oath of office and giving a bond when required, after which he receives his letters testamentary or of administration which is his evidence of authority.

§ 1347. Oath of Office.

After the court has made its order granting letters testamentary or of administration to the applicant, the rule is, in England and generally in the United States, that the appointee must take next the oath of office. This oath is usually in written form, subscribed and sworn to by the appointee and filed with the court records of the cause. It varies according to the facts of the case, but its purport is that the appointee will administer the estate according to law and faithfully discharge the duties of his office. The subscribing and filing of a written oath of office by the one appointed executor or administrator has long been required under the practice in England, and is required in many jurisdictions in the United States.82 In California no person can fill the

31

814 Burn. Ecc. L. 327, Phillimore's ed.; Williams Exrs., (3d Am. ed.) **276, 277, 371.

82 Morris v. Chicago etc. R. Co.,

65 Iowa 727, 54 Am. Rep. 39, 23 N. W. 143; Gallagher v. Holland, 20 Nev. 164, 18 Pac. 834; Monroe v. James, 4 Munf. (Va.) 194.

office of executor or administrator until he has qualified according to law, and the statute requires that before letters testamentary or of administration can issue, an executor or administrator must take and subscribe an oath before some officer authorized to administer oaths, that he will perform, according to law, the duties of executor or administrator, which oath must be attached to the letters.33 If the appointee refuse or neglect to qualify, it is a disclaimer of the trust.34 The taking and filing of the oath is an acceptance of the office.35 But it has been said that in the absence of a statutory requirement of an oath by the executor or administrator to faithfully discharge the duties of his office, his failure to take an oath will not affect his right to maintain a suit to collect the assets of the estate.36

Irregularities in the matter of procedure will not invalidate the appointment. Where the statute requires that the oath be taken before the county clerk and it is

In Oregon, where the will provided that the executor give a bond in a sum specified therein, which he did and which was approved by the court, it was held unnecessary to require the executor to take the oath prescribed in cases where the undertaking is wholly dispensed with. In re Conser's Estate (Warren v. Hendricks), 40 Ore. 138, 66 Pac. 607.

33 Cal. Code Civ. Pro., § 1387; Estate of Hamilton, 34 Cal. 464, 469; Pryor v. Downey, 50 Cal. 388, 399, 19 Am. Rep. 656.

34 Bowden v. Pierce, 73 Cal. 459, 463, 14 Pac. 302, 15 Pac. 64.

If an executor refuses to take

the oath of office, it is in effect a refusal to accept the office.-Rex v. Raines, 1 Ld. Raym. 363.

35 Seaman v. Jamison, 146 App. Div. 428, 131 N. Y. Supp. 155.

36 Leahy v. Haworth, 141 Fed. 850, 73 C. C. A. 84, 4 L. R. A. (N. S.) 657.

In Re Conser's Estate (Warren v. Hendricks), 40 Ore. 138, 66 Pac. 607, it is said that if the will provides for a bond in a sum fixed by its provisions, and which bond is given by the executor and approved by the court, the executor is not required to take the oath required in cases where a bond is dispensed with.

taken before a notary public, the irregularity, if any, is cured by later taking the oath before the proper officer.37 Where the oath must be taken before entering upon the duties of the office, taking the oath before appointment has been held proper.38

§ 1348. Bonds of Administrators: Statutory Regulations in England.

By the statute of 21 Henry VIII, ch. 5, § 3, the ordinary was directed, in granting administration, to take "surety of him or them to whom shall be made such commission." By the statute of 22 & 23 Chas. II, ch. 10, § 1, all ordinaries "as well as the judges of the Prerogative Courts of Canterbury and York for the time being and all other ordinaries and ecclesiastical judges, having power to commit the administration of the goods of an intestate, were directed to take sufficient bonds with two or more able sureties, respect to be had to the value of the estate, in the name of the ordinary, conditioned that the administrator would duly perform the duties of his office, setting the same forth at length.

By the Court of Probate Act, 1857, statute of 20 & 21 Vict., ch. 77, which created the Court of Probate, subsequently merged into the Supreme Court of Judicature, the above mentioned statutes were repealed insofar as they referred to bonds, but by § 81 of the last act it is provided that "every person to whom any grant of administration shall be committed shall give bond to the judge of the Court of Probate to enure for the benefit of the judge for the time being, and, if the Court of Probate

37 Gallagher v. Holland, 20 Nev. 164, 18 Pac. 834.

88 Morris v. Chicago etc. R. Co., 65 Iowa 727, 54 Am. Rep. 39, 23 N. W. 143.