an executor may be exempted from giving bonds by directions of the testator in his will, it is also provided that a bond may be required at any time the court shall have good reason to suspect the executor of fraud or maladministration. Such statutes merely reiterate the action which the courts having probate jurisdiction have generally exercised. The nature of the business of the administration of estates of decedents demands that the judge should have and frequently exercise a general supervision over the settlements of estates, with the power to require new or additional security whenever in his judgment the interests of the heirs or creditors of the estate make the same necessary.55 § 1352. The Same Subject: Additional Bonds. Inasmuch as the courts by statute have jurisdiction to control and exercise general supervision over executors and administrators to the extent of compelling them to give bonds for the faithful performance of their trusts whenever the interests of the estate require it, the only effect of statutes allowing the testator to exempt his executor from giving a bond is to relieve him therefrom in the first instance. When the court has any reason to suspect that an estate may be fraudulently administered or the property lost to those who have an interest therein, it may on proper application by a legatee or a creditor require the executor to give a bond, even though he may have been relieved from that burden by the will.56 55 Clark v. Niles, 42 Miss. 460, 463. 56 Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229. See, also, Betts v. Cobb, 121 Ala. 154. 25 So. 692; Busch v. Rapp, 23 Ky. L. Rep. 605, 63 S. W. 479; See § 1351. The giving of an additional bond by the executor or administrator either voluntarily or under order of court does not affect the liability of the sureties upon the original bond.57 81353. Execution of Bonds. Generally the statute prescribes the form and requirements of bonds of executors and administrators. Where the requirements are that the bond must be executed to the state with a designated number of sureties to be approved by the court, and that the bond must be joint. and several and the penalty not less than twice the value of the personal property and the probable value of the annual rents, profits and issues of real property belonging to the estate, which values must be ascertained by the court or a judge thereof by examining on oath the party applying or any other persons,58 the plain meaning has been held to be that the principal and sureties must 57 Elizalde v. Murphy, 146 Cal. 168, 171, 79 Pac. 866. 58 Cal. Code Civ. Pro., § 1388. This statute is practically reenacted in many other states. See: Alaska, Carter's Code, § 777, p. 306. Arizona, Rev. Stats., 1901, par. 1667. Colorado, 3 Mills' Ann. Stats., § 4712. Idaho, Code Civ. Pro., 1901, §4062. Kansas, Gen. Stats., 1905, $ 2877, 2883, 2887, 3079. Montana, Code Civ. Pro., § 2471. sign the bond before letters can issue, for there can be no execution without signing.59 The decisions are somewhat conflicting as to whether the sureties can be held liable on a bond which purports to be joint and several, but which has not been signed by the principal. Thus it has been held that where a bond is not in form the joint and several obligation of all the parties as it must be under the statute, but is in form the joint obligation of only the latter, and the bond has not been executed by the principal, the sureties are not liable thereon unless there is evidence showing that they intended to be bound without requiring the principal's signature.60 As a matter of law a bond is signed by a party when he writes his name anywhere on the paper, but the question is always open, when the signature does not appear at the end of the instrument, whether the party intended to leave the instrument unsigned and had refused to complete it. If the principal's name is signed by himself in the body of the instrument, this does not violate an agreement with the sureties that the bond was not to be filed with the probate court until the principal had signed it.61 Although the bond be improperly executed, the obligees have rights thereunder and it can only be avoided with their consent.62 59 Weir v. Mead, 101 Cal. 125, 128, 40 Am. St. Rep. 46, 35 Pac. 567. 60 Weir v. Mead, 101 Cal. 125, 40 Am. St. Rep. 46, 35 Pac. 567. Where the statute requires separate bonds where two or more persons are appointed executors or administrators, but instead thereof a joint and several bond is given by them, the effect thereof is to make them jointly and severally liable on such bond for the misconduct of each. Estate of Sanderson, 74 Cal. 199, 213, 15 Pac. 753. 61 Kenck v. Parchen, 22 Mont. 519, 74 Am. St. Rep. 625, 57 Pac. 94. 62 State v. Winfree's Securities, 81354. Effect of Failure to Give Bond When So Ordered. No reason exists why the failure of an administrator to give a bond as required by the order of court should be considered in any different light from such a failure by an executor. The order of appointment is generally held to be conditional until the bond is given as required by the order. The giving of an administration bond is not a condition precedent to the court hearing and determining the matter of an application for letters testamentary or of administration, the giving of the bond by way of qualifying the appointee must necessarily be subsequent to the determination of the application. Therefore an order granting letters testamentary or of administration is only voidable should the appointee fail to give the bond as required by the order of appointment.65 66 The general rule is that the failure to give the bond required is ground for revoking the appointment but that no new appointment can be made until the former order of appointment be vacated. However, in some jurisdictions, by reason of statute, the failure of the appointee to give the bond required in the order renders such order nugatory, and a decree of the court appointing another in his place is a conclusive determination of the matter 12 La. Ann. 643; Cohea v. State, 34 Miss. 179. 63 Kittredge v. Folsom, 8 N. H. 98, 107. 64 Estate of Hamilton, 34 Cal. 464, 469; Bowden v. Pierce, 73 Cal. 459, 463, 14 Pac. 302, 15 Pac. 64; Kittredge v. Folsom, 8 N. H. 98; Wood v. Wood, 4 Paige (N. Y.) 299, 302. In California an administrator is not authorized to act until he has given the required bond.-Ions v. Harbison, 112 Cal. 260, 267, 44 Pac. 572. 65 Ex parte Maxwell, 37 Ala. 362, 79 Am. Dec. 62; Harris v. Chipman, 9 Utah, 101, 33 Pac. 242. 66 Ex parte Maxwell, 37 Ala. 362, 79 Am. Dec. 62; Succession of Withers, 45 La. Ann. 556, 12 So. 875; Feltz v. Clark, 4 Humph. (Tenn.) 79; Harris v. Chipman, 9 Utah 101, 33 Pac. 242. and is not subject to collateral attack.67 While it is true that the one appointed administrator is not authorized to act until he has given his bond, the fact that he does not present his bond for approval until several days after the issuance of letters to him does not require the issuance of new letters after the bond is given, and proceedings for the sale of land instituted subsequent to the approval of the bond are not vitiated.oo Failure to take the oath of office as executor or administrator and to file the bond as required in the order of appointment is not a ground for the appointee to escape personal liability for his acts. If one appointed administrator takes possession of the assets of the estate without having qualified for the office, he is personally responsible; if he is not an administrator de jure, he is certainly an administrator de facto and will be held as firmly bound as if he were the lawful administrator.69 67 Abrook v. Ellis, 6 Cal. App. 451, 454, 92 Pac. 396. Cal. Code Civ. Pro., § 1395, provides "if sufficient security be not given within the time fixed by the judge's order, the right of such executor or administrator to the administration shall cease, and the person next entitled to the administration of the estate, who will execute a sufficient bond, may be appointed to the administration." Where the statute declares that the failure to give security within the time fixed by the judge's order shall, of itself, and without any further action on the part of the court, cause the authority of the administrator to cease, upon the failure of the administrator to file additional security required by the order of the court, his power ceases and the court is authorized to make an order suspending his powers and to appoint the one next entitled to letters of administration, and in the meantime may appoint a special administrator. Barrett v. Superior Court, 111 Cal. 154, 158, 43 Pac. 519. 68 Ions v. Harbison, 112 Cal, 260, 44 Pac. 572. 69 Harris v. Coates, 8 Idaho 491, 69 Pac. 475. |