Who competent to act as executor. Who may object to executor. Unmarried executrix. Executor of an executor. Letters of administration atate. the will as executors, who are competent to discharge the trust, and who shall appear and qualify. SEC. 42. No person shall be deemed competent to serve as executor, who, at the time the will is proved, shall be: First, under the age of twenty-one years; or second, who shall have been convicted of an infamous crime; or third, who, upon proof, shall be adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding. If any such person be named as the sole executor, in any will, or if all the persons named as executors are incompetent, letters of administration, with the will annexed, shall be issued. SEC. 43. Any person interested in a will may file objections in writing to the granting of letters testamentary to the persons named as executors, or any of them, and the objections shall be heard and determined by the court. SEC. 44. When an unmarried woman, who shall have been appointed executrix, shall marry, her marriage shall extinguish her authority. SEC. 45. No executor of an executor shall, as such, be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration, with the will annexed, of the estate of the first testator, left unadministered, shall be issued. SEC. 46. When a person under the age of twenty-one years shall be durante minore named executor, letters of administration, with the will annexed, shall be granted during the minority of the executor, unless there is another executor, who shall accept the trust and qualify, in which case the executor who shall accept the trust and qualify shall have letters testamentary, and shall administer the estate until the minor shall arrive at full age, when he may be admitted as joint executor. Powers of executors. Power of administrator, with will annexed. Letters testamentary, etc., to be SEC. 47. When all the executors named shall not be appointed by the court, such as are appointed shall have the same authority to perform every act and discharge every trust required by the will, and their acts shall be as effectual for every purpose as if all were appointed and should act together. SEC. 48. Administrators, with the will annexed, shall have the same authority as the executor named in the will would have had, and their acts shall be as effectual for every purpose. SEC. 49. Letters testamentary and of administration, with the will signed by clerk. annexed, shall be signed by the clerk and be under the seal of the Form of letters testamentary. court. SEC. 50. Letters testamentary may be in substantially the follow ing form:-The State of California, county of The last Will of A. B. deceased, a copy of which is hereto annexed, having C. D., who is named therein, is hereby appointed Executor. Wit- day of A. D. administration. SEC. 51. Letters of administration, with the will annexed, may Form of letters of be substantially in the following form:-The State of California, County of. The last Will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the Probate Court of the County of and there being no Executor named in the Will (or, as the case may be,) C. D. is hereby appointed Administrator, with the Will annexed. Witness, G. H., Clerk of the Probate Court of the county of, with the seal of the court affixed, the day of, A. D. 18- (scal). By order of the Court, G. H., Clerk. SEC. 52. Administration of the estate of a person dying intestate, shall be granted to some one or more of the hereinafter menpersons tioned, and they shall be, respectively, entitled in the following order:-First, the surviving husband or wife, or such person as he or she may request to have appointed; second, the children; third, the father or mother; fourth, the brothers; fifth, the sisters; sixth, the grand-children; seventh, any other of the next of kin, who would be entitled to share in the distribution of the estate; eighth, the public administrator; ninth, creditors; tenth, any person or persons legally competent. Administration of estate of intestates. preference. SEC. 53. When there shall be several persons claiming and equally Who to have entitled to the administration, males shall be preferred to females, and relatives of the whole blood to those of the half blood. in court. SEC. 54. When there are several persons equally entitled to the Discretion administration, the court may, in its discretion, grant letters to one or more of them. administrator SEC. 55. No person shall be entitled to letters of administration who may act as who shall be: First, under the age of twenty-one years; or, second, who shall have been convicted of an infamous crime; or, third, who, upon proof, shall be adjudged by the court incompetent to execute the duties of the trust, by reason of drunkenness, improvidence, or want of understanding. administratrix. SEC. 56. When any unmarried woman, who shall have been ap- Unmarried pointed administratrix, shall marry, her marriage shall extinguish her authority. Administration durante minore @tate. Letters of administration, SEC. 57. If any person entitled to administration shall be a minor, administration shall be granted to his or her guardian. SEC. 58. Application for letters of administration shall be made how applied for. by petition, in writing, signed by the applicant or his counsel, and filed by the clerk of the court. The petition must state the facts essential to give the court jurisdiction of the case. When granted. Notice of application. Who may contest application. Hearing of application. Evidence of notice. Grant to any applicant. Proof of death, intestate, etc. Administration may be granted to one or more. SEC. 59. Letters of administration shall only be granted at a regular term of the court, or at a special term appointed by the judge for the hearing of the application. SEC. 60. When any petition praying for letters of administration, has been filed, the clerk shall give notice thereof, by causing notices to be posted in at least three public places in the county, one of which shall be at the place where the court is held. The notice shall state the name of the deceased, the name of the applicant, and the term of the court at which the application will be heard. Such notice shall be given at least ten days before the hearing. SEC. 61. Any person interested may contest the application, by filing a written opposition thereto, on the ground of the incompetency of the applicant, or may assert his own rights to the administration, and pray that letters be issued to himself. SEC. 62. On the hearing, it being first proved that notice has been given according to law, the court shall proceed to hear the allegations and proof of the parties, and to order the issuance of letters of administration as the case may require. SEC. 63. An entry in the minutes of the court that proof was made, that notice had been given, according to law, shall be conclusive evidence of the fact of such notice. SEC. 64. Letters of administration may be granted to any appli cant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear and claim the issuance of letters to themselves. SEC. 65. Before letters of administration shall be granted on the estate of any person who is represented to have died intestate, the fact of his dying intestate shall be proved by the oath of the applicant, and the court may also examine any other person, concerning the time, place, and manner of the death, and whether or not the deceased left any will, and may compel any person to attend as a witness for that purpose. SEC. 66. Administration may be granted to one or more competent persons, although not entitled to the same, at the request of the person entitled to be joined with such person. The request shall be in writing, and shall be filed in the court. Revocation of letters of SEC. 67. When letters of administration have been granted to any other person than the surviving husband or wife, the child, the father, administration. mother, or the brother of the intestate, any one of them may obtain the revocation of the letters by presenting to the probate court a petition praying the revocation, and that letters of administration be issued to him or her. SEC. 68. When any such petition is filed, the clerk shall issue a citation to the administrator to appear and answer the petition at the next regular term of the court, or at any special term that may be appointed by the judge. Citation to administrator. petition for SEC. 69. At the time appointed, the citation having been duly Hearing of served and returned, the court shall proceed to hear the allegations revocation. and proofs of the parties; and if the right of the applicant is established, and he or she be competent, letters of administration shall be granted to the applicant, and the letters of the former administrator be revoked. administration SEC. 70. The surviving husband or wife, where letters of adminis- Revocation of tration have been granted to a child, to the father, or to a brother of in other cases. the intestate, or any of such relatives, when letters have been granted to any other of them, may assert his or her prior right, and obtain letters of administration, and have the letters before granted revoked, in the manner prescribed in the three preceding sections. administration. SEC. 71. Letters of administration shall be signed by the clerk, Form of letters of and be under the seal of the court, and may be in substantially the following form:-The State of California, County of, CD is hereby appointed Administrator of the estate of A B, de- of- A. D. 18—. By order of the court, G. H., Clerk. day administrator SEC. 72. Before letters testamentary or of administration shall be Executor or issued to the executor or administrator, he shall take and subscribe to make oath. an oath or affirmation, before the probate judge or clerk, that he will perform according to law the duties of executor or administrator. administrators SEC. 73. Every person to whom letters testamentary or of admin- Executors and istration, shall have been directed to issue, shall, before receiving to give bond. the letters, execute a bond to the state of California, with two or more sufficient sureties, to be approved by the probate judge. In form, the bond shall be joint and several, and the penalty shall not Form. be less than twice the value of the personal property belonging to the estate, which value shall be ascertained by the probate judge, by the examination on oath, of the party applying, and of any other persons he may think proper to examine. The probate judge shall The same. Separate bonds. Several suits in one bond. Sureties in bonds require an additional bond, whenever the sale of any real estate, belonging to an estate, is ordered by him. The bond shall be conditioned that the executor or administrator shall faithfully execute the duties of the trust according to law. He shall also require bond and sufficient surety, for the annual rents, issues, and profits of all real estate in his charge, as such executor or administrator, to be approved by the probate judge. (1) SEC. 74. When two or more persons shall be appointed executors or administrators, the probate judge shall take a separate bond from each of them. SEC. 75. The bond shall not be void upon the first recovery, but may be sued upon from time to time by any person aggrieved, in his own name, until the whole penalty is exhausted. SEC. 76. In all cases where bonds are required by this act, the to justify on oath. sureties must justify on oath, before the judge of some court having a seal, to the effect that they are householders or freeholders, resident within this state, and that they are worth double the amount for which they become liable, over and above their debts; such justification shall be in writing certified by the judge before whom taken, and attached to and filed with the bond. Whenever the penal sum of the bond amounts to more than five thousand dollars, sureties may be allowed to become liable for portions of said penal sum, making in the aggregate at least two sureties for the whole penal sum, or for each portion thereof. When bond may be dispensed with. Application for further security. Citation to executor, etc., to show cause against such application. may SEC. 77. When it is expressly provided in the will of a testator that no bond shall be required of the executor, letters testamentary issue without any bond having been given; but an executor to whom letters have been issued without bond may, at any time afterwards, whenever it may be shown from any cause to be necessary or proper, be required to appear and file a bond as in other cases. SEC. 78. Whenever any person interested in any estate shall discover that the sureties of any executor or administrator have become or are becoming insolvent, that they have removed or are about to remove from the state, or that, from any other cause, the bond is insufficient, he may apply, by petition, to the probate judge, and require that further security be given. SEC. 79. If the probate judge shall be satisfied that the matter requires investigation, a citation shall be issued to the executor or administrator, requiring him to appear, at a time and place to be therein specified, to show cause why he should not give further se (1) Amendment inserted from Stat. 1852, p. 105. |