(Jnrnrll Earn Srlfnnl llibrarg \et: 1BC .Cornell University Library ^r rDO.A94 P^o^ate law, practice, and forms, under I 3 1924 01 '8 '803 ■324 'P^/>r< Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018803324 PROBATE LAW, PRACTICE, AND FORMS, CKDER THE LAWS OT CALITORNIA, OREGON, AREONA, IDAHO, MONTANA, NETABA, UTAH, WASHINGTON, AND WYOMING: Embkacino the Text ov the Calitobnia Code ov Civil Fboojidubb' Belatxno to Fsobate Mattebs. ^ttl| JtoteSt BHOWINQ THB VAB1ATI0N3 OF THE STATUTES OF THB STATES ABOVE ENUMERATED, AND A DIGEST OF THEDECIBIONS OF THS SUPBEHE COURTS IHEBEOF, AND F0BU8 APPLICABLE TO PBACTICB IHEBEIN. BT D. E. ALEXANDER, OF THE S.^r^BAI[0I8aO BAB, ISAAC JOSEPH, OF THE SAOBAUENIO BAB. SAN FRANCISCO: BANCROFT-WHITNEY COMPANY, Law Pqbjjsbebs and Law Bqoe|el;iEb^ .; 1892. "B7^2gO Ekitered according to Act of Congress in the year 1892, By BANCROFT-WHITNEY COMPANY, In the Office of the Librarian of Congress, at Washington, Bi.'s Fbancisco; The Filmeb-Eollins Elbctbottpe Company, lYfOOBAFHSBS AMD SiSBEOIYFBBS. PHEFAOE. Death frequently comes without warning, and in matters of business no person is ever prepared so that he can die leaving all things completed. The Romans invented wills, which, in a measure, enable mei^ -to provide for the completion of their life's work, and for the distribution of their accumulations among relatives and friends, as may be directed, after the death of the testator; consequently it has been found necessary by the several governments of the earth to enact laws protecting the property of those whose friends have forethought to devise their property to them. It has also been found necessary to make regulations by which the property of the careless and negligent, or of those who )3ecome so engrossed in the accumulation of we"alth that they forget the future, should be protected; it was also necessary to protect the infant and those incompetent from other causes to care for themselves or their property. Thus a system of laws, complete within each of the states of the Union, have been created, and decisions of courts made interpreting and construing the same. The decisions under these systems have grown to such pro- portions, that a search for them, scattered as they are through reports whose " name is legion," occupies too great a portion of the time of abuSy lawyer; for in these days of telegraphs, tele- phones, and rapid transits, whatever is done must be done quickly. Text-books and reports have been prepared and published covering almost every other branch of legal and equitable pro- cedure, and some reliable and scholarly works have been pub- lished upon the probate laws and practice of dififerent states. IV PREFACB. but none have ever been published giving the full text of the probate laws of the Pacific group of states. To meet this contingency, the authors have applied them- selves in the preparation of this work; the text is composed of the sections of the codes of California; with these have been compared the corresponding sections of the statutes of Arizona, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming. The similarities and dissimilarities o? all these laws have been carefully noted, so that a practitioner in either of these states may at a glance decide what the differences are. If th^ are ■sinailar, he is enabled to take advantage of the decis- ions of the courts of last resort in states other than his own in hia argument before his own state courts; if they are dissimilar, he still has the advantage of these decisions, as they will sug- gest to him reasons for conclusions he may reach as to the proper construction to be given the laws of his own state. To further convenience the busy practitioner, syllabi have been prepared from the decisions of the highest courts of said states, including the latest, so that in the compass of a few pages we place before Mm the contents of more than two hun- dred volumes, so far as they relate to the matter he has in hand. The law is accompanied with notes and forms applicable thereto, being the entire theory and practice of the law, and the expeirienee of every lawyer will bear witness to the great con- venience of such an arrangement. With this condensation, and the forms, which have been care- fully prepared with reference to the decisions of the courts, and have been made as concise as perspicuity would permit, the authors feel that they have prepared a work which will prove of great value to the practitioner in probate law. .(_THE AUTHORS. San Fbancisco, July, 1892. CONTEISTTS. SEC3. Chapter L — Op Jueisdiotion 1, 2 Chaptbk H. — Of the Pbobate op Wills i 3-38 Article I. — Petition, Notice, and Proof 3-14 U: — Gontesting Probate of Wills i 15-21 m. —Probate of Foreign Wills 22-24 IV. — Coiitesting Will after Probate 25-31 V. — Probate of Lost or Destroyed Will 32-35 VI. — Probate of Nuncupative Wills 36-38 Chapter III. — Of Executors and Administrators, their Let. TERS, Bonds, Removals, and Suspensions 39-113 Article I. — Letters Testamentary and of Administration with the Will Annexed, how and to Whom Issued 39-47 IL — Form of Letters 43-50 III. — Letters of Administration, to Whom and the Or^er in Which They are Granted 51-56 IV. — Petition for Letters, and Action thereon 57-65 V. — Revocation of Letters, and Proceedings therefor 66-69 VI. — Oaths and Bonds of Executors and Administrators . . 70-90 VII. T- .Special Administrators, and their Powers and Duties 91-97 VIIL — Wills Found after Letters of Administration Granted, and Miscellaneous Provisions 98-104. IX. '^Disqualification of Judges, and Transfers of Admin> istrators 105-108 X. — Removals and Suspensions in Certain Cases 109-113. Chapter IV. — Of the Invbntoht and Collection of the Ef- FECTs OF Decedents 114-128' Article I. — Inventory, Appraisement, and Possession of Estate. 114-124 II. — Embeziletnent and Surrender of Property of the Es- tate 125-128 yi CONTENTS. I .•, ilt and op the homestead 129-143 a J^tislh I. — Of the Provisions for the Support of the Family. . . . 129-135 II„— Of. the Homestead 136-142 III. • — Of the Homestead of Insane Persons 143 ly.— Of bower , 143 a 'Chapter VI. — Op jCtAma against the Estate 144-167 Chapter VII. — Or Sales and Conveyances op PEOPBRTt op De- cedents 168-223 Article I. — Sales in Oeiieral 168-171 II. — Sales of Personal Property 172-176 III. — Summary Sales of Mines and Mining Interestis 177-181 IV. — Sale of Real Estate, Interests therein, and Conflrma- tiouthereof 182-220 V. — Mortgages and Leases 221-223 Chapter VIII. — Of the Powers and Duties of Execittors and Administrators, and op the Management of Estates. 224-234 Chapter IX. — Op the Conveyance op Real Estate by Exbcit- tors and Administrators in Certain Oases. . . 235-245 t . Chapter X. — Op Accounts Rendered by Executors and Admin- istrators, AND of the Payment of Debts 246-282 ' Article I. — Liabilities and Compensation of Executors and Ad- ministrators 246-252 .II. — Accounting and Settlements by Executors and Ad- ministrators 253-271 IIL — The Payment of Debts of the Estate 272-282 Chapter XI. — Of the Partition, Distribution, and Final Set- tlement OP Estates 283-313 o Article I. —Partial Distribution Prior to Final Settlement 283-287 a IT. — Distribution on Final Settlement ..-,.,... 288-293 III. — Distribution and Partition 294-305 IV..,— Agent for Absent Interested Parties. , . . . . 306-313 v.— « Settlement of Accounts of Trustees after Distribu- tion of Estates, and their Compensation, etc. . ..313 a-313 c Chapter !XII. i- Of Orders, Decrees, Process, Minutes, Records, , „.-■ Trials,. AHD Peocbedin(3s to Terminate Life Estate .'..........■ 314-333 v. t .-^ ... jChapter XTII; ^ Miscellaneous Provisions 334-366 Article I. — Public Administrator 334-351 11. — Misoellaneoua Provisions 352-355 III. — Community and Separate Property 356-366 CONTENTS. VU Chapter XIV. — Execction and Revocation of Wills 367-406 Chaptbb XV. — Interpretation op Wills, and Bfject op Various Provisions 407-441 Chaptbb XVI. — G-bneral Provisions 442-462 Chapter XVII. — SncoEssioN and Escheat 463-491 Article I. — Succession 463—187 n. — Escheated Estate's 4S8-491 Chapter XVIII. — Guardianship of Infants and Insane Per- sons 492-514 Chapter XIX. — Guardian and Ward. 515-575 Article I. — Guardians of Minors 515-527 II. — Guardians of Insane and Incompetent Persons 528-5S1 III. — Spendthrifts and Drunkards 532, 533 IV. — The Powers and Duties of Guardians 534-542 V. — The Sale of Property and Disposition of Proceeds.. . 543-558 VI. — Non-resident Guardians and Wards 559-5 reetly in issue, while giving to the general presumption in favor of san- ity all that may fairly be claimed fbr it, the burden of proving sanity is upon the party who asserts it: Chris- man V. Chrisman, 16 Or. 127. Will cannot be set aside on ac- count of Sk delusion not connected 'vrith the matters mentioned in such will: PoUa- V. Jones, 20 Or. 239. Delusions are conceptions that originate spontaneously in the mind, without evidence of any kind to sup- port them, and can be accounted for on no reasonable hypothesis: Potter V. Jojies, 20 Or. 239. At trial of contest of will, which is determined upon an issue as to the testamentary capatiity of the deceased, it is not error to admit the opinion of a witness as to the mental sanity of the deceased, where there is considerable evidence to the point of his intimacy, although the showing of intimacy may not be very strong. The determination of the question of intimacy, where such evidence is ad- mitted, is in the discretion of the court. But there is a distinction be- tween the admission and the rejection of such evidence; and it is error for the court to refuse to allow the opin- ion of the witness as to the mental sanity of the deceased to be given, when the showing of intimacy is suf- ficient: In re Carpenter, 79 Cal. 382. It is error upon trial of a con- test of will to refuse to allow the witness to testify whether or not there had been any change in the mental condition or capacity of the deceased, provided the witness was asked for facts about the change, and not for' a conclusion. A mtfrked change in a man's habits of thought is strong evidence of mental unsound- ness, and' the absence of such change is evidence of the contrary: In re Car- ' penter, 79 Cal. 382. Upon the ttlal of issue as to mental competency of a testator it is for the jury to say whether the will of « bachelor giving his property to the children of his business partner, instead of to his brothers and their children in the Eastern states, was unnatural; and an instruction char- acterizing such will as unnatural is improper and prejudicial: In re Car- penter, 79 Cal. 382. XTndue influence is provided for in section 1575 of the California Civil Code generally, and this section is apt plicable to wills as well as to contracts. The same is true of the provisions of section 1572 of the same code relative to fraud: In re Kohler, 79 Cal. 313. An allegation by the contest- ant of a will that the mind of the decedent was weak, debilitated, and deranged to such an extent as to in- capacitate him from making or under- taking a, will or codicil, tenders an issue as to "the competency of the decadent to make a last will and tes- tament ": In re Kohler, 79 Cal. 313. Declarations of a testator made to his executor ju^t before his death, and more than five years after the' date of the will, as to what was in- tended by the will, and who wrote it, constitute no part of the res gestce, and are not admissible in evidence: In re Oilnwre, 81 Cal. 240. Service of papers, etc. : See sees. 1010-1017 Cal. Code Civ. Proc. Practice: See § 323, post. Form No. 13. — Opposition to Probate of Will. [Title of Court and Estate.] And now comes and opposes the admission to probate of the will of the above-named decedent now presented to this court, and for cause thereof alleges: — 1. That he is a devise^ (legatee or heir) of the estate of said decedent, and interested in the estate left by him; 2. That the said document now offered for probate is not the last will and testament of said decedent; § 15 PEOBATB LAW AND PRACTICE. 3^ 3. That at the time of signing said document said deceden was not of sound mind; 4. That said document was not signed by said deceased, no: by any person in his presence nor by his direction; 5. That said document was not attested by at least two coiii petent witnesses subscribing their names thereto, in the presenc< of the said decedent and at his request, nor did said decedent declare to said witnesses that he published said document a: his last will and testament; 6. That at the time said document is alleged to have beer signed by decedent, said decedent was under the age of eighteer years (or was under restraint, undue influence, and frauduleni misrepresentations in this (state in what respect); — Wherefore, the said prays that said document be nol admitted to probate, but that this court will refuse to admil said document to probate as the last will and testament of dfr cedent. . Contestant. , Attorney for Contestant. Form No. 14. — Petition for Letters of Administra' tiou and Opposition to Probate of Will. [Caption, Form No. 1, § 5, ante.] 1. That died intestate, in said county of , being s resident thereof, on the day of , A. D. 18 — ; 2. That she left estate therein, consisting of real and personal property, an accurate description of which your petitioner h unable to give, of the probable value of twelve thousand dol- lars ;^ 3. That her heirs, so far as known to your petitioner, are ? sister, residing at , Central America, by name ; 4. That your petitioner is the public administrator of said county of , and, as such, entitled to letters of administra tion upon the estate of said decedent, and prays that the sam( be issued to him. And petitioner further shows to the court, and in oppositioi to the petition for a probate of a document filed in^ this cour on the day of , A. D. 18—, alleged to be the last wil and testament of the said deceased, he avers: — 35 PROBATE OF WILLS. § 15 1. That such document is not the will of said deceased ; 2. That the same is not signed by her, or by any one author" ized by her to sign the same for her; 3. That at the time the said alleged will purports to have been signed, the said decedent was not of sound or disposing mind or memory, and had no power to make a will; (or 4. That at the time the same purports to have been signed, the said decedent was dead.) • , Petitioner. , Attorney for Petitioner. Form No. 15. — Demurrer to Contest of Will. [Title of Court and Estate.] -, the petitioner for the probate of the last will and testa- ment of , and for the issuance to him of letters testa- mentary thereon, for demurrer to the contest of , public administrator, filed herein, contesting the probate of said will, alleges: — 1. That the said contestant has not legal capacity to con- test the probate of said will, for the reason that he is not a " person interested " in said estate, or in the above-entitled matter; and he is not one of the persons entitled or author- ized to contest the probate of said will; that he is neither a devisee, legatee, or heir of said estiate, or otherwise interested therein; 2. That the said opposition or contest of said , filed herein, does not state facts sufficieut to constitute a ground of opposition to said will; — Wherefore, proponent prays that said opposition or contest be dismissed. , Attorney for Proponent. Form No. 16. — Answer to Contest of Will. [Title of Court and Estate.] Now comes , proponent of the will of said deceased, and, for answer to the contest or opposition to the probate of said will filed herein by , denies and avers as follows: — 1. Denies that said — ^ is the only surviving brother of said deceased, or is a brother of said deceased; denies thai said is interested in the estate of said deceased, or is one of the heirs at law of said deceased; denies that the docu- §15 PROBATE LAW AND PRACTICE. ment now ofiFered for probate in this court as the last will a testament is not her last will and testament, or her will testament, but avers the same to be the last will and testame of said deceased; 2. Denies that at the time of signing said will or docume the said was not of sound and disposing mind, or eitl thereof, and denies the said deceased was not competent make her last will and testament, or will or testament, but avf that at the time of signing said document said deceased was sound and disposing mind, and was competent to make her Is will and testament; . 3. Denies that said will or document was not signed by sa ; denies that said will or document was not signed by ai person in the presence of said deceased, or by her express dire tion, or either thereof; 4. Denies that said will or document was not attested by t\ competent witnesses subscribing their names thereto at the i quest of said , and in her presence, and in the presence each other; 5.- Denies that at the time of the signing of the said will document the said — — signed the same under duress or me ace, or undue influence, or fraud of any person, or either or s thereof, but avers that at the time said document was sign( said was not acting under and did not sign the san under duress, menace, undue influence, and fraud of any pe son. or either thereof; — Wherefore, proponent prays that said contest or oppositic may be dismissed, and that said will or document may be ai mitted to probate as the last will and testament of said d ceased, and for costs herein. , Attorney for Proponent. Form No. 17. — Demand for Jury to Try Issues o Contest of Will. IITitle of Court and Estate.] The undersigned, one of, the heirs at law of , decease hereby demands that the issues herein, arising upon the pel tion of , contesting the probate of the last will and test 37 PROBATE OF WILLS. §§ 16, 17 ment of said — — , deceased, and the answer to said petition, be tried by a jury. Dated , 18—. , Attorney for said . § 16. [1313.] Jury Trial. — When a jury is demanded, the superior court must impanel a jury to try the case, in the manner provided for impaneling trial juries in courts of record, and the trial must be conducted in accordance with the provis- ions of Part II., Title VIII., Chapter IV., of this code. A trial by the court must be conducted as provided in Part II., Title VIII., Chapter V., of this code. [Amendment approved April 16, 1880; took effect immediately.] For Part IL, Title Vm., Chapters IV. and V., see C^l. Code Oir. Proc., sees. 600-636. Arizona. — Same. Ber. Stats., sec. 981,' Idaho. — Same, except the last sentence is omitted. B«7. Stats., sec. 5309. Montana. Same. Comp. Stats., p. 280, sec. 21. Nevada. Under last section no jury trial allowed. Gen. Stats., sec. 2686. A probate court may change caused by alcoholism: In re Black, the place of trial if an impartial Myr. Prob. 24. trial cannot be had. A transcript of Opinion of expert on alcoholism: the proceedings and the result of the In re O'Keefe, Myr. Prob. 154. trial can be certified by the court Any error in trial of contest where the trial took place, to the of wall is presumed to work in- other court, on receiving which the jury, and is 8u£Scient ground for latter can enter judgment with proper granting a new trial: In re Craaer, 74 recitals: Permit v. Almy, 46 Cal. 246. Cal. ISO. Will. —Charge to jury on undue Change of place of trial: See influence: In re Law, Myr. Prob. 143. Cal. Code Civ. Proc, sees. 397, 398; Charge to jury on mental incapacity also §§ 105 et seg,, post. §17. [1314.] Verdict — Judgment. — The jury, after hearing the case, mast return a special verdict upon the issues submitted to them by the court, upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it. In either case, the proofs of the subscribing witnesses must be reduced to writing. If the will is admitted to probate, the judgment, will, and proofs must be recorded. Arizona. — Same. Kev. Stats., sec. 982. Idaho. — Same. Rev. Stats/, sec. 5310. Uontana. — Same. Comp. Stats., p. 281, sec. 22. Nevada. — See Gen. Stats., sec. 2683, under § 15, ante, Utah. — "At the hearing of the contest, the proofs of the Bubscribiag iritnesses must be reduced to writing, whereupon the judgment of the ceurt §17 PROBATE LAW AND PEACTICB. S8 must be rendered, either admitting the will to probate or rejecting it. If the will is admitted to probate, the judgment, will, and proofs of the subscribing witnesses must be recorded." Comp. Laws, sec. 4003. Wyoming. — "After hei^ring the case, the judgment of the court shall be rendered upon a special finding, either admitting the will to probate or reject- ing it. In either case, the proofs of the subscribing witnesses must be reduced to writing, and filed with the papers in the case. If the will is admitted to probate, the judgment and will must be recorded." Laws 1890-91, p. 248, sec. 2. When on the contest of a will the contestants neglect to submit is- sues to the jury, they waive their rights to do so, and it then becomes the duty of the court to find on such issues: Tn re Dalrymple, 67 Cal. 444. An order in favor of the valid- ity of a will will not be disturbed if the evidence is conflicting: In re McCarty, 58 Cal. 335. The verdict of the jury is con- clusive on the court: In re Bowen, 34 Cal. 687. See also last section. The verdict of a jury is not too indefinite to warrant a judgment setting aside a will, if the jury answer simply "yes" to the following ques- tion: " Did the said C, at the time o^ signing the instrument offered for pro- bate, sign or execute the same under undue influence of either J. H. N., or of A. N., or of any other person? " In re Calull, 74 Cal. 52. The court submitted two issues of fact to a jury, impaneled on its own motion for that purpose, which found on these issues, and was dis- charged. The court took no further action in the matter and the case was not decided. Held, that this was not the verdict of a jury within the mean- ing of section 659 of the Code of Civil Procedure, which provides that "the party intending to move for a new trial must, within ten days after the verdict of the jury, .... file with the clerk a notice of his intention," etc., but was merely advisory to the judge; and a notice of intention to move for a new trail, and the presen- tation of the statement for settlement, were premature: James v. Superior Court, 78 Cal. 107. - A formal judgment is unneces- sary; a direct statement that the will is proved, although entered in the minutes as part of and preliminary to an order directing letters to issue, is sufficient: In re WarjUM, 22 Cal. 52. It is not g^round for setting aside a verdict in case of a contest of a will by a minor that no guardian ad Mem, was appointed until the day of trial, no objection having been made on that ground: In re GdUU, 74 Cal. 52. When, in proceedings to con- test probate of will, special^ issues were tried by a jury, and the findings were insufficient to support a general verdict for contestants, the judgment entered on such verdict was properly set a^ide on motion, and an appeal on motion for a new trial was unneces- sary: In re Langan, 74 Cal. 353. Special Verdict: Cal. Code Civ. Proc, sees. 624-628. Effect of Probate: Cal. Code Civ. Proc, sec. 1908. Form No. 18. — Testimony of Subscribing Witness on Probate of Will. [Title of Court and Estate.] State of , ■ County. I ss. , a competent witness, being duly sworn in open court, testifies as follows: — I reside in the county of , state of- Iknew on the 39 PROBATE OP WILLS. § 18 day of ,. 18 — , the date of the instrument now shown to me, marked as filed in this court on the — r- day of 18 — , purporting to be the last will and ]testament of the said . I am one of the subcribing witnesses to said instrument. I also knew at the said date of said instrument the other '■ of said subscribing witnesses. The said instrument was signed by the said , at , in the county of , ou the said day of , 18 — , the day it bears date, in the presence of myself and of said ; and the said thereupon published the said instrument as and declared to us the same to be last will and " testament, and requested us in attestation thereof to sign the same as witnesses. The said and I, then and there, in the presence of the said , and in the presence of each other, subscribed our names as witnesses to the said instrument. At the time of executing the said instrument, to wit, the day of ■ , IS — , the said was over the age of eighteen y^ars, to wit, of the age of years, or thereabouts, and was of sound and disposing mind, and not acting under duress, menace, fraud, undue influence, or misrepresentation. Subscribed and sworn to in open court before me -; — , this day of , 18—. , Clerk. § 18. [1315.] Witnesses.— If the will is contested, all the subscribing witnesses who are present in the county, and who are of sound mind, must be produced and examined; and the death, absence, or insanity of any of them , must be satis- factorily shown to the court. If none of the subscibing wit- nesses reside in the county at the time appointed for proving the will, the court may admit the testimony of other witnesses to prove the sanity of the testator and the executi6n of the will; and, as evidence of the execution, it may admit proof of the ha,ndwriting of the testator and of the subscribing wit- nesses, or any of them. ' Arizoiia. — Same. 'Rev. Stat8., sec. 9S3. Idaho. — Same. Eev. Stats., sec. 5311. Kontaiia. — Same. Comp. Stats., sec. 23, p. 281. Nevada. —Same. Gen. Stats., sees. 2687, 2688. TTtah. — Same. Comp. Haws, sec. 4004. Washington. — "If any witness be prevented hy sickness from attending at the timerwhen any trill may be produced for probate, or reside out of the g ,i.y PROBATE LAW AND PBACTICB. 4U st^ite, or more than thirty mile^ from the place where the will is ;tio be proven, such court may issue a commission annexed to such will, and directed to any judge, justice of the peace, or mayor, or other person, empowering him totake and certify the attestation of such witness." Code Froc, sec, 863, " If such witness appear before such officer and make oath or affirmation that the testator signed the writing annexed to such commission as his last will, or that some other person signed it by his direction and in his presence^ that he was of sound mind, that the witness subscribed his name thereto in the presence of the testator, the testimony so taken shall have the same force as if taken before the court," Code Fxoc, sec, 864, " When one of the witnesses to such will shall be examined, and the other witnesses are dead, insane, or their residence unknown, then such proof shall be taken of the handwriting of the testator, and of the witnesses dead, insane, or residence unknown, and of such other circumstances as would be sufficient to prove such will," Code Proc, sec, 865. "If it shall appear to the satisfaction of the court that all the subscribing witnesses are dead, insane, or their residence unknown, the, couft shall take and receive such proof of the handwriting of the testator and subscribing (fitnesses to the will, and of such other facts and circumstances as would be sufficient to prove such will," Code Proc, sec. 866. Wyoming. — Same as California, Laws 1890-91, p, 249, sec. 3, Tlie presiunption is in favor of pear from the record that the witness the proceedings of the court; not called was not within any of the where the objection that all the sub- exceptions mentioned in the above scribing witnesses were not produced section as excusing his non-produc- is sought to be availed of, it must ap- tion: In re McOarty, 58 Cal, 335. § 19. [1316.] Testimony Reduced to Writing. — The testimony of each witness, reduced to writing and signed by him, shall be good evidence in any subsequent contests con- jerning the validity of the will, or the suflSciency of the proof thereof, if the witness be dead, or has permanently removed [rom this state. Arizona. —Same. Kev. Stats., sec. 984, Idaho. — Same, Kev. Stats., sec. 5312. Slontana. —Same. Comp. Stats., p. 281, see. 24. Nevada. — Same. Gen. Stats., sec. 2689. Utah. — Same. Corap. Laws, sec, 4005. Washiagton. — "All the testimony adduced in support of the will shall )e reduced to writing, signed by the witnesses, and certified by the judge of ;he court." Code Proc, sec. 867, " In all trials respecting the validity of a will, if any subscribing witness be leoeased, or cannot be found, the oath of such! witness, examined at -the time )f probate, may be admitted as evidence," Code Proc, sec, 873, Wyoming. — Same as California, with these words added, "or is other- vise incompetent. " Laws 1890-91, p. 249,. sec. 4. 41 PEOBATE OF WIIiLS. §20 §20. [1317.] If Proved, Certificate to be At- tached. — If the court is satiafied, upon the proof taken or from the facts found by the jury, that the^ill was duly exe- cuted, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, men- ace, fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will. Arizona. — Same. Rev. Stats., sec. 985. Idaho. — Same. B«v. Stats., sec. 5313. Montana. — Same. Comp. Stats., p. 281, sec. 25. Nevada. — "If the court shall be satisfied, upon the proof taken, and from the facts found by it, or by the jury, that the will was duly executed, and that the testator, at the time of the execution, was of sound and disposing mind, and not under restraint, undue influence, or fraudulent misrepresenta- tions, a certificate of the proof and the facts found, sigiied by the probate judge, and attested by the clerk, with the seal of the court, shall be attached to tlbe will." Gen. Stats., sec. 2690. Xrtali. — Same as California, except that the following clauses are omitted: "Or from the facts found by the jury," and also, "and the facts found." Comp. Laws, sec. 4006. Washington. — "When any will is exhibited to be proven, the court may immediately receive the proof and grant a certificate of probate, or if such will be rejected, issue a certificate of rejection." Code Froc, sec. 862. Wyoming. — Same as California, except that these words are omitted, viz., "or from the facts found by the jury." Laws 1890-91, p. 249, sec. 5. That portion of the above sec- quires the seal of the court: Cal. Code tion relating to certificate of the Civ^ Froc, sec. 153, subd. 2; as to judge is merely directory: In re War- other states, see this and the next sec- ^Id, 22 CaL 70. The certificate re- tions. Form No. 19. — Certificate of Probate of Will by Judge. State of , ) County, i ^^■ I, — — , judge of the court of — ■ — ' county, state of " , do hereby certify: — That on the day of -, A. D. 18 — , the annexed in- strument was admitted to probate as the last will and testament of , deceased; and from theproofs taken and the examina- tions had therein, the said court finds as follows: — That died on or about the day of , A. D. 18 — , in the county of , state of , and at the time of h — death -he was a resident of , county of , state of — -. § 21 PROBATE LAW AND PRACTICE. 42 That the said annexed will was duly executed by said de- cedent in h — lifetime, in the county of , state of , in the presence of and , the subscribing witnesses thereto; also that -he acknowledged the execution of the same in their presence, and declared the same to be h — last will and testament, and the said witnesses attested the same at h — re- quest and in h — presence; that the said decedent, at the time of executing said will as aforesaid, was over the age of eighteen years, was of sound mind, and not under duress, menace, fraud, or undue influence, or in any respect incompetent to devise and bequeath h, — estate. In witness whereof, I have signed this certificate and caused the same to be attested by the clerk of this court, under the seal thereof, this day of , A. D. 18 — . , Judge of the Court. [seal] Attest: , Clerk. By , Deputy Clerk. Form No. 20. — Certificate of Rejection of Will. [Title of Court and Estate.] — ' \ County. ) ; judge of the court of the county of , state State of of , do hereby certify that on the day of A. D. 18 — , the annexed instrutaent was filed in the above- named court, together with the petition of , praying that the same be admitted to probate as the last will and testa. ment of , deceased; and said matter coming on regularly for hearing before said court on ,the day of , A. D. 18 — , and all and singular the proofs being heard by the court, and the matter being submitted for decision, entered its judgment rejecting said will, and ordered that the same be not admitted to probate. In witness thereof I hereunto set my hand this day of , A. D. 18 — . , Judge of the ' Court. §21. [1318.] Will to be Piled and Recorded. — The will and a certificate of the proof thereof must be filed and re- corded by the clerk, and the same, when so filed and recorded, 43 PEOBATE OP WILLS. § 21 shall constitute part of the record in the cause or proceeding. All testimony shall be filed with the clerk. Arizona. — " The will and a certificate of the proof thereof, together with all the testimony taken, muat be filed by the clerk, and recorded by him in a book to be provided for the purpose." Kev. Sbatg., sec. 986. " All original wills, together with the probate thereof, shall be deposited in the office of the probate judge of the county, wherein the same shall have been probated, and shall there remain, except during such time as tliey may be removed to some other court by proper process for inspection." Rev, Stats., sec. 3250. " Every such will, together with the probate thereof, shall be recorded by the clerk of the court wherein proved, in a book to be kept for that purpose, and certified copies of such will, and the probate of the same, or of the record thereof, may be recorded in other counties, and may be used in evidence as the original might be." Rev. Stats., sec. 3251. Idaho. — "The will and a certificate of the proof thereof must be filed by the clerk, and recorded by him in a book to be provided for the purpose. All testimony shall be filed by the clerk." Rev. Stats., sec. 5314. Ilontana. — Same as Arizona. Rev. Stats,, sec. 986, supra, Comp. Stats., p. 281, sec. 26. Nevada. — "The will and the certificate of proof thereof, together with the testimony which has been taken, shall be filed by the clerk, and recorded by him in a book to be provided for the purpose." Gen. Stats., sec. 2691. Oregon. — " In all cases where any will is admitted to probate in the state of Oregon, in addition to having the same recorded in the county where the same was admitted to probate, it shall be the duty of the executor or adminis- trator with the will annexed to have such will recorded in every county in the state in which the testator left any real property, in the record of deeds of such counties." Laws 1891, p. 3, sec. 1. "Any person desiring to do so may have a certified copy made of any will heretofore probated in this state, and have the same recorded in any county in the state in which the testator left any real property, such person paying the necessary expense of such copy and record." Laws 1891, p. 3, 4, sec. 2. "All acts or parts of acts in conflict with this act are hereby repealed." Laws 1891, p. 4, sec. 4. , Utah. — Same as California. Comp. Laws, sec. 4007. Washington. — " All wills shall be recorded in a book kept for that pur- pose, within thirty days after probate, and the originals shall be carefully filed. " Code Proc, sec. 868. " Every will proved according to the provisions of this chapter, recorded, and certified by the judge of the superior court, and attested by the seal of said court, may be read as evidence, without any further proof." Code Proc, sec. 869. "The record of any will made, proved, and recorded as aforesaid, and the fficemplifioation of such record by the clerk in whose custody the same may be, shall be received as evidence, and shall be as efifectual in all cases as the origi> nal would be if produced and proven." Code Proc, sec. 870. 21 PKOBATB LAW AND PRACTICE. 44 'In all cases where lands devised by last will are aitnated in different inties, a copy of such will shall be recorded in the county auditor's o£Sce in th county within six months after probate." Code Proc, sec. 871. ^ will cannot be admitted as evidence until it has been dnly admitted to >bate: Jones v. Dove, 6 Or. 188 jrm No. 21. — Order Admitting Will to Probate. [Title of Court and Estate.] The petition of , heretofore filed herein, praying that a, rtain document purporting to be the last will and testament , deceased, be admitted to probate, and that be ap- inted executor thereof, and that letters testamentary thereon granted to him, coming on regularly to be heard this day, d it appearing to the court that said died on or about B day of , A. D. 18—, at the county of , ite of , leaving estate in the -r — county of , in this ite; that said decedent was, at the time of his death, a resi- nt of the — — county of , state of j that said docu- jnt is the last will and testament of said , deceased; that was duly executed by him in his lifetime; that the same was ly attested as required by law; that said decedent, at the ne of executing said will, was over the age of eighteen years, IS of soiind mind, and not under duress, menace, fraud, or due influence, or in any respect incompetent to execute said 11; and that due and legal notice has been given of the hearing said petition, — It is therefore ordered that said document be and it is hereby mitted to probate as the last will and testament of , de- 3,Bed. Dated . , Judge of the Court. Form No. 22.— Order Appointing Executor. (Use Form No. 21 down to the signature of the judge, and sn add the following) : — It is further ordered that , the person named in said 11 as executor, be and he is hereby appointed executor of said st will and testament; and that letters testamentary thereon issued to him, upon his taking the oath required by law, and ing a bond in the penal sum of $ . (If the will provides that the e:^cutor need not give bonds, 45 PROBATE OF WILLS. § 22 the order may read as follows, after the words "oath required by law," viz.: It being provided in said last will and testament that no bonds shall be required of the executor.) Dated , 18 — . * Judge of the -: — Court. ARTICLE IIL PROBATE OF TOBEIGN WILtS, § 22. Wills proved in other states to be recorded, when and where, § 23. Proceedings on the production of a, foreign will. § 24. Hearing proofs of probate of foreign will. §22. [1322.] Foreign "Wills to be Recorded. — All wills duly proved and allowed in any other of the United States, or in any foreign country or state, may be allowed and recorded in the superior court of any county in which the tes- tator shall have left any estate. Arizona. — Same. Bev. Stats., sec. 987. Idaho. — Same. Rev. Stats., sec. 5315. Montana. — Same. Comp. Stats., p. 281, sec. 27. Nevada. — Same, with the following added: "Provided, it has been exe- cuted in conformity with the laws of this territory." Gen. Stats., sec. 2693. Oregon. — "Any person not an inhabitant of, but owning property, real or personal, in, this state, may devise or bequeath such property by last will exe- cuted (if real estate be devised) according to the laws of this state, or if personal property be bequeathed, according to the laws of this state, or of the county, state, or territory in which the will may be executed." Laws 1891, p. 99, sec. 1, amending Hill's Laws, sec. 3082; Hill's Laws (ed. 1892), sec. 3082. "If such will be probated in any other state or territory of the United States, or in any foreign country or state, copies of such will and of the pro- bate thereof, certified by the clerk of the court in which such will was pro- bated, with the seal of the court afiSxed thereto, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the certificate is in due form and made by the clerk or other person having the legal custody of the record, shall be recorded in the same manner as wills executed and proved in this state, and shall be admitted in evidence in the same manner and with like e£fect." Laws 1891, p. 99, sec. 2, amending Hill's Laws, sec, ' 3083; Hill's Laws (ed. 1892), sec. 3083. XTtah., -^Same as California, except after "United States," the word^ "or territories " inserted, and "probate" is substituted for "superior." Comp. Laws, sec. 4008. Wyoming. — Same as California. Laws 1890-91, p. 247, sec. 14. "When a will of personal property made by a person who resided without this state at the time of the execution thereof or at the time of bis death has 22 PROBATE LAW AND PRACTICE. 46 Bn admitted to. probate within the foreign country or within the state or •ritory of the United States where it was executed or where the testator re- ;ed at the time of his death, -the district court having jurisdiction of the ate in this state, or the judge thereof in vacation, must, upon an applica- n made aa prescribed in this chapter, accompanied by a copy of the will d of the foreign letters, if any have been issued, authenticated as prescribed by 3 act of Congress of the United States relating to the authentication of the [islative acts and judicial proceedings of the states and territories of the lited States, record the will and foreign letters, and issue thereupon ancil- ■y letters testamentary or ancillary letters of administration with the will nexed, as the case may require.'' Laws 1890-91, p. 299, sec. 1. "Where the will specially appoints one or more executors thereof, with !pect to personal property situate within the state, the ancillary letters tes- nentary must be directed to the persons so appointed, or to those of them 10 are competent to act and qualify. If all of them are incompetent or fail qnaUfy, or in case where such appointment is not made, ancillary letters itamentary or ancillary letters of administration, issued as prescribed in thia. Eipter, must be directed to the person named in the foreign letters, unless other person applies therefor and files with his petition an instrument exe- ted by the foreign executor or administrator, or if there are two or more, all who have qualified and are acting under the foreign letters, and also ac- owledged and proved and certified in like manner as a deed to be recorded thia state, authorizing the petitioner to receive such ancillary letters, in lich case the district court, or the judge thereof in vacation, must, if the titioner is a fit and conpetent person, issue such letters directed to him, hen two or more persons are named in the foreign letters, or in the instrn- !nt executed aa prescribed in this section, the ancillary letters may be ■ected to either or any of them, without naming the others, if the others 1 to qualify, or if for good cause shown to the satisfaction of the district art, or of the judge thereof in vacation, it is so ordered or decreed; provided, it in all cases where ancillary letters testamentary or of administration, as svided in this chapter, are issued to a non-resident of this state, the sureties on the bond required of the person to whom such letters are directed must, all cases, be bona fide residents of this state; and provided further, that mediately npon the issuance of such letters, the person or persons to whom sy are directed shall make and, file in the office of the clerk of court from nch such letters issue, an instrument appointing some actual bona fde resi- nt of this state, his or their agent or attorney upon when all process and tice of every kind in all matters relating to such executorship or adminis- ition may be served with the same effect as if served upon the person or rsons to whom such letters are directed; the appointment of such agent or borney to be approved by the court, or the judge thereof." Laws 1890- , pp. 299, 300, sec. 2. "An application for ancillary letters testamentary or ancillary letters of ministration, as prescribed in this chapter, must be made by petition, duly rified, which petition shall set forth the names of and the amount claimed by i creditors or persons claiming to be creditors of the deceased residing within 47 PEOBATB OF WILLS. § 23 this state, so far as known to the petitioner. Upon the presentation thereof, the district court, or the judge thereof in vacation, must ascertain to its or his satisfaction whether any creditors or persons claiming to be preditors of the de- cedent reside within this state, and if so, the name and residence of each creditor or person claiming to be creditor, so far as the same can be ascertained, and thereupon a citation shall be issued by the clerk of the court, directed to each person whose name and residence has been ascertained, and also directed gen- erally to all creditors of the decedent, notifying them of the application, and of the date and place when and where such application will be heard. Any per- son, although not cited by his name, may appear and contest the application, and thus make himself a party to the special proceedings. Such citation shall be personally served in the manner provided for the personal summons in civil actions upon the persons named, at least ten days before the date fixed for the hearing, and a general notice to all creditors (not naming them) of such appli- cation, and requiring them to appear at such date and place, shall be published in two consecutive issues of a weekly newspaper of general circulation, pub- lished in the county in the district court in which the appliiation is filed." Laws 1890-91, p. 300, sec. 3. "Upon the day fixed for the hearing of the application, the district court, or judge thereof in vacation, must ascertain, as nearly as can be done, the amount of debts due from the decedent to the residents of this state, which finding of the court or judge shall be filed with and made supplemental to the original petition in the proceeding. Before ancillary letters are issued, the person to whom they are awarded must qualify as provided for the quali- fication of an administrator upon the estate of an intestate, except that the penalty of the bond may, in the discretion of the court, or of the judge thereof, be in such sum not exceeding double the amount which appears to be due from the decedent to residents of this state as will, in the opinion of the court or judge, efiectnally secure payment of those debts, or the sum which the resident creditors will be entitled to receive from the persons to whom the letters are issued, upon an accounting and distribution, either within this state, or within the jurisdiction where the principal letters are issued." Laws 1890-91, p. 301, sec. 4. "No ancillary letters of administration shall be issued in cases where origi- nal administration is had within the state." Laws 1890-91, p. 301, sec. 5. §23. [1323.] Proceedings on Foreign Will.— When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or by any other person in- terested in the will, with a petitioi\ for letters, the same must be filed, and the court or judge must appoir^t a time for the hearing; notice whereof must be given as hereinbefore provided for an original petition for the probate of a will. Arizona. —Same. Bev. Stats., sec. 988. Idaho. — Same. Bev. Stats., sec. ^^16. Uoutana. — Same. Comp, Stats., p. 282, sec 28. g 23 FBOBATB LAW AND FBACTICB. ^ Nevada. — Same. Gen. Stats., sec. 2694. tXtah. — Same, excepts that: "clerk" ia sabstitnted for "judge." Comp. LaTTS, sec. 4009. Washington. — "Wills probated in any other state or territory of the United States, or in any foreign country or state, sheill be admitted to probate in this state on the production of a copy of such will, and of the original record of probate thereof, authenticated by the attestation of the clerk of the court in which such probation was made; or if there be no clei4£, by the at- testation of the judge thereof, and by the seal of office of such officers if they have a seal." Code Proc, sec. 882. " All provisions of law relating to the carrying into effect of domestic wills after probate shall, so far as applicable, apply to foreign wills admitted to pro- bate in this state, as contemplated in the preceding section." Code Proc., sec. 883. Wyoming. — Same as California. " Commissioner " may also act. Laws 1890-91, p. 247, sec. 15. Petition, Notice, etc. : See §§ 4-23, ante. Covertlire is no bar to the pre- wherein to apply for revocation there- scription of one year after probate of: In re Bivderick, Myr. Prob. 19. Form No. 23.— Petition for Probate of Foreign Will. [Caption, Form I, § 5, ante."] 1. That died on or about the day of , A. D. 18 — , at the county of , state of , and was at the time of his death a resident of the county of , in the state of ; that he left a last will and testament, which has been duly admitted to probate in the court of the county of -, state of , an exemplified copy of which last will and testa- ment,, and of the order of said court admitting it to probate, is presented and filed herewith and made a part hereof; that said court at the time of making said brder was a court of compe- tent jurisdiction, and had jurisdiction of the subjisct-matter and of all parties interested in the estate of said decedent; that petitioner is interested in said estate. 2. (Follow subdivision 2 and the balance of Form No. 2.) Forr^ No. 24. — Order Appointing Time for Hearing Petition for Probate of Foreign Will. [Title of Cdurt and Estate.] On reading and filing the petition of , praying for the probate of a document purporting to be the last will and testa- ment of , deceased, which said will has been duly proved 49 PROBATE OP WILLS. § 24 and allowed in the state of — — ; and a copy of said will and the probate thereof duly authenticated having been produced by the executor named therein (or by ■, one of the legatees or devisees named in said will), and filed herein,. — It is ordered that , the day of , A. D. 18 — , be and the same is hereby appointed as the time for the hearing of said petition, and the clerk of this court is hereby directed to give due and legal notice thereof. Dated . , Judge of the Court. § 24. [1324.] Hearing Proofs of Probate of For- eign Will. — If, on the hearing, it appears upon the face of the record that the will has been proved, allowed, and admitted to probate in any other of the United States, or in any foreign country, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, and have the same force and effect as a will first admitted to probate in this state, and letters testamentary or of administration issued thereon. Arizona. — Same. Rev. Stats., sec. 9S9. Idaho. -^ Same. Rev. Stats., sec. 5317. nCoutana. — Same. Comp. Stats., p. 282, sec. 29. Nevada. — "If, on hearing, it shall appear to the court that the instrument ought to be allowed as the will of the deceased, the autjientioated copy shall be admitted to probate and recorded the same as in the case of other wills, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court." Gen. Stats., sec. 2695. ' ' If, on hearing, it shall appear to the court that the instrument ought to be allowed as the will of the deceased, a copy shall be filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court." Gen. Stats., sec. 2696. Oregon. — "Any such will may be contested and annulled within the same time and in the same manner as wills executed and proven in this state." Hill's Laws, aec. 3084. See sees. 3082, 3083, under § 22, ante. Utah.. — Same as California, except that " or territory " is inserted after "United States." Comp. Laws, sec. 4010. Washington. — See last section. Wyoming. — Same as California. Laws 1890-91, p. 247, aec. 16. The question as to whether or this state entertaining jurisdiction not a will had been duly proved to admit such will to probate must and allowed in a foreign country or find from the evidence, and if the state ia a fact which a court of court found this fact npon insuffi- 4 § 24 PKOBATE LAW AND PRACTICE. 50 cient evidence, or without proper t)f such foreign probate are introduced authentication of the foreign probate iu evidence to show title under the of the will, or without competent evi- will: OoMtree v. McAliater, 86 Cal. 93. dence, and thereupon proceeded to ex- The probate of a will and issue ercise jurisdiction, the action of the of letters teBtamentary in. the court in this respect is not void, but state of New York do not author- merely erroneous, and subject only to ize the executors to maintain actions direct attack upon appeal, and ia not fbr the collection of assets of the es- open to collateral attack in an action tate of the deceased in the state of Cali- of ejectment in which the probate pro- fornia: Bartlett T. Sogers, 3 Saw. 62. ceedings had in thia state upon proof Form No. 26. — Order Admitting Foreign Will to Proba,te. [Title of Court and Estate.] The petition of , asking that a document filed therewith, purporting to be the last will and testament of , deceased, be admitted to probate, and that , who is named therein as executor, be appointed as such, and that letters testamentary be issued to said , coming on regularly this day to be heard, and due proof being made that notice has been duly given of the time appointed by this court for proving said will and hearing said petition; that said order has been duly served upon all parties interested in said estate according to law; that said died testate, at , on the day of , A. D. 18 — ; and it appearing by the duly authenticated copy of said will and the probate thereof that said will has been proved, allowed, and admitted to probate in another of the United States, to wit, in the state of ( ) (or in a foreign country, to wit, J'rance) ; and it further appearing that said will was duly executed according to the law of said state; ' and it ap- pearing that the personal property of said estate situated in this state is of the value of five thousand dollars, and that the annual rents and profits of the realty belonging thereto situated in this state amount to one thousand dollars, — it is therefore ordered that said will be and the same is hereby admitted to probate, and that letters testamentary be issued thereon to 'In liea of the clause, "that said will was duly executed according, to the law of said state," may be substituted the following: "That said will was duly executed, according to the law of , the place in which said testa- tor was domiciled at the time of his death," or "that said will was duly exe- cuted according to the laws of this state," 51 PROBATB OF WILLS. § 25 , the person named in said will as executof, upon his giv- ing bonds in the sum of twelve thousand dollars, to be approved by the judge of this court (or in case the will requests that he be appointed without bonds, the order may be " that letters testamentary issue to , the person named in said will, without bonds, the testator having so directed in his will.") Dated . , Judge of the Court. ARTICLE IV. CONTESTING WniL APTER PROBATB. § 25. The probate may be contested within one year. § 26. Citation to be issued to parties interested. § 27. The hearing had on proof of service. § 28. Petitions to revoke probate of will tried by jury or court — Judgment, § 29. On revocation of pitobate, powers of executor, etc., cease, but not liable for acts in good faith. § 30, Costs and expenses, by whom paid. § 31. Probate, when conclusive — One year after removal of disability given to infants and others. § 25. [1327.] Will may be Contested. — When a will has been admitted to probate, any person interested may, at any time within one year after such probate, contest the same or the validity of the will. For that purple he must file in the court in which the will was proved a petition in writing, containing his allegations against the validity of the will, or against the sufficiency of the proof, and praying that the pro- bate may be revoked. Arizona. — Same. Key. Stats., sec. 990. Idaho. — Same. Bev. Stats., sec. 5318. Montana. — Same. Comp. Stats., p. 282, sec. 30. Nevada. — Same. Gen. Stats., sec. 2697. Utah. — Same, except that "who has not previously contested" is inserted after the word "interested," Comp, Laws, sec. 4011. Washington. — "If any person interested in any will shall appear within one year after the probate or rejection thereof, and by petition to the superior court having jurisdiction, contest the validity of said will, or pray to have the will proven which has been rejected, he shall file a statement containing his objections and exceptions to said will, or to the rejection thereof. Issues shall be made up, tried, and determined in said court respecting the compe- tency of the deceased to make last will and testament, or respecting the exe* § 25 PROBATE LAW AND PRACTICE. 52 cution by the deceased of such last will and testament under restraint, or undue influence, or fraudulent representations, or for any other cause afifecting the validity of such will. Code Proc, 9ec. 872. Wyoming. — Same as California. Laws 1890-91, p. 249, sec. 6. In a contest of a will after pro- If petition for revocation of probate bate, the burden of proving the will is of a will be filed within the year in on the proponent, the same as if the which it may be filed, citation there- will had never been probated: i/u&&ar(2 under maybe issued after that year V. Hubbard, 7 Or. 42. has expired: In re Sbarboro, Myr. Parties represented by an at- Prob. 255. to^ney appointed by court at contest Coverture is no bar to the pre- of will may, within a year from its scription of one year after probate admission to probate, contest the wherein to apply for revocatioa same: In re Cunningham, 54 Cal. 556; thereof: In re Brodenck, Myr. Prob. See also § 12, ante. _ 19. The right of heirs to rsvoke pro- Non-resident alien loses right to bate of a will ia the same whether the petition for revocation of probate of issues are tried by a jury or by the will when: In re Broderkk, Myr. court: In, re Gunnirfgham, Myr, Prob. Prob. 19. 214. Codicil must be offered for probate A petition to revoke the pro- within a year after the probate of the bate of a will, if the parties are under original will: In re Adsit, Myr.^Frob. no disabilities, must be filed within a 266. year after the will is admitted to pro- Undue influence, restraint, fraudn- bate. The judge cannot order the lent misrepresentations, facts of, must clerk to file it as of a day within the be stated in petition for revocation of year: In re Sbarboro, 63 CaL 5. probate: In re Clarke, Myr., Prob. 259. Form No. 26. Petition to Eevoke Probate of Will. [Caption, Form 1, § 5, ante.l 1. That died at the county of , state of , on the day of , A. D. 18 — , and at the time of his death was a resident of the county of , state of ; that afterwards a document was filed in this court for probate as the last will and testament of deceased, and such proceedings were had herein that an order was duly made and entered by this court on the day of , A. D. 18 — , admitting said document to probate as such last will and testament, and let- ters testamentary thereon were by said order issued to as the executor thereof, and thereupon said duly qualified and received said letters and entered upon his duties as such executor, and is now administering upon the estate of said de- cedent; 2. That your petitioner is the father and one of the heirs at law of said decedent, and is interested in said estate; 3. That petitioner is informed and believes, and therefore alleges the fact to be, that said document is not the last will 53 PROBATE OP WILLS. § 25 and testament of said decedent, but said document is a forged instrument, and was made by , and the signature of said deceased was falsely and fraudulently forged thereto by said after the death of said decedent; — Wherefore, your petitioner prays that said order may be set aside and the probate of said pretended will and testament be revoked; that the letters testamentary heretofore issued to said be revoked; that youi" petitioner be appointed administra- tor of said estate. , Petitioner. , Attorney for Petitioner. Form No. 27.— Petition to Revoke Probate of Will and for the Probate of a Later Will. [Caption, Form I, § 5, arUe.1 1. That died in the county of , state of , on the day of , A. D. 18—, being at that time a resident of the county of , state of ; and thereafter such pro- ceedings were had in this court that a document dated on the day of , A. D. 18 — , was duly admitted to probate by this court by its order made and entered on the day of , , A. D. 18 — , and — ■ — , who was named in said document as executor, was duly appointed as such by said order, and imme- diately qualified and entered upon the duties of his trust as the executor of the last will and testament of said decedent; 2. That said document was not the last will and testament of said decedent, and a last will and testament has, since the entry of said order, been discovered, which was duly published by said decedent and authenticated as required by law, and is presented to the court for probate and filed herewith. (Follow subds. 2, 3, 4, and 5 of Form No. 2.) Wherefore, petitioner prays that the probate of said docu- ment hereinbefore first referred to be revoked; that the letters testamentary heretofore issued herein to be revoked; that the document last hereinbefore referred to as the last will and testament of said decedent be admitted to probate, and that letters testamentary theredn be issued to , the person named in said last-mentioned will and testament as the exec- utor thereof. , Petitioner. , Attorney for Petitioner. § 26 PROBATE LAW AND PRACTICE. 54 § 26. [1328.] Citation to be Issued to Parties In- terested. — Upon filing the petition, a citation must be issued to the executors of the will, or to the administrators with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the state, so far as known to the petitioner, or to their guardians if any of them are minors, or to their personal representatives if any of them are dead, re- quiring them to appear before the court on some day of a regular term therein specified, to show cause why the probate of the will should not be revoked. Arizona. — Same. Bey. Stats., sec. 991. Idaho. — Same. Rev. Stats., sec. 5319. Jjlontana. — Same. Comp. Stats., p. 282, sec. 31 Nevada Same. G-en. Stats., sec. 2698. VtaJa. — Same. Comp. Laws, sec. 4012. Washington. — "Upon the filing o£ the petition referred to in the next preceding section, a citation shall be issued to the executors who have taken upon them the execution of the will, or to the administrators with the will an- nexed, and to all legatees named in the will residing in the state, or to their guardians if any of them are minors, or their personal representatives if any of them are dead, requiring them to appear before the court on a day therein specified, to show cause why the petition should not be granted." Code Prpc, sec. 873. Wyoming. — Same as California. Laws 1890-91, p. 249, sec. 7. Filing petition and issuing can be performed only by the clerk of citation are ministerial acts which the court: In re Sbarhoro, 63 Cal. 5. Citation: See § 317-321, post. Form No. 88. — Order of Citation on Application to Revoke Probate of Will. [Title of Court and Estate.] The petition of , one of the heirs at law of the above- named decedent, having been filed hferein, praying that the pro- bate of the will of said decedent be revoked; — It is ordered that a citation issue herein, directed to the ex- ecutor of said estate, and and , all the legatees and devisees of said deceased, and all his heirs at law residing in this state, directing them to appear in this court on , the . day of , A. D. 18 — , at the hour of ten o'clock, A. m., of said day, and show cause, if any they can, why the probate of said will should not be revoked. , Judge of the Court. Dated , 18—. 55 PROBATE AND WILLS. § 26 Form No. 29.— Citation on Application to Revoke Probate of Will. [Title of Court and Estate.] To , the executor of the estate of , deceased, , and , devisees and legatees named in the will of said de- ceased, and and , heirs at law of said deceased: — You and each of you are herehy notified that a petition has been filed in the above-entitled court by ■ to revoke the probate of the will of , deceased, and you are cited to ap- pear in said court on the day of , A. D. 18 — , at the hour of ten o'clock, a. m., of said day, and show cause, if any you can, why the probate of said will should not be revoked. (seal) , Clerk. By , Deputy Clerk. Porm ITo. 30.— Order Revoking Probate ofWill. [Title of Court and Estate.] , having filed his petition in writing containing his allega- tions against the validity of the document heretofore admitted to probate by this court as the last will and testament of > deceased, for the purpose of contestingthe validity thereof, and praying that the probate of said will be revoked, and thereupon a citation was duly issued out of this court to , to whom letters testamentary were issued upon said will, and to all the legatees and devisees of said deceased, and to all his heirs at law resid- ing in this state, requiring them to show cause, at a time and place named in said citation, why the probate of said will should not be revoked, and it appearing that said citation was duly served upon all the parties named therein, and that all the ne- cessary and proper orders in the premises have been made, and all of said parties having appeared herein as required in the said citation, said matter came on regularly for hearing on this day of , A. D. 18 — , upon said petition and the an- swers thereto,' and the court, no jury having been demanded, having heard the proofs of the parties, and it appearing there- ' If a jury has been demanded, write in lieu of the words standing between 1 and ' the following; " And a jury, having been demanded as provided by law, was impaneled and sworn, and they prpceded to try the issues presented by said petition and the answer thereto; and the findings and verdict of said jury having been filed, in pursuance of said findings and verdict, it is ordered," etc. § 27 PBOBATE LAW AND PEACTICB. 66 from that said petition was filed within the time required by law; that said document is not the last will and testament of said , deceased, but is a forged instrument, and was made by , and the signature of said deceased to said instrument was falsely and fraudulently forged thereto by said after the death of said decedent; — It is therefore ordered * that the said probate of said will be ^nd it is hereby annulled and revoked, and the letters testa- mentary issued thereon to are hereby revoked; that the costs and expenses of this proceeding be paid by , said ex- ecutor, out of the property of said estate; that the said peti- tioner, , be and he is hereby appointed administrator de bonis non of said estate upon his filing a bond according to law in the sum of dollars, and taking his oath of office. Dated , 18 — . ' , Judge of the Court. § 27. [1329.] Trial of Contest. — At the fime appointed for showing cause, or at any time to which the hearing is post- poned, personal service of the citations having been made upon any persons named therein, the court must proceed to try the issues of fact joined in the same manner as in an original con- test of a will. Arizona. — Same. Rev. Stats., sec. 992, Idaho. — Same. Bev. Stats., sec. 5320. XHontana. — Same. Comp. Stats., p. 2S2, sec. 32. Nevada. — Same, to and including the word "therein"'; then as follows: "The court shall proceed to hear the proofs of the parties. If any devisees or legatees named in the will shall be minors, and have no guardians, the court shall appoint some attorney to represent them," Gen. Stats., sec. 2699. Utall. — Same as California, with the following added: "If, upon hearing the proofs of the parties, the court shall decide that the will is for any reason invalid, or that it is not sufficiently proved to be the last will of the testator, the probate must be annulled and revoked." Comp. Laws, sec. 4013. Washington. — See Code Proc, sec. 872, under § 25, ante. ■ Wyoming. — Same as California. Laws 1890-91, p. 249, sec. 8, Findings: Tare Crosby, 55Cal. 574. prior to the making of the will testi- Issues to be tried, h.0W: In re ned to a state 6f facts tending to prove Cunningham, 54 Cal. 557. her capacity, it is error to sustain ob- Service: See § 11, ante. jections to questions upon cross-exam- In proceedings to revoke pro- ination as to whether the witness had bate of will on ground of mental not asked another person to testify in incapacity of testatrix at time of exe- the action that she was not in her cution of will, where a physician who right mind, etc. : Wiacom v. Ooodcell, had attended testatrix for a long time 90 Cal. (>22. 57 PROBATE OP WILLS. §§ 28, 29 § 28. [1330.] Trial — Judgment. — In all cases of pe- titions to revoke the probate of a will wherein the original pro- bate was granted without a contest, on written demand of either party filed three days prior to the hearing, a trial by jury must be had as in cases of the contest of an original petition to ad- mit a will to probate. If upon hearing the proofs of the parties, the jury shall find, or if no jury is had, the court shall decide, that the will is for any reason invalid, or that it is not suflB- ciently proved to be the last will of the testator, the probate must be annulled and revoked. Arizona. — Same. Bev. Stats., sec. 993. Idaho. — Same. Rev. Stats., sec. 5321. DEontana. — Same. Comp. Stats., p. 282, sec. 33. ITevada. — "If, upon the hearing of the proofs of the parties, the court shall decide that the will is for any reason invalid, or that it is not sufficiently proved to have been the last will of the testator, the probate shall be annulled and revoked." Gen. Stats., sec. 2700. Utah. — See Comp. Laws, sec. 4013, under last section, Washington. — Same as Nevada. Code Proc, sec. 876. Wyoming. — Same as California, except that all is omitted from " without a contest," to and including "if no jury is had," and the word "if" is in- serted in place of the omitted matter. Laws 1890-91, p. 249, sec. 9. Jury: See §§ 16, 17, ante. undue influence, fraud, and menace. If prolbate of will is annulled judgment was rendered annulling and upon- a contest initiated by an heir revoking the will as to contestant, and after the entry of a decree of distribu- adjudging the contestant not bound by tion, the heir may pursue the prop- the will, and that she take the , same erty, and perhaps its proceeds, in the share as if decedent had died intes- hands of the distributee, but cannot tate, it was held that such judgment recover it from a bona fide purchaser: was void, and could not be reviewed Thxrmpion v. Sampson, 64 Cal. 330. on appeal, although by stipulation no In a will contest in which the exception wa^ taken to its form: In re jury found the will to be void Freud, 73 Cal. 555. for want of testamentary capacity, § 39. [1331.] EflFect of Revocation. — Upon the revo- cation being made, the powers of the executor or administrator with the will annexed must cease; but such executor or ad- ministrator shall not be liable for any act done in good faith previous to the revocatioii. Arissona. — Same. Rev. Stats., sec. 994, Idaho. — Same. Rev. Stats., sec. 5322. Montana. — Same. Comp. Stats., p. 283, sec. 34. Nevada. — Same. Gen. Stats., sec. 2701. Oregon. — ^ "If, after administration has been granted upon an estate, a will of the deceased be found and proven, the letters of administration shall be §§ 30, 31 PROBATE LAW AND PRACTICE. 58 revoked, and letters testamentary or of administration with the will annexed shall be issued; and if, after a will has been proven, and letters testamentary or of administration with the will annexed have been issued thereon, such will should be set aside, declared void or inoperative, such letters shall be revoked, and letters of administration issued ": Hill's Laws, sec. 1093. Utah. — Same as California. Comp. Laws, sec. 4014. Wasliiiigton. — Same as California, except that " to service of written no- tice of intention to contest said will" is substituted for the word "revoca- tion," in the last line. Code Proc, sec. 877. "If, after a will has been found and letters thereon granted, the wiir shall afterwards be set aside, the letters shall be revoked, and letters of administra- tion granted on the goods nnadministered." Code Proc, sec. S88. Wyoming. — Same as California. Laws 1890-91, p. 250, sec. 10. Appeal from an. order revok- purposes except those of the appeal: ing probate of will does not keep In re Orotier, 65 Cal. 332. alive the character of executor for any § SO. [1332.] Costs and Expenses. — The fees and expenses must be paid by the party contesting the validity or probate of the will, if the will in probate is confirmed. If the probate is revoked, the costs must be paid by the party who ' resisted the revocation, or out of the property of the decedent, as the court directs. Arizona. — Same. Bev. Stats., sec. 995. . Idado. — Same. Rev. Stats., sec. 5323. ; Kontana. — Same. Comp. Stats., p. 28.3, sec. 35. Nevada. — Same. Gen. Stats., sec. 2702. TTtah.. — Same. Comp. Laws, see. 4015. Washington. — " The fees and expenses shall be paid by the losing party. If the probate be revoked or the will annulled, the party who shall have re- sisted such revocation shall pay the costs and expenses of proceedings out of the property of the deceased." Code Proc, sec. 878. Wyoming. — Same as California. Laws 1890-91, p. 250, sec. 11. Order amending judgment as lar, unless th# record shows a want of to costs, and directing payment in notice: In re Crazier, 74 Cal. 180. due course of administration, is regu- § 31. [1333.] Probate, when Conclusive.— If no per- son within one year after the probate of a will contests the same, or the validity thereof, the probate of the will is con- clusive; saving to infants and persons of unsound mind a like period of one year after their respective disabilities are removed. Arizona. — Same. Rev. Stats., sec. 996. Idaho. —Same. Rev. Stats., sec. 5324. 59 PROBATE OF WILLS. § 32 Uontana. — Same. Comp. Stats., p. 283, sec. 36. Nevada. — Same, except that " married women " are included in the sav- ing clause concerning disabilities. Gen. Slats., sec. 2703. XTtah. — Same as California. Comp. Laws, sec. 4016. Waehingtoii. — Same as California, except that the words "married women, persons absent from the United States; or " are substituted for the words "and persons." Code Proc, sec. 874. Wyoming. — Same as California. Laws 1890-91, p. 250, sec. 12. Judgment admitting will to to petition for. revocation of probate probate is conclusive: Sogers v. King, of will when: In re Broderick, Myr. 22 Cal. 72; Stale v. McOlynn, 20 Cal. Prob. 19. 233. After the time limited in the above Conclusiveness of probate: Cal. section, the will is conclusive as Code Civ, Proc, sec. 1908; In re Star- against an application to declare a de- Boro, 63 Cal. 5. vise void for fraud upon the testator: ^obate may be conclusive as In re Maxwell, 74 Cal. 384. to adult h.eirs whg have allowed An election by a widow to take time for contesting to lapse, and void-, under the law, rather than under her able as to an infant heir applying in husband's will, is not a contest thereof time: Thynvpaon'v . Samson, 64 Cal. 330. within the meaning of the above sec- Non-resident alien loses right tion: In re Qwin, 77 Cal, 313. ARTICLE V. PBOBATE OF LOST OK DESTROYED WILL. § 32. Proof of lost or destroyed will to be taken. § 33. Must have been in existence at time of death. § 34. To be certified, recorded, and letters thereon granted. § 35. Court to restrain injurious acts of executors or administraliors during proceedings to prove lost will. §33. [1338.] Proof of Lost Will. — Whenever any will is lost or destroyed, the superior court must take proof of the execution and validity thereof, and establish the same; no- tice to all persons interested being first given as prescribed in regard to proofs of wills in other cases. All the testimony must be reduced to writing, and signed by the witnesses. Arizona. — Same. Kev. Stats., sec. 997. Idaho. — Same. Bev. Stats., sec. 5325. Kontana. — Same. Comp. Stats., p. 283, sec. 37. Nevada. — Same. Gen. Stats., sec. 2704. Utah. — Same. Comp. Laws, sec. 4017. Washington. — ;Same. Code Proc, sec. 879. Wyoming. — Same, except that "district "is inserted in lieu of "supe- rior," and after "court" this clause is inserted, viz.: "Or judge thereof in vacation," and at the end of the section the following is added: "And may be taken before the commissioner or clerk." Laws 1890-91, p. 250, sec. 1. Notice: See §§ 8, 9, mte; also Cal. Code Civ. Proc, sec. 1010. § 32 PEOBATB LAW AND PRACTICE. 60 Form No. 31. — Petition to Establish Lost or De- stroyed Will. [Caption, Form 1, § 5, anie.'\ 1. That — — died on or about the day of , A. D. 18 — , at county of , , state of , and was at the time of his death a resident of the county of , state of ; 2. That in his lifetime deceased made a will, which was in existence and had not been revoked at the time of — — death, but has been destroyed since the death of said testator (or was fraudulently destroyed during his lifetime by one , etc.); that petitioner is interested in th^ estate of decedent; 3. That the provisions of said will can be clearly and dis- tinctly proved by two credible witnesses, to wit: and . 4. (Follow subd. 2, in Form No. 2.) 5. (Follow subd. 3, in Form No. 2.) 6. (Follow subd. 4, in Form No. 2.) 7. ,(Follow subd. 5, in Form No. 2.) Wherefore petitioner prays that the proof of the execution and validity of said will be taken by the court as provided by law; that said will be established, the provisions thereof dis- tinctly stated and certified. by the judge of this court under his, hand and the seal of the court; that said will so established be admitted to probate; that petitioner be appointed executor of said last will and testament,, and that letters testamentary thereon'be issued to him. , Petitioner. , Attorney for Petitioner. Form No. 33. — Petition to Establish Lost or De- stroyed Will, and to Revoke Letters of Adminis- tration. (Follow Form No. 31 to the prayer.) 8. That letters of administration upon the estate of said de- ceased were heretofore granted to — — by the order of this court duly made and entered; that said immediately qualified as such administrator under said order, and entered upon the discharge of his duties as such, and thence hitherto has been and now is such administrator; — 61 PROBATE OF WILLS. § 32 Wherefore petitioner prays that the proof of the execution and validity of said will be taken by the court as provided by law; that said will be established, the provisions thereof dis- tinctly stated and certified by the judge of this court under his hand and the seal of the court; that said will as established be admitted to probate; that said letters of administration hereto- fore issued to said be revoked; that petitioner be appointed executor of said last will and testament, and that letters testa- mentary thereon be issued to him. , Petitioner. , etc., Attorney for Petitioner. Form No. 33. — Petition to Establish Lost or De- stroyed Will, and to Revoke Probate of a I'rior Will and the Letters Testamentary Issued there- tiuder. I [Caption, Form 1, § 5, cmie.] 1. (Follow subd. 1 of Form No. 27.) 2. That said document was not the last will and testament of said decedent; that since the entry of said order of this court it has been discovered that said decedent duly published and authenticated as required by law a last will and testament of a later date than the one heretofore admitted to probate herein, which revokes said former will; 3. That said last-named will was in existence at the time of decedent's death, but has been destroyed since the death of said testator (or was fraudulently destroyed in lifetime by one , etc.). 4. (Follow subd. 2 of Form No. 2.) 5. (Follow subd. 3 of Form No. 2.) 6. (Follow subd. 4 of Form No. 2.) 7. (Follow subd. 5 of Form No. 2.) Wherefore petitioner prays that the proof of the execution and validity of said last-named will be taken by the court as provided by law; that said will be established, the provisions thereof distinctly stated and certified by the judge of this court under his hand and the seal of the court; that the will hereto- fore "admitted to probate be declared not to be the last will and testament of said decedent, and that the probate thereof, and the letters testamentary issued thereunder to , be revoked; §§ 33, 34 PROBATE LAW AND PRACTICE. 62 that said will as established be admitted to probate; that peti- tioner be appointed executor thereof, and that letters testamen- tary thereon be issued to him. , Petitioner. , Attorney for Petitioner. §33. [1339.] Must Exist at Time of Death. — No will shall be proved as a lost or destroyed will unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. Arizona. — Same. Bev. Stats., sec. 998. Idaho. — Same. Rev. Stats,, sec. 5326. . Blontana. — ;Same. Comp. Stats., p. 283, sec. 38. Nevada. — Same. Gen. Stats., sec. 2705. TTtab. — Same. Comp. Laws, sec. 4018. Washington. — Same. Code Froc, sec. 879. Wyoming. — Same. Laws 1890-91, p. 250, sec. 2. If a will was lost or destroyed lent destmction: In re Kidder, 66 Call. after the death of the testator, it must, 489, 490. in an application for the probate of The provisions of a lost will must such will, be alleged, and it must be be clearly and distinctly proven by at proven to have been in existence at least two credible witnesses, on an the time of such death: In re Kidder, application to have it admitted to pro- 57 Cal. 283. bate: In re Kidder, 66 Cal. 489, 491. If a will was lost or destroyed be- Evidence showing that at the time fore the death of the testator, it must, of the destruction of a will testatrix in an application for the probate of was ill in bed, and that her nurse, her such will, be alleged, ajid it must be sole attendant, handed her the will, proved to have been fraudulently de- which then either fell accidentally or stroyed during the lifetime of the tes- was thrown by the testatrix into the tator: In re Kidder, 57 Cal. 283. fire and was consumed, the nurse, A petition for the probate of a will though she saw it bqrning, making no alleged to have been fraudulently effort to save it, does not amount to destroyed during the lifetime of the proof of a fraudulent destruction of testator must state the facts and the will by the nurse: In re Kidder, circumstances constituting the fraudu- 66 Cal. 489, 490. § 34. [1340.] Certificate to be Recorded.— When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge under his hand and the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed must be issued thereon in the same manner as upon wills produced and duly proved. The testimony must be reduced to. writing, signed, certified, and 63 PROBATE OF WILLS. § 34 filed as in other cases, and shall have the same effect as evi- dence as provided in section thirteen hundred and sixteen. See § 19, ante, for sec. 1316. Arizona. — Same. Rev. Stats., sec. 999. Idaho. — "When a lost will is established, the pTovisions thereof must be distinctly stated and certified by the probate judge iinder his hand and the seal of his court, and the certificate, together with the testimony upon which it is founded, must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed must be issued thereon in the same manner as upon wills produced and duly proved." Rev. Stats., sec. 5327. Montana. — Same as California. Comp. Stats., p. 283, sec. 39. Nevada. — "When any will shall be established, the provisioiis thereof shall be distinctly stated and certified by the probate judge under his hand and the seal of his court, and the certificate, together with the testimony upon which it is founded, shall be recorded as other wills are required to be re- corded, and letters testamentary or of administration with the will annexed shall be issued thereon in the same manner as upon wills produced and duly proved." (Jen. Stats., sec. 2706. TTtah. — Same as California. Comp. Laws, sec. 4019. Washington. — "When any such will shall be established, the provisions thereof shall be distinctly stated in the judgment establishing it, and a copy of such decree shall be certified by the clerk under the seal of the court; and such copy, together with the testimony upon which the decree is founded, shall be recorded as other wills are required to be recorded, and letters testa- mentary or of administration with the will annexed shall be issued thereon in the same manner as upon wills produced and duly proved." Code Froc, sec. 880. Wyoming. — Same as California. Laws 1890-91, p. 250, sec. 3. Form No. 34. — Certificate Establishing Lost or Destroyed Will. [Title of Court and Estate.] Now, on this -. — day of , A. D, 18 — , the petition of to establish as the last will and testament of , de- ceased, a certain lost (or destroyed) will of said decedent, and it appearing that said died on or about the day of , A. D. 18 — , at the county of , state of , and was at the time of his death a resident of the county of , state of ; That in his lifetime said deceased made a will, which was in existence and had not been revoked at the time of his death (or was fraudulently destroyed in his lifetime) by one , under the following circumstanceB (state fully as can be done § 34 PROBATE tAW AND PRACTICB. 64 all facts and circumstances of fraud connected with such de- struction); that said petitioner is interested in the estate of said decedent, being a legatee under said lost (or destroyed) will; That the provisions of said will were clearly and distinctly proved by two credible > witnesses, to wit, and , whose testimony was reduced to writing,, signed by said witnesses respectively, and filed herein; That the provisions of said will as proven by said witnesses are as follows: — 1. Said decedent gave and bequeathed all of the community property of which by law he could make testamentary dispo- sition to his two children, and , share and share alike, and provided in said will that his wife, , should have that portion of the community property to which she was entitled by law, to wit, one half, and that he deemed that said half of said community property would be a sufiicient provision for her; that all the property possessed by him was and is the com- munity property of himself and his said wife, ; 2. He appointed his said wife executrix of his said last will and testament, and therein requested that she be appointed such without bonds, and also appointed as the guardian of his said children; That said will was, on or about the day of , 18—, , duly executed by said , deceased, in his lifetime, in the ^ county of — ■■ — , state of , in the presence of and , the subscribing witnesses thereto; that decedent acknowledged the execution of the same in their presence, and declared it to be his last will and testament, and the said witnesses attested the same at Ms request and in his presence, by subscribing their names as witnesses thereto; That said decedent at the time of executing said will was over the age of eighteeen years, was of sound mind, and not under duress, menace, or undue influence, or in any respect incompetent to devise and bequeath his estate. In witness whereof, I have granted this certificate under my hand and the seal of the court this day of — — , A. D. 18 — , and have caused the same to be attested by the clerk of this court. , Judge, of the Court. (seal) Attest: , Clerk. 65 PROBATE OF WILLS. §§ 35, 36 § 35. [1341.] Duty of Oortrt. — If before or during the pendency of an application to prove a lost or destroyed will letters of adininistration are granted on the estate of the testa- tor, or letters testamentary of any previous will of thi testator are granted, the court may restrain the administrators or ex- ecutors so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will. Arizona. — Same. Rev. Stats., sec. 1000. Idaho Same. B.^v. Stats., see. 5328. Stoiitaiia. — Same. Comp. Stats., p. 284, sec. 40. Nevada. — Same. Gen. Stats., sec. 2707. Utah. — Same. Comp. Laws, sec. 4020. Washington. — Same. Code Proc, sec. 881. Wyoming. — Same, except that the words "oc judge in vacation" are inserted after the word "court," in the fifth line. Laws 1890-91, p. 250, aec. 4. ARTICLE VI. THE PROBATE OT NDNCtTPATIVB WILtS. § 36. Kuncupative wills, when and how admitted to probate. § 37. Additional requirements in probate of nuncupative wills. § 38. Contests and appointments to conform to provisions as to other wills. I 36. [1344.] Nuncupative Wills. — Nuncupative wills may at any time within six months after the testamentary words are spoken by the decedent be admitted to probate on petition and notice as provided in Article I., Chapter II., of this title. The petition, in addition to the jurisdictional facts,' must allege that the testamentary words, or the substance thereof, were reduced to writing within thirty days after they were spoken, which writing must accompany the petition. For Article I., Chapter II., of this title, see §§ 3-14, ante. Nuncupative Wills: See §§ 382-385, post. Arizona. — Same, except "six " is substituted for "thirty "in seventh line. Rev. Stats., sec. 1001. Idaho. — Same as California. Rev. Stats., sec. 5329. Montana. — Same as California. Comp. Stats., p. 284, sec. 41. Nevada. — " No nuncupative or verbal will shall be good where the estate bequeathed exceeds the value of one thousand dollars, nor unless the same be proved by two witnesses who were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid some 6 § 36 PKOBATE LAW AND PEACTICB. 66 one present to bear witness that such was his will, or words of like import, nor unless such nuncupative will was made at the time of the last sickness of the deceased." Gen. Stats., sec. 3004. "No proof shall be received of any nuncupative will unless it be offered within three months after speaking the testamentary words." Gen. Stats.-, sec. 3005.' "No probata of any nuncupative will shall be granted for fourteen days after the death of the testator, nor shall any nuncupative will be at any time proved unless the testamentary words, or the substance thereof, be first com- mitted to writing by the probate judge, and process be issued to call in the widow, should she be a resident of the territory, or other person or persons interested as heirs of the testator residing in the territory to contest the pro- bate of such will, if they think proper." Gen. Stats., sec. 3006. XXtah. — Same as California, Comp. Laws, sec. 4021. Wyoming Same as California. Laws 1890-91, p. 251, sec. 5. Form No. 35. — Petition for Probate of Nuncupative Will. [Caption, Form 1, § 5, ante.] 1. (Follow subd. 1 of Form No. 2.) ■ 2. That said deceased left a last will and testament, to wit, a nuncupative will; that more than days have elapsed since the death of said testator; that months have not elapsed since the testamentary words were spoken by decedent; that said testamentary words (or the substance of said testa- mentary words) were reduced to writing within days after they were spoken, which said writing accompanies this petition ; that the estate bequeathed by said will does not exceed in value the sum of one thousand dollars; 3. That said will was made while decedent was in actual military service in the field (or doing duty on shipboard at sea), and while he was in the actual contemplation, fear, and peril of death (or in lieu of the foregoing subdivision 3, allege as follows: That said will was made while decedent was in the expectation of immediate death from an injury received on the same day on which said nuncupative will was made, published, and declared). 4. (Follow subd. 2 of Form No. 2.) 5. (Follow subd. 3 of Form No. 2.) 6. That deceased left personal property of the value of $ . Wherefore, petitioner prays that said will be admitted to 67 PROBATE Ob' WILLS. '- §§ 37, 38 probate, and that letters testamentary thereon be issued to the person named therein as executor. , Petitioner. , Attorney for Petitioner. I 37. [1845.] Additional Hequiremeuts. — The supe- rior court must not receive or entertain a petition for the pro- bate of a nuncu.pd,tive will until the lapse of ten days from the death of the testator, nor must such petition at any time be acted on until the testamentary words are, or their substance is, reduced to writing and filed with the petition, nor until the surviving husband or wife (if any), and all other persons resi- dent in the state or county interested in the estate, are notified as hereinbefore provided. Arizona. — Same, except that " fourteen " is substituted for " ten " in third line. Rev. Stats., sec. 1002. Idaho. — Same as Arizona. Bey, Stats., sec. 5330. Hontana. — Same as Arizona. Comp. Stats., p. 284, sec. 42. Nevada. — See Gen. Stats., sec. 3006, under last section. Utah. — Same as California. Comp. Laws, sec. 4022. Wyoming. — Same as California, except that the words "the court, or judge thereof in vacation," are substituted for "the superior court." Laws 1890-91, p. 251, sec. 6. Notice. — See §§ 8, 9, ante; see also CaL Code Civ. Froc, sec. 1010. § 38. [1346.] Nuncupative Wills. — Contests of the probate of nuncupative wills, and appointments of executors and administrators of the estate devised thereby, must be had, conducted, and made as hereinbefore provided in cases of the probate of written wills. See §§ 11-17, 21-27, ante. Arizona. — Same. Rev. Stats., sec. 1003. Idaho. — Same. Rev. Stats., sec. 5331. Uontana. — Same. Comp. Stats., p. 284, 43. TTtah. — Same. Comp. Laws, sec. 4023. Wyoming. — Same. Laws 1890-91, p. 251, sec. 7t 39 PROBATE LAW AND PRACTICE. CHAPTER III. OF EXECUTORS AND ADMINISTRATORS — THETB LETTEE! BONDS, REMOVALS, AND SUSPENSIONS. ^ Akticlb I. Letters Testamentaet and ob Administbatios witk th Will Annexed — How and to Whom Issued. n. FOEM OF LeT*EK3. III. Letters of Administration — To Whom and the Order i Which Thet are Granted. IV, Petition and Contest foe Lbttbes, and Action theesok. V. Revocation of Letters, and Peoceedinqs thbeefoe. VI. Oaths and Bonds of Executors and Administrators. VII. Special Administrators, and their Powers and Duties, VlII, Wills Found after Letters of Administration Granted. IX, Disqualification of Judqbs, and Transfers of Administbj TION. X. Removals Ind Suspensions in Certain Cases. ARTICLE L lettees testamentary and of administration with the will annbSb — HOW AND TO whom ISSUED. § 39. Corporations may be executor, administrator, guardian, etc. § 40. To whom letters on proved will to issue. § 41. Who are incompetent as executors or administrators — Letters wil will annexed to issue when. § 42. Interested parties may file objections. § 43. Married women. § 44. Executor of an executor. § 45. Administration while executor is absent or a minor. § 46. Acts of a portion of executors valid. § 47. Authority of administrators with will annexed — Letters, how issued, § 39. [1348.] Corporations may be Executors. - Corporations authorized by their articles of incorporation t act as executor, admimstrator, guardian of estates, assign© receiver, depository, or trustee, and having a paid-up capital ( not less than two hundred and fifty thousand dollars, of whic one hundred thousand dollars shall have been actually paid i cash, may be appointed to act in such capacity in like mai ner as individuals. In all cases in which it is required that a executor, administrator, guardian, assignee, receiver, depos 69 EXECUTORS AND ADMINISTRATORS. § 4^ tory, or trustee shall qualify by taking and eubeeribing an oath, or in which an affidavit is required, it shall be a sufficient qualification by such corporation if such oath shall be taken and subscribed or such affidavit made by the president os secretary or manager thereof ; and such officer shall be liable for the failure of such corporation to perform any of the duties required by law to be performed by individuals acting in like capacity, and subject to likepenalties; and such corporation shall be liable for such failure to the full amount of its capital stock and upon the bond required upon its assuming the trusts provided for herein. [New section, approved March 5, 1887.] , Corporations may be executors, etc. : See notes to § 76, post, § 40. [1349.] To Whom Letters to Issue. — The court admitting a will to probate, after the same is proved and allowed, must issue letters thereon to the persons named therein as executors who are competent to discharge the trust, who must appear and qualify, unless objection is made as provided in section thirteen hundred and fifty-one. See § 42, post. Arizona. — Same. Rev. Stata., see. 1004. Idaho. — Same. Rev. Stats., sec. 5340. Iffontana. — Same. Comp. Stats., p. 287, iec. 44. Nevada. — "When any will shall have been proved and.allowed, the pro- bate court shall issne letters thereon to the persons named in the will as exee- ntors who are competent to discharge the trust, and who shall appear and qualify." Gen. Stats., sec. 2708. Oregon. — "When a will is proven, letters testamentary shall be issued to the persons therein named as executors, or to such of them as give notice of their acceptance of the trust and are qualified. If all the persons therein named decline to accept, or be disqualified, letters of administration with the will annexed shall be issued to the person to whom the administration would have been granted if there had been no will." Hill's Laws, sec. 1084. • Utah. —J Same as California. Comp. Laws, sec. 4024. Washington. — " After the probate of amy will, letters testamentary shall be granted to the persons therein appointed executors. If a part of the per- sons thus appointed refuse to act, or be disqualified, the letters shall be granted to the other persons appointed therein. If all such, persons refuse to act, let- ters of administration with the will annexed shall be granted to the person to whom administration would have been granted if there had been no will." Code Proc, sec. 884. " Every administrator with the will annexed and executor at the time letteis § 40 PEOBATE LAW AND PRACTICE. 70 are granted him shall make an affidavit that he knows of no other and subse- quent will of the deceased." Code Proc, sec. 895. " In all cases where it is provided in the last will and testament of the de- ceased that the estate shall be settled in a manner provided in such last will and testament, and that letters testamentary or of administration shall not be required, it shall not be necessary to take out letters testamentary or of ad- ministration, except to admit to probate such will in the manner required by existing laws; and aft?r the probate of such will, all such estates may be managed and settled without the intervention of the court, if the said last will and testament so provides; provided, however, in all such cases, if the party named in such will as executor shall decline to execute the trust, or shall [die], or be otherwise disabled from any cause from acting as such executor, then letters testamentary or of administration shall issue as in other cases; and provided further, if the pai'ty named in the will shall fail to execute the trust faithfully, and to take care [of] and promote the interests of all parties taking under the will, then, upon petition of any creditor of such estate, or of any of the heirs, or of aiiy person on behalf of any minor heirs, it shall be the duty of the superior court of the county wherein such estate is situated to cite such person having the management of such estate to appear before such court, and if, upon hearing of such petition, it shall appear that the trust in such will is not faithfully discharged, and that the parties interested, or any of them, have been or are abotit to be damaged by such acts or doings of the executor, then letters testamentary or of administration shall be had and required in Buch cases, and all other matters and proceedings shall be had and required as are now required in the administration of estates; and in such cases the costs of the citation and hearing shall be charged against the party failing and ne- glecting to execute the trust as required in such will." Code Proc, sec. 955. Wyoming. — Same as California, except that in lieu of the words "the court" there are substituted the words "the court, judge or commissioner thereof in vacation." Laws 1890-91, p. 251, sec. 1. Form No. 36. — Affidavit of Person Appointed Ad- ministrator with tlie Will Annexed or Executor to be Made at tlie Time Letters are Granted Him. [Title of Court and Estate.] State of Washington, Cbunty. ' ^^• , , being first duly sworn, on his oath deposes an(f says that by its order duly given, made, and entered on this day, the above- entitled court has duly appointed afifiant the administrator with the will annexed of the above-named estate (or, as the case may be, executor of the last will and testament of A B, deceased); that said will is dated on the day of , A. D. 18 — , was filed in this court on the day of , A. D. 18 — , and 71 EXECUTORS AND ADMINISTRATORS. § 40 was duly admitted to probate herein on the day of ■ A. D. 18 — ; and affiant further says that he knows of no will of said deceased other thto and subsequent to the one above mentioned and described. Subscribed and sworn to before me this day of , A. D. 18—. , Clerk (or Judge) of the Court. Form No. 37.— Petition for Eemoval of Executor. .(Used in Washington only.) [Caption, Form No. 1, § S, ante.] 1. That died on or about the day of , A. D. 18 — , at the county of , state of ; that at the time of his death said deceased was a resident of this county and state, and left real estate therein of about the value of $— — , and personal property of about the value of $ ; 2. That said decedent left a last will and testament, which has heretofore been duly admitted to probate in this court; 3. That one E F is named in said will as the executor thfereof, and has not declined to act as such; that it is provided in said will in what manner the property of the estate of de- cedent shall be disposed of, and that letters testamentary or of administration shall not be required, for which reason no such letters have been issued herein; 4. That the legatees named in said will are (here insert the name, age, and residence of each legatee); that the heirs at law of deceased are as follows (here insert name, age, residence, and relationship to deceased of each heir) ; 6. That petitioner is one of the legatees named in said will (or is an heir at law or creditor of decedent, or is the friend or guardian of C D, one of the minor heirs at law, or legatees named in said will), and as such has an interest in the estate of said deceased; 6. That said E F has failed, and now fails, neglects, and refuses, to execute the duties of his said trust faithfully, and fails, neglects, and refuses to take care of or to promote the interests of all or any of the parties who take under said will, in this (here state wherein the failure exists); 7. That by reason of such failure to faithfully perform the duties of his trusl, by said E F, said legatees, heirs at law § 40 PEOBATB LAW AND PRACTICE. 72 and all persons interested in said estate have been ^eatljr damaged, and are in danger of being further danaaged, to tJieir injury, by the said negligence of said E F; — Wherefore petitioner prays that the said E F be cited to ap- pear and show cause why he should not be removed from his said office of executor of said will, and that upon his removal petitioner (or A B) be appointed special administrator of said estate,, with power to preserve the same until an administrator can be duly appointed herein. , Petitioner. , Attorney for Petitioner. Form No. 38.— Order B,emoving Executor: (Only used in Washington.) [Title of Court and Estate!] The petition of — ^ — , praying for the removal of E F, the executor of the last will and testament of the above-named de- ceased, came on regularly for hearing on this day; and the court having heard the proofs, and being fully advised herein, and it appearing from such proofs that the above-named dece- dent died testate on the -^ — day of , A. D. 18 — ; that thereafter his last will and testament was duly admitted to probate in this court; that said E F is named therein as ex- ecutor thereof; that said E F has not declined to act as such; that in said'will it is provided in what manner the estate of said decedent shall be disposed of, and also it is provided therein that letters testamentary or of administration need not be issued herein; that by reason of the premises no such letters have been issued herein; and it further appearing that said E F has failed, and now fails, neglects, and refuses, to faithfully exe- cute the duties of his trust, or to take care of or to promote the interest of any and all of the persons interested in said estate and who take under said will, and that said persons, and each of them, have been and are about to be damaged by such acts, doings, and. neglect of said executor, and that the facts stated in said petition in relation thereto are true, — itis ordered that said E F be and he is hereby removed ii-oni his said trust, and the cost of these proceedings, io wit, $' , is" taxed to said executor, and he is directed to forthwith file an ac- count of his proceedings in the matter of said estate in ibig 73 EXECUTOES AND ADMINISTRATORS. § 41 court on or before the day of , A. D. 18 — , and thereia to charge himself with said cost. And it is further ordered that be and he ie hereby appointed special administrator of said estate until the further order of this court, with power to collect and receive said estate and preserve the same. Done in open court this day of , A. D. 18 — . , Judge of the Court. § 41. [1350.] Who Incompetent. — No person is com- petent to serve as executor who at the time the will is admitted to probate is, — 1. Under the age of majority; 2. Convicted of an infamous crime; 3. Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. If the sole «xecutor or all the executors are incompetent, or renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued as designated and provided for the grant of letters in cases of intestacy. Arizona. — Same, except that all after " issued," in the last paragraph, is omitted. Rev. Stats., sec. 1005. Idaho. — Same as Arizona. Kev. Stats., sec. 5341. Hontana. — Same as California, except than in subdivision 3, after the word 'integrity," there are added the words " or who is absent from or resides oat of the'temtory,"and all after the word "issued," in the last paragraph, is omitted. Comp. Stats., p. 287, sec. 45. ITevada. — Same as California, except that in subdivision 3 Jthe words " or integrity " are omitted, and all after the word " issued," in the last paragraph, is omitted. Gen. Stats., sec. 2709. Utah.. — Same as California, except that " within thirty days after his or their appointment" is interpolated after the word "qualify." Comp. Laws, sec. 4025. Washington.. — See Code Proc, sec. 954, under § 55, post, Wyoming. — Same as California, except that after "court," in the third subdivision, the words "judge or commissioner thereof in vacation "are in- serted. Laws 1890-91, p. 351, sec. 2. Where the lo'wer court refused petitioner, unless there is a finding to admit a will to probate, and on that he is a proper person to receive appeal the supreme court diredis it to letters: In re Wood, 36 Oal. 75. be so admitted, the lower court will The judgement of the supreme not be directed to issue letters of ad- court settling the right of two per- miuistration with the will annexed to sons to be appointed ezecators of an §41 PROBATE LAW AND PRACTICE. 74 estate should be carried into effect by the lower court,, notwithstanding the death of one of them before it acts ia the matter: In re Pacheco, 29 Cal. 224. . A xaan who ' ' lives by his wits " is not a proper person to whom to grant letters testamentary: In re Plai- sdnce, Myr, Prob. 117. Who may not he Executors: Ealliday v. HolUday, 16 Or. 147. • The word " integrity," as used in section 1350 of the California Code of Civil Procedure, providing that no person is competent to serve as an executor or executrix who is wanting in integrity, means soundness of moral principle and character, and is synony- mous with probity, honesty, and up- rightness in business relations with others; and the mere fact that a person named as executrix in a will claims property as her own, which the other legatees insist belongs to the estate, does not, of itself, show a want of in- tegrity, or disqualify her from serving as executrix, if the adverse claim is honestly made: Estate of Bauguier, 88 Cal. 302. When a will is probated, the court must appoint as executor the per- son who is named as such in the will, if he has petitioned therefor, and is not incompetent, unless written objections have been filed, showing that the ap- plicant is incompetent upon some one of the grounds specified in the above section: Estate of Batiguier, 88 CaJ. 302. The court has no right to ad- judge a person incompetent to be appointed as an executor, unless he falls within one of the classes of per- sons expressly declared to be incom- petent by statute: Estate ofBatcquier, 88 Cal. 302. While the court is authorized to refuse to appoint an executor named in a will for want of integrity, yet this power should not be exercised, except upon clear and convincing evi- dence establishing such disqualifying fact: Estate of Bauguier, 88 Cal. 302. The fact that a son of a dece- dent is prejudiced against his sister, who was named in the will as exec- utrix, is not ground for holding, upon a contest between the son and the public administrator for letters of administration, that the son was thereby disqualified from acting aa administrator, and that the public administrator should be appointed in preference to him: Estate qf Batiqi^er, 88 Cal. 302. Administrator' with Will An- nested: See §§ 44, 47, 101, post. Married Woman: See § 43, post. Minor: See § 45, post. Person Absent from State: See § 45, post. Corporations may bs Exec- utors, etc.: See § 76, post. Form Ho. 39. — Petition for Letters of Administration with, the Will Annexed. [Caption, Form 1, § 5, ante.} The petition of , a resident of the county of , Btate of -^ — , respectfully shows: — That died on or ahout the day of , A. D. 18 — , at the county of , state of ; That said deceased at the time of ■ of the county of , state of — death was a resident That said deceased left estate in the county of , state of , consisting of real and personal property; That said, personal property is of the probable value of $ -; said real property is of the probable value of $ , and is de- scribed as follows (here insert description); 75 EXECUTORS AND ADMINISTRATORS. § 41 That all of said property is the separate property of decedent , (or, as the case may be, is the community property of decedent and , his widow) ; That said deceased left a last will and testament, which is herewith presented to this court for probate; that petitioner is a legatee under said will, and interested in the estate of decedent; That is the person named as executor in said will, but renounces his right to letters testamentary (or if he is incompe- tent to act for any cause, so state) ;^ That the names, ages, and residences of the heirs of said de- cedent, so far as known to your petitioner, are as follows, viz.: , the widow of decedent, aged years, residence , etc.; and the names, ages, and residences of his devisees and legatees, so far as known to your petitioner, are as follows, viz.: , aged years, residence , etc; — Wherefore petitioner prays that letters of administration with the will annexed be issued to him upon said estate. — — , Petitioner. , Attorney for Petitioner. Form No. 40. — Order Appioiutiug: Administrator with the Will Annexed. [Title of Court and Estate.] The petition of ;, one of the legatees of said deceased, praying that a document purporting to be the last will and testament of said decedent, and now on file herein, be admitted to probate, and that letters of administration with the will annexed upon the estate of said decedent coming on to be heard, and it appearing that due and legal notice of the hearing of said petition has been given; that said died on or about the day of , A. D. 18 — , at the county of -, state of , leaving estate in the county of , in this state; that said decedent was at the time of his death a resident of the county of , state of ; that said document is the last will and testament of , deceased; that it was duly executed by him in his lifetime; that the same was duly attested as required by law; that said decedent at the time of ' In case no one is named in the will as executor, in lien of this allegation state "that no one is named in said will as the executor thereof." § 42 PEOBATB LAW AND PRACTICE. 76 Executing said will was over the age of eigbteeo years, was of sound mind, and not under duress, menace, fraud, or undue , influence, or in any respect incompetent to execute said will; that , the person named in said will as executor, is dead (or renounces his right to letters testamentary; or if for any cause he is incompetent to act, or if no one was named in the will as executor, so state) ; that the value of the personal prop- erty of said estate is $ ; that ihe annual rents and profits of the realty of said estate is $ ; — It is therefore ordered that said document be and it is hereby admitted to probate as the last will and testament of , de- ceased, and that letters of administration with the will annexed upon the estate of said decedent be issued to upon taking the oath of ofBce and filing a bond herein in the penal sum of $ . , Judge of the Court. Dated , 18—. §42. [1351.] Who may File Objections. — Any per- son interested in a will may file objections in writing to grant- ing letters testamentary to the persons named as executors, or any of them; and the objections must be heard and deter- mined by the court. A petition may, at the same time, be filed for letters of administration with the will annexed. Arizona. — Same; Rev. Stats., sec. 1006. Idaho. — Same. Rev. Stats., sec. 5342. Montana. — Same. Comp. Stats., p. 287, sec. 46. Nevada. — Same. Gen. Stats., sec. 2710. Utah. — Same, Comp, Laws, sec, 4026. Washington, — Same, Last sentence omitted. Code Proc, sec. 885. Wyoming. — Same, except that after thB word "them" these words are Inserted, "for the reason stated in the next preceding section"; and after "determined" these words are inserted, "by the court, or the judge or com- missioner thereof in vacation. If such objections are sustained, a petition," in lieu of "by the court. A petition." Laws 1890-91, p. 252, sec. 3. Form No. 41. — Objections to Issuance of Letters to Person Appqinted in the Will as Executor. [Title of Court and Estate.] Now comes , one of the legatees named in the will of — ~,, deceased, and hereby files his objection to the granting of 77 EXECUTORS AND ADMINISTRATORS. § 43 letters testamentary to ', the person named in said ^ill as executor,, for the following reasons, to wit: — ■ 1. That said is under the age of majority; 2. That said has heretofore been convicted of an in- famous crime, to wit, burglary; that said conviction was had on the day of , A. D. 18 — , in the court of the county of , in the state of ; 3. That said is incompetent to execute the duties of the trust of executor of said will, by reason of drunkenness, im- providence, want of understanding, and want of integrity; — Wherefore contestant respectfully prays that upon said will being probated this honorable court will decree that the appli- cation of said for letters testamentary be denied, and will make such other and further order in the premises as may be proper. , Contestant. — -, Attorney of Contestant. § 43. [1352.] Married Woman. — A married woman may be appointed an executrix. The autjiority of an executrix, who was unmarried when appointed, is not extinguished nor affected by her marriage. [Amendment approved March 29, 1891; Cal. Stats. 1891, p. 136.] Arizona. — ' When an unmarried woman appointed executrix marries, her authority is extinguished. When a married woman is named as executrix, she may be appointed and serve in every respect as a fenrw sole. Eev. Stats., sec. 1007. Idaho. — Same as Arizona. Rev. Stats., sec. 5343. Montana. — Same as Arizona. , Comp. Stats., p. 288, sec. 47. Nevada. — Same as Arizona. Gen. Stats., sec. 2711. Utali. — Same as Arizona, except that the words "her authority is extin- guished " are omitted, and the following inserted in lieu thereof, viz. : " The court or judge thereof may, upon the motion of any person interested in the . estate, revoke her authority, and appoint another person in her place." Comp. Laws, sec. 4027. 'Washington. — "If any executrix or administratrix marry, her husband shall not thereby acquire any interest in the effects of her testator or intes- tate, nor shall the administration thereby devdlve on him, but the marriage shall extinguish her powers and the letters be revoked." pode Proc, sec. 889. See also Code Proc., sec. 954, under § 55 post. Wyoming. — Same as Arizona. Laws 1890-91, p. 252, sec. 4. Prior to 1891, the California sectioii was the same as Arizona now" is, and under it the following decisions were made by the supreme court of that state. ^ § 44 PEOBATE LAW AND PKACTICE. 78 The fact that an executris mar- the equivalent to "she ceases to bs ries does not extinguish her author- competent"; and thus becoming iu- ity so as to deprive her t instantl of competent, may be removed under the' all her powers under the above sec- rules provided therefor by said code, tion; the construction of that section, All her acts as such are valid until ~ ■when read in connection with Cali- her removal: Schroeder v. Suvenor fornia Code of Civil Procedure, sec- Court, 70 Cal. 343. tions 1350, 1411, 1436, and 1437 (§§ . Authority of executrix ceases 41, anie, and 91, 109, 110, ■post), and upon her marriage: Tescliemadier' other sections of the same code, is, that v. Thompson, 18 Cal. 20. the words "her authority is extin- Administratrix DIarrying: See guished," as employed therein, are § 56, post. §44. [1353.] Administrator de Bonis non. — No executor of an executor shall, as such, be authorized to admin- ister on the estate of the first testator; but on the death of the sole or surviving executor of any last will, letters of adminis- tration with the will annexed of the estate of the first testator left unadministered mugt be issued. Administrator with Will Annexed: See § 47, 101, post, and § 41, ante. Arizona. — Same, Key. Stats., sec. 1008. Idaho. — Same. Rev. Stats., sec. 5344. lEontana. — Same. Comp. Stats., p. 288, sec. 48. Nevada. — Same. Gen. Stats., sec. 2712. Oregon. — " An executor of an executor has no authority, as such, to com- mence or. maintain an action or proceeding relating to the estate of the testa- tor of the first executor or to take any charge or control thereof," Hill'a Laws, sec. 376. TTtah. — Same as California. Comp. Laws, sec. 4028. Washington. — " An executor of an executor has no authority, as such, to commence or maintain an action or proceeding relating to the estate of the testator of the first executor, or to take any charge or control thereof." Code Proc, sec. 709. ~ Wyoming. — Same as California. Laws 1890-91, p. 252, sec. 5. The probate court has no au- against the estate of the testator of thority to act upon an account pre- the latter: Wetzlar v. Fitch, 52 Cal. sented by the executor of an executor 638; Bush v. Lindsey, 44 Cal. 121. Form No. 43. — Petition for Letters of Administra- tion with, the Will Annexed upon Estate de Bonis non. [Title of Court and Estate.] The petition of , a resident of the county of , Btate of , respectfully shows: — That died on or about the day of , A. D. 18 — , leaving a will; that said will has heretofore been admitted to probate in this court; 79 EXECUTOKS AND ADMINISTRATORS. § 45 That by the terms of said will was appointed the exec- utor thereof; that in pursuance thereof letters testamentary were issued to said by the order of this court, and he duly qualified as such executor; That said has died (or resigned), leaving said estate un- administered upon, and it is necessary that an administrator of said estate should be appointed with said will annexed; That the property of said estate so left unadministered is as follows: — Personal property valued at about $- , and real estate valued at about $ ; — Wherefore petitioner prays that letters of administration with the wiU annexed be issued to him upon said estate. , Petitioner. , Attorney for Petitioner. Form No. 43. — Order Appointing Administrator de Bonis non with the Will Annexed. [Title of Court and Estate.] The petition of , one of the legatees of , deceased, praying for letters of administration with the will annexed upon the estate of said deceased, left unadministered, coming on to be heard, and it appearing that due and legal notice of the hearing of said petition has been given, and that , to whom letters testamentary were heretofore issued herein, died on or about the day of , A. D. 18 — , leaving the adminis- tration of said estate incomplete and unsettled; that the will of said decedent has been heretofore duly admitted to probate in this court, and that the value of the personal property of said estate is $ ; that the annual rents and profits of the realty of said estate is $ ; — It is ordered that letters of administration with the will an- nexed upon the estate of said decedent left unadministered be issued to upon taking the oath of office, and filing a bond herein in the penal sum of $ . Dated . , Judge of the Court. § 46. [1354.] Administration wMl^ Executor is Absent or a Minor. — Where a person absent from the § 45 PKOBATB LAW AND PKACTICB. 80 State or a minor is named executor, — if there ia another exec- utor who accepts the trtist and qualifies, -^tbe latter may bare letters testamentary and administer the estate until the return of the absentee or the majority of the minor, who may then be admitted as joint executor. If there is no other executor, let- ters of administration with the will annexed mHSt be granted; but the court may, in its discretion, revoke them on the retnrn of the absent executor or the arrival of the minor at the age of majority. Arizona. — Same. Kev. Stats., sec. 1009. Idalio. — Same. Bev. Stats., sec. 5345. SEontana. — Same. Comp. Stats., p. 288, sec. 49. ITevada. — "When a pecsou under the age of twenty-one years shall ba named executor, letters of admmistration 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 admin- ister the estate until the minor shall arrive at full age, when he may be ad- mitted as joint executor." Gen. Stats., sec. 2713. Oregon. — "If a person be named in a will as executor who is a non-resi- dent of the state, or a minor, upon the removal of such disability he is enti- tled to qualify as such executor, if he apply therefor within thirty days from the removal of such disabiBty, if otherwise 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." Hill's Laws, sec. 1090. Utah. — Same as California. Comp. Laws, sec. 4029. Wasliington. — "If the executor be a minor, or absent from the state, letters of administration with the will annexed shall be granted during the time of such minority or absence to some other person, unless there be another executor who shall accept the trust; in which case the estate shall be admin- istered by such other executor until the disqualification shall be removed, when such minor having arrived at full age, or such absentee, shall be ad- mitted as joint executor with the former." Code Proc, sec. 886. Wyonung. — Same as California. Laws 1890-91, p. 252, sec. 6. A non-resident executor may, and personally conduct the settlement through an attorney, apply for and re- of the estate: /» re Brown, 80 Cal. ceive letters testamentary in this state, 381. and ia constructively present through ^ iDeflnition of Term "Absent," the attorney by whom he applies, etc. — Section 1354 of the California though actually out of the state when Code of Civil Procedure, in using the the application and order for the issu- ^ords "a person absent from the ance of letters is made; but he must state," in providing for letters testa- come into the state within a reason- mentary to a co-execnto», or letters able time, and personally submit him- of administration with the will an- self to the jurisdiction of the court, nexed if there is no other executor. 81 EXECUTORS AND ADMINISTKATt)RS. §§ 46, 47 which may be revoked upon the return ively absent from the state, who has of the absentee, is ponstrued to mean made no application for letters: In re a person both actually and construct- Brown, 80 Oal. 381. § 46. [1355.] Acts of Portion of Executors Valid. — When all the executors named are not appointed by the court, those appointed have the same authority to perform all acts and discharge the trust required by the will as eflfectually for every purpose as if all were appointed, and should act to. gether; where there are two executors or administrators, the act of one alone shall be effectual, if the other is absent from the state, or laboring under any legal disability from serving, or if he has given his co-executor or co-administrator authority, in writing, to act for both; and where there are more than two executors or administrators, the act of a majority is valid. Arizona. — Same. Bev. Stats., sec. 1010. Idaho. — Same. Rev. Stats., sec. 5346. Uontana. — Same. Comp. Stats., p. 288, sec. 50. t Nevada. — Same, except that authority must be " under seal, to act for one or for both." Gen. Stats., sec. 2714. Utah. — The words of the sections are the same, but in Utah the punctuation between the words "administrators " and "the act " is a period instead of a comma, as above. Cbmp. Laws, sec. 4030. Washington. — Same as California, to and including the word "together "; balance omitted. Code Froc, sec. 892. Wyoming. — Same as California. Laws 1^90-91, p. 252, sec. 7. Executors' Powers: See §§ 103, 224, 458, j)08t; and see § 100, poa, as to death, lunacy, conviction of crime, etc. Foreign Executor: Cal. Code Civ. Froc, sec. 1913. Bevocation of Probate, Effect of: See §§ 66-69, jMst. Kemovals and Suspensions: See §§ 109-113, post. One of two executors absent, of another, and becomes lost to the the other may act: Wheeler v. BoUon, estate, he is not chargeable who had 54 Cal. 302. not the possession of , the portion thus In case administration be by lost: Abila v. Burnett, 33 Cal. 653. more than one executor, each one An agreement of the heirs not is equally entitled to the possession of to sue one executor does not release the estate; and where, without the his co-executor, under the circumstan- agency of one executor the property ces of this case: In re Sanderson, 74 of the estate passes into the possession Cal. 199. §47. [1356.] Authority — Letters. — Administrators with the will annexed have the same authority over the estates which executors named in the will would have, and their acts are as effectual for all purposes. Their letters must be signed by the clerk of the court, and bear the seal thereof. § 48 PROBATE LAW AND PKACTICE. 82 Administrator with. Will Annexed: See §§ 41, ante, and 101, post. Arizona. — Same. Kev, Stata., sec. 1011. Idaho. — Same. Rev. Stats., sec. 5347. Montana. — Same. Comp. Stats., p. 288, sec. 51. Nevada. — Same. Gen, Stats., sec. 2715, 2716. Utah. — Same. Comp. Laws, sec. 4031. Washington. — Same. Code Proc, sees. 893, 894. Wyoming. — Same. Laws 1890-91, p. 252, sec. 8. See notes to § 46, ante. The order of appointment pre- administrators with the will annexed, scribed by § 51, post, need not be That order applies only in cases of in- followed by the court in appointing testacy: In re Barton, 52 Cal. 538. ARTICLE IL TORM OF LETTERS. § 48. Form of letters testamentary. § 49. Fortn of letters of administration with the will annexed. § 50. Form of letters of administration. § 48. [1360.] Letters Testamentary. — Letters testa- mentary must be substantially in the following form: State of California, county (or city and county) of . The last will of A B, deceased, a copy of which is hereto annexed, having been proved and recorded in the superior court of the county (or city and county) of , C D, who is named therein as such, is hereby appointed executor. Witness: G H, clerk of the superior court of the county (or city and county) of , with the seal of the court affixed, the day of , A. D. 18 — . (Seal.) By order of the court, G H, clerk. Arizona. — Same. Rev. Stata., sec. 1012. Idaho. — Same. Rev. Stats., sec. 5348. Montana. — Same. Comp. 'Stats., p. 288, sec. 52. Nevada. — Same. Gen. Stata., sec. 2717. Oregon. — "Letters testamentary may be in the following form: State of Oregon, county of , ss. To all persons to whom these presents shall come, greeting: E^ow ye, that the will of , deceased, a copy of which is hereto annexed, has been duly proven in the county court for the county aforesaid, and that ; who is named executor therein, has been duly ap- pointed such executor by the court aforesaid; this, therefore, authorizes the said to administer the estate of the said , deceased, according to law. In testimony whereof, I, , clerk of the county court, have hereunto sab- scribed my name and affixed the seal of said court, this day of ■ . . - ^ AD. 18—. [L. S.] A B, clerk county court." Hill's Laws, sec. 1109. 83 KXECUTORS AND ADMINISTRATORS. § 49 Utah. — Same as California. Comp. Laws, aeo. 4032. Washington. — "Letters testameutary to be issued to executors under the provisions of this act may be in the following form: State of Washington, County of . In the superior court of the county of . Whereas, the last will of A B, deceased, was, on the day of , A. D. 18 — , duly ex- hibited, proven, and recorded in our said superior court, a copy of which is hereto annexed; and whereas, it appears in and by said will that D is appointed executor thereon, — now, therefore, know all men by these pres- ents, that we do hereby authorize the said D to execute said will accord- ing to law. Witness my hand and thei seal of said court this day of , A. D. 18—." Code Prbc, sec. 898. Wyoming. — Same as California, except that "superior court of "is changed to " district oontt within and for," and the attestation is as follows: " Witness, G H, clerk of the district court of the district within and for the county of , with the seal of the court affixed, the day of , A. D. 18 — . G H, Clerk." Laws 1890-91, p. 253, sec. 1. Seal: Cal. Code Civ. Proc, sec. 152. See also note to § 50, post. § 49. [1361.] Letters of Administration with the Will Annexed. — Letters of administration with the will annexed must be substantially in the following form: State of California, county (or city and county) of . The last will of A B, deceased, a copy of which is hereto annexed, having been proved and recorded in the superior court of the county (or city and 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 superior court of the county (or city and county) of — — , with the seal of the court affixed, the day of — — , A. D 18 — . (Seal.) By order of the court, G H, clerk. Arizona. — Same. Bev. Stats., sec. 1013. Idaho. — Same. Bev. Stats., sec. 5349. Montana. — Same. Comp. Stats., p. 289, sec. 53. Nevada. — Same. Gen. Stats., sec. 2718. Oregon. — "Letters of administration may be in the following form: State of Oregon, county of , ss. To all persons to whom these presents shall come, greeting: Know ye, that it appearing to the court aforesaid, that has died intestate, leaving at the time of his death property in this state, such court has duly appointed administrator of the estate of such ; this, therefore, authorizes the said to administer the estate of the said , deceased, according to law. In testimony whereof, etc., the same as in letters testamentary. Letters to an administrator of the partnership with the will annexed, or to a special administrator, may be issued according to the § 50 PROBATE LAW AND PRACTICE. 84 foregoing forms, with Buch variations as may be proper in the particular case." ' Hill's Laws, sec. 1110. Utah.. — Same as California. Comp. Laws. sec. 4033. Washington. — " Letters of administration with the will annexed may be substantially in the following form: State of Washington, county of . In the superior court of the county of . The last will of A B, deceased,' a copy of which is hereunto annexed, having been proved and recorded in the said superior court, and (as the case may be), C D is hereby appointed admin- istrator with the will annexed. Witness my hand and the seal of said court this day of, , A. D. 18—." Code Proc, sec. 899. Wyoming. — Same as California, with the changes noted under last section. Laws 1890-91, p. 253, sec. 2. Seal: Cal. Code Civ. Proc, sec. 15Z See note to next section. § 50. [1362.] Letters of Administration. — Letters of administration must be signed by the clerk, under the seal of the court, and. substantially in the following form: State of California, county (or city and county) of . C D is hereby appointed administrator of the estate of A B, deceased. (Seal.) Witness: G H, clerk of the superior court of the county (or city and county) of , with the seal thereof affixed, the day of , A. D. 18 — . By order of the court, G H, clerk. Arizona. — Same. Rev. Stats., sec. 1014. Idaho. — Same. Rev. Stats., sec. 5350. Montana. — Same. Comp. Stats., p. 289, sec. 54. Nevada. — Same. Gen. Stats., sec. 2738. Oregon. — See Hill's Laws, sec. 1110, under last section. Utah. — Same as California. Comp. Laws, sec. 4034. Washington. — "Letters of administration shall be signed by the clerk, and be under the seal of the court, and may be substantially in the following form: State of Washington, county of . Whereas, A B, late of , on or about the day of , A. D. 18 — , died intestfite, leaving at the time of his death property in this state subject to administration, — now, therefore, know all men by these presents, that we do hereby appoint administrator upon said estate, and hereby authorize him to administer the same according to law. Witness my hand and the seal of said court this day of , A. D. 18—." Code Proc, sec. 904. Wyoming. — Same as California, with the changes noted nnder § 48. Laws 1890-91, p. 253, Sec. 3. Seal: Cal. Code Civ. Proc, sec. 152. The seal of court to letters of an impression of it upon the paper upon administration need not be affixed which the letters are written is a sub- at the particular place indicated by stantial compliance: SItarp T. Dj/e, 64 the form provided in the above section; Cal. 9. 85 EXECUTORS AND ADMINISTRATORS. § 51 Iietters of administration dated Th.e private seal of a probate and issued by the clerk on Christmas judge adopted as a seal of a proljate day are not void: Olendenning v. Mc- court is entitled to full credit as such; NiUt, 1 Idaho, 592. Ward, v. Maorey, 1 Wash. Ter. 101. ARTICLE III. LETTERS 01' ADMINISTRATION, TO WHOM AND THE ORDER IN WJIICH THEY ARE GRANTED. § 51. Order of persons entitled to administer — Partner not to administer. § 52. Preference of persons equally entitled. § 53. In discretion of court to appoint administrator when. § 54. When minor entitled, who appointed administrator. § 55. Who are incompetent to act as administrators. § 56. Married woman. i § 51, [1365.] Persons Entitled to Administer. — Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter men- tioned, the relatives of the deceased being entitled to admin- ister only when they are entitled to succeed to his personal estate, or some portion thereof, and they are respectively en- titled thereto in the following order: — 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed; 2. The children; 3. The father or mother; 4. The brothers; 6. The sisters; '6. The grandchildren; 7. The next of kin entitled to share in the distribution of the estate; 8. Public administrator; 9. The creditors; 10. Any person legally competent. If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be ap- pointed administrator of his estate. Arizona. — Same, except that the following is omitted: " The relatives of the deceased being entitled to administer only when they are entitled to suc- ceed to his personal estate, or some portion thereof." .Also, "8. Public ad- ministrator " omitted. Bev. Stats., sec. 1015. § 51 PROBATE LAW AND PRACTICE. 86 Idaho. — Same aa Arizona, except that theeighth in order is: "Any of the kindred," followed by "9. The public administrator." Rev. Stats., sec. 5351. Montana. — Same as California, except that the following is added: ." And provided further, that no person who is not a resident of this territory shall be appointed administrator. It is further provided that if no petition for let- ters of administration be made on or before the first day of the second term of the probate court after the death of the decedent, by some one as men- tioned in this section, the probate judge shall issue letters of administration to the public administrator, who shall proceed to administer said estate." Comp. Stats., p. 289, sec. 55. Nevada. — Same as California, except that "any person or persons legally competent" is placed eleventh in order, and "any of the kindred, not above enumerated, within the fourth degree of consanguinity," is placed tenth in order. Gen. Stats., sec. 2719. Oregon. — "Administration of the estate of an intestate shall be granted by the county court authorized to take proof of a will, as prescribed in sec- tion 1083, in case such intestate had made a will. Administration shall be granted and letters thereof issued as follows: 1. To the widow or next of kin, or both, in the discretion of the court; 2. To one or more of the principal creditors; or 3. To any other person competent and qualified whom the court may select." Hill's Laws, sec. 1085. (For section 1083, Hill's Laws, see § 1, ante. ) "The persons named in the subdivisions of the last section, if qualified and competent for the trust, shall be entitled to the administration in the order therein named. If those named in subdivision 1 do not apply for the admin- istration 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 thaj; 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." Hill's Laws, sec. 1086. "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 tes- tamentary disposition of her property which shall render it necessary and proper to grant the administration to some other person." Hill's Laws, sec. 1087. See Hill's Laws, sec. 1092, under § 5, ante. "After the inventory is taken, the partnership property shall be in the cus- tody and control of the executor or administrator, for the purposes of adminis- tration, unless the surviving partner shall, within five days from the filing of the inventory, or such further time as the court or judge may allow, apply for the administration thereof, and give the undertaking therefor hereinafter pre- scribed." Hill's Laws, sec. 1102. "If, the surviving partner apply therefor, as provided in the last section, he 87 EXECUTORS AND ADMINISTRATORS. § 51 is entitled to tbe administration of the partnership estate, if he have the quali- fications and competency required for a general administrator. He is denom- inated an administrator of the partnership, and his powers and duties extend to the settlement of the partnership husiness generally, and the payment or transfer of the interest of the deceased in the partnership property remaining after the payment or satisfaction of the debts and liabilities of the partnership, to the executor or general administrator within six months from the date of his appointment, or such further time, if necessary, as the court or judge may allow. In the exercise of his powers and the performance of his duties, the administrator of the partnership is subject to the same limitations and liabili- ties and control and jurisdiction of the court as a general administrator." Hill's Laws, sec. 1103. Utah. — Same as California, except that " brothers or sisters '' are placed together in subdivision 4, and "public administrator" is omitted from the list. Comp. Laws, sec. 4035. Washington.. — "Administration of the estate of a person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the following order: — " 1. The surviving husband or wife, or such person as he or she may request to have appointed. "2. The next of kin, in the following order: 1. Child or children; 2. Father or mother; 3. Brothers or sisters; 4. Grandchildren. "3. To one or more of the principal creditors; provided, that if the persons so entitled or interested shall neglect for more than forty days after the death of the intestate to present a petition for letters of administration, or if there be no relatives, or next of kin, or if the heirs, or one or more of the prin- cipal creditors, in writing, waive their right to administration, or if there be no principal creditor or creditors, then the-court or judge may appoint any suitable and competent person to administer such estate." Code Froc, sec. 900. Wyoming. — Same as California, except that the " public administrator " is omitted,' and at the end of the section these words are added: "If he be competent only by reason of paragraphs 8 and 9, above set forth " (8 and 9 are the same as 9 and 10 in the California, § 51, supra). Laws 1890-91, p. 253, 254, sec. 1. One does not die intestate, with- entitled to distribution if there was in the meaning of the above section, no nearer kindred: Anderson y. Potter, who has left an instrument in writing 5 Cal. 64. which is entitled to be probated as a A stranger is legally compe- will: In re Barton, 52 Cal. 538. tent to act as administrator: In re Where a person does not die Kirtlan, 16 Cal. 161. intestate, the cojirt in appointing an - Recognition by the court of a administrator with the will annexed person as administrator, when he is limited to the order of preference has not qualified and received letters, prescribed in this section: In re Bar- does not make him administrator de ton, 52 Cal. 538. facto: Pryor v. Dovmey, 50 Cal. 388. "The ne-st of kin entitled to An adjudication against an ap- share in the distribution of the plicant for letters of administra- estate " means the next of kin capa- tion in a contest of his right upon the ble of inheriting, or who would be ground of illegitimacy is an estoppel §51 PROBATE LAW AND PRACTICE. 88 as to his prior right, but does not preclude his appointment in case the successful applicant is removed: In re Pico, 56 Cal. 413. An illegitimate cliild is not en- titled to administer on the estate of his father as against a brother of the father': In re Pico, 52 Cal. 84. A recitajl in ■will, "A B, my adopted son," is prima fade evidence of such relationship, so as to entitle him to letters of administration; In re Keenan, Mjt. Prob: 186. United States shipping com- missioner is not entitled to letters of administration on effects on shore of deceased sailor: In re Bedford, Myr. Prob. 60. Surviving partner cannot ad- minister upon the estate of a de- ceased partner, even though he be his brother: Cornell v. Gallag/ier, 16 Cal. 367. One who had formerly heen a partner, and between whom and the deceased there are unsettled partner- ship matters, is ineligible to be ap- pointed administrator of decedent's estate: In re Oarber, 74 Cal. 33^. Iietters of administration are void if issued to a person other than the one named in the order directing their issuance: In re Frey, 52 Cal. 658. The public adminstrator is pre- ferred to creditors: In re McKinnon, 64 Cal. 226; In re Hyde, 64 Cal. 228. A public administrator who ap- plies for letters in his individual capacity as a creditor of deceased does not waive his right to make a subsequent application in his official capacity : In re McKinnon, 64 Cal. 226. ' Prior to the amendments of 1876, the creditors stood eighth, and the public administrator ninth, in this section. Where a creditor petitioned for letters of administration, and other creditors requested in writing the issuance of letters to the public ad- ministrator, it was held to be within the discretionary power of the court to appoint the latter: In re Doak, 46 Cal. 573. The public administrator has a right to administer only in cases of intestacy; the court may exercise its discretion ii appointing him, where there is a will: In re Nunan, Myr. Prob. 238. Nominee of non-resident widow is entitled to letters of administration- in preference to the public admin- istrator: In re Cotter, Myr. Prob. 179; affirmed 54 Cal. 215; In re Rohie, Myr, Prob. 226. A non-resident person cannot nominate a person to serve as administrator, nor is he competent himself, under the above section, to serve as such: In re Beach, 63 Cal. 458; In re Hyde, 64 Cal. 228. See also In re Cotter, 54 Cal. 217; In re Kelly, 57 Cal. 81; In re Morgan, 53 Cal. 245. The nominee of a foreign exec- utor is not entitled to letters of ad- ministration as against one entitled to such letters under the code: In re Garher, 74 Cal. 338. A non-resident executor cannot nominate an administrator: In re Mwphy, Myr. Prob. 185. The court may exercise its dis- cretion in appointing the nominee of the grandmother of an unmarried de- ceased minor in preference to a cred- itor, when she is the sole heir: In re Wyche, Myr. Prob. 85. Section 1369 of the California Code of Civil Procedure (§ 55, post), which renders a non-resident surviving wife incompetent to serve as the ad- ministratrix of her husband's estate, does not take away the right to nomi- nate the administrator given her by the above section, and the latter sec- tion in no respect conflicts with § 66, post, as to revoking letters of adminis- tration: In re Stevenson, 72 Cal. 164. When decedent has a deposit not exceeding the sum of three hundred dollars in any savings bank, the surviving spouse,, or if there is no surviving spouse, then the next of kin, may, without pro- curing letters of administration, with- draw said deposit upon filing an affidavit with said bank showinc; that the depositor is dead; that affiant is the surviving spouse, or that there, is no surviving spouse, and that affiant is the next of kin, etc. ; that the whole amount that decedent left on deposit in any or all banks in this state does not exceed the said sum of three hun- dred dollars: Cal. Stats. 1,873-74, p. 132. Community property not subject to administration on the death of wife: Pkckard v. A'reilanes, 17 Cal. 536. 89 EXBCUTOBS AND ADHINI8TRAT0BS. §§ 52, 58 The granting of administration ing husband is entitled to succeed to out of the order provided in section the whole estate, and a nephew of the 10S5 of the Oregon code, supra, would wife, not being entitled to succeed to be erroneous, but not a nullity. The any portion of the estate, is not enti- persons entitled to precedence could tied to letters of administration: In re only take advantage of the error by Carmody, 88 Cal. 616. applying for the appointment within Corporations may be adminis- the time specified in said section, trators, etc. : See. § 76 post. otherwise they waive their right: Samp Administrator of a partnership V. McDcmiel, 12 Or. 108. cannot partition real property, nor can Where a wife dies, leaving a hus- the county court confer such power band surviving, but no issue, father, upon him: Burnside v. Savier, 6 Or. mother, brother, or sister, the surviv- 154. Incompetent Persons: See §§ 55, 56, poet. Public Administrator: See §§ 334 et seq., post. Kecommendation in Writing by One Entitled to Administer: See § 65, post. § 53. [1366.] Preference of Persons Entitled. — Of several persons claiming and equally entitled to administer, males must be preferred to females, and relatives of the whole to those of the half blood. Arizona. — Same. Bev. Stats., sec. 1016. Idaho. — Same. Bev. Stats., sec. 5352. Montana. — Same. Comp. Stats., p. 290, sec. 56. Nevada. — Same. Gen. Stats., sec. 2720. Utah. — Same as California, except that "males must be preferred to females " is omitted. Comp. Laws, sec. 4036. , § 53. [1367.] Discretion of Court to Appoint. — When there are several persons equally entitled to the admin- istration, the court may grant letters to one or more of them; and when a creditor is claiming letters, the court may, in its discretion, at the request of another creditor, grant letters to any other person legally competent. Arizona. — Same. Bev. Stats., 1017. Idaho. — Same. Bev. Stats., sec. 5353. Montana. — Same. Comp. Stats., p. 290, sec. 57. Nevada. — Same as California to the word " and "; balance omitted. Gen'. Stats., sec. 2721. TTtah. — Same as California. Comp. Laws, sec. 4037. Wyoming. — Same as California, except that the judge or commissioner of the court may, in vacation, also act. Laws 1890-91, p. 254, sec. 2. Where one creditor petitions to to appoint either: In re Doah, 46 Cal. be appointed administrator, and 573. other creditors petition for the ap- The acts of one administrator pointment of the public administrator, are deemed the acts of all: Willis it is within the discretion of the court v. Farley, 24 Cal. 501; § 46, ante. §§ 54, 55 PROBATE LAW AND PRACTICE. 90 §54. [1368.] Minor Entitled, Who Appointed. — If any person entitled to administration is a minor, letters must be granted to his pr her guardian, or any other person entitled to letters of administration, in the discretion of the court. Arizona. — Same. Ker. Stats., sec. 1013. Idaho. — Same. Ker. Stats., sec. 5354. ' Montana. — Same. Comp. Stats., p. 290, sec. 58. Nevada. — "If any person entitled to administration shall be a minor, ad- ministration shall be granted to his or her guardian." Gen. Stats., sec. 2724. Utah.. — Same as California, Comp. Law, sec. 4038. § 55. [1369.] Who are Incompetent. — No person is competent or entitled to serve as administrator or adminis- tratrix who is, — , 1. Under the age of majority; 2. Not a bond fide resident of the state; 3. Convicted of an infamous crime; 4. Adjudged by the court incompetent to execute the duties of the trust, by reason of drunkenness, improvidence, or want of understanding or integrity. Arizona. — Same, except that the phrase "not a lonajide resident of the state " is omitted. Rev. Stats., see. 1019. Idaho. — Same. Rev. Stats., sec, 5355. Montana. ^Same as Arizona. Comp. Stats,, p, 290, sec, 59. Nevada. — Same as Arizona, Gen. Stats., sec. 2722. Oregon. — "The following persons are not qualified to act aa executors or administrators: Non-residents of this state; minors; judicial officers, other than justices of the peace; persons of unsound mind, or who have been con- victed of any felony, or of a misdemeanor involving moral turpitude; or a mar- ried woman," Sill's Laws, sec, 1108. Utah. — Same as California. Comp. Law, sec, 4039. Washington. — " The following persons are not qualified to act as execu- tors or administrators: Non-residents of this state; minors; judicial officers, other than justices of the peace; persons of unsound mind, or who have been convicted of any felony, or of a misdemeanor involving moral turpitude; or a married woman; and when any person to whom letters testamentary or of ad- ministration have been issued becomes disqualified to act because of leaving the state, becoming of unsound mind, or is convicted of any crime, or misde- meanor involving moral turpitude, or if a woman, and she ceases to be single, the court having jurisdiction shall revoke his or her letters as in this act pro- vided." Code Proc, sec. 954, Wyoming, — Same as California, except that, in the last sentence, after the word "court," these words are inserted: "Judge or commissioner thereof in vacation." Laws 1890-91, p, 254, sec 3. 91 EXECUTORS AND ADMINISTEATORS. § 56 Kevoking I^ettors: See § 66, post, husband claims the whole estate of Cal. Code Civ. Proc., seo. 1379 (see the deceased wife as his own does not § 65, post), does not repeal this section: show a want of integrity, or disqualify In re Beach, 63 Cal. 458. him to act as her administrator: In re See conflict between subdivision 2 Carmody, 88 Cal. 616. of above section and the last clause of There is uo presumption that an Cal. Code Civ. Proc, sec. 1379 (§ 65, applicant for letters of administration post). See also npte to said section. would be biased in favor of his sou Power of court to remove ad- who claims a large indebtedness ministrator for neglect, misman- against the estate that would disqual- agement, and incompetency is not ify said applicant upon the ground of abridged by section 1379 (§ 65, post) of want of integrity: Root v. DavU, 10 the Code of Civil Procedure: /nj-ePiCO, Mont. 228. 50 Cal. 413. * No person is incompetent by The court has no discretion to reason of intemperance, waut of under- exclude a person except for some of standing or integrity, who for several the causes specified in the above seo- years preceding liis petition for letters tion: In re PaeJieco, 23 Cal. 480, of administration has so conducted his Great age and inability to read, business and the business of others as' write, or speak English do not to acquire the reputation of being a show any want of understanding: In conservative, cigar-headed, and suo- re Packeco, 23 Cal. 481. cessful business man: Root v. Davis, 10 The fact that the sui^viving Mont. 228. §56. [1370.] Married Woman as Administratrix. -^A married woman may be appointed administratrix. When an unmarried woman appointed administratrix marries, her authority is not extinguished. [Amended February 24, 1891; Stats. 1891, p. 11.] Arizona. — "A married woman must not be appointed administratrix. When an unmarried woman appointed administratrix marries, her authority is extinguished." Rev. Stats., sec. 1020. Idaho. — Same as Arizona. Rev. Stats., seo. 5356. ISontana. — "A married woman may be an executrix, administratrix, guardian, or trustee, and may bind herself and the estate she represents with- out any act or assent on the part of her husband." Comp. Stats., p. 290, sec. 60. (See § 44, ante.) Nevada. — " When any unmarried woman who shall have been appointed administratrix shall marry, her marriage shall extinguish her authority." Gen. Stats.; seo. 2723. Oregon. — "The following persons are not qualified to act as executors or administrators: .... or, a married woman.'' Hill's Laws, sec. 1108. Utah. — " When objection is made by any person interested in an estate, a married woman must not be appointed administratrix. When an unmarried woman appointed administratrix marries, the court or judge thereof may, upon the motion of any such interested person, revoke her authority and ap- point another person in her place." Comp. Laws, sec. 4040. Washington. — See Code Proc, sec. 954, under last section. Wyoming. — Same as Arizona. Laws 1890-91, p. 254, seo. 4 § 57 PROBATE LAW AND PEACTICB." 92 The marriag^e of an. adminiatra- against her in replevin, it was held trix extinguishes her authority, but that her possession, haying been law- does not deprive her of the right to re- f ul, will be presumed to continue law- tain possession of the property of the ful after her marriage, especially as estate until her successor is appointed, against a wrong-doer: Budeley v. Buck- or until otherwise ordered by the court; ley, 16 Nev. 180. and where an action was pending ARTICLE IV. PETITION FOR LETTERS, AND ACTION THEREON. § 57. Applications, how made. §58. When granted. § 59. Notice of application. § 60. Contesting applications. § 61. Hearing of application. § 62. Evidence of notice. § 63. Grant to any applicant. § 64. What proofs must be made before granting letters of administration. § 65. Letters may be granted to others than those entitled. §57. [1371.] Application, how Made. — Petitions for letters of administration must be in writing, signed by the applicant or his counsel, and filed with the clerk of the court, stating the facts essential to give the court jurisdiction of the case, and when known to the applicant, he must state the names, ages, and residence of the heirs of the decedent, and the value and character of the property. If the jurisdictional facts ex- isted, but are not fully set forth in the petition, and are after- wards proved in the course of administration, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments. Arizona. — Sam's. Bev. Stats., sec. 1021. Idah.0. — Same. Bev. Stats., sec. 5357. Hontana. — Same. Comp. Stats., p. 290, sec. 61. Nevada. — Same. Gen. Stats., sec. 2725. Oregon. — "In an application to prove a will, or for the appointment of an executor or administrator, the petition shall set forth the facts necessary to give the court jurisdiction, and also state whether the deceased left a will or not, and the names, age, ivnd residence, so far as known, of his heirs." Hill's Laws, sec. 1092. Utah. — Same as California. Comp. Laws, sec. 4041 . Washington. — " Application for letters of administration shall be made by petition in writing, signed by the applicant or his attorney, and filed in ihe superior court, which petition shall set forth the facts essential to giving the 93 EXECUTORS AND ADMINISTRATORS. § 57 court jurisdiction of the case, and such applicant, at the time of making such application, shall make an afBdavit, stating, to the best of his knowledge and belief, the names and places of residence of the heirs of the deceased, and that the deceased died without a will." Code Proc, sec. 901. " A similar affidavit, with such variations as the case may require, shall be made by administrators of the goods remaining unadministered, and by admin- istrators during the time of a contest about a will or the granting of letters of administration." Code Froc, sea 902. Wyoming. — Same as California, except that after the first sentence these words are added: "and where the same is, situated." Laws 1890-91, p. 254, sec. 5. Where a petition for letters of erty of tile estate be described in administration is addressed " to a petition for letters of administratioii; the honorableMihe judge of the probate it is only required that the value and court of the county of Santa Clara," character of the property, when known and goes on: "The petition of M, S., to the applicant, should he stated: of Monterey, etc., shows that Dr. T., Dugv. Duff, 71 Oal. 513. late a resident of the county aforesaid, Petition for letters of adminis- died in said county," etc., held, that tration will be denied where the the word "aforesaid" refers to the real object of the application is to county named, to wit, "Santa Clara," clothe a person with the trust, so as and not " Monterey," and hence that to make him defendant in an action to the petition sufficiently shows that Dr. quiet' title: In re Murray, Myr. Prob. T. at the time of his death was a resi- 208. dent of Santa Clara County: Toionsend Tb.e fact that it is provided that V. Gordon, 19 Cal. 188, 189. application for letters must be The amount and value of an made by widow within thirty days estate are not jurisdictional facts in after decease does not necessarily im- an application for letters of adminis- ply that she could not be appointed tration: Lucas v. Todd, 28 Cal. 182. after that period as administrator of A petition for letters of admin- her husband's estate: Ramp v. MC' istration is sufficient if it shows that Z>amW, 12 Or. 108. the petitioner is one of the persons Orders and decrees need not re- entitled to administer: Lacaa v. Todd, cite the facts upon which they are 28 Cal. 182. based: See § 314, post. It is not requisite that the prop- Form No. 44. —Petition for Letters of Administration. [Caption, Form 1, § 5; ante.] The petition of , a resident of the county of —• — , state of , respectfully shows: — 1. That died on or about the day of , 18—, at the county of , state of ; 2. That said deceased, at the time of death, was a resi- dent of the county of , state of ; 3. That said deceased left estate in the county of . state of , consisting of real'and personal property; 4. That said personal property is of the probable value of $ ; said real estate is of the probable value of | ; and § 58 PROBATE LAW AND PRACTICE. 94 is described as follows (here insert description; and in the state of Washington state location of all property); 5. That the heirs at law of said deceased are '(here insert the names and relationship); 6. That due search and inquiry have been made to ascertain if said deceased left a will and testament, but none has been found; 7. That your petitioner is a of said deceased, and is en- titled to letters of administration of said estate; — ^ Wherefore petitioner prays that letters of administration of said estate be issued to your petitioner. , Petitioner. , Attorney for Petitioner. § 58. [1372.] When Granted. — Letters of administra- tion may be granted by the court at any time appointed for the hearing of the application, or at any time to which the hearing is continued or postponed. Arizona. — "Letters of administration may be granted at a regular term of the court, or at a special term appointed by the judge for the hearing of the application." Kev. Stats., sec. 1022. Idado. — Same as Arizona. Kev. Stats., sec. 5358. Montana. — Same as Arizona. Comp./Statii., p. 291, sec. 62. Nevada. — Same as Arizona, except tliat letters may also be granted at chambers. Glen. Stats., sec. 2726. Oregon. — See Hill's Code, sees. 903, 904, under § 1, ante, , Utah.. — Same as California. Comp. Laws, sec. 4042. Washington. — See Code Proc, sec. 847, under § 1, ante. Wyoming^ — Same as California. Laws 1890-91, p. 255, sec. 6. While one administrator of an administrators: In re CrojsJsr, 65 Cal. estate is in ofacer, there is no power 332. in the probate judge or court to ap- When letters testamentary are point a new one: In re Hamilton, 34 ordered issued to one person, if Cal. 464; Haynesy. if eefo, 20 Cal! 288. 'they are issued to a different person The same rule applies to special they are void: In re ■Freif, 52 c4. 661. Form No. 45.— Petition for the Issuance of Letters of Administration to Others than Those Entitled. [Caption, Fprm 1, § 5, ajae.},. 1, (Follow subd. 1 of Form No. 44,- § 57^ ante.) ' If the petition is by the public administrator, in l^en of this allegation in- «ert the following: "That your petitioner is the public adpoinistrator of said county of , and is entitled to letters of administration of said estate," 95 BXECUTORS AND ADMINISTKATORS. § 59 2. (Follow Bubd. 2 of Form No. 44, § 57, ante.) 3. (Follow subd. 3 of Form No. 44, § 57, ante.) 4. (Follow Bubd. 4 of Form No. 44, § 57, ante.) 5. (Follow Bubd. 5 of Form No. 44, § 57, ante.) 6. (Follow subd. 6 of Form No. 44, § 57, ante.) 7. That is the son (widow, etc., as the case may be) of said deceased, but does not wish to act as administrator of the estate of said deceased, and has requested, in writing, that peti- tioner be appointed in his stead as such administrator, which said request is annexed hereto and made a part hereof; — Prayer. — (Follow prayer of Form No. 44.) KoTE. — Form of written request is No. 49, under § 6S, post. t § 69. [1373.] Notice of Application.— When a peti- tion praying for letters of administration is filed, the clerk must give notice thereof by causing notices to be posted in at least three public places in the county, one of which must be at the place where the court is held, containing the name of the decedent, the name of the applicant, and the time at which the application will be heard. Such notice must be given at least ten days before the hearing. Arizona. — Same. Rev. Stats., sec. 1023. Idaho. — Same. Rev. Stats., sec. S359. SEontana. — Same. Comp. Stats., p. 291, sec. 63. Nevada. — Same. Gen. Stats., sec. 2727. See also § S, ante. Utali. — Same. Comp. Laws, sec. 4043. Washingto'ii. — ,Same. Code Proc, sec. 903. Wyoming. — " When a petition praying for letters of administration is filed la vacation of the court, the clerk shall give notice to the judge and court commissioner of the county where the same is filed x>f the filing of such peti- tion, and no letters shall be issued until a period of not less than ten days has elapsed from the\time of filing the petition, when, if not otherwise ordered by the judge or court, the court commissioner may proceed to act on the petition." Laws 1890-91, p. 255, sec. 7. Publication of ITotice: See § 315, post. A fililiire to ^ve the recpiisite that prescz^bed by statute is required. notice of the heaHng of a petition for Where the public administrator of one letters of ailministration is fatal to the county applies for letters, it is not jurisdiction: Beckett v. Selover, 7 Cal. necessary to send notices to the public 233-237. administrator of any other county: No other notice of an applica- In re Cfriffith, 84 CaL 107. tion for letters of administration than g 60 PROBATE LAW AND PRACTICE. 96 Form No. 46. — Notice of Hearing of Petition for Letters of Administration. '*^*ll-^untyof— .i In the — Court. Notice is hereby given that — — has filed in this court petition, praying for letters of administration upon the estate of , deceased, and that the same will be heard on Friday the day of , 18 — , at ten o'clock in the forenoon of said day, at the court-room of said court, in the county of ; and all persons interested in said estate are notified then and there to appear and show cause, if any they have, why the prayer of said petitioner should not be granted. - — , Clerk. By , Deputy Clerk. Note. — Proof of posting of the above notice same as Form Ho. 9, ante. § 60. [1374.] Contesting Application. — Any person interested may contest the petition, by filing 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. In the latter case the con- testant must file a petition and give the notice required for an original petition, and the court must hear the two petitions together Arizona. — Same. Rev. Stats., sec. 1024. Idaho. — Same. Rev. Stats., sec. 5360. ISIontana. — Same. Comp. Stats., p. 291, sec. 64. Nevada. — Same, except that provision as to heating petitions together is omitted. Gen. Stats., sec. 2728. Utah.. — Same as California. Comp. Laws, sec. 4044. Wyoming. — Same as California to end of first sentence, and then as fol- lows: "In the latter case the contestant must file a petition, and must sub- mit evidence in support thereof, taken and reduced to writing before the clerk or commissioner of said court, and the court or judge must hear the two peti- tions together." Laws 1890-91, p. 255, sec. 8. Sections 15 to 31, a&te, apply administration. In the latter case, only to proceedings in contests the grounds of opposition to the peti- against the probate of wills in tion which are filed by the adminis- which the contestant is plaintiff and trator are nothing more than an the petitioner is defendant, and do not answer to which no replication is re- apply to applications for letters of quired: In re Wooten, 56 Cal. 323. 97 EXECUTORS AND ADMIN1STBAT0R3. § 61 Form No. 47. — Objections to Issuance of Letters of Administration to Applicant. [Title of Court and Estate.] Now comes , one of the heirs at law of , deceased, and hereby files his written opposition to the granting of the petition of , heretofore filed herein, praying that letters of administration be granted to him, said , upon the estate of , deceased, and alleges as follows: — 1. That said petitioner, — — , is under the age of majority; 2. That said petitioner, , is not a bona fide resident of this state; 3. That said petitioner, — — , has been heretofore convicted of an infamous crime, to wit, forgery; that said conviction was had in the court of the county of — — , in the state of , on the day of , A. D. 18 — ; 4. That said petitioner, , is incompetent to perform the duties of the trust of administrator of said estate by reason of his drunkenness, improvidence, want of understanding, and want of integrity; — Wherefore petitioner prays that the application of said for letters of administration be denied, and that this court will make such other or further order in the premises as may be proper. , Petitioner. , Attorney for Petitioner. § 61. [1375.] What Proof Required. — Oo the hearing, it being first proved that n'otice has been given as herein required, the court must hear the allegations and proof of the parties, and order the issuing of letters of administration to the party best entitled thereto. See note to § 59, ante. Arizoua. — Same. Rev. Stata., see. 1025. Idaho. — Same. Bev. Stats., sec. 5361. Montana. — Same. Comp. Stats., p. 291, sec. 6S. Nevada. — Same. Gen. Stats., sec. 2729. TJtah. — Same. Oomp, Laws, sec. 4045. Wyoming. — On the hearing, the allegations and proofs of the parties mnst be heard, and the court or judge thereof must order the issuing of letters of administration to the party beat entitled thereto. Laws 1890-91, p. 255, sec. 9. On application for letters, a decedent was indebted to him: In re creditor can testify to the fact that Welch, Myr. Prob. 202. §§ 62, 63 PROBATE LAW AND PRACTICB. 98 Appomtmsnt of an administra- grsmt^d by a wrong ordinary; and tor while there exists one in office is voidable when granted to a wrong per- void: Holmes v. 0. Citation and requirements of jndise on deficient bond— Additional security. § 78. Bight ceases when. § 79. When bond may be dispensed with, § 80. Petition sbowing failing sureties and asking for fnrther bonds. § 81. Citation to executor, etc., to show canse against such application. § 82. Further security may be ordered. § 83. Neglecting to obey order. § 81. Suspending powers of executor, etc. § 83. Fi^rther security ordered without application of party in interest. § 86. Release of sureties. § 87. Order relieving sureties. § 88. Neglect to give new sureties forfeits letters. § 89. Application to be determined out of term time. § 90. Liability of sureties. § 70. [1387.] Administrator or Executor to Take Oath. — Before letters testamentary or of administration are issued to the executor or administrator, he must take and sub- scribe an oath, before some officer authorized to administer oaths, that he will perform, according to law, the duties of exec- utor or administrator, which oath must be attached to the let- ters. All letters testamentary and of administration issued to, and all bonds executed by, executors or administrators, with the affidavits and certificates thereon, must be forthwith re- corded by the clerk of the court having jurisdiction of the estates, in books to be kept by him in his office for that purpose. Arizona. — 'Same. Rev. Stats., sec. 1034. Idaho. — Same. Rev. Stats., sec. 5370. Montana. — Same. Comp. Stats., p. 292, sec. 74. Kevada. — Same, except that oath must be taken before.the probate judge or clerk, and the following is added: "And the said records, and duly certified copies taken therefrom, shall have the same force and effect in all cases what- soever as the original papers would have." Gen. Stats., sec. 2739. Oregon. — See Hill's Laws, sec. 1088, under § 71, post. TTtah. — Same as California. Comp. Laws, sec. 4054. Washington. — Same as first sentence of California. Code Proc, sec. 905. "The clerk shall record in a well-bound book kept for that purpose all let- ters testamentary and of administration, before they are delivered to the exec- utors or administrators, and shall certify on such letters that they have been so recorded." Code Proc, sec. 896. " The clerk shall record in a well-bound book kept for that purpose all bonds given by executors and administrators, and preserve the originals in regular file." Code Proc, sec. 923. Wyoming. — Same as California. Laws 1890-91, p. 256, sec. 1. § 71 PROBATE LAW AND PRACTICE. 106 Although section 2739 of the general having been regularly issued, are valid statutes provides that " before letters until revoked, especially where the .... of administration shall be issued statutory oath was taken before the the administrator shall take and sub- proper officer before trial, though after scribe an oath .... before the pro- action brought: Gallagher v. Holland, bate judge or clerk" for the perform- Sup. Ct. Kevada, July 14, 1888. ance of his duties, the authority of an The authority of an administrator administrator cannot be attacked in a cannot be attacked collaterally be- coUateral proceeding because the oath cause the oath provided for in Nevada was not taken until after the letters General Statutes, section 2739, was not were issued, and was then taken be- taken until after the letters were is- fore a notary public, since the letters, sued: Gallagher v. Holland, 20Nev. 164. Form No. 53. — Oath to be Attached to Letters. - State of ', County of - ss. I do solemnly swear that I will support the constitution of the United States of America, and the constitution of the state of ; that I will faithfully discharge the duties of of the estate of , deceased, according to law. Sworn and subscribed to before me this — : — day of , A. D. 18—. , Clerk. By , Deputy Clerk. §71. [1388.] Bond, Penalty of. — Every persort to whom letters testamentary or of administration are directed to issue must, before receiving them, execute a bond to the state of California, with two or more sufficient sureties, to be approved by the superior court, or a judge thereof. In form, the bond must be joint and several, and the penalty must not be less than twice the value of the personal property, and twice the probable value of the annual rents, profits, and issues of real property belonging to the estate, which values must be ascer- tained by the superior court, or a judge thereof, by examining on oath the party applying, and any other persons. Arizona. — Same. Rev. Stats., sec. 1035. Idaho. — Same. Rev. Stats., sec. 5371. Montana. — Same. Comp. Stats., p. 243, see. 75. Nevada. — Same, except that the following words are omitted: " And twice tbe probable value of the annual rents, profits, and issues of the real property." Gen. Stats., sec. 2740. Oregon. — " No executor or administrator is authorized to act as such until he shall file with the clerk of the county court having jurisdiction of the estate an 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, 107 EXECUTORS AND ADMINISTRATOES. § 71 to be void upon the condition that such executor or administrator shall faith- fully perform the duties of his trust according to law; provided, that when by the terms of his will a testator shall expressly declare that no bonds shall be required of his executors, such executors may act upon taking an oath to faithfully fulfill his trust without filing the undertaking in this section men- tioned; provided further, that such executor shall be criminally and civilly liable as other executors and administrators are for any dereliction of duty. " Hill's Laws, sec. 1088. TJtah. — Same as California. Conip. Laws, sec. 4055. Washington. — Same as California. Code Proc, sec. 906. " No judge of the superior court, no sheriff, clerk of a court, or deputy of either, and no attorney at law, shall be taken as surety in any bond' required to be taken in any prooepding in probate." Code Proc, sec. 921. ' ' The judge shall take special care to take as sureties men who are solvent and sufficient, and who are not bound in too many other bonds; and to satisfy himself, he may take testimony, and examine, on oath, the applicant or person offered as surety.'' Code Proc, sec. 922. "No bond required under the provisions of this chapter, and intended as such bond, shall be void for want of form or substance, recital or condition; nor shall the principal or surety on such account be discharged, but all the parties thereto shall be held and bound to the full extent contemplated by the law requiring the same, to. the amount specified in such bond. In all actions on such defective bond, the plaintiff may state its legal effect in the same man- ner as though it were a perfect bond." Code Proc, sec. 924. "The applications and acts authorized by the foregoing sections in this chapter may be heard and determined in court or at chambers. All orders made therein must be entered upon the minutes of the court." Code Proc, sec. 925, Wyoming. — Same as California, except that the court, judge, or commis- sioner, or clerk of the court, may approve the bond; and this clause is added: "And the sureties must justify on written oath made a part of said bond in double the amount of their individual undertaking;" Laws 1890-91, p. 256, sec. 2. The supreme court will not, in to the court, and refused to pay any an action brought by an administrator, amount which may thereon be ad; review the action of the probate, court judged against him: Weihev. Statham, in ascertaining the value of the estate 67 Oal. 84, 248. and fixing the amount of the adminis- It is a sufl&cient bond if made trator's bond: Lucas v. Todd, 2i OaX. to the people of the state of California: 182. Tevis v. Randall, 6 Cal. 635. Sureties on the bond of an ad- An administrator's bond ex- ministratoy are not liable for his fail- pressing no amount is not a binding ure, after citation issued therefor, to obligation: Evarts v. Steger, 6 Or. 55. render his final account, unless ser- An administrator cannot be vice of such citation has been made on sued on his bond, until final settle- tbe administrator: Ashurst v. Foun- raent of his account, and his removal tain, 67 Cal. 18. for misconduct does not change the An action is' not maintainable rule: Adams v. Petrain, 11 Or, 304; upon an administrator's bond for the nor can the sureties be iield until the amount of a claim unlawfully paid by liabiUty of the principal is so deter- him, until he has made an accounting mined: Hamlin v. Kinney, 2 Or. 92. § 71 PROBATE LAW AND PRACTICB. 108 J-adge may approve bond at This Bond Stands in Place of chambers: Cal. Code Civ. Proc, 167. an tXndertaking: on Appeal: See Condition of Bond: See § 73, § 591, post. post. Kind of SToney Payable under Bond, when there are More Bond: See § 90, post than One Executor: See § 74, post. Form No. 63. — Bond of Administrator or Executor. Know all men by these presents, that we, as principal, and and -^ as sureties, are held and firmly bound to the state of in the sum of dollars, lawful money of the United States of America, to be paid to the said state of ; for which payment well and truly to be made we bind ourselves, pur and each of our heirs, executors, and adminis- trators, joinJ;ly and severally, firmly by these presents. Sealed with our seals and dated this day of , A. D, 18—. The condition of the above obligation is such, that whereas, by an order of the court of the county bf , state of , duly made and entered on the day of , A. D. 18- — , the above-bounden w — appointed of the of , deceased, and letters were directed to be issued to upon executing a bond according. to law, in said sum of dollars; — Now, therefore, if the said , as such , shall faithfully execute the duties of the trust according to law, then this obli- gation to be void, otherwise to remain in full force and effect. [seal] [seal] [seal] State of . ) _ County of . j ^s- and , the sureties named in the above bond, being duly sworn, each for himself says that he is a holder and resident within said state, and is worth the said sum of dollars over and above all his debts and liabilities, exclusive of property exempt from execution. Subscribed and sworn to before me this day of , A. D. 18—. , Notary Public. 109 EXECUTORS AND ADMINISTRATORS. § 72 § 72. [1389.] Additional Bonds, when Required. — The superior court, or a judge thereof, must require an ad- ditional bond whenever the sale of any real estate belonging to an estate is ordered; but no such additional bond must be required when it satisfactorily appears to the court that the penalty of the bond given, before receiving letters, or of any bond given in place thereof, is equal to twice the value of the personal property remaining in, or that will com«t into, the possession of the executor or administrator, including the annual rents, profits, and issues of real estate, and twice the probable amount to be realized on the sale of the real estate ordered to be sold. Arizona. — Same. Rev. Stats., sec. 1036. Idaho. — Same. Ker. Stats., sec. 5372. Montana. — Same. Comp. Stats., p. 293, sec. 76. Nevada, -t- "The probate judge shall require an additional bond when- ever the sale of any real estate belonging to an estate is ordered by him. Th9 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." G-en. Stats., sec. 2740. T7tali. — Same as California. Comp. Laws, sec. 4056. Washington. — Same as California. Code, sec, 908. Wyoming. — Same as California. Laws 1890-91, p. 256, sec. 3. Form No. 64. — Additional Bond to be Given on Sale of Keal Estate by Administrator or Ex- ecutor. Know all men by these presents, that we, , principal, and and , sureties, are held and firmly bound to the state of in the sum of dollars, lawful money of the United States of America, to be paid to the said state of , for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , A. D. 18—. The condition of the above obligation is such, that whereas, an order was made on the day of , A. D. 18 — , by the court of the county of , state of , authoriz- § 73 PKOBATB LAW AND PRACTICE. liU ing the above-named principal as administrator of the estate of , deceased, to sell certain real estate belonging to the estate 'of said deceased, and an additional bond in the sum above named was ordered to be given before the said sale; — Now, therefore, if the said , as such administrator, shall well and truly execute the duties of the trust according to law,- then this obligation to be void, otherwise to remain in full force and eflfect. [seal] [seal] [seal] State of , County of- ' ^^- and , being duly sworn, each for himself says that he is one of the sureties named in the above bond; that he is a resident and holder within said state, and is worth the sum of — — dollars over and above all his debts and liabilities, exclusive of property exempt from execution. Subscribed and sworn to before me this day of , A. D. 18—. , Notary Public. § 73. [1390.] Conditions of Ponds.— The bond must be conditioned^ that the executor or administrator shall faith- fully execute the duties of the trust according to law. Arizona. — Same. Bev. Stats., sec. 1037. Idaho. — Same. Rev. Stats., sec. 5373. SContana. — Same. Comp. Stats., p. 293, sec. 77. Nevada. — Same. Gen. Stats., sec. 2740. Oregon. — Hill's Laws, sec. 1088, under § 71, ante. TTtali. — Sariie. Comp. Laws, sec. 4057. . Washington. — Same. Code Proc, sec. 907. Wyoming. — Same. Laws 1890-91, p. 257, sec. 4. Decree settling account binds £rst be settled in equity before the surety: See §§ 405, 406, jjost Butthe surety can be charged: Chaguette v. liability does not attach until liability Ortet, 60 CaL 594; see also § 268, of principal is established: Allen v. j)o«<, note. Tiffamf, 53 Call. }6; Chaqueite y. Ortet, Kefusal of administrator to pay 60 Oal. 594. See note to § 71, ante. money into court when ordered to do And the decree of the court . of so is not a breach of the condition of probate is conclusive upon him: Id.; his bond: i WiUsony. Hernandez, 5Cal. Irwin V. Backus, 25 Cal. 214. 443. If the principal die without ren- Bondsmen of an administrator deriug an account, the account must who is charged with wasting assets of Ill EXECUTORS AND ADMINISTRATORS. §§ 74, 76 the estate cannot defend on the ground the assets from third parties, to. whom that the succeeding administrator was they had been wrongfully transferred: negligent in first seeking to recover In re CoanoUy, 73 Cal. 423, § 74. [1391.] To Give Separate Bonds. —When two or more persons are appointed executors or adnainistrators, the superior court, or a judge thereof, must require and take a sepa- rate bond from each of them. Arizona. — Same. Hev. Stats., sec. 103S. Ida!h.o. —Same. Rev. Stats., sec. 5374. Montana. —Same. Comp. Stats., p. 293, sec. 78. Nevada. — Same. Gen. Stats., sec. 2741. Utah.. — Same. Comp. Laws, sec. 4058. Washington. — Same. Code Proc, sec. 909. Wyoming. — Same. Laws 1890-91, p. 257, sec. 6. . §75. [1392.] Several Recoveries may be had.— The bond shall not be void upon the first recovery, but may be sued and recovered upon from time to time, by any person aggrieved, in his own name, until the whole penalty is exhausted. Arizona. — Same. Rev. Stats., sec. 1039. Idaho. — Same. Rev. Stats., sec. 5375. Montana. — Same. Comp. Stats., p. 293, sec. 79. Nevada. —Same. Gen. Stats., sec. 2742. Utah. — Same. Comp. Laws, sec. 4059. Washington. — Same. Code Proc, sec. 910. Wyoming. — Same. Laws 1890-91, p. 257, sec. 6. Party beneficially interested that his successor was negligent in may sue: Cal. Code Civ. Proc, sec. first seeking to recover assets in the 367. hands of third parties, to whom they Joinderof Defendants: Cal. Code had been wrongfully transferred: In Civ. Proc, sec 383. re Qmnotty, 73 Cal. 423. ^ind of Money Payable under An administrator and his sure- 3ond: See § 90, pout. ties are liable for the damage, when No ac1;ion is maintainable on the former does what the law pro- the bond of au executor or adminis- hibits, or does not exercise reasonable trator to recover for his neglect or care and diligence in doing what the misconduct in the sale of decedent's law enjoins: ^c^a6 J v. Wiocom, 7 Nev. realty, unless the estate has suffered 830. damage thereby; and where'it appears An administrator and his sure- the land was sold for its full value, it ties are liable for money depos- is presumed that no damage was suf- ited in a bank by an administrator, fered;. and regarding any mismanage- and allowed to remain after the time meat of the proceeds, the party will when, if he had fulfilled his duty, it be left to his remedy in the probate would have been distributed to 'those court: Weifie v. Staiham, 67 Cal. 84, entitled, and is lost by the failure of 245. the bank: McNahb v. Wixom, 7 Nev. The bondsmen of an adminis- 830. trator charged with wasting assets of An administrator cannot be an estate cannot defend on the ground sued on his bond until final settle- § 76 PROBATE LAW AND PRACTICE. 112 ment of bia account, and his removal A surety on an executor's bond for misconduct does not change the is estopped from denying that the order rule: Adams v. Petrain, 11 Or. 304; appointing such executor was "duly nor can the sureties be held until the made and entered," when the bond liability of the princii)al is determined: recites such to be the fact: Moore r, Hamlin v. Kinney, 2 Or. 92. Earl, 91 Cal. 636. § 76. [1393.] Bonds, and Justification of Securities on. — In all cases where bonds or undertakings are, required to be given under this title, the sureties must justify thereon in the same manner and in like amounts as required by section 1057 of this code, and the certificate thereof must be attached to and filed and recorded with the bond or undertaking. All such bonds and undertakings must be approved by a judge of the superior court before being filed or recorded. Corporations may he sureties, "In all cases where an undertaking or bond, with any number of sureties, is authorized or required by any provision of this code, or of any law of this state, any corporation with a paid-up capital of not less than one hundred thousand dollars, incorporated under the laws of this or any other state of the United States for "the purpose of making, guaranteeing, or becoming a surety upon bonds or undertakings reqiiired or authorized by law, or which by the laws of the state where it was originally incorporated has such power, and which shall have complied with all the requirements of the law of this state regulating the formation or admission of these corporations to transact such , business in this state, may become and shall be accepted as security or as sole and sufficient surety upon such undertaking or bond, and such corporate surety shall be subject to all the liabilities and entitled to all the rights of natural persons sureties; provided, that the insurance commissioner shall have the same jurisdiction and powers to examine the affairs of such corporations as he has in other cases; shall require them to file similar statements and issue to them a similar certificate. And whenever the liabilities of any such corporation shall exceed its assets, the insurance commissioner shall require the deficiency to be paid up in sixty days, and if it is not so paid up, then he shall issue a certificate showing the extent of such deficiency, and he shall publish the same once a week for three weeks in a daily San Francisco paper. And until' such deficiency is paid up, such company shall not do business in this state. In estimating the condition of any such company, the commis- sioner shall allow as assets only such as are allowed under existing laws at the time, and shall charge as liabilities, in addition of eighty per cent of the capital stock, all outstanding indebtedness of the company, and a premium reserve equal to fifty per centum of the premiums charged by said company on all risks then in force." [New section approved March 16, 1889; took effect immediately.] Cal. Code Civ. Proc, sec. 1056. Justification. " In any case where an undertaking or bond is authorized or required by any 113 EXECUTORS AND ADMINISTRATORS. § 76 law of this state, the officer taking the same must, except in the case of such a corporation as is mentioned in the next preceding section, require the sure- ties to accompany it with an affidavit that they are each residents and house- holders or freeholders within the state, and are each worth the sum specified in the undertaking or bond, over and above all their .just debts and liabilities, exclusive of property bxempt from execution; but when the amount specified in the undertaking or bond exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits, that they are severally worth amounts less than the amount specified in the undertaking or bond, if the whole amount be equivalent to that of two sufficient sureties. Any corporation such as is mentioned in the next preceding section may be- come one of such sureties. No such corporation shall be accepted in any case as a surety whenever its liabilities shall exceed its assets as ascertained in the manner provided in section ten hundred and fifty-six." [Amendment approved March 16, 1889; took effect immediately.] CaL Code Civ. Froc, sec. 1057. An act to facilitate the giving of bonds required by law, approved March 12, 1885. Cal. Stats. 1885, p. 114. Oorporationa may he sureties. Sec. 1. Whenever any person who now or hereafter may be required or permitted by law to make, execute, and give a bond or undertaking, with one or more sureties, conditioned for the faithful performance of any duty, or for the doing or not doing of anything in said bond or undertaking specified, any head of department, board, court, judge, officer, or other person who is now or shall hereafter be required to approve the sufficiency of any such bond or un- dertaking, or the sureties thereon, may accept as sole and sufficient surety on such bond or undertaking any corporation incorporated under the laws of any state of the United States for the purpose of making or guaranteeing bonds and undertakings required by law, and which shall have complied with all the requirements of the laws of this state regulating the admission of such cor- poration to transact such business in this state; and all such corpoi'ations are hereby vested with full power and authority to make and guarantee such bonds and undertakings, and shall be subject to all the liabilities and entitled to »11 the rights of natural persons sureties; Ouaraniy not taken when. Sec. 2. It is further provided, that the guaranty of any such company shall not be accepted by heads of departments, or others, as provided in section one of this act, whenever its liabilities shall exceed its assets, as ascertained in the manner provided in section three of this act. Notice to be given of deficiency of otaseta. Sec. 3. Whenever the liabilities of any such company shall exceed its assets, the insurance commissioner shall require the deficiency to be paid up within sixty days, and if it is not so paid up, then he shall issue a certificate showing the extent of such deficiency, and he shall publish the same once a week for three weeks in a daily San Francisco paper; and thenceforth, and until such deficiency is paid up, such company shall not do business under the provisions of this act. § 76 PEOBATB LAW AND PRACTICE. 114 An act authorizing certain corporations to act as executor, and in other capa- cities, and to provide for and regulate the administration of trusts by such corporations, approved April 6, 1891. Cal. Stats. 1891, p. 490. Corporation may act as eocecutor, etc. — Oath — Compensation, Sec. 1. Any corporation which has or shall be incorporated nnder the gen- eral incorporation laws of this state, authorized by its articles of incorpora- tion to act as executor, administrator, guardian, assignee, receiver, depositary, or trustee, an^ having a paid-up capital of not less than two hundred and fifty thousand dollars, of which one hundred thousand dollars shall have been actu- ally paid in, in cash, may be appointed to act in such capacity in like manner as individuals. In all cases in which it is required that an executor, adminis- trator, guardian, assignee, receiver, depositary, or trustee shall qualify by taking and subscribing an oath, or in which an affidavit is required, it shall be a sufficient qualification by such corporation if such oath shall be taken and subscribed, or such affidavit made, by the president, or secretary, or manager thereof; and such officer shall be liable for the failure of such corporation to perform any of the duties required by law to be performed by individual's act- ing in like capacity, and subject to like penalties; and such corporation shall be liable for such failure to the full amount of its capital stock; provided, any such appointment as guardian shall apply to the estate only, and not to the person. Such corporations shall be entitled to and shall be allowed proper compensation for all the services performed by them under the foregoing pro- visions of this act; but such compensation shall not exceed that allowed to natural persons for like services. Court may order deposits. Sec. 2. Any court having appointed and having jurisdiction of any execu- tor, administrator, guardian, assignee, receiver, depositary, or trustee, upon the application of such officer or trustee, or upon the application of any person having an interest in the estate administered by such officer or trustee, after notice to the other parties in interest as the court may direct, and after a hear- ing upon such application, may order such officer or trustee to deposit any moneys then in his hands or which may come into his hands thereafter, and until the further order of said court with any such corporation; and upon de- ' posit of such money, and its receipt and acceptance by such corporation, the said officer or trustee shall be discharged from further care or responsibility therefor. Such deposits shall be paid out only upon the orders of said court. Public administraior may deposit funds with such corporation. Sec. 3. And it shall be lawful for any public administrator to deposit with any such corporation doing business in the county, or city and county, in which he is acting as such administrator, any and all moneys of any estate upon which he is administering, not required for the current expenses of the administration. And such deposits shall relieve the public administrator from depositing with the county treasurer the moneys so deposited with such corpo- ration. Moneys deposited by a public administrator may, be drawn upon the order of such administrator, countersigned by a judge of a superior court, when required for the purpose of administration or otherwise. (See also next aection.) 115 EXECUTORS AND ADMINISTKATOHS. § 76 Bond reduced when. Sec. 4. Whenever, in the judgment of any court having jurisdiction o£ any estate in process of administration by any executor, administrator, guar- dian, assignee, receiver, depositary, or trustee, the bond required by law of Euch officer shall seem burdensome or excessive, upon application of such offi- cer or trustee, and after such notice to the parties in interest as the court shall direct, and after a hearing on such application, the said court may order the said officer or trustee to deposit with any such corporation, for safe-keeping, such portion or all of the personal assets of said estate as it shall deem proper; and thereupon said court shall, by an order of record, reduce the bond to be given or theretofore given by such officer or trustee, so as to cover only the estate remaining in the hands of said officer or trustee; and the property as deposited shall thereupon be held by said corporation, under the orders and directions of said court. Any court having jurisdiction of an estate being administered by a public admihistrator may direct such public administrator to deposit all or any part of the moneys of the estate not required for the cur- rent expenses of the administration with any such corporation doing business in the county, or city and county, where such public administrator is acting. Corporation responsible. Sec. 5. Such corporations shall not be required to give any bond or security in case of any appointment hereinbefore provided for, except as hereinafter provided, but shall be responsible for all investments which shall be made by it of the funds which may be intrusted to it for investment by such court, and shall be further liable as natural persons in like positions now are, and as hereinafter provided. The amount of money which any such corporation shall have on deposit at any time shall not exceed ten times the amount of its paid- up capital and surplus, and its outstanding loans shall not at any, time exceed said amount. InlerenK Sec. 6. Such corporations shall pay interest upon all moneys held by them by virtue of this act, at such rate as may be agreed upon at the time of its acceptance of any such appointment, or as shall be provided by the order 6f the court, ' Duty of corporatiim. Sec. 7. Each corporation, before accepting any such appointment or de- posit, shall deposit with the treasurer of state, for the benefit of the creditors of said corporation, the sum of two hundred thousand dollars in bonds of the United States, or municipal bonds of this state, or in mortgages on improved and productive real estate in this state, being first liens thereon, and the real estate being worth at least twice the amount loaned thereon. The bonds and securities so deposited may be exchanged from time to time for other securi- ties, receivable as aforesaid. Said bonds of the United States, or municipal bonds of this state, to be registered in the name of said treasurer officially, and all said securities to be subject to sale and transfer, and to the disposal of the proceeds by said treasurer, only on the order of a court of competent juris- iction, and as hereinafter provided. § 76 PKOBATE LAW AND PKACTICE. 116 (From section 7 to 20 thia act provides regulations to be followed by suoli cor- porations. They have been omitted, as not within the scope of this w'ork.) Sec. 20. All laws and parts of laws in conflict with the provisions of this act are hereby repealed. Sec. 21. Thia act shall take efiect and be in force from and after its passage. Arizona. — Same aa California, § 76, supra. Rev. Stats., sec. 1040. Idaho. — Same aa California, § 76, supra. Rev. Stata. aec. 5376. SContana. — Same as California (§ 76, supra), except that "as required in cases of appeal to the supreme court in the civil practice act " is substituted for "as required by section 1057 of thia code." Comp. Stats., p. 293, aec. 80. Nevada. — "In all caaea where bonds are required by this act, the sureties must justify on oath before the judge or clerk of a court having a seal, or be- fore a notary public, or before a justice of the peace of the county, to the efifeot that they are householders or freeholders within this state, and worth the amount for which they become surety, over and above all just debts and liabili- ties, exclusive of property exempt from execution, and such justification must be signed by the aureties and certified by the ofiScer taking the same attached to and filed with the bond. Where the whole penal sum of such bond exceeds two thousand dollars, aureties may go thereon for any sum not leaa than five hundred doUara, ao that the whole be equal to two sufficient aureties for the whole penal sum." Gen. Stats., aec. 2743. Corparathms may he arareties, etc "Any company incorporated and organized under the laws of any state of the United States for the purpose of transacting business as surety on obli- gations of persona or corporations, and which has complied with all the re- quirements of the law regulating the admission of such companies to transact biisiness in this state, may, upon production of evidence of solvency and credit aatiafactory to the judge, head of department, or other officer authorized to approve auch bond, be accepted as surety upon the bond of any person or corporation required by the laws of this state to execute a bond, and if such surety company shall furnish satisfactory evidence of its ability to provide all the aeourity required by law, no additional security may be exacted; but other aurety may, in the diacretion of the official authorized to approve such bond, be required, and such surety company may be released from its liability on the same terms and conditions as are by law prescribed for the release of in- dividuals, it being the true intent and meaning of this act to enable corpo- rations created for that purpose to become aurety on bonds required, subject to all the rights and liabilities of private parties." Stats. 1887, pp. 86, 87, sec. 1. " Any court or officer whose duty it is to pass upon the account of any person or corporation required by law to give a boud or undertaking may, whenever such person or corporation haa given' any such surety company as security upon said bond or undertaking, allow in the settlement of such account a reasonable sum for the expense of procuring such surety." Stats. 1887, p. 87, sec. 2. Oregon. — "Whenever the penal sum mentioned in the undertaking pre- scribed in the preceding section [see § 71, antel exceeds two thousand dollars, 117 EXECUTORS AND ADMINISTRATOnS. § TO three or more sureties may become severally lialile for portions of said sum, if the aggregate sum for which such sureties become liable shall eau&l the penal sum required in the undertaking." Hill's Laws, sec. 1080. Corpm'ations as sur^iea. "Any surety company with a paid-up capital of two hundred and fifty thousand dollars, and having assets of five hundred thousand dollars, incorpo- rated under the laws of any state of the United States, either solely or among other things for the purpose of transacting business as surety on obligations of persons or corporations, may transact such surety busiuess in this state upon complying with the provisions of this act, and not otherwise." Hill's Laws, sec. 3279. Solvency of such corporation. " Any surety company may, on production of evidence of solvency and credit, satisfactory to the judge, court, head of department, or other officer authorized to approve any bond or undertaking, be accepted as surety upon the bond or undertaking of any person or corporation required by the laws of this state to execute a bond or undertaking; and if such company shall furnish satisfactory evidence of its ability to provide all the security required bylaw, no additional surety may be exacted; but other surety may, in the discretion of thes, official authorized to approve such undertaking, be required, and such surety (surety company) may be released from its liability on the same terms and conditions as are by law prescribed for the release of individuals; it being the true intent and meaning of this act to enable corporations created for that purpose to become surety on bonds or undertakings required by law, subject to all the rights and liabilities of private parties. " Hill's Laws, sec. 3282- Utah. — Same as § 76, supra, except that after the word "required" these words are substituted, viz., " in the general provisions of the Code of Civil Pro- cedure," in lieu of "by section 1057 of this code." Comi)^ Laws, sec. 4060. CoT^porations may be administrators, etc. "Loan, trust, or guaranty associations which may heretofore have been in. corporated or which may hereafter be incorporated under the provisions <^ tliia act for the insurance of owners of real estate from loss by reason of defective titles, liens, and encumbrances, or for other purposes, shall have the power and right .... 2. To act as assignees, agents, receivers, guardians of the estates of minors and incompetent persons, executors, administrators, and to execute trusts of every description not inconsistent with the laws of this territory or of the United States; 3. To become sole security in any case where by law one or more sureties may be required for the faithful performance of any trust, office, duty, action, or engagement; .... 8. To become security upon any writ of error or appeal, or in any proceeding instituted in any court of this ter- ritory in which security may be required; provided, however, that nothing in this act shall be so construed as to dispense with the approval of such body^ corporation, court, or officer as is by law now required to approve such secu- rity; provided, however, that before exercising any of the powers mentioned in this section, each such corporation shall have paid up of its capital not less than one hundred thousand dollars if transacting business in cities of' the first class, and not less than twenty-five thousand dollars if transacting business § 77 PROBATE LAW AND PKACTICE. 118 in cities of the second or third class, which amount of its capital shall be paid np in montey, and not by the transfer of any other property, and such amount of capital shall by such corporation be kept in money on hand, or oa deposit in banks', or invested in first mortgages in real estate situated in Utah Terri- tory, the amount invested in any mortgage not to exceed fifty per cent of the value of the land so mortgaged, or in bonds of first or second class cities of this territory, or in bonds of Utah Territory, or of the United States. Stats. 1890, pp. 106, 107, sec. 1. " Whenever any such company shall receive and accept the office or appoint- ment of assignee, receiver, guardian, executor, administrator, or to be directed to execute any trust whatever, the capital of the said company shall be taken and considered as security required by law for the faithful performance of the duties as aforesaid, and shall be absolutely liable in case of any default what- ever, and no bond shall be required of it for the faithful performance of such trust." Stats. 1890, p. 108, sec. 6. "When any such corporation is appointed as executor, administrator, guar- dian, or receiver, or acts as a surety, any oatt or affidavit now required by law to be taken on such appointment or when so acting may be taken by any officer of such corporation in its behalf." Stats. 1890, p. 108, sec. 7. ' The powers conferred by this act shall apply to all corporations now exist- ing or hereafter to be incorporated for the purpose of insuring titles, or of doing business as a loan, trust, or guaranty association." Stats. 1890, p. 109, sec. 8. Washington. — "In all cases where bonds or undertakings are required to be given under this title, the sureties must possess the qualifications and justify thereon in the same manner as required, for bail upon an arrest," etc. Other provision of section same as California, after the word "code," in liue 5. Code Froc, sec. 911. Corporations may be Executors, etc. : See supra; also § 39, ante. § 77. [1394.] New Bond Required. — Before the judge approves any bond required under this title, and after its ap- proval, he may of his own motion, or upon the. motion of any person interested in the estate, supported by affidavit that the sureties, or some one or more of them, are not worth as much as they have justified to, order a citation to issue, requiring such sureties to appear before him, at a designated time and place, to be examined touching their property and its value; and the judge must, at the same time, cause a notice to be issued to the executor or administrator, requiring his appearance on the return of the citation, and on its return he may examine the sureties, and such . witnesses as may he produced, touching the property of the sureties and its value; and if, upon such examination, he is satisfied that the bond is insufficient, he must require sufficient additional security. 119 EXECUTORS AND ADMINISTRATORS. ' § 78 Citations, Notices, etc.: See §§ 317-321, post; also Cal. Code Civ. Proc, sees. 1010 et seq. Arizona. — Same as CaliforniEl. Rev, Stats., sec. 1041. Idaho. — " Before the probate judge approves any bond required under this title, he may, of his own motion, or at any time after the approval of such bond, upon the motion of any person interested in the estate "; balance of soo-' tion same, except that the following is added at the end: '' Within such time as may be reasonable, not less than five days.'' Rev. Stats., sec. 5377. IVTontana. — Same aa California. Comp. Stats., p. 293, sec. SI. Nevada. — Same as Idaho. Gen, Stats., sec. 2744. Oregon. — "Whenever the amount of an executor's or administrator's un- dertaking is insufficient, or the sureties therein, or eitl^er of them, have become non-residents of this state, or are likely to or have become insolvent, such executor or administrator shall be required to give a new and sufficient under- taking. The application for such new uadejtaking may be made by any heir, legatee, devisee, creditor, or other person interested in the estate, and in the manner prescribed in section 1094 for the removal of executors and adminis- trators." Hill's Laws, sec. 1096. See also Hill's Laws, sec, 1094, under § 109, post. TJtali. — Same as California. Comp. Laws, sec. 4061. Washington. — Same as California. Code Proc, sec. 912. " When it comes to his knowledge that the bond of any executor or admin- istrator is from any cause insufficient, the judge, without any application, must cause him to be called to appear and show cause why he should not give further security, and must proceed thereon as upon the application of any person interested. " Code Proo. , sec. 920. * " Such additional bond, when given and approved. Shall discharge the former sureties from any liability arising from the misconduct of the principal after the^filing of the same, and such former sureties shall only be liable for such misconduct as happened prior to the giving such new bond." Code Proc, sec. 913. Wyoming. — Same as California. Laws 1890-91, p. 257, sec, 7. § 78. [1395.] Right Ceases when. — If sufficient secu- rity is 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 on the estate, who will execute a sufficient bond, must be ap- pointed to the administration, Arizona. — Same. Rev. Stats., sec. 1042. Idaho. — Same. Rev, Stats. , sec. 5378. nContana. — Same. Com^. Stats., p. 294, sec. 82. Nevada. — Same. Gen. Stats., sec. 2745. trtah. — Same. Comp. Laws, sec. 4062. Washington. — Same. Code Prnc, sec. 914. Wyoming. — Same. Laws 1890^91, p. 257, sec. 8. §§ 79, 80 PROBATE LAW AND PRACTICB. 120 §79. [1396.] Bond may be Dispensed with. — When it is expressly provided in tht will that no bond shall be re- quired of the executor, letters testanientary may issue, and sales of real estate be made and confirmed, without any bond; unless the court, for good cause, require one to be executed; but the ex- ecutor may, at any time afterward, if it appears from any cause necessary or proper, be required to file a bond as in other cases. Arizona. — Same. Rev. Stats., sec. 1043. "Every person authorized by law to make a will may direct in said will that no bond or other proceeding in court shall be required of the person or persons named therein as executor or executors, other than the probating of the will and the filing of an inventory and appraisement of the estate, and let- ters testamentary shall be issued to such person or persons without any bond being required." Rev. Stats., sec. 3253. "Any person capable of making a will may so provide in his will that no other action shall be had in the probate court in relation to the Settlement of his estate than the probating and recording of his will and the return of an in- ventory, appraisement, and list of claims of his estate." Rev. Stats., sec. 1265, '^ In cases mentioned in the preceding section, any person having a debt or claim against said estate may enforce the payment of the same by suit against the executor of such will, and the judgment recovered against the executor shall be paid out of the assets of said estdte as other judgments against an ex- ecutor are paid." Rev. Stats., sec. 1266. "If such will does pot distribute the entire estate of the testator, or provide a means for the partition of said estate, the executor shall have the right to file his final account in the court in which the will was probated, and ask par- tition and distribution of the estate, and the same shall be partitioned and dis- tributed in the manner provided for the partition and. distribution of estates administered under the direction of the court.'' Rev. Stats., sec. 1269, Idaho. — Same as California. Rev. Stats., sec. 5379. Kontana. — Same as California,, Comp. Stats., p. 294, sec. 83. Nevada. — Same as California. Gen. Stats., sec. 2746. TTtah.. — Same as California. Comp. Laws, sec. 4063. Washington. — Same as California. Code Proc, sec. 915. Wyoming. — Same as California. Laws 1890-91, p. 257, sec. 9. Section 1401 of the Code of bond in proper cases: In re White, 53 Civil Procedure (§ 84, post), which Cal. 19. provides that in certain cases the pow- If bond is waived by deceased ers of an executor may be suspended partner in the Will nominating sur- upon an application for an order re- viving partner as executor, the latter quiring him to give bonds, does not will still be required to give bond aa conflict with the above section, which administrator of the partnership es- gives the general power to require a tate: Palicio v. Eigne, 15 Or. 142. § 80. [1397.] Petition Showing Failing Sureties.— Any person interested in an estate may, by verified petition, 121 BXBCUTOES AND ADMINISTRATORS. § 80 represent to the superior court, or a judge thereof, that the sure- ties of an executor or administrator thereof have heoome, or are becoming, insolvent, or that they have removed, or are about to remove, from the state, or that from any other cause the . bond IB insufficient, and ask that further security be required. Arizona. —Same. Rev. Stats., sec. 1044. Idah.0. — Same. Rev. Stats., sec. 6380. Kontana. —Same. Comp. Stats., p. 294, sec. 84. Nevada. — Same. Gen. Stats., sec. 2747. Oregon See Hill's Laws, sec. 1096, under § 77, ante. 'Otalx. — Same as California, except that the words "or a judge thereof" are omitted. Comp. Laws, sec. 4064. Washington. — Same as California. Code Froc, sec. 916. Wyoming. — Same as California. Laws 1890-91, p. 258, sec. 10. The further security here pro- tion of the bond: Lacoste v. Splimlo, Tided for is an additional security, and 64 Cal. 35. the new sureties are liable for the Insufficient Security: See § §5, acts of the principal as executor, etq., post. irrespective of the time of the execu- Form No. 55. — Petition for Further Security where Sureties of Administrator are Insufficient. [Caption, Form 1, § 5, ante.] 1. That heretofore — - was, by the order of this court duly given, made, and entered herein, appointed the administrator (or executor) of the estate of , deceased, and thereafter duly qualified by taking the oath of office and giving a bond, with and as sureties; 2. That , one of the sureties on said bond, is insolvent (or is becoming insolvent, or has removed, or is about to re- move, from the state, or state any other cause by reason of which the bond is insufficient) ; 3. That by reason of the premises hereinbefore stated, the ■ bond of said administrator (or executor) is insufficient; 4. That your petitioner is a person interested in said estate, being a creditor thereof (or heir at law, or legatee, or devisee of said deceased, as the case may be)^ 5. Your petitioner also represents that said administrator is wasting the property of said estate by engaging in useless and expensive litigation with the creditors of said deceased, etc.; — Wherefore petitioner prays that a citation issue directed to said administrator (or executor) requiring him to show cause, if § 81 PROBATE LAW AND PRACTICE. 122 any he can, why he should not give further security, aud in the mean time that his powers as such administrator (or executor) be suspended. — , Petitioner. , Attorney for Petitioner. State of , County of- ' ^^- , being duly sworn, deposes and says that he has read the foregoing petition, and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated on his information and belief, and as to those matters, that he believes it to be true. Subscribed and sworn to before me this day of , A. D. 18—. , Notary Public. §81. [1398.] Citation to Executor, etc. — If the court, or a judge thereof, is satisfied that the matter requires investigation, a citation must be issued to the executor or ad- ministrator, requiring him to appear, at a time and place to be therein specified, to show cause why he should not give further security. The citation must be served personally on the ex- ecutor or administrator at least five days before the return day. If he has absconded or cannot be found, it may be served by leaving a copy of it at his place of residence, or by such pub- lication as the court, or a judge thereof, may order. Arizona. — Same. Kev. Stats., sec. 1045. Idah.0. — Same. Kev. Stats., sec. 5381. Xlontana. — Same. Comp. Stats., p. 294, sec. 85. ITevada. — Same, except that the words "or by such pnblication as the court, or a judge thereof, may order " are omitted. Gen. Stata., sec. 2748. TTtah.. — Same as California. Comp. Laws, see. 4065. Washington. — Same as California. Code Proc, sec. 917. Wyoming. — Same aa California, except that a "commissioner" may also act. Laws 1890-91, p. 258, sec. 11. Citation: See §§ 317-321, post. Form No. 56. — Order for Citation to Administrator (or Executor), when Sureties are Insufllcient. [Title of Court and Estate.] It having come to my knowledge (by the allegations of the petition of , or by the affidavit of ) that the sureties upon the bond of , the administrator of the estate of , 123 EXECUTOKS AND ADMINISTEATOKS. § 82 deceased, Lave become insolvent, and that said administrator is wasting said estate, and being satisfied that the matter requires investigation; — ' It is ordered that a citation issue to said administrator, re- quiring him to show cause, if any he can, on the day of — '■ — , A. D. 18 — , at o'clock, a. m., before the above-entitled court, why he should-not give further security; and it is further ordered that his powers as administrator be suspended until the further order of this court. Dated , 18^. , Judge of the Court. N'oTE. — In case the order is made by the court on its, motion, the words in parentheses are to be omitted. Form No. 57. — Citation to Administrator (or Ex- ecutor), when Sureties are Insufficient. [Title of Court and Estate.] To -, administrator of the estate of , deceased. You are hereby cited to appear on the , day of , A. D. 18 — , at ten o'clock, a. m., before the aboVe-named court, and show cause why you should not be required to give further se- curity, inasmuch as it has been alleged (or has come to the knowledge of the court) that the sureties on your bond as ad- ministrator of the said estate are insolvent. [seal] , Clerk. § 83. [1399.] Further Security may be Ordered. — On the return of the citation, or at such other time as the judge may appoint, he must proceed to hear the proofs and allegations of the parties. If it satisfactorily appears that the security is, from any causoj insufficient, he may make an order requiring the executor or administrator to give further security, or to file a new bond in the usual form within a reasonable time, not less than five days. Arizona. — Same, Ber. Stats., sec, 1016. Idaho. — Same. Rev, Stats., sec. 5382. BContana. — Same. Comp, Stats., p. 294, sec. 86, Nevada. — Same. Gen. Stats., sec. 2749. Utah. — Same. Comp. Laws, sec. 4066. Washington. — Same. Code Proo., sec. 918. Wyoming. — Same, except that court, judge, or commissioner may act. Laws 1890-91, p, 258, sec, 12, § 83 PBOBATE LAW AND PBACTJCB. 124 Additional bondsmen are re- duties of bis trusty without regard to sponsible for the faithful execution the time of the execution of the bond: by the executor or administrator of the Lacoeie v. Splivalo, 64 Cal. 35. Form No. 58. — Order Requiring Administrator (or Executor) to Give Further Security. [Title of Court and Estate.] The citation heretofore issued herein, requiring the admin- istrator (or executor) to show cause why he should not give further security as administrator (or executor) herein, having been duly served and returned, and the said administrator (or executor), , having this day appeared before me at the time and place named in said citation, and the court having heard the allegations and the proofs of the parties, and it appearing that , one of the sureties, on the bond of the said adminis- trator (or executor), is solvent, and amply sufiScient, and it ap- pearing that , the other surety on said bond, is insolvent; — It is ordered that the said administrator (or executor) give further security within five days, in the sum specified in the bond already given in the place of said insolvent surety, to be approved by the judge of this court (or that said administrator . (or executor) file a new bond within five days, in the form pre- scribed by law in the sum of dollars, with sureties approved by the judge of this court.) Dated . , Judge of the Court. §83. [1400.] Neglecting to Obey Order. — If the executor or administrator neglects to comply with the order within the time prescribed, the judge must, by order, revoke his letters, and his authority must thereupon cease. Arizona. — Same. Rev. S.tats., sec. 1047. Idabo. — Same. Rev. Stats., see. 5383. Montana. — Same. Comp. Stats., p. 295, sec. 87. Nevada. — Same. Gen. Stats., sec. 2750. See § 121, post. Oregon. — "When a new undertaking is ordered, if the executor or administrator fail to comply therewith within five days from the entry thereof, or such further time as the order may prescribe, thenceforward the authority of such executor or administrator shall cease, and he shall be deemed removed, and his letters revoked." , Hill's Laws, see. 1097. Utab. — Same as California. Comp. Laws, sec. 4067. Washington. —Same as California. Code Proc, sec. 919, 125 EXECUTORS AND ADMINISTRATORS. §§ 84, 85 Wyoming. — Same as California, except that court, judge, or commis- sioner may act. Laws 1890-91, p. 258, sec. 13. See Levy v. RiJ^, 4 Or. 393. Form No. 59. — Order Revoking Letters on Failure of Administrator (or Executor) to Give Further Security. [Title of Court and Estate.] An order having been given, made, and entered herein on the — ; — day of , A. D. 18 — , requiring — ^, the adminis- trator (or executor) of the above-named estate, to give further security on his bond as such administrator (or executor) within five days, and said five days having fully expired, and said ad- ministrator (or executor) having failed to file such security,— It is hereby Ordered that his letters of administration (or letters testamentary) be and the same are hereby revoked. Dated , 18 — . , Judge of the Court. § 84. [1401.J Suspeiidiug Powers of Executor, etc. — When a petition is presented praying that an executor or administrator be required to give further security, or to give bond, where, by the terms of the will, no bond was originally required, and it is alleged, on oath, that the executor or ad- ministrator is wasting the property of the estate, the judge may, by order, suspend his powers until the matter can be heard and determined. Arizona. — Same. Bev. Stats., sec. 1048. Idaho. — Same. Bev. Stats., sec. 5384. Hontana. — Same. Comp. Stats., p. 295, sec. 88. Nevada. — Same, except that the following is omitted: " Or to give bond where, by the terms of the will, no bond was originally required." Gen. Stats., sec. 2751. irtali. — Same as California. Comp. Laws, see. 4068. Wyoming. — Same as California, except that commissioner may also act. Laws 1890-91, p. 258, see. 14. Note. — For form of order under this section, see Form No. 71, § 109, post. This section is not in conflict dure, section 1396 (§ 79, ante): In re with California Code of Civil Proce- Wlaie, 53 Cal. 19. §85. [1402.] Further Security Ordered.— When it comes to his knowledge that the bond of any executor or ad- ministrator is, from any cause, insufficient, the judge, without § 86 PROBATE LAW AND PRACTlO'-E. 326 any application, must cause him to be cited to appear and show .cause why he should not give further security, and must pro- ceed thereon as upon th« application of any person interested. Arizona. — Same. Ker. Stats., sec. 1019. Idaho.— Same. Rev. Stats., sec. 53S5. BEontana. — Same. Comp. Stats., p. 295, sec. 89, ITevada. — Same. Gen. Stats., sec. 2752. XJtalt. — Same. Comp. Laws, sec. 4089. ■Washington. — Same. Code Proc, sec. 920. Wyoming. — Same, except that commissioner may also act. Laws ] 890-91, p. 258, see. 15. §86. [1403.] Kelease of Sureties.— When a surety of any executor or administrator desires to be released from responsibility on account of future acts, he may make applica- tion to the superior court or a judge thereof for relief. The court or judge must cause a citation to the executor or administrator to be issued, and served personally, requiring him to appear at a time and pleice to be therein specified, and to give other security. If he has absconded, left, or removed from the state, or if he cannot be found after due diligence and inquiry, service may be made as provided in section thirteen hundred and ninety-eight. For section 1398, supra, see § 81, ante. Citation: See §§ 317-321, post. Arizona. — Same. Kev, Stats., sec. 1050. Idaho. -T- Same. Rev. Stats.j sec. 5386. Hontana, — Same. Comp. Stats., p. 295, sec. 90. < Kevada. — Same; last sentence omitted. Gen, Stats., sec. 2753. Utah. — Same. Comp. Laws, sec. 4070. Wyoming. — Same, except that commissioner may also act. Laws 1890-91, p. 258, sec. 16. Form No. 60. — Petition of Surety to be Released- [Caption, Form I, § 5, ante.'] 1. That petitioner is one of the sureties on the bond of , the administrator, given by him heretofore on qualifying as ad- ministrator (or executor) of the estate of , deceased, and which bond has been duly filed and recorded in this court, and is now in force; 2. That petitioner desires to be released from said bond, and from, all responsibility on account of the future acts of said ad- ministrator (or executor) ; — Wherefore petitioner prays that a citation be issued herein, 127 EXECUTORS AND ADMINISTRATORS. § 87 directed to said administrator (or executor), requiring him to give other security, and that petitioner be released from further. liability on account of said bond. , Petitioner. , Attorney for Petitioner. Form No. 61.— Order for Citation on Petition of Surety to be Keleased. [Title of Court and Estate.] , one of the sureties on the bond of , the ad- ministrator (or executor) of the estate of , deceased, having filed his petition to be released from responsibility on account of the future acts of said administrator; — It is ordered that a citation issue to said administrator (or executor), directing him to appear before me at chambers on the of , A. D. 18 — , at the hour of o'clock, a. m., and give other security. , Judge of the Court. Dated , 18—. Note. — The citation to be issued in accordance with the above order should be the same as Form Ko. 57, § 81, arUe, being varied in the slight particulars to correspond with the above order. § 87. [1404.] Order Relieving Sureties. — If new sureties be given to the satisfaction of the judge, he may there- upon make an order that the sureties who applied for relief shall not be liable on their bond for any subsequent act, default, or misconduct of the executor or administrator. Arizona. — Same. Bev. Stats., sec. 1051. Idaho. — Same. Bev. Stats., sec. 5387. Montana. — Same. Comp. Sta^., p. 295, sec. 91. Nevada. — Same. Gen. Stats., sec. 2754. Oregon. — " Such new undertaking, when given and received, shall dis- charge the sureties in the former undertaking from any liabilities on account of their principal, arising from his acts or omissions subsequent thereto." Hill's Laws, sec. 1097. Utah.. — Same as California. Comp. Laws, sec. 4071. Wyoming. — Same as California, except that commissioner may also act* Laws 1890-91, p. 259, sec. 17. Form No. 63. — Order Releasing Surety. ■ [Title of Courtand Estate.] , the administrator (or executor) of the estate of ■ deceased, having given new sureties to the satisfaction of the § 88 PROBATE LAW AND PRACTICE. 128 judge of this court. on the application of , one of his former Sureties, to be released, the said -, bis former surety, is re- leased from liability on his bond for any subsequent act, de- fault, or misconduct of said administrator. Dated , 18—. , Judge of the Court. §88. [1405.] Neglect to Give New Sureties. — If the executor or administrator neglects or refuses to give new sureties, to the satisfaction of the judge, on the return of the citation, or within such reasonable time as the judge shall allow, unless the surety making the application shall consent to a longer .extension of time, the court or judge must, by order, revoke his letters. Arizona. — Same. Kev. Stats., sec. 1052. Idaho. — Same. Rev. Stats., sec. 53S8. Montana. — Same. Comp. Stats., p. 295, sec. 92. Nevada. — Same. Gen. Stats., sec. 2755. XTtah.. — Same. Comp. Laws, sec. 4072. Wyoming. — Same, except that commissioner may also act. Laws 1890-91, p. 259, sec. 18. Form No. 63. — Order Revoking Letters on Failure to Give New Sureties. [Title of Court and Estate.] , one of the sureties on the bond of , administrator (or executor) of the estate of ^, deceased, having petitioned to be released from liability on account of the future acts of said administrator, and said administrator having been duly cited to appear before me in chambers on the day of , A. D. 18 — , at the hour of o'clock, a. m., to give new security, and the said administrator having failed to give such new security at the time and place mentioned in said citation, and having been granted ten days' additional time within which to file such security, and said time having fully expired, and said administrator having not yet given such new security, — It is ordered that his letters of administration (or letters testamentary) be revoked. Dated , 18 — . , Judge of the Court. 129 EXECUTORS AND ADMINISTRATORS. §§ 89-91 § 89. [1406.] Applications to be Determined when. — The applications authorized by the nine preceding sections of this chapter may be heard and determined at any time. All orders made therein must be efttered upon the minutes of the court. Arizona. — Same. Rev. Stats., see. 1053. Idaho. —Same. Rev. Stats., sec. 5389. Montana. — Same. Comp. Stats., p. 295, sec. 93. Nevada. — Same. Gen. Stats., sec. 2756. TTtali. — Same. Comp. Laws, sec. 4073. Washington. — "The applications and acta anthorized by the foregoing sections of this chapter may be heard and determined in court or at chambers. All orders made therein must be entered upon the minutes of the court." Code Froc, sec. 925. Wyoming. — Same as California. Laws 1890-91, p. 259, sec. 19. §90. [1407.] Sureties' Liability. — The liability of principal and sureties upon the bond of any executor, adminis- trator, or guardian is in all cases to pay in the kind of money or currency in which the principal is legally liable. Ajrizona. — Same. -Rev. Stats., sec. 1054. Montana. — Same. Comp. Stats., p. 296, sec. 94. TJtali. — Same. Comp. Laws, sec. 4074. ARTICLE VIL SFECIAIi ADUINISTBATOBS, AND THEIR POWERS A27D DUTIBS. § 91. Special administrator, when appointed. § 92. Special letters may be issued at any time. § 93. Preference given to persons entitled to letters. § 94. Special administrator to give bond and take oath, § 95. Duties of special administrator. § 96. When letters testamentary or of administration are granted, special administrator's powers cease. § 97. Special administrator to render account. § 91. [1411. J Special Administrator. — When there is delay in granting letters testamentary or of administration, from any cause, or when such letters are granted irregularly, or no BuflScient bond is filed as required, or when no application is made for such letters, or when an executor or administrator dies, or is suspended or removed, the superior court, or a judge thereof, must appoint a special administrator to collect and take charge of the estate of the decedent, in whatever county or § 91 FKOBATE LAW AND PRACTICE. 130 counties the same may be found, and to exercise such other powers as may be necessary for the preservation of the estate; or he may direct the public administrator of his county to take charge of the estate. This may be done at chambers: See next section. Arizona. — Same. Rev. Stats., sec. 1055. Idaho. — Same. Rev. Stats., sec. 5390. Montana. — Same, Comp. Stats., p. 296, sec. 95. Nevada. — Same. Gen. Stats., sees. 2757, 2764. Oregon. — " When for any reason there shall be delay in issuing letters testamentary or of administration, and the property of the deceased is in danger of being lost, injured, or depreciated, the court, or judge thereof, may appoint a special administrator to take charge of the estate, who shall qualify in like manner, and have the powers and perform the duties of an administra- tor generally, except that he is not authorized to pay the debts of or otherwise discharge any obligation against the deceased. Upon the issuing of letters testamentary or of administration, the powers of the special administrator cease." Rev. Stats., sec. 1091. Utah. — Same as California, except last clause is omitted; also, " or a judge thereof " omitted. Comp. Laws, sec. 4075. Washington. — " When by reason of an action concerning the proof of a will, or from any other cause, there shall be a delay in granting letters testa- mentary or of administration, the judge may, in his discretion, appoint a special administrator (other than one of the parties) to collect and preserve the effects of the deceased; and in case of an appeal from the decree appointing such special administrator, he shall, nevertheless, proceed in the execntion of his trust, until he shall be otherwise ordered by the appellate court." Code Proc, sec. 931. Wyoming. — Same as California, except that the last clause is omitted, and that a clerk or commissioner may also act. Laws 1890-91,' p. 259, sec. 1. Corporations may be Administrator: See §§ 39, 76, ante. A special administrator cannot be revoked: Schroeder v. Superior be appointed by the court if the exec- Court, 70 Cal. 343. utor of decedent has never beeh sus- An appeal from an order revok- pended or removed. A simple order ing the probate of a will does not appointing a special administrator will revive the powers and functions of a not operate as a removal of the exeou- former executor. The court should tor, if the latter has never been cited appoint a special administrator to take to appear and has never appeared to charge of the estate pending the ap- show cause why the letters should not peal: In re Crosier, 65 Cal. 332. Form No. 64. — Petition for the Appointment of a Special Administrator. [Caption, Form 1, § 5, onfc,] (Follow Form No. 44 to subd. 7.) 7. That petitioner is the public administrator of said county of ; 131 EXECUTORS AND ADMINISTRATORS. § 92 8. That there has been great delay in the granting of letters of administration upon said estate, and it is necessary that some one should be authorized to collect and preserve the property of said estate; — Wherefore your petitioner prays that he be appointed special administrator of said estate to collect and take charge of the estate of said decedent. , Petitioner. , Attorney for Petitioner. Note. — A special administrator may be appointed by the court upon its own motion and without the filing of a petition. Such letters may be granted to any qualified person upon the happening of the contingencies mentioned in said section. The manner of making the appointmeiit and entering the order is specified in §§ 92, 93, post, which also direct to whom preference shall be given. § 93. [1412.] Special Letters may be Issued at Any Time. — The appointment may be made at any time, and without notice, and must be made by entry upon the min- utes of the court, specifying the powers to be exercised by the administrator. Upon such order being entered, and after the person appointed has given bond, the clerk must issue letters of administration to such person, in conformity with the order. Oath and Bond: See §§ 70-90, ante. Arizona. — Same. Rev. Stats. , sec. 1056. Idaho. -^ Same. Rev. Stats., sec. 5391. IXontana. — Same. Gomp. Stats., p. 296, sec. 96. Nevada. — Same. Gen. Stats., sec. 2758. See also § 109, post. Utah. — Same. Comp. Laws, sec. 4076. Wyoming. — rSame. Laws 1890-91, p. 259, sec. 2. Appointment of special admin- shall specify the powers given him; istrator must be entered upon the In re Sackett, 78 Cal. 300. minutes of the court, and the order Form No. 65.— Order Appointing Special Adminis- trator. [Title of Court and Estate.] It appearing that -• — died on the day of , A. D. 18—, and that at the time of his death be was a resident of the county of , state of ; That he left estate, and that there is no one authorized to properly care for the same, and it is in imminent danger of be- ing lost and destroyed; §§ 93, 94 PROBATE LAW AND PKACTICB. 132 That there has been great delay in granting letters of admin- istration upon said estate, and it is necessary that some one should be authorized to collect and preserve the property of the same; — It is therefore ordered that be and he is hereby appointed special administrator of the estate of said decedent, with power to collect, take charge of, and preserve the property of said estate, and to do such other things in relation thereto as may from time to time be directed by this court. Dated , 18—. , Judge of the Court. §93. [1413.] Preference Given. — In making the ap- pointment of a special administrator, the court or judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the ap- pointment. liOtters of Administration, to Whom Granted: See §§ 51-56, ante. Arizona. —Same. Rev. Stats., sec. 1057. Tdaho. — Same. Rev. Stats., sec. 5392. Montana. — Same. Comp. Stats., p. 296, sec. 97. ITevada. — Same. Gen. Stats., sec. 2759. Utah. — Same to and including the word " administration " ; balance omit- ted. Comp. Lawa, sec. 4077. Washington. — See section 931, under § 91, ante, as to appeals. Wyoming. — Same as California, except that "officer" is substituted £or "judge." Laws 1890-91, p. 259, see. 3. An order appointing a special in passing the first section, was directed administrator is not appealable, towards orders appointing general ad- Subdiviaion 3, section 963, Code of ministrators, and did not have in view Civil Procedure, referring to certain such orders as regards special admia- appealable matters, reads thus: "From istrators, and that the last section was a judgment or order granting, refusing, enacted for the purpose of supplying or revoking letters testamentary, or of a rule of action in the appointment administration, or of guardianship." of such administrators as those last Section 1413, Code of Civil Procedure, mentioned. It is presumable that this ia as follows: " In making the appoint-' court, in delivering the opinion in ment of a special administrator, the the case of E-itate of Crazier, 65 Cal. court or judge must give preference to 334, did not have under consideration the person entitled to letters testa- the exact question which ia here in- mentary ot of administration, but no volved, and did not intend thereby to appeal must be allowed from the pasa upon it, having there no cauae to appointment/' In order, if possible, determine the force and effect of the to harmonize the two sections of the two sections of the code, supra, taken code so that both may prove effective, together: In re Carpenter, 73 Cal. it would seem as if the legislative mind, 202. § 94. [1414.] Bond and Oath. —Before any letters issue to any special administrator, he must give bond in such sum as 133 EXECUTORS AND ADMINISTRATORS, § 95 the court or judge may direct, with sureties to the satisfaction of the court or judge, conditioned for the faithful performance of his duties; and he must take the usual oath, and have the same indorsed on his letters. Oath and Bond: See §§ 70-90, ante. Arizona. — Same. Rev. Stats., sec. 1058. Idaho. — Same. Rev. Stats., sec. 5393. Montana. —Same. Comp. Stats., p. 296, sec. 98. Nevada. — Same; last clause omitted. Gen. Stats., sec. 2760. TJtali. — Samie. Comp. Laws, sec. 4078. Washington. — " Every such administrator shall, before entering on the duties of his trust, give bond, with sufficient surety or sureties, in sucK sum as the judge shall order, payable to the state of Washington, with condition as required of an executor, or in other cases of administration, to make and re- journ into court as soon as practicable a true inventory of the goods, chattels, rights, and credits of the deceased which have or shall come into his possession or knowledge; and that he will truly account for all the goods, chattels, debts, and effects of the deceased that shall be received by him as special administra- tor, whenever required by the court, aUd will deliver the same to the person who shall be appointed executor or administrator of the deceased, or to such other person as shall be lawfully authorized to receive the same." Code Froc, sec. 932. Wyoming. — Same as California, except that "officer" is substituted for " judge." Laws 1890-91, p. 259, sec. 4. § 95. [1415.] To Preserve Estate. — The special ad- ministrator must collect and preserve for the executor or administrator all the goods, chattels, debts, and effects of the decedent, all incomes, rents, issues, and profits, claims and de- mands of the estate; must take the charge and management of, enter upon, and preserve from damage, waste, and injury, the real estate; and for any such and all necessary purposes may commence and maintain, or defend, suits and other legal proceedings as an administrator; he may sell such perishable property as the court may order to be sold, and exercise such other powers as are conferred upon him by his appointment; but in no case is he liable to an action by any creditor on a claim againt the decedent. Arizona. — Same. Rev. Stats., sec. 1059, Idaho. — Same. Rev. Stats., sec. 5394. Montana. — Same. Comp. Stats., p. 296, sec. 99. Nevada. — Same. Gen. Stats,, sec. 2761, Utah. — Same. Comp. Laws, sec. 4079. § 96 PROBATE LAW AND PRACTICE. 134 Wasliington. — "Such special administrator shall collect all the gooijs, chattels, and debts of the deceased, and preserve the same for the executor or administrator who shall thereafter be appointed; and for that purpose may commence and maintain suits as an administrator, and may also sell such perishable and other goods as the court shall order sold, and he shall be allowed such compensation for his service as the said court shall deem reasonable." Code Proc, sec. 933. " Such special administrator shall not ^^ liable to an action by any creditoj of the deceased." Code Proc, sec. 935. Wyoming. '■ — Same as California, except that in the tenth line, after "court," the words "or officer" are inserted." Laws 1890-91, p. 260, sec. 5. Sale by a special administrator, to obtain a previous order for neces- as such, without authority, of property sary expenditures, there is no rule of pledged to his decedent during his life- law which will deprive the court of time as security for a loan, is not a power to reimburse a special adminis- couversion by the estate so as to trator or receiver, if his acts and ex- enable the pledgor to recover the penditures are approved: In re Moore, enhanced value of the property, in an 88 Cal. 1. action of trover against the executors The payment by a special ad- subsequeutly appointed, although they ministrator, for repairs to the estate, received the proceeds of the sale: Von of a sum in excess of the amount al- Schmidt v. Bourn, 50 Gal. 616. lowed by a previous order of the court Special administrator has no to be expended therefor, and for re- power to pay claims against an estate: pairs not previously authorized, should In re Sackett, 78 Cal. 300. not be disallowed i n the settlement of The duties of a special admin- his account merely because of such istrator are similar to those of a re- excess of power, if it appear that the ceiver in equity, the powers and duties repairs were necessary and the expen- of each being limited to such as are diture reasonable: In re Moore, 88 defined by statute, or expressed in Cal. 1. the order of his appointment, or in The approval of the account of such order as he may from time to the special administrator in respect to time receive for the purpose of more expenditures for necessary repairs is in effectually preserving the estate in- the discretion of the jitdge settling the trusted to his charge: In re Moore, 88 account, and is not subject to review, Oal. 1. unless it appearsthat the discretion has Though it is matter of prudence been abused: In re Mowe, 88 Cal. 1. § 96. [1416.] "When Special Administrator's Powers Cease. — When letters testamentary or of administration on the estate of the decedent have been granted, the powers of the special administrator cease, and he must forthwith deliver to the executor or administrator all the property and effects of, the decedent in his hands; and the executor or administrator may prosecute to final judgment any suit commenced by the special administrator. Arizona. — Same. Bev. Stats., sec. 1060. Idaho. — Same. Bev. Stats., sec. 5395. Slontana. — Same. Comp. Stats., p. 297, sec. 100, Nevada. — Same. Gen. Stats., sec. 2762. 135 EXECUTOKS AND ADMINISTKA.TORS. §§97,93 XTtah. — Same. Comp. Laws, sec. 4080. Washington. — Same. Code Proc, sec. 934. Wyoming. — Same. Laws 1890-91, p. 260, sec. 6. § 97. [1417.] Account to be Rendered. — The special administrator must render an account, on oath, of his proceed- ings, in like manner as other administrators are required to do. Account: See §§ 253 et seq., post. Arizona. — Same. Rev. Stats., sec. 1061. Idaho. — Same. Rev. Stats., sec. 5396. Montana. — Same. Comp. Stats., p. 297, sec. 101. Nevada. ^ Same. Gen. Stats., see. 2763. " Whenever an executor or administrator shall die, or his letters be revoked, and, the circamstances of the estate require the immediate appointment of an administrator, the probate judge may appoint a special administrator, as pro- vided in the preceding sections. " Gen. Stats., sec. 2764. Utah.. — Same as California. Comp. Laws, sec. 4081. Washington. — Same as California. Code Proc, sec. 936. Wyoming. — Same as California. Laws 1890-91, p. 260, sec. 7. The compensation of a special fixed by the statute for an admin^s- administrator is in the discretion of ' trator as the standard for determining the court, and it is not improper for the a proper allowance to be made to him: court to take the rate of tjompensation In re Moore, 88 Cal. 2. ARTICLE VilL ■wilIjS found after lettees of admikisteation granted, and miscel- laneous PROVISIONS. § 98. On proof of will, after grant of letters of administration, letters revoked. § 99. Power of executor in such a case. § 100. Remaining administrator or executor to continue when his colleagues are disqualified. § 101. Who to act when all acting are incompetent. § 102. Executor or administrator may resign when — Court to appoint succes- sor — Liability of outgoer. § 103. All acts of executor, etc., valid until his power is revoked. § 104^ Transcript of court minutes to be evidence. § 98. [1423.] Revocation of Letters. — If, after grant- ing letters of administration on the ground of intestacy, a will of the decedent is duly proved' and allowed by the court, the letters of administration must be revoked, and the power of the administrator ceases, and he must render an account of his administration within such time as the court shall direct. §§ 99, 100 PROBATE LAW AND PRACTICE. 136 Arizona. — Same. Rev. Stats., sec. 1062. Idaho. — Same. Rev. Stats., sec. 5397. Montana. —Same. Comp. Stats., p. 297, sec. 102. Nevada, — Same. Gea. Stats., sec. 2767. See § 121, poi(. Oregon. — "If, after administration has been granted upon an estate, a will of the deceased be found and proven, the letters of administration shall he revoked, and letters testamentary or of administration with the will an- nexed shall be issued." Hill's Laws, sec. 1093, ' Utah. — Same as California, Comp, Laws, sec. 4082, Washing^n. — Same as Oregon, Code Proc, sec. 887. Wyoming. — Same as California. Laws 1890-91, p. 260, sec. 1. Accoxmts: See §§ 253 et seq., post. If an administrator of an es- with the will annexed, the latter ap- tate is appointed and qualifies, and pointment supersedes the former: Mc- afterwards, without removing him, the Gauleji v. Harvey, 49 Cal. 497. Contra, court admits a will to probate, and ap- see Haynea v. Meeks, 20 Cal. 288. points another person administrator § 99. [1424.J Power of Executor in Such a Case, — In such case the executor or the administrator with the will annexed is entitled to demand, sue for, recover, and collect all the rights, goods, chattels, debts, and effects of the decedent re- maining unadministered, and may prosecute to final judgment any suit commenced by the administrator before the revoca- tion of his letters of administration. Arizona. — Same. R«v. Stats., sec. 1063. Idaho. — Same. Rev. Stats., sec. 5398. Hontana. — Same,' Comp, Stats,, p. 297, sec. 103. Nevada. — Same. Gen. Stats., sec. 2768. Utah, — Same, Cou^p, Laws, sec. 4083. Wyoming. — Same. Laws 1890-91, p. 260, sec. 2. §100. [1425.] Joint Administrators, etc. — In case any one of several executors or administrators to whom letters are granted dies, becomes lunatic, is convicted of an infamous crime, or otherwise becomes incapable of executing the trust, or in case the letters testamentary or of administration are re- voked or annulled with respect to any one executor or admin- istrator, the remaining executor or administrator must proceed to complete the execution of the will or administration. Arizona. — Same. Rev. Stats., sec. 1064. Idaho. —Same. Rev. Stats., sec. 5399. Montana. — Same. Comp. Stats., p. 297, sec. 104. Kevada. — Same. Gen. Stats., see. 27l)5. 137 EXECUTORS AND ADMINISTRATORS. § 101 • Oregon. — "Whenever an executor or administrator Bhall die, resign, or be removed, if there be a co-executor or administrator, he shall thenceforward exercise the povrers and perform the duties of the trust." Hill's Laws, sec. 1098. " The surviving or remaining executor or administrator, op the new admin- istrator, as the case may be, is entitled to the exclusive administration of the estate, and for that purpose may maintain any necessary and proper action,^ suit, or proceeding on account thereof against the executor or administrator ceasing to act, or against his sureties or representatives." Hill's Laws, sec. 1099. Tltall. — Same as California. Comp. Laws, sec. 4084. Waslungton. — " When any person to whom letters testamentary or of administration have been issued becomes disqualified to act, because of leav- ing the state, becoming of unsound mind, or is convicted of any crime or mis- demeanor involving moral turpitude, or if a woman and she ceases to be single, the court having jurisdiction shall revoke his or her letters as in this act pro- videdi Code Froc, sec. 9o4. "If there be more than one executor or administrator of an estate, and the letters to part of them be revoked or surrendered, or a part die, or in any way^ become disqualified, those who remain shall perform all the duties required by law." Code Proc, sec. 939. Wyoming. — Same as California. Laws, 1890-91, p. 260, sec. 3. § 101. [1426.] Administration under Will. — If all such executors or administrators die or become incapable, or the power and authority of all of them is revoked, the court must issue letters of administration with the will annexed, or otherwise, to the widow or next of kin, or others, in the same order and manner as is directed in relation to original letters of administration. The administrators so appointed must give bond in the like penalty, with like sureties and conditions, as hereinbefore required of administrators, and shall have the like power and authority. Arizona. — Same. Rev. Stats,, sec. 1065. Idaho. — Same. Rev. Stats., sec. 5400. IXontana. — Same. Comp. Stats., p. 297, sec. 105. Nevada. — Same. Gen. Stats., sec. 2766. See § 121, post. Oregon. — "And if all the executors or administrators shall die, resign, or be removed, administration of the estate remaining unadministered shall be granted to those next entitled, if they be competent and qualified." Hill's Laws, sec. 1098. See also Hill's Laws, sec. 1099, under last section. Utah. — Same as California. Comp. Laws, sec. 4085. Washington. — "If the executor or administrator of an estate shall die, resign, or the letters be revoked before the settlement of the estate, letters of administration of the goods remaining unadministered shall be granted to those § 102 PROBATE LAW AND PKACTICB. 138 to whom administration would have been granted if the original letters had not been obtained, or the person obtaining them had renounced administration, and the administrator de bonis turn shall perform the like duties and incur the like liabilities as the former executors or administrators." Code Froc, sec. 940. "If an executor or administrator become of unsound mind, or be convicted of felony or infamous crime, Or become an habitual drunkard, or otherwise in- capable of or ni)suitable for executing the trust reposed in him, or so fail to discharge his o£Scial duties, or waste or mismanage the estate, or so act as to endanger any co-executor or co-administrator, the probate court, upon com- plaint in writing made by any person interested, supported by a£Sdavit and due notice given to the person complained of, shall hear the complaint, and if found to be just, shall revoke the letters granted." Code Proc, sec. 890. Wyoming. — Same as California. Laws 1890-91, p. 161, sec. 4. Administrator with Will Annexed: See §§ 41, 44, 47, ante. Oath and Bond: See §§ 70-90, ante. An entire vacancy is not the appointment of another person on created in the administration of an account of the administrator's former estate by the commitment of the ad- incapacity: In re Moore, 68 Cal. 281. ministrator to an insane asylum, but The administrator having been the administrator is incapable of exe- confined in an insane asylum for cuting his trust during such commit- a time during the administration, a ment. When, however, his incapacity ruling admitting in evidence his cer- has been removed, and he again enters tificate of discharge from the asylum upon the discharge of his duties, a pe- held not prejudicial error: In re Moore, tition comes too late which asks for 68 Cal. 281. §102. [1427.] Kesiguation. — Any executor or admin- istrator may at any time, by writing filed in the superior court, resign his appointment, having first settled his accounts and delivered up all the estate to the person whom the court shall appoint to receive the same. If, however, by reason of any delays in such settlement and delivery up of the estate, or for any other cause, the circumstances of the estate or the rights of those interested 'therein require it/the court may, at any time before settlement of accounts and delivering up of the estate is completed, revoke the letters o'f such executor or administrator, and appoint in his stead an administrator, either special or general, in the same manner as is directed in relation to original letters of administration. The liability of ' the outgoing executor or administrator, or of the sureties on his bond, shall not be in any manner discharged, released, or afi'ected by such appointment or resignation. Arizona. — Same. Rev. Stats., sec. 1066. Idaho. —Same, Rev. Stats., sec. 5401. 139 KXECtJTOKS AND ADMINISTRATORS. § 102 Kontana. — Same. Comp. Stats., p. 298, sec. 106. Nevada. — Same as first sentence of CaUfornia. Gen. Stats., sec. 2769 Oregon. — "The court, or judge thereof, in its discretion, may allow an executor or administrator to resign, when it appears that such executor or ad- ministrator has published a notice of his intention to apply therefor in some newspaper in general circulation in the county, for the period of four weeks prior to such application, and that he is not in default in any matter connected with the duties of his trust. Such executor or administrator shall pay the cost of the proceeding, and if the application is allowed, he shall surrender his let- ters to be canceled, and his powers as such shall cease from that time forward," Hill's Laws, sec. 1111. TTtab.. — Same as California. Comp. Law.s, sec. 4086. Waslmigtoil. — "It any executor or administrator, having first settled his accounts, shall publish for six weeks, in some newspaper in this state in general circulation in the county wherein his letters were granted, a notice of his intention to apply to the court to resign his letters, and the court, on proof of such publication, believe that he should be permitted to resign, it shall so order." Code Proc, sec. 937. "Such person shall then surrender his letters, his power from that time shall cease, and he shall pay the expense of publication and of all the proceed- ings on such application." Code Proc, sec. 938. "If any executor or administrator resign, or his letters be revoked, or he die, he, or his representatives, shall account for, pay, and deliver to his suc- cessor, or to the ' surviving or remaining executor or administrator, all money and property of every kind, and all rights, credits, deeds, evidences of debt, and papers of every kind of the deceased, at such time and in such manner as the court shall order, on final settlement with such executor or administrator, or his legal representatives." Code Proc, sec. 941. "The succeeding administrator, or remaining executor or administrator, may proceed by law against any delinquent former executor or administrator, or his personal representatives, or the sureties of either, or 4tgainst any other person possessed of any part of the estate." Code Proc, sec. 942. "All actions against sureties shall be commenced within six years after the revocation or surrender of letters of administration, or death of the principal." Code Proc, sec. 943. Wyoming. — Same as California, except that last sentence is omitted, and in lieu thereof the following is inserted: " The executor or administrator so as aforesaid discharged and released, and the sureties on his bonds, shall not be responsible for any act or liability incurred after his said discharge; provided, that nothing herein shall be construed to relieve such executor or administra- tor or his sureties for any liability occurring on his bonds prior to his dis- charge." Laws 1890-91, p. 261, sec. 5. / When an administrator resigns, Administrator cannot resign the court must appoint another, unless without first settling up his accounts, the estate is in a condition for distri- and delivering over the estate to his bution. The judge cannot order the successor: Haynea v. Meeks, 10 Cal, money to be paid into court: Wilson 110; 20 Cal. 310. V. Hernandez, 5 Cal. 443. Sut should the court accept his 102 pbobAte law and practice. 140 reeig^ation, snch acceptance is not void; it is only a voidable error: Haynet v.' Meeks, 10 Cal. 110; 20 Cal. 310. Tlie acceptance by the court of the resi^atiou of administrator is established by the appointment of hjs successor:, ffaynes v. Meehs, 10 Cal. 110; 20 Cal. 310. In a collateral attack upon an order accepting an administrator's res- ignation, the presumption is, that the order was properly made, and that the administrator had settled his ac- counts and delivered up all the estate to some person appointed by the court: lAicas V. Todd, 28 Cal. 182. When record of court shows resignation of former administra- tor, and the settlement of his final ac- count, and the appointment of a new administrator after the date of such settlement, it must be presumed in favor of the action of the court that the former administrator delivered the assets into the custody of the court, or to a person appointed to receive it, in the absence of evidence to the con- trary, and that all conditions existed which were necessary to authorize the new appointment. The action of the court was equivalent to an accept- ance of the resignation of the former ad- ministrator, and the revocation of bis letters: Jennings v. Le Breton, 80 Cal. 8, The powers and functions of A former e^tecutor are ngt revived upon the taking of an appeal from an or- der revoking the probate of a^ will. A special administrator should be ap- pointed pending the appeal: In re Orozier, 65 Cal. 332. An administrator may resign without notice by consent of the court: Bainp V. McDaniel, 12 Or. 108. An administrator cannot of his own volition terqiinate his trust; he must first comply with the require- ments of the statute before he can resign, or before the court can accept sueh resignation: Ramp v. McDaniel, 12 Or. lU. Form Wo. 66.— Notice of , Intention to Resign. (Used in Oregon and Washington only.) Notice is hereby given by the undersigned, of the estate , of , deceased, that he will, at the opening of court on the day of , A. D. 18 — , or ^s soon thereafter as he can be heard, tender his resignation as such to the probate (in Oregon, count^) court of the county of , state of , at which time all persons interested in said estate may appear and file objections to the acceptance of the same. -, Administrator (or executor) of the Estate of ■ De- ceased. Form No. 67. — Resignation of Administrator (or Executor). [Title of Court and Estate.] To the Hon. Court of the County of -- — , State of hereby tenders his resignation as of the estate of — , deceased. Dated 141 EXECUTORS AND ADMINISTRATORS. §§ 103, 104 § 103. [1428.] Acts of Executor Valid. — All acts of; an executor or administrator, as such, before the revocation of his letters testamentary or of administration, are as valid, to all intents and purposes, as if such executor or administrator had continued lawfully to execute the duties of his trust. Arizona. — Same. Rev. Stats., sec. 1067. Idaho. —Same. Rev. Stats., sec. 5102. BContana. —Same. Comp. Stats., p. 298, sec. 107. Nevada. — Same. Gen. Stats., sec. 2770. TTtah.. — Same. Comp. Laws, see. 4087. Wyoming. — Same. Laws 1890-91, p. 261', see. 6. An executor de son tort, though 60 Cal. 399, 400; Rviherford v. Thanip- his acts are for many purposes valid, son, 14 Or. 236. cannot derive any benefit to himself Where widow sues an executor from them. He cannot retain assets de son tort as administratrix to to pay a debt due him, and if the es- recover from defendant for the con- tate is insolvent, he cannot defend version by hini of property of the es- against an action to recover the assets tate, he may show in evidence that he that he has expended or their value acted under the direction of widow in paying debts of the deceased: De la before she was appointed administra- Oueita V. Packard, 17 Cal. 183. trix, and that the proceeds of the There is no such officer as ex- property were used in payment of ecu tor rfe eon y axL admmis- tory: In re HoUaduy, 18 Or. 168. See trator: Black v. Story, 7 Mont. 238. also § 121 po»«. Can-hart v. M. M. L. & M. Co.,,1 An executor who includes prop- Mont. 245, distinguished and over- erty; in an inventory of the estate ruled. of his testator is not thereby estopped An inventory filed by an adminis- frora claiming the property as his own: trator is not conclusive evidence either Anthony v.tCluxpman, 65 Cal. 73. Con- for or against him or sureties, but is ira, see In re Loeven, Myr. Prob. 203. open to denial or explanation: McNabb The right of a deceased to the v. Wixom, 7 Nev. 163. possession of public lands descends §115. [1444.] Appraisement. — To make the appraise- ment, the court, or a judge thereof, must appoint three disinterested persons (any two of whom may act), who are entitled to receive a reasonable compensation for their services) not to exceed five dollars per day, to be allowed by the court or judge. The appraisers must, with the inventory, file a verified account of their services and disbursements. If any part of the estate is in any other county than that in which letters issued, appraisers thereof may be appointed, either by the court or judge having jurisdiction of the estate, or by the court or judge of such other county, on request of the court or judge having jurisdiction. Arizona. — Same, except that the fees are three dollars. Bev. Stats., sec. 1079. Idaho. — Same as California, except that the fees are four dollars. Bev. Stats., sec. 5421. Montana. — Same as California, except that " if only one day's services are charged, the account need not bp sworn to." Comp. Stats., p. 301, sec. 119. See § 1, ante. Nevada. — Same as California, except that if only one day's services are charged, the account need not be verified, and the following is omitted: "On request of the court or judge having jurisdiction." Gen. Stats., sec. 2775. Oregon. — "Before the inventory is filed, the property therein specified shall be appraised at its true cash value by three disinterested and competent persons, who shall be appointed by the court, or judge thereof; but if any part of the property shall be in a county other than that where the administration is granted, the appraisers thereof may be- appointed by such court or judge, or the court or judge thereof of the county where the property shall be; in § 116 PROBATE LAW AND PRACTICK. 156 the latter case a certified copy of the order of appointment shall be filed with, the inventory." Hill's Laws, sec. 1114, Utah. — Same as California. Comp. Laws, sec. 4099. Wasliiiigton. — "The estate and effects comprised in the inventory shall be appraised by three suitable disinterested persons, who shall be, appointed by the court. If any part of the estate shall be in another county than that in which letters are issued, appraisers residing in such county may be appointed by the court having jurisdiction of the case, or if most advisable, the same appraisers may act. Such appraisers shall receive as compensation for their services three dollars per day, to be paid out of the estate, and when they have to go out of their county, mileage shall be allowed; provided, tha,t where it appears to the satisfaction of the court, from the return of the inventory or otlier proof, that the whole estate consists of personal property of less value than one hundred dollars, exclusive of moneys, drafts, checks, bonds, or other securities of fixed valuation, an appraisement may be dispensed with, in the discretion of the court.'' Code Proc, sec. 95S. See § 1, ante, Wyoming. — Same as California, except that compensation is three dollars and mileage, and that clerk or commissioner may act, as well as judge, etc. Laws 1890-91, p. 263, sec. 2. Appraisers may be Appointed Homestead, Setting Apart to in Chambers: Gal. Code Civ. Proc, XTse of Family: See §§ 130-133, sec. 166, See § 1, ante. post; also Cal, Civ. Code, sec. 1265. , Form No. 76. — Order Appointing Appraisers. [Title of Court and Estate.] It is ordered that , , and be and they are here- by appointed appraisers of the estate of ^, deceased. Dated , 18 — . ■ , Judge of the Court. Recitals in Order: See § 314, pott. § 11 6. [ 1445.] Oath and Duty of Appraisers. — Be- fore proceeding to the execution of their duty, the appraisers, before any officer authorized to administer oaths, must take and subscribe an oath, to be attached to the inventory, that they will truly, honestly, and impartially appraise the property exhibited to them according to the best of their knowledge and ability. They must then proceed to estimate and appraise the property; each article must be set down separately, with the value thereof in dollars and cents, in figures, opposite to the articles respectively; the inventory must contain all of the estate of decedent, real and personal, a statement of all debts, partnerships, and other interests, bonds, mortgages, notes, and other securities for the payment of money belonging to the de- 157 EFFECTS OF DECEDENTS. § 116 cedent, specifying the name of the debtor in each security, the date, the sum originally payable, the indorsem^ents thereon (if any), with their dates, and the sum which, in the judgmei>t of the appraisers, may be collected on each debt, interest, or secu- rity; the inventory must show, so far as the same can be ascer- tained by the executor or the administrator, what portion of the property is community property, and what portion is the separate property of the decedent. Arizona. — Same, Rev. Stats., sec. 1080. Idaho. — Same. Kev, Stats., sec. 5422. Montana. — Same. Comp. Stats,, p. 301, sec. 120. Nevada. — Same. Gen. Stats., sec. 2776. Oregon. — "Before making the appraisement, the appraisers shall each take and suj}scribe an affidavit, to be filed with the inventory, to the effect that he will honestly and impartially appraise the property which shall be exhibited to him, according to the best of his knowledge and ability." Hill's Laws, sec, 1115. " The appraisers shall appraise each article of property separately, and set down the value thereof in dollars and cents opposite the entry of the article in the inventory. Money, of whatever nature, that is a legal tender, is to be appraised at its nominal value; byt debts, of- all descriptions or kinds, are to be appraised at that sum which, in the judgment of the appraisers, may be realised from them by due process of law. When the appraisment is com- pleted, the inventory shall be signed by the appraisers." Hill's Laws, sec. 1116. " The inventory shall contain .... also a statement of all debts due the deceased, the written evidence thereof, and the security therefor, if any exist, specifying the name of each debtor, the date of each written evidence of debt, and security therefor, the sum originally payable, the indorsements thereon, if any, and their dates, and the sum appearing then to be due thereon." Hill's Laws, sec. 1113. "The executor or administrator of a deceased person who was a member of a copartnership shall include in the inventory of such person's estate, in a separate schedule, the whole of the property of such partnership; and the appraisers shall estimate the value thereof, and also the value of such person's individual interest in the partnership property, after the payment or satisfac- tion of all the debts and liabilities of the partnership,'' Hill's Laws, sec. 1101. XTtah. — Same as California. Comp. Laws, sec. 4100. Washington. — Same as California; four last lines omitted. Code Froc, sec. 959. Same as section 1101, Hill's Laws, supra. Code Proc, sec. 947. Wyoming. — Same as California, except that the word " moneys " is in- serted after " statement of all," in the eleventh line. Laws 1890-91, p. 263, sec. 3, § 116 PEOBATE LAW AND PRACTICE. 158 Valuation in inventory is not of law, in ignorance of her rights, in- conclusive: In re Hinkhy, 58 (Jal. ventoried outside lands as his property 516. The margin in value of property by operation of law, does not estop pledged by a decedent over the debt her from claiming the property as her secured is to be deemed the value of own: Baker v. Brickell, 87 Cal. 829. the estate's property therein: In re The valuation of property in the Kidd, Myr. Proo. 239. inventory is only prima facie evidence The fact that the surviving wife of the value of such property: WMeler became administratrix of the estate of v. Bolton, 92 Cal. 159. her deceased husband, and by mistake Form No, 77. — Inventory and Appraisement. [Title of Court and Estate.] I, , county clerk of the county of , state of , and ex officio clerk of the — — court thereof (or other official title of the clerk of the court of probate, as the case may re- quire), do hereby certify that , , and ;■ have been duly appointed appraisers of the estate of , deceased, by order of the court, duly entered and recorded on the day of , 18—. Witness my hand and seal of said court this day of , 18— , Clerk. By , Deputy Clerk. State of ■ > ss. County of -^— ' and , duly appointed appraisers of the estate of , deceased, being duly sworn, each for himself says that he will truly, honestly, and impartially appraise the property of said estate which shall be exhibited to him according to the best of his knowledge and ability. Subscribed and sworn to before me this day of ■ 18 — . — — (name of dffice). Inventory and Appraisment of the Property op the Estate op , Deceased. Real Estate. Lot 1 in block No. 40, of the town of Gait, in the county of Sacramento, California, together with the improve- ments thereon, valued at $ Lot 1 in the block between J and K and Twentieth and Twenty-first streets of the city of Sacramento, in the county of Sacramento, California, valued at $ 159 EFFECTS OF DECEDENTS. § 117 Personal Property, Money which has come to the hands of the administrator, $ Household furniture (set out each article and its value separately) $-^- — Farming utensils (set out each article and its value sepa- rately) , $ r All of said property is community (separate) property. Total value of property $ — — We, the undersigned appraisers of the ahove-named estate, hereby certify that we have appraised the property of said estate exhibited to us as above set forth, and a,t the total valuff of $ . ) > Appraisers. State of , ) gg County — ^ — . i ^, the of the estate of , deceased, being duly sworn, says that the annexed inventory contains a true state- ment of all the estate of the deceased that has come to the knowledge and possession of deponent, and particularly of all money belonging to said deceased, and of all just claims of said deceased against deponent. Subscribed and sworn to before me this day of , A. D. 18 — . (name of oflBce). Estate of , Deceased, To , Appraiser, Debtor. To three days' services in appraising the property of said estate , $15 To railroad fare from Sacramento to Gait and return 1 Total value of estate $16 Note. — Accouut of appraisers must be verified as other claims against estate. §117. [1446.] Inventory to Account for Moneys. — , The inventory must also contain an account of all moneys be- longing to the decedent which have come to the hands of the executor or administrator, and if none, the fact must be so stated in the inventory. If the whole estate consists of money, there need not be an appraisement, but an inventory must be made and returned as in other cases. §§ 118, 119 PROBATE LAW AND PRACTICB. 160 Arizona. — Same. Ber. Stats., sec. 1081. Idaho. — Same. Rev. Stats., sec. 6423. Montana. — Same. Comp. Stats., p. 302, sec. 121. ITevada. — Same, except that the last sentence is omitted. Gen. Stats., sec. 2777. Oregon. — "The inventory shall contain an account of all money belong- ing to the deceased, or a statement that none has come to the possession or knowledge of the executor or administrator." Hill's Laws, sec. 1113. Utah.. — Same as California. Comp. Laws, sec. 4101. Washington. — Same as California; last sentence omitted. Code Proc, sec. 960. Wyoming. — See last section. SConey placed in bank by wife by her death, and mnst be inventoried to order of herself and husband is not iu her estate: In re Cunnisagham, Myr. a gift to latter, bat is a simple au- Frob. 76. thority to him to draw, and is revoked § 118. [1447.] Effect of Naming a Debtor Execu- tor. — The naming of the person as executor does not thereby discharge him from any just claim which the testator has against him, but the claim must be included in the inventory, and the executor is liable for the same, as for so much money in his hands, when the debt or demand becomes due. Arizona. — Same. Rev. Stats., sec. 1082. Idaho. — Same. Rev. Stats., sec. 5424. Hontana. — Same. Comp. Stats., p. 302, sec. 122. Nevada. — Same. Gen. Stats., sec. 2778. Oregon. — Same. Hill's Laws, sec. 1117. Utah. — Same. Comp, Laws, sec. 4102. Washington. — Same, except that administrator is also included. Code Proc, sec. 961, Wyoming. — Same as California. Laws 1890-91, p. 264, sec. 4. A debt due from an adminis- debts: Cnited States v, Eggleston, 4 trator to decedent is assets in his Saw. 199. hands applicable to the payment of § 119. [1448.] Discharge or Bequest of Debt against Executor. — The discharge or bequest in a will of any debt or demand of the testator against the executor named, or any other person, is not valid against the creditors of the decedent, but is a specific bequest of the debt or demand. It must be included in the inventory, and if necessary, applied in the payment of the debts. If not necessary for that purpose, it must be paid in the same manner and proportion as other specific legacies. 161 EFFECTS OF DECEDKNTS. §§ 120, 121 Arizona. —Same. Bev. Stats., sec. I0S3. Idaho. — Same. Rev. Stats., sec. 5425. Uontana — Same. Comp.' Stats., p. 302, sec. 123. Nevada.— Same. Gen. Stats., 2779. Oregon. — Same. Hill's Laws, sec. 1118. Utah. — Same, Couip. Laws, sec. 4103. Washington. —Same. Code Proc, sec. 962. Wyoming. — Same. Laws 1890-91, p. 264, sec. 5, §130. [1449.] Oath to Inventory. — The inventory must be signed by the appraisers, and the executor or admin- istrator must take and subscribe an oath before an oflScer authorized to administer oaths, that the inventory contains a true statement of all the estate of the decedent which has come to his knowledge and possession, and particularly of all money belonging to the decedent, and of all just claims of the decedent against the affiant. The oath' must be indorsed upon or an- nexed to the inventory. Arizona. — Same. Her. Stats., sec. 1084. Idaho. — Same. Bev. Stats., sec. 5426. Montana. — Same. Comp. Stals., p. 302, sec. 124. Nevada. — Same. Gen. Stats., sec. 2780. Oregon. — See Hill's Laws, under § 116, ante. " An executor or administrator shall . . , , make and file with the clerk an uventory, verified by his own oath, of all the real and personal property of the deceased which shall come to his possession or knowledge. Hill's Code, ape. 1112. XTtah. — Same as California. Comp. Laws, sec. 4104. Washington. — Same as California. Code Free, sec. 963. Wyoming. — Same as California. Laws 1890-91, p. 264, sec. 6. §131. [1450.] Letters Revoked for Neglect. — If an executor or administrator neglects or refuses to return the inventory within the time prescribed, or within such further time, not exceeding two months, which the court or judge shall, for reasonable cause, allow, the court may, upon notice, revoke the letters testamentary or of administration, and the executor or administrator is liable on his bond for any injury to the estate, or any person interested therein, arising ' from such failure. Arizona. — Same. Bev. Stats., sec. 1085. Idaho. — Same. Rev. Stats., sec. 5427. , Uontana. — Same. Cpmp. Stats., p. 302, sec. 125. U § 122 PROBATE LAW AND PKACTICE. 362 Nevada. — Same, except that the revocation may be "with or without further notice," and also the words "or any person interested therein," are omitted. Gen. Stats., see. 2781. ' ' The district courts shall have power to open and receive the proofs of last wills and testaments, and to admit them to probate; to grant letters testa- mentary, of administration and guardianship, and to revoke the same for cause shown, according to law; to compel executors, administrators, and guardians to render an account when required, or at the period fixed by law; to order the sale of property of estates or belonging to minors; to order the payment of debts due by estates; to order and regulate all partitions of pjroperty or estates of deceased persons; to compel the attendance of witnesses; to appoint ap- praisers or arbitrators [administrators]; to compel the production of title papers or other property of an estate or of a minor, and to make such other orders, as may be necessary and proper in the exercise of the jurisdiction conferred upon them by law." Gen. Stats., sec. 2448. "The district courts .... shall have original jurisdiction .... in all cases relating to the estates of deceased persons, and the persons and estates of minors and insane persons.'' Const., art. VI., sec. 6; Gen. Stats., sec. 137. TTtah.. — Same as California. Comp. Laws, sec. 4105. Washington. — " If any executor or administrator shall neglect op refuse to retui'n the inventory within the period prescribed, or within such further time, not exceeding three months, as the court shall allow, the court shall re- voke the letters testamentary or of administration; and the executor or ad- ministrator shall be liable on his bond to any party interested for the injury sustained by the estate through his neglect. " Code Proo. , sec. 964. Wyoming. — Same as California, except that "or commissioner" is iiiserted after "judge," in fourth line, and "judge or commissioner " is inserted after "the court;" in the fifth line. Laws 1890-91, p. 264, sees. 7-9. Administrator is liable to be re- Section cited in Mesmer v. Jenkins, moved for failure to file inventory: In 61 Cal. 154. re. HoUaday, IS Or. 168; In re Walsh, Suspension of EScecutDrs and Myr. Prob. 251. AxiministratorS: See §§ 84, 109, ante. §133. [1451.] Inventory of After-discovered Prop- erty. — Whenever property not mentioned in an inventory that is made and filed comes to the possession or knowledge of an executor or administrator, he must cause the same to he ap- praised in the manner prescribed in this article, and an in- ventory thereof to be returned within two months after the discovery; and the making of such inventory maybe enforced, after notice, by attachment or removal from oflBce. Arizona. — Same. Rev. Stats., sec. 1086. Idaho. — Same, except that the phrase, "of more than two hundred and fifty dollars in value," is inserted after the word "pioperty." Rev. Stats., sec. 5428. Hontana. —Same as California. Comp. Stats., p. 303, sec. 126. 163 EFFECTS OP DECEDENTS. § 123 Nevada. — Same as California. Gen. Stats., sec. 2782. Oregon. — Same as California, except that the inventory mnst be made immediately, and the provision for enforcing the making of the inventory ia omitted. Hill's Laws, sec. 1119, TTtah.. — Same as California. Comp. Laws, see. 4106. Washington. — Same as California, except that it requires the inventory to be returned as soon as practicable after the discovery of property. Code Prdc, sec. 965. Wyoming. —Same as California. Laws 1890-91, p. 264, sec. 8. Section cited in Mumer T. Janldm, 61 Cal, 154. §123. [1452.] Possession of Estate.— The, executor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate, until the estate is settled, or until delivered over by order of the court to the heirs or devisees; and must keep in good tenantable repair all houses; buildings, and fixtures thereon which are under his control. The heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quieting title to the same, against any one except the executor or administrator. But this section shall not be so construed as requiring them so to do. Arizona. ^ Same; last sentence omitted. Kev. Stats., sec. 1087. Idaho. — Same. Rev. Stats., sec. 5429. Montana. — Same as Arizona. Comp. Stats., p. 303, sec. 127. Nevada: — Same; two last sentences omitted. Cen, Stats., sec. 2783. Oregon. — "The executor or administrator is entitled to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed, or the same is surrendered to the heirs or devisees by order of the court, or judge thereof; but where such property, or any portion thereof, is in the possession, of a third person by virtue of a valid subsisting, lease or bailment, the posses- sion and control of the executor or administrator is subordinate to the right of the lessee or bailee. During the time the property is in the possession or con- trol of the executor or administrator, it is his duty to keep the same in repair, and preserve it from loss or decay as far as possible." Bill's Laws, sec. 112(J. Utah. — Same as California. Comp. Laws, sec. 4107. Washington. — Same as Arizona. Code Proc, sec. 956. Wyoming. — Same as California. Laws 1890-91, p. 264, see. 9. Executor's Powers: See §§ 46, Possession, Kightsof Executor 103, ante, 224, 458, post. and Heirs: See § 464, pout; see also Right to Kring Actions: See §§ § 224, pout,, and notes. 125, 224, et se Arizona. -^ Same. Rev. Stats., sec. 1091. Idaho. — Same. Rev. Stats., sec. 5433. 169 EFFECTS OF DECEDENTS. § 127 Montana. — Same, except that the two last sentences are omitted. Comp, Stats., p. 304, sec. 131. Nevada. — Same as California. Gen. Stats., sec. 2787. Oregon. — "Such examination may be oral, or upon written interroga- tories filed by the applicant, but in either case the answers of the person cited shall be reduced to writing, and subscribed by him and filed.' If such person be not in the county where administration is granted, the proceeding may be either before the court, or judge thereof, of such county, or before the court, or judge thereof, of the county where such person resides or may be found. In the latter case a certified copy of the written interrogatories, if any, and the examination or other proceeding thereon or connected therewith, shall be filed with the clerk of the court where administration is granted." Hill's Laws, sec. 1122. "If the person so cited refuse to appear, or to answer such interrogatories as may be allowed to be put to him touching the matter charged, he may be punished for a contempt, or may at once be committed, by the warrant of the judge, to the county jail, there to remain in close custody until he submits to the order of the court or judge." Hill's Laws, sec. 1123. TTtah.. — Same as California. Comp. Laws, see. 4111. Washington. — " If the person so cited refuse to appear and submit to such examination, or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may, by warrant for that purpose, commit him to the county jail, there to remain in close custody nntil he shall submit to the order of the court, and all such interrogatories and answers shall be in writing, and shall be signed by the party examined, and filed in the court." Code Proc, sec. 969. Wyoming. — Same as California, except that the words "judge or com- missioner " are inserted after the word "court," in the fourth line. Laws 1890-91, p. 265, sec. 3. Form No. 79. — Commitment for Contempt. [Title of Court and Estate.] Whereas, after due and legal proceedings had herein, this court, on the r day of , A. D. 18 — , duly made and en- tered its order directing and requiring — — to (here state the requirements of the order), and whereas said has due and legal notice of said order, but has refused, and now refuses, to obey the same, and whereas it is in the power of said to obey the mandate of said order; — It is therefore adjudged that the said be committed to the custody of the sherifiF of the county of , state of , and that he be confined by said sheriff in the county jail of said county of until he, said -, obeys the said order of this court. ^ -, Judge of the Court. Dated , 18 — . § 128 PKOBATE LAW AND PEACTICE. 170 § 128. [1461.] Persons Intrusted with Estate to Account. — The superior court, or a judge thereof, upon the complaint, on oath, of any executor or administrator, may cite any person who has been intrusted with any part of the estate of the decedent to appear before such court, and require him to render a full account, on oath, of any moneys, goods, chat- tels, bonds, accounts, or other property or papers belonging to the estate which have come to his possession in trust for the executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear and render such ac- count, the court may proceed against him as provided in the preceding section. Citation: See §§ 317-321, post. Arizona. — Same. Rev. Stats., sec. 1092. Idaho. — Same. Rev. Stats., sec. 5434. ISIontana. — Same. Comp. Stats., p. 305, sec. 132. Nevada. — Same. G-en, Stats., sec. 2788. Oregon. — " The court, or judge thereof, upon the application of the executor or administrator, may cite any person who has been intrusted with any of the property of the deceased to appear and aaswer concerning the same when it appears probable that such person refuses or neglects to render to the executor or administrator a true account thereof. The application »shall be made and the proceeding conducted in the manner prescribed in sections 1121 [under § 126, ante], 1122, and 1123 [uader last section], concerning property or writings alleged to be concealed, and with like effect." Hill's Laws, sec. 1124. TTtata.. — Same as California. Comp. Laws, sec. 4112. Washington. — Same as California, except that the words " or a judge thereof" are omitted. Code Proc, sec. 970. Wyoming. — Same as California, except that judge or commissioner may also act. Laws 1890-91, p. 266, sec. 4. 171 SUPPORT OP FAMILY AND HOMESTEAD. § 129 CHAPTER V. OF THE PROVISION FOR THE SUPPORT OF THE FAMILY, AND OF THE HOMESTEAD. Aeticle I. Of the Provision for the Support of the Family. II. Of the Homestead. III. Of the Homestead of Insane Persons. IV. Of Doweb. ARTICLE L OF THE provision FOR THE SUPPORT OF THE FAMILY. § 129. Widow and children may remain in homestead, etc. § 130. All property exempt from execution to be set apart for use of family. § 131. May make extra allowance. § 132. Payment of allowance. § 133. Property set apart, how apportioned between widow and children. § 134. Estates lesis than fifteen hundred dollars to go to wife and child; those less than three thousand to be summarily administered. § 135. When all property to go to children. §129. [1464.] Widow and Children may Remain in Homestead, etc. — When a person dies leaving a widow or minor children, the widow or children, until letters are granted and the inventory is returned, are entitled to remain in posses- sion of the homestead, of all the wearing apparel of ihe family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the superior court, or a judge thereof. Arizona. — Same. Rev. Stats., sec. 1093. Idaho. — Same. Rev. Stats., sec. 5440. Montana. — Same. Comp. Stats., p. 305, sec. 133. Nevada. — Same. Gen. Stats., sec. 27S9. Oregon. — Same. Hill's Laws, sec. 1126. TTtah.. — Same, with name of court changed. Comp. Laws, sec. 4113. Waslling^ton. — "When a person shall die leaving a widow or minor child or children, the widow, chill, or children shall be entitled to remain in posses- sion of the homestead, and of all the wearing apparel of the family, and of all the household furniture of the deceased." Code Proc, sec. 972. Wyoming. — Same as California, except that court or commiasioner may also act. Laws 1890-91, p. 266, sec. 1. I 130 PROBATE LAW AND PRACTICE. 172 Form No. 80. — Order Providing for Support of Family until Return of Inventory. [Title of Court and Estate.] It appearing that died on or about the day of , A. D. 18 — , and at the time of his death w^s a resident of this county, and that a petition has been filed herein praying that letters of administration upon his estate be issued to , his widow; and it appearing that the widow and minor children of deceased have no suflScient income for their support until the return of the inventory herein; and it appearing that the sum of fifty dollars per month is a reasonable sum for that pur- pose to be appropriated out of the property of said estate; — It is ordered that the sum of fifty dollars per month be allowed to said widow until the return of the inventory herein with which to support herself and the minor children of said deceased. , Judge of the Court. Dated . §130. [1465.] Disposition of Exempt Property. — , Upon the return of the inventory, or at any subsequent time during the administration, the court may, on its own motion or on petition therefor, set apart for the use of the surviving hus- band or wife, or in case of his or her death, to the minor chil- dren of the decedent, all the property exempt from execution, including the homestead selected, designated, and recorded; provided such homestead was selected from the common prop- erty, or from the separate property of the persons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children; or if there be no surviving husband or wife, then for the ,use of the minor children, in the manner provided in Arti- cle II. of this chapter, out of the common property, or if there be no common property, then out of the real estate belonging to the decedent 173 SUPPORT OP FAMILY AND HOMESTEAD. § 130 For Article II. of this chapter, see §§ 136-142, post. Arizona. — First sentence same as first sentence of California section, to the word "provided," except that the phrase "in case of his or her death to" is omitted. Balance of section as follows: "If none has been selected, desig- nated, and recorded, the judge of the court must select, designate, set apart, and cause to be recorded a homestead f.or the use of the persons hereinbefore named, in the manner provided in article two of this chapter, out of the real estate belonging to the decedent." Rev. Stats., sec. 1094. Idaho. — Same as Arizona, except that the words "article two of" are omitted. Bev. Stats., sec. 5441. Hontana. — Same as Idaho. Comp. Stats., p. 306, sec. 134. Nevada. — "Upon the return of the inventory, or at any subsequent time duribg the administration, the court or probate judge may, of his own motion or on application, set apart for the use of the family of the deceased all per- sonal property which is by law exempt from execution, and the homestead as designated by the general homestead law, or by section one hundred and twenty-six (126) of this act." Rev. Stats., sec. 2790. The section referred to is as follows: "If there is no law in force exempting property from execution, the following shall be set apart for the use of the widow, or minor child or children, and shall not be snbject to administration: 1. All spinning-wheels, weaving-looms, and stoves put up or kept for use; 2. The family Bible, family pictures, and school-books and library, not exceeding in value two hundred dollars; 3. All sheep to the number of twenty, with their fleeces, and the yarn or cloth manufactured from the same, two cows, five swine, with the necessary food for them for six months; 4. All wearing apparel of th» widow and children, and all household goods, furniture, and utensils, not ex- ceeding in value seven hundred and fifty dollars; 5. The homestead, consisting of any quantity of land not exceeding twenty acres, and the dwelling-house thergou, with its appurtenances, not being included in any incorporated town or city; or instead thereof, a quantity of land not exceeding one lot in any incorporated town or city, and the dwelling-house thereon and its appurte- nances, to be selected by the widow, or if there be no widow, to be designated by the probate judge, and not to exceed in any case more than five thousand dbllars in value." Rev. Stats., sec. 2793. "The homestead set apart by the husband and wife, or either of them, be- fore his death, and such other property as may be exempt by law from execu- tion or forced sale, shall be set apart for the use of the widow and minor heirs, and if no minor heirs, for the use of the widow." Rev. Stats., sec. 509. See also § 133, post. Oregon. — " Upon the filing of the inventory, the court, or judge thereof, shall make an order setting apart for the widow or minor children of the de- ceased, if any, all the property of the estate by law exempt from execution. The property thus set ?ipart, if there be a widow, is her property, to be used or expended by hbr in the maintenance of herself and minor children, if any, or if there be no widow, it is the property of the minor child; or if more than one, of the minor children, in equal shares, to be used or expended in the nurture a.nd education of such child or children, by the guardian thereof, as the law directs." Hill's Laws, sec. 1127. §130 PROBATE LAW AND PRACTICE. 174 Utah. — " Upon the return of the inventory, or at any subsequent time during the, administration, the court may, on its own mntrcnr, orem peiutioo. therefor, set apart for the use and support of the widow and minor children of the decedent, if thtfre he a widow and minor children, and if no wHow, then for the children, if there be any, and if no children, then for the widow, all the property of the decedent exempt from exeeution." Comp. Laws, sec. 4114. Washington. — "In case of the appointment of an executor or adminis- trator upon the death of the husband, as mentioned in the last preceding sec- tion, the court shall, without cost to thei widow, minor child or children, set apart for the use of such widow, minor child or children, all the proper^ of the estate by laye exempt from execution." Code Proc, sec. 973. " And if the head of the family in his lifetime had not complied with the pro- visions of the law relative to the acquisition of a homestead, the widow, or the' child or children, may complj' with such provisions, and shall be entitled on such compliance to a homestead, as now provided by law for the head of a family, and the same shall be set aside for the use of the widow, child or children, and shall be exempt from all claims for the payment of any debt; whether individual or community. Said homestead shall be for the use and support of said widow, child or children, and shall not' be assets in the hands of any administrator or executor for the debts of the deceased, whether individual or community," Code Free, sec. 972. See last section. Wyoming. — Same as California, except that the words " in the manner provided in article IX. of this chapter " are omitted< Laws 1890-91, p, 267> sec. 4. The provisions of sections 1465 and 1466, Cpde of Civil Procedure of California, are independent of the action of the deceased, as expressed in bis will, and of creditors, heird, and legatees, so f^r that, when the neces- sity exists, the court may provide for the support of the family until, in course of administration, they can re- ceive the share of the estate to which they are entitled, subject to the pro- viso that if the estate is insolvent, such provision shall not extend be- yond one year: jnre Walkerley,TJ Ga\. 642; Inre Ballentine, Myr. Prob. 86; In re Burns, Myr. Prob. 155. See §§ 131 et seq.,post; also Cal. Code Civ. Proc, sees. 1237 et seq. The ord«: • setting apart the homestead must be recorded: See § 137', post. If the homestead be carved out of the husband's property, he still has the power of alienating it, subject to the joint use of the property as a homestead by himself and wife: Gee V. Moore, 14 Cal. 472. Vpan. the return of the inven- tory, or at any subsequent time dur- ing the administration of an estate; if no homestead has been selected, desig- nated, and recorded, the court must, on its own motion, or on petition therefor, select, designate, set apart, and cause to be recorded a- homestead for the use of the surviving husband or wife and the minor children, or it there be no surviving husband or wife, then fbr the use of the minor children; "emd whe.n an application i^ made that a homentead be so set apart, tits court has no discretion in tlie matter, but must grant the applleatUn " ; In re Ballentine, 45 Cal. 696. And the power or duty of tire court in this respect is not limited by the fact that the decedent left a will by which he disposed of the property sought to be set aside; the poWer of testamentary disposition of property being not para- mount but subordinate to the author- ity conferred upon the probate court to appropriate the property for the support of the family of the testator, and for a homestead for the widow and minor child or childreii: Si(h- berger v. Sulzberger, 50 Cal, 387; as well as for the payment of the debts 175 SUPPORT OF FAMILY AND HOMESTEAQ. §130 of the estate: Davis v. Stephens, 69 Cal. 458. The homestead act of 1860 waa a statute of descent: Sich v. Tubbs, 41 Oal. 34. Under it no rights vested in the children until the death of one of the spouses, and therefore no change was made in-their estate or rights, nor were they destroyed by the act of 1862 vesting the homestead absolutely in the surviving spouse: Herrold v. Reen, 58 Cal. 443; In re. DeJaney, 37 Cal. 177. The power granted to the court under the above section -to set apart a • homestead may be exercised, notwith- standing the fact that "the manner provided in article two," mentioned in that section, has been abrogated by the legislature,! This defect in the law ia supplied by section 187, Code of Civil Procedure, which authorizes the court to adopt any "manner" it may deem proper in the exercise of its power: Mawson v. Mawson, 50 Cal. 541 ; In re McCauley, 50 Cal. . 544. Setting apart property as a home- etead does not affect any liens (In re McCauley, 50 Cal. 546) which are upon the property, but the holders thereof can proceed and enforce the lien as if the order had never been made, with the single exception men- tioned in § 137, post; nor does it affect the claim of title of any person; having an interest in the land adverse to the estate of the decedent, for the very obvious reason that such claim- ant has not had a day in court, and. that the superior court.when acting as a court of probate has no jurisdiction to adjudicate upon the title: Herrold. V. Reen, 58 Cal. 443; Watson v. Credi- tors, 58 Cal. 556; In re Bm-ton, 63 Cal. 36; Clialmers v. S. B. .A 177 SUPPORT OF FAMILY AND HOMESTEAD. 130 property without her consent when living, this does not afifeot the power of the court to set it apart to him as such for a limited period after her death: In re Lahiff, 86 Cal. 151. When no homestead was se- lected during the lifetime of the dece- dent, the court is authorized to set one apart for the use of the surviving spouse, although there are no minor children: In re Armstrong, 80 Cal. 71. The court cannot set apart as a homestead di£ferent tracts of land which are separated one from the other by a distance of fifty miles: In re Armstrong, 80 Cal. 71. No property can be set apart by the probate court as a homestead out of the estate of a deceased person which could not have heen dedicated as such under the homestead act im- mediately preceding the death of the deceased: In re Acherman, 80 Cal, 208. An order setting apart a hom.e- stead in the community property pending administration , relieves it from administration and excludes it from distribution, but does not affect the title to the homestead. If no homestead was declared during the existe;nce of the community, the com- munity property vests according to section 1402 of the California Civil Code (§ 481, post), regulating succes- sion thereto, subject, however, to its temporary use as a homestead under the order of the court setting it apart for that purpose: In re Giimore, 81 Cal. 240. A probate homestead set apart by the court under sections 1465; supra. and 1468 (§ 133, post) of California Code of Civil Procedure, is not limited to five thousand dollars iti value; and the pre- sumption is, that the court will give the family such a one as is just and proper, considering the amount and condition of the estate; the matter of value of such a homestead is within the discretion of the superior court, which will not be interfered with by th? appellate court, unless it appears that such discretion has been abuifed: In re Walkerky, 81 Cal. 579. A wife is not entitled to a family al- lowance if she has voluntarily entered into a valid agreement with her hus- band for separation, whereby, in cout sideration of certain money paid, she waived all other claims upon her hus- band, and has voluntarily continued to live apart from him, without any attempt to set aside the agreement, or to assume again their matrimonial re- lation, or to demand further means for her separate support: In re Noah, 88 Cal. 468. , J here the heirs had notice of application for a homestead, and the estate has been fully adminis- tered, their complaint in an action to set aside the decree, which fails to show any fraud or device which would prevent proof of the character of the property from which the homestead was selected, does not show a cause of action, though it shows that the home- stead was falsely set aside as com- munity property, and as the sole and separate estate of the widow, when the property was in fact the separate property of the husband: Oruwell v. Seybolt, 82 Cal. 7. Form No. 81. — Petition for Order Setting Apart Per- sonal Property. [Caption, Form No. 1, § 6, ante.} 1. That on th^ day of , A. D. 18 — , the inventory and. appraisement of the property of the estate of ■, de^ ceased, was returned, to this court; 2. That the following described personal property is re- turned in said inventory as the property of said estate, viz. (here insert list of property); 3. That said property is exempt by law from execution; — Wherefore petitioner prays that all of said personal property 12 ' ' I 130 PROBATE LAW *AND PRACTICE. 178 be set apart out of said estate for the exclusive use and benefit of the widow and children of decedent. ■ , Petitioner. - — , Attorney for Petitioner. Form No. 83. — Petition to Set Apart Homestead. [Caption, Form 1, § 5, ante.] 1. (Follow subd. 1 of Form No. 81.) 2. That the following described real property is returned in ' said inventory as the property of said estate (here insert de- scription of property), and in said inventory said real property is valued at the sum of $ ; 3. That said real property was and is the community prop- erty of deceased and J his widow, having been acquired* by them during their marriage;* 4. That a declaration of homestead was duly filed upon said property during said marriage and in the lifetime of decedent by ; that said declaration of homestead was duly acknowl- edged, and was recorded on the - — day of , A. D. 18 — , in Book of Homesteads, page , in the records of the ^ county of , state of , a copy of which said declaration of homestead is attached hereto and made a part hereof;^ — Wherefore petitioner asks that said property be set apart for the exclusive use and benefit of the widow of deceased.' , Petitioner. , Attorney for Petitioner. ' In case it is the separate property of deceased, this allegation should read as follows: 3. That said real property was and is the separat^ property of de- 2 In case no declaration of homestead has been filed during the lifetime of decedent, this allegation should read as follows: 4. That no homestead was ever designated or selected by the deceased or his widow during his lifetime. ' If the property is community property, or if it was separate property and the declaration was filed by the spouse to whom it belonged, either separately or jointly with the other spouse, the prayer should be as above set forth (§ 130, ante), but if no homestead has been selected during the lifetime of decedent, and there is no real property belonging to the community, or if the homestead was selected by the surviving spouse out of the separate property of the de- cedent, and decedent did not join therein, the prayer should be as follows: Wherefore petitioner prays the court to select, designate, and set apart, and cause to be recorded, a homestead out of said property for the use of the sur- viving husband (or wife) and the minor children of decedent for the period of years. 179 SUPPORT OF FAMILY AND HOMESTEAD. § 131 Form No. 83. — Order Setting Apart Homestead. [Title of Court and Estate.] It -appearing to the court that the real property hereinafter described is returned in the inventory as the property of the estate of , deceased; that said real property is valued in said inventory at the sum of $ ; that said real property wa!s and is the community property of said , deceased, and , his widow, having been acquired by them during their marriage (or that said real property was and is the separate property of deceased); that a declaration of homestead in proper form was duly filed, claiming said property as a homestead; that said declaration was filed in the lifetime of decedent by , and during said marriage; that it was duly acknowledged and was recorded on the day of , A. D. 18—, in Book of Homesteads, page , in the records of the county of , state of ; — It is therefore ordered that said real property, to wit (here insert description), be and the same is hereby set apart to the exclusive use and benefit of the widow and minor chil- dren of deceased, to wit (here name the widow and minor children). ^ , Judge of the Court.. Dated , 18—. Note. — For variations of this form to conform to different phases of the law, see §§ 130, supra, and 131, poet, and notes to Form No. 82, § 130. §131. [1466.] May Make Extra AUowaiice. — If the amount set apart be insuflScient for the support of the widow and children, or either, the court, or a judge thereof, must make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate; which, in case of an insolvent estate, must not be , longer than one year after granting letters testamentary or of administration. Arizona. — Same. Bev. Stats., sec. 1095. Idaho. — Same. Bev. Stats. , sec. 5442. Montana. — Same. Comp. Stats., p. 306, sec. 135. Nevada. — Same. Gen. Stats., sec. 2791. Oregon. — "If the property so exempt is insufficient for the support of the §131 PROBATE LAW AND PRACTICE. 180 widow and minor chililren, according to their circumstances and condition in lite, for one year after the filing of the inventory, the court, or judge thereof, may order that the executor or administrator pay to such widow, if any, and if not, then to the guardian of such minor children', an amount sufficient for that purpose; but such order shall not be made' unless it appear probable that the estate is sufficient to satisfy all the debts and liabilities of the deceased, and pay the expenses of administration in addition to the payment of such amount. '' Hill's Laws, sec. 1 128. Utali. — Same as California, except that "or a judge thereof " is omitted, Comp. Laws, sec. 4115. Washington. — Same as California; last clause omitted; also the words "or a judge thereof" are omitted. Code Proc, sec. 973. Wyoming. — Same as California, except that the last clause is omitted. Laws 1890-91, p. 266, sec. 2. An order refusing to make a family allowance out of the estate of a decedent is not erroneous, if it appears that a homestead had been set apart to the widow and children, and the petition for the family allowance fails to state that such homestead is insufficient for the support of the fam- ily: In re Luther, 67 Cal. 319. Where it appears that the estate of a decedent still in process of settle- ment is solvent; that the small amount of personal property set aside to^the widow does not afford her any income; that the allowance already made has become exhausted in supplying neces- sary wants; and that the widow is in poor health, and destitute, — a reason- able allowance ought to be made for the widow during the progress of the settlement of the estate: In re Roberts, 67 Cal. 349. Family allowance should he refused to widow, where, after being married six weeks, she and de- ceased entered into an agreement of separation, she accepting ten thousand five hundred dollars in satisfaction of all marital claims, alimony, and sup- port, after which she continued to live apart from him without any effort to set aside the agreement, and without making any further claim for support until his death. There was no issue of the marriage. After her husband deceased, she applied to the court for a reasonable allowance for the support of the family of decedent during the settlement of his estate. She was not his immediate family within the mean- ing of the statute: In re Noah, 73 Cal. 683; 88 Cal. 468. If the estate is insolvent, it is the duty of the court after one year from the granting of letters to discon- tinue the family allowance: In re Montgomery, 60 Cal. 648. Widow of decedent is entitled to reasonable provision for sup- port, and the court is not restricted to a bare support, but in making the allowance should take all the circum- stances into consideration, and have regard to the mode in which she lived during the lifetime of the decedent, and the sufficiency of the estate to pay the amount allowed. She is not chargeable as executrix for profits re- ceived from the subletting of rooms in a house hired by her, the rental of which is paid out of her monthly al- lowance: In re Stevens, 83 Cal. 322. Allowance to widow is not re- viewable after the time has elapsed for appeal from the order, as it then becomes, final, and the power of the court over it is at an end. The court below cannot sit as an appellate court to review its own orders, though it may be that if the court has been im- posed upon it can change the order to make it conform to a fair determina- tion, on facts studiously withheld be- ing made to appear. But if it has only the same facts before it on which it at first acted, it cannot change or modify the order in settling the final account of the executrix: In re Ste- vens, 83 Cal. 322. 181 SUPt>OET OF FAMILY AND HOMESTEAD. § 131 Form No. 84. — Petition for Family Allowance. [Captioa, Form No. 1, § 5, ante.] The petition of respectfully shows: — That died on or about the day of , A. D. 18 — , and that the matter of said estate is now pending in this court; That his widow is without estate of her own, and is entitled to an allowance out of the property of said estate, of a reason- able amount, for the maintenance of herself and the minolr children of decedent, in number, according to their cir- cumstances and mode of life; that the property of said estate, exempt by law from execution, is not sufficient for the mainte- nance of such family; that dollars is a reasonable amount for that purpose; — ' Wherefore petitioner prays that an allowance of dollars per month be made out of said estate for the maintenance and support of said widow and children, payable to said widow un- til the further order of this court. Petitioner. , Attorney for Petitioner. Form No. 85. — Order for Fariiily Allowance and Setting Apart Property Exempt from Execution. [Title of Conr.t and Estate.] An application having been made to this court for an order setting apart for the benefit of the family of the above-named decedent all of the property of said decedent which was by law exempt from forced sale and execution, and it appearing that the inventory of the property of the estate of said decedent has been duly returned and filed in ,this court, and it appearing there- from that the property hereinafter described and mentioned therein is such exempt property; and it further appearing that said family have no income, and that said exempt property is insufficient for their support, and that the sum of fifty dollars per month is a reasonable amount for said purpose; — It is therefore ordered that Ihe following described real and pergonal property be and the same is hereby set apart for the use and benefit of , the widow of said deceased, and his minor children (here insert description of said real and per- sonal property) ; §§ 132, 133 PROBATE LAW AND PRACTICE. 182 And it is further ordered that the sum of '^fty dollars per month be and the same is hereby allowed and directed to be paid by the administrator to said widow for the support of her- self and said minor children from the return of the inventory herein until the further order of this court. Dated , 18 — . Judge of the Court. Note. — If no allowance has been made prior to the return of the inventory, the order may direct that the allowance be made from the date of the death of decedent. It estate is insolvent, the allowance should be limited to the period of one year. § 1 38. [1467.] Payment of Allowance. — Any allow- ance made by the court or judge, in accordance with the pro- visions of this article, must be paid in preference to all other charges, except funeral charges and expenses of administration; and any such allowance, whenever made, may, in the discre- tion of the court or judge, take efiFect from the death of the decedent. Arizona. — Same. Rev. Stats., sec. 1096. Idaho. — Same. Rev. Stats., sec. 5443. Hoiitaiia. — Same. Comp. Stats., p. 306, sec. 136. ITevada. — Same, except that the last three lines are omitted. Gen. Stats., sec. 2792. Utah.. — Same as California. Comp. Laws, sec. 4116. Washington. — Same as Nevada. Code Proc, sec. 974. Wyoming. — Same as California. Laws 1890-91, p. 267, sec. 3. §133. [1468.] Property, how Apportioned. — When property is set apart to the use of the family in accordance with the provisions of this chapter, if the decedent left a widow or surviving husband and no minor child, such property is the property of the widow or surviving husband. If the decedent left also a minor child or children, the one half of such prop- erty shall belong to the widow or surviving husband, and the remainder to the child, or in equal shares to the children if there be more than one. If there be no widow or surviving husband, the whole belongs to the minor child or children. If the property set apart be a homestead selected from the Sepa- rate property of the deceased, the court can only set it apart for a limited period, to be designated in the order, and the title vests in the heirs of the deceased, subiect to such order. 183 SUPPORT OF FAMILY AND HOMESTEAD. § 133 Arizona. — Same; last sentence omitted. Rev. Stats., sec. 1097. Idaho. — Same aa California. Rev. Stats., sec. 5444. Kontana. — Same as Arizona. Comp. Stats., p. 306, sec. 137. Nevada. — Same as Arizona, except that "surviving husband" is omitted from the section. Gen. Stats., sec. 2794. , • " Provided, that if the property declared upon as a homestead be the separate property of either spouse, both must join in the acknowledgment and execu- tion of the declaration; and if such property shall retain its character of sepa- rate property until the death of one or the other of such spouses, then and in that event the homestead right shall cease in and upon said property, and the 8a.me belong to the party (or his or her heirs) to whom it belonged when filed upon as a homestead." Gen. Stats., sec. 539. "The homestead and all other property exempt from law from the sale under execution shall, upon the death of either spouse, be set apart by the court as the sole property of the surviving spouse, for his or her benefit and that of his or her legitimate child or children; and in the event of there being no surviv- ing spouse or legitima,te child or children of either, then the property shall be subject to administration, and to the payment of his or her debts and lia- bilities; provided, that^the exemption made by this act and the act of which it is amendatory shall not extend to unmarried persons, except when they have the care and maintenance of minor brothers or sisters, or both, or of a brother's or sister's minor children, or of a father or mother, or of grand- parents, or unmarried sisters living in the house with them ; and in all such cases the exemption shall cease upon the cessation of the terms upon which it is granted; and upon the death of such unmarried person the property shall descend to his or her heirs as in other cases, unless disposed of by will, sub- ject to administration and the payment of debts and liabilities; and provided further, that no exemption to the surviving spouse shall be allowed in cases where the homestead declaration has been filed upon the separate property of either husband or wife." Gen. Stats., sec. 542. ' Oregon.. — ^See Hill's Laws, sec. 1127, under § 130, ante. Utah.. — Same as California, except that the last sentence and " surviving husband" are omitted. Comp. Laws, sec. 4117. Washington. — Same as Utah. Code Proc, sec. 975. " If intestate leave no widow or minor childuen, all his estate shall be assets in the hands of the administrator, after payment of funeral expenses and ex- penses of administration, for the payment of the debts of the deceased, or dis- tribution according to law." Code Froc, sec. 976. "When any person dies seised of a homestead, leaving a widow or husband or minor children, the survivors shall be entitled to the homestead; but in case there be neither surviving husband, widow, or children, the said home- stead shall be liable for the debts of the deceased." Code Proc, sec. 482. Wyoming. — Same as California; last sentence omitted. Laws 1890-91, p. 267, sec. 5. . The wife, if surviving her hns- for the benefit of her children, if there band, takes the homestead as beany: Qee v. Motyret li Cat 472. property set apart by law from her The deed of an heir passes only husband's estate, for her benefit and rights given by succession, and not § ISl PROBATE LAW AND PKACTICE. 184 riglita given by the probate law: In re and the beneficiaries take their inter- Moore, 57 Cal. 4(!7, 446. eats subject and subordinate to all the Property assigned for use and contingencies of administration, and support of widow and minor chil- among others to the authority con- dren does not vest absolutely in the f erred by law upon the court to set widow, but only gives to her the use the same apart for a limited period to thereof: Rands v. Brain, Utah Sup. the surviving hnsbanjl as a homestead, Ct., June 13, 1887; also on rehearing, as well as to appropriate the same for' July 30, 1887. the payment of debts: In re Lakiff, 86 A will whereby a testatrix au- Cal. 151. tliorizes the sale of all her prop- The power of the court to set erty, and attempts to dispose thereof apart a homestead from the sep- in the form of money bequests, her arate property of the decedent, property consisting of the premises after her death, is not defeated by the she and her husband had occupied as action of the executor in negotiating a a homestead, though not then pro- sale under a power contained in the teoted as such by selection and re- will which is unconfirmed, before the cording, does not operate as au actual decree setting apart the homestead is - conversion of the property into money, made: In re Lahiff, 86 Cal. 151. §134. [1469.] Summary Administration. — If upon the return of the inventory of the estate of a deceased person it shall appear therefrom that the value of the whole estate does not exceed the sum of fifteen hundred dollars, and if there be a widow or minor children of the. deceased, the court, or a judge thereof, shall, by order, require all persons interested to appear on a day fixed to show cause why the whole of said estate should not be assigned for the use and support of the family of the deceased. Notice thereof shall be given and proceedings had. in the same manner as provided in sections sixteen hun- dred and thirty-three, 'sixteen hundred and thirty-five, and six- teen hundred and thirty-eight of this code. If upon the hearing the court finds that the value of the estate does not exceed the sum of one thousand five hundred dollars, it shall, by a decree for that purpose, assign for the use and support of the widow and minor children, if there be a widow and minor children, and if no widow, then for the children, if there be any, and if no children, then for the widow, the whole of the estate, after the payment of the expenses of the last illness of the de. ceased, funeral charges, and expenses of administration; and there must be no further proceedings in the administration, unless further estate be discovered. For sections 1633, 1635, 1638, referred to in above section, see §§ 264, 266, 267, Tpost. Arizona. — Same, except that the estate must not be in excess of two thou- sand dollars, and the foUowius is added: " And when it annears. on the return 185 BUiPPORT OP FAMILY AND HOMBSTBAD. § 134 of the inventory, that the value of the whole estate does not exceed the sum of three thousand dollars, it is in the discretion of the probate Court to dispense with the regular proceedings, or any part thereof, prescribed in this title, ex- cept as herein provided, and there must be had a summary administration of the estate, and an order of distribution thereof, at the end of six months after the issuing of letters. The notice to creditors must be given to present their claims within four months after the first publication of such notice, and those not so presented are barred as in other cases." Rev, Stats., sec. 1098. Idaho. — Same as Arizona, except that "fifteen hundred dollars " is sub- stituted for " two thousand dollars," in the first part of section, and "fifteen hundred dollars "for "three thonsaad dollars," in the last part of section. Kev. Stats., sec. 5445. Uontana. — "If on the return of the inventory of the estate of an intes- tate it appears that the value of the whole estate does not exceed the sum of fifteen hundred dollars, the probate court, by a decree for that purpose, must assign for the use and support of the widow and minor child or children, if there be a widow or minor child, and if no widow, then for the children, if there are any, the whole of the estate, after the payment of the expenses of his last illness, funeral charges, and expenses of the administration, and there must be no further proceedings in the administration, unless further estate be discovered; and when it so appears that the value of the whole estate does not exceed the sum of three thousand dollars, it is in the discretion of the probate court to dispense with the regular proceedings, or any part thereof, prescribed in this title, and there must be had a Summary administration of the estate, and an order of distribution thereof, at the end of six months after the issuing of letters. The notice to creditors must be given to present their claims within four months after the first publication of such notice, and those not so pre- sented are barred as in other cases." Comp. Stats., p. 306, sec. 138. " If it shall appear at the time of filing the inventory and appraisement that the estate of a deceased person does not exceed five hundred dollars, the pro- bate judge shall thereupon make an order that the administrator may make final settlement of such estate at the end of six months from the date of such order. Notice of the making of such order, and i^ the time and place of such settlement, shall be forthwith made and published in the same manner and for the same length of ■ time as now required for notice of final settlement. Such notice shall also state that letters testamentary or of administration have been granted, giving the date thereof, arid that all persons having claims against the said estate are required to exhibit them for allowance on or before the day, named therein for final settlement, and that if snch claims be not thus exhibited they will be forever barred." Comp. Stats., p. 401, sec. 558. " The administration of such estates shall in other respects be conducted in the same manner as now provided by law, except that if any part of such es- tate is real property, it shall be sold at the same time and in the same manner as the personal property." Comp. Stats., p. 401, sec. 559. "At the time mentioned in said notice, or such further time as may be granted by the court, the administrator shall make final settlement of such estates. If creditors who have proved their claims are not present in court to receive their money at the time of making such settlement, the administrator § 134 PROBATE LAW AND PRACTICE.' 186 shall pay the same over to tlie probate judge, taking his receipt therefor, and thereafter the probate jndge shall pay over such sum or sums to the proper claimant or claimants, upon demand." Comp. Stats., p. 401, sec. 560. " For good cause shown, the probate judge may extend the_time for making such final settlement, but in no case shall it be extended beyond one year from the date of issuance of letters of tidministration in such estates." Comp. Stats., p. 401, sec. 561. Nevada. — "If on the return of the inventory of any intestate estate it shall appear that the value of the whole estate does not exceed the sum of five hundred dollars, the court or judge shall, by a decree or order for that pur- pose, assign for the use and support of the widow and minor children of the intestate, or for the support of the minor child or children if there be no widow, the whole of the estate, after the payment of the funeral charges and the expenses of the administration; and there shall be no further proceed- ings in the administration, unless further estate be discovered; and whenever it shall be made to appear, by affidavit or otherwise, that the value of the whole estate does not exceed the sum of two thousand dollars, it shall be in the dis- cretion of the court or judge to dispense with the regular pKoeeedings, or any part thereof, any or all notices, except notice to creditors, and to shorten the time of all notices prescribed by this act, for the purpose of a summary admin- istration of the estate, and to order distribution of the estate at the end of the number of mouths the court or judge may order; promded, that notice to credi- tors shall ha\ e been given to present their claims within the number of months ordered by the court or jiidge. Any or all notices may be given for the time and in the manner ordered by the court or judge, except that notice to creditors shall be published, as often as the court or judge may order, in a newspaper published in the county, if the cost of such publication does not exceed five dollars, and unless otherwise ordered by the court or judge. No order or decree, except the decree of final settlement and dispharge, shall be recorded at the expense of the estate; such order and decrees not so recorded may be filed in the clerk's ofiice, where they shall remain, and have the same effect for all purposes as though recorded. The executor or administrator shall, without unnecessary delay Rter his appointment, give, either by publication in a newspaper published in, the county, or in the manner ordered by the court or judge, the notice to creditors of the deceased requiring all persons having claims against the deceased to exhibit them, with the necessary vouchers, within the 'number of months ordered by the court or judge, specifying in such notice said number of months, at the place of his residence or transaction of business, to be specified in the notice; if the claim be not presented within such number of months, it shall be forever barred; provided, that all clainjs agaiust deceased not due may be presented within said number of months specified in such notice with the same effect as though due when presented; every such claim which has been allowed by the executor ,or administrator, and approved by the judge, shall by the claimant or her attorney be filed, with the clerk of the court within eight days after it is presented to the judge, and shall then, and not otherwise, be ranked among the acknowledged debts of the estate, to be paid in due course of administration; and the judge shall act 187 SUPPORT OF FAMILY AND HOMESTEAD. . § 134 claim not so acted on by the judge within said five days shall be deemed to be rejected, and suit may be brought thereon accordingly. No fee or compensation whatever shall be cliarged or collected for the filing or registering any allowed and approved claim. Unless otherwise ordered by the court or judge, the fees and compensation to the clerk's office paid out of any estate shall not exceed the sum of fifteen dollars. The provisions of this act shall only apply to estates wherein a summary administration is ordered, and to estates wherein it appears from the inventory that the value of the whole estate does not ex- ceed the sum of five hundred dollars." Rev. Stats., sec. 2795. Oregon. — " If from the inventory of an intestate's estate who died leav- ing a widow or minor children it appears that the value of the estate does not exceed one hundred and fifty dollars over and above property exempt from execution, upon the filing of the inventory the court or judge thereof shall make a decree providing that the whole of the estate, after the payment of funeral expenses and expenses of administration, be set apart for such widow or minor children in like manner and with like effect as in case of property exempt from execution. There shall be no further proceeding in the adminis- tration of such estate, unless further property be discovered. " Hill's Laws, sec. 1129. ntali. — Same as California, with the following added: "Provided, that the ' title CO all property assigned under the provisions of this section shall rest [vest] absolutely and equally in the persons to whom such property has been assigned." Comp. Laws, sec. 4118. Waslilngton. — " If by the return of the inventory of the estate of any intestate who died leaving a widow or minor children it shall appear that the value of the estate does not exceed one thousand dollars, the court shall, by decree for that purpose, assign tor the use and support of the widow and minor children of the [int]estate, or for the support of the minor child or chil- dren if there be no widow, the whole estate, after the payment of the funeral expenses and expenses of administration; and there shall be no further pro- ceedings in the administration, unless further estate be discovered," Code Proc, sec. 971. ' Wyoming. — Same as California, except that for the second sentence the following is substituted: "Notice thereof shall be given and proceedings had in the same manner as provided for settlement of accounts and partial distri- bution of estates." Laws 1890-91, p. 267, sec. 6. Where the inventory showed in value, its judgment cannot be inter- the estate to be of less value than fif- fered with: In re Palomares, 63 Cal. teen hundred dollars, the court set it 402. aside for the use and benefit of the An order of court setting aside a minor children. Upon motion of a parcel of land for the support of minor general creditor to set the order aside, children of a decedent under the it was held that notice to general above section does not divest the lien creditors was not necessary; that the of a mortgage given by the decedent proceedings were regular; that the to secure the payment of the purchase court having found that due notice of money of the land : Fah-banks v. Robin- the application to set aside the estate son, 64 Cal. 250; Chalmers v. S. B. Appraisers. § 139. [1477.] Report of the Appraisers. — Any two of the appraisers concurring may discharge the duties im- posed upon the three, and make the report. A dissenting report may be made by the third appraiser. The report must state fully the acts of the appraisers. Both reports ma;y be heard and considered- by the court in determining a confirmation or rejection of the majority report, but the minority report must in no case he confirmed. Arizona. — Same. Rev. Stats., sec. 1103. Idaho. — Same. Rev. Stats., sec. 5450. Montana. — Same. Comp. Stats., p. 308, sec. 143. Wyoming. —Same. Laws 1890-91, p. 269, see. 11. § 140. [1478.] Hearing Report.— When the report of the appraisers is filed, the court must iet a. day for hearing any objections thereto, from any one interested in the estate. No- tice of the hearing must be given for such time and in such manner as the court may direct. If the court be satisfied that the report is correct, it must be confirmed, otherwise rejected. In case the report is rejected, the court may appoint new ap- praisers to examine and report upon the homestead, and simi- lar proceedings may be had for the confirmation or rejection of their report as upon the first report. Arizona. — Same. Rev. Stats., sec. 1104. Idaho. — Same. Rev. Stats., sec, 5451. Montana. — Same. Comp. Stats., p. 308, sec. 144. Wyoming. —Same. Laws 1890-91, p. 269, sec. 12. 197 SUPPORT OF FAMILY AND HOMESTEAD. § 140 Sections 1479, 1480, 1481, 1482, 1483, and 1484 of the California Code of Civil Procedure were repealed by act approved March 24, 1874: Amend- menta 1873-74, p. 364; took effect July 1, l!>74, Form No. 94. — Order Fixing Day for Hearing Report of Appraisers. [Title of Court and Estate.] Whereas the report of , , and , the appraisers heretofore appointed to appraise, admeasure, and set off out of the property of the estate of , deceased, a homestead to the family of said decedent, has been filed; — It is therefore ordered that , the day of , A. T>. 18 — , at the hour of ten o'clock, a. m., at the court-room of this court, be and the same is hereby appointed as the time and place for hearing said report, and the clerk of this court is hereby directed to post notices of said hearing in three of the most public places in this county at least ten days before said day of , A. D. 18 — . , Judge of the Court. Dated Form No. 95. — Opposition to Confirmation of Re- port of Appraisers. [Title of Court and Estate.] Now comes ■ and opposes the confirmation of the report of the appraisers heretofore appointed by this court to appraise, admeasure, and set off a homestead to the family of the above- named decedent, and for cause thereof alleges: — 1. That contestant is a creditor of said estate, and there is due from said estate to him the sum of dollars, as is shown by his claim, which has been heretofore duly allowed, approved, and filed herein, which is hereby referred to and made a part hereof; 2. That the land mentioned in said appraisers' report, and valued by them at the sum of six thousand dollars at the time of the filing of the declaration of homestead thereon, was of the value of eight thousand dollars at said time; 3. That the portion of said premises set apart by said ap- praisers as a homestead for the sole use and benefit of the fam- ily of decedent is of a value much greater than five thousand dollars, to wit, six thousand dollars; , - § 140 PROBATE LAW AND PRACTICE. 198 4. That said homestead cannot be set apart to the family of decedent without material damage and injury to the value of both said homestead and the remaining portion of the tract first above mentioned and to said entire tract; that said subdivisions of said entire tract will be depreciated in value at least one thousand dollars if said segregation and division is made, .and in consequence of such depreciation in value there will not be sufficient property in said estate to pay in full the debts due from said estate to contestant and the other creditors of said estate; — Wherefore contestant prays that said report of said appraisers be rejected, and that said premises may be sold according to law, and the proceeds paid to those entitled thereto. , Contestant. , Attorney for Contestant. Form No. 96. — Order Confirming Report of Ap- praisers. [Title of Court and Estate.] The report of the appraisers heretofore appointed herein to appraise, admeasure, and set off a homestead for the sole use and benefit of the familyof , deceased, having been filed herein on the day of , A. D. 18 — , and an order hav- ing been made thereafter on the day of , A. D. 18 — , by this court, setting the same for hearing this day before this court, and due and legal notice of said hearing having been given by the clerk as directed by said order, and said matter coming on regularly for hearing on this day, upon the said re- port of said appraisers and the opposition of filed herein, and it appearing that the facts stated in said report are ferjae, — It is hereby ordered that said report be and the same is hereby confirmed, and in pursuance of said report the property hereinafter described is hereby set apart to the exclusive use and benefit of , the widow of said decedent, and , , apd , his minor children; said real property is described as follows, to wit (here insert description). Dated , 18—. , Judge of the ^ — Court. 199 SUPPORT OF FAMILY AND HOMESTEAD. § 140 Form No. 97. — Order Confirming Report of Ap- praisers and Directing Homestead to be Sold. [Title of Conrt and Estate.] The report of the appraisers heretofore appointed herein to appraise, admeasure, and set oflf a homestead for the sole use and benefit of the family of , deceased, having been filed herein on the day of , A. D. 18 — , and an order hav- ing been made thereafter on the day of , A. D. 18 — , by this court, setting the same for hearing this day before this court, and due and legal notice of said hearing having been given by the clerk as directed by said order, and said matter coming on regularly for hearing on this day, upon the said re- port of said appraisers, and it appearing that the facts stated therein are true, and that it appears therefrom that the real property upon which the declaration of homestead was filed in the lifetime of decedent cannot be segregated or divided so as to assign a homestead for the sole use and benefit of the family of decedent, as provided by law, — It is therefore ordered that the realty upon which said declara- tion of homestead was filed be sold by the administrator of the estate of said decedent at public auction upon the following terms, to wit, cash, gold coin of the United States, ten per cent of the purchase price to be paid at the time of said sale, and the balance upon the confirmation thereof by this court, and that he report his proceedings in that behalf to this court Im- mediately after making said sale; said real estate is described as follows, to wit (here insert description); that before making such sale said administrator file an additional bond , herein in the penal sum of -^-r— dollars. Dated — ^-, 18 — . — -, Judge of the — <- Court. Form No. 98. — Order Rejecting Report of Ap- praisers. [Title of Court and Estate.J The report of the appraisers heretofore appointed herein to appraise, a^dmeasure, and set off a homestead for the sole use and benefit of the family of , deceased, having been filed herein on the day of , A. D. 18 — , and an order hav- ing been made thereafter on the day of , A» D. 18 — , § 141 PROBATE LAW AND PRACTICE. 200 by this court, setting the same for hearing this day before this court, and due and legal notice of said hearing having been given by the clerk as directed by said order, and said matter coming on regularly for hearing on this day upon the said re- port of said appraisers and the opposition of filed herein, and it appearing the premises set apart by said appraisers as a homestead for the family of decedent is of a greater value than five thousand dollars, — It is therefore ordered that said report be and the same is hereby rejected, and it is further ordered that , -; , and , three, disinterested persons, residents of this county, be abd they are hereby appointed appraisers to appraise, admeas- ure, and set off to the exclusive use of the family of decedent out of the realty mentioned in the said rejected report, and upon which the declaration of homestead was filed in the lifetime of decedent. , Judge of the Court. Dated , 18—. §141. [1485.] Rights to Homestead — Costs.-- The costs of all proceedings in the superior court provided for in this chapter must be paid by the estate as expenses of admin- istration. Persons succeeding by purchase or otherwise to the interests, rights, and title of successors to homesteads, or to the right to have homesteads set apart to them, as in this chapter provided, have all the rights and benefits conferred by law on the persons whose interests and rights they acquire. Arizona. — Same. Rev. Stats., sec. 1105. Idah.0. — Same. Bev. Stats., sec. 5452. Dlontana. — Same. Comp. Stats.,. p. 309, sec. 145. Wyoming. —Same. Laws 1890-91, p. 269, sec. 13. See sees. 317-321, post, also Cal. band " does not convey her right to a Code Civ. Proc, sees. 1010 et seq. homestead out of such real estate: In Appraisers: See § 97, subd. 3, re Moore, 57 Cal. 437. ante. _ The right to a probate homestead is Cost bill should be filed for cost not an estate either in law or equity, paid to persons other than officers of and is not the subject of sale: Bowman court upon an application to set apart v. Norton,' 16 Cal. 213; lAes v. De a homestead, and should be paid as Diahler, 12 Cal. 327. expenses of administration: In re Bi- A bill of sale made by a widow caud, Myr. Prob. 158. conveying any "interest which she The right to a homestead in a might take as heir at law of her de- probate proceeding is not the subject ceased husband " does not convey ex- of sale. The quitclaim deed of a empt personal property set apart by willow "of her right, title, and inter- the court for the use of the family of est in the real estate left by her bus- deceased: In re Moore, 57 Cal. 437. 201 SUPPORT OP FAMILY AND HOMESTEAD. §§ 142, 143 §1.42. [I486.] Certified Copies to be .Recorded. — A certified copy of every final order made in pursuance of this article, by which a report is confirmed, property assigned, or sale confirmed, must be recorded in the ofiBce of the recorder of the county where the homestead property is situated. Arizona. —Same. Rev. Stats., sec. 1106. Idaho. —Same. Rev. Stats., sec. 5453. Hontaiia. — Same. Comp. Stats., p. 309, sec. 116. ARTICLE in, OF THE HOMESTEADS OF INSANE FEKS0N3. § 143. — An act to enable certain parties therein named to alienate or encumber homesteads. Approved March 25, A. D. 1874. I § 1. Sale of homestead of insane person. § 2. What notice given. § 3. Application, when filed. § 4. Order of court. § 5. Fees of public administrator. Sale, notice, etc. " In case of a homestead, if either the husband or wife shall become hopelessly insane, upon application of the husband or wife not insane to the superior court of the county in which said homestead is situated, and upon due proof of such insan- ity, the court may make an order permitting the husband or wife not insane to sell and convey or mortgage such homestead." Cal. Stats. 1873-74, p. 582, sec. 1. What notice given. " Notice of the application for such order shall be given by publication of the same in a newspaper published in the county in which such homestead is situated, if there be a newspaper published therein, once each week for three successive weeks prior to the hearing of such application, and a copy of such notice shall also be served upon the nearest male relative of such insane husband or wife, resident in this state, at least three weeks prior to such application ; and in case there be no such male relative known to the applicant, a copy of such nptice shall be served upon the public administrator of the county in which such homestead- is situated, and it is hereby made the § 143 PROBATE LAW AND PBACTICB. 202 duty of such public administrator, upon being served with a copy of such notice, to appear in court and see that such appli- cation is made in* good faith, and that the proceedings thereon are fairly conducted." Cal. Stats. 1873-74, p. 582, sec. 2. Application, when filed. "Thirty days before the hearing of any application under the provisions of thip act, the applicant shall present and file, in the court in which such application is to be heard, a petition for the order mentioned in the first section of this act, subscribed and sworn to by the applicant, setting forth the name and age of the insane husband or wife; the number, age, f!,nd sex of the chil- dren of such insane husband or wife; a description of the prem- ises constituting the homestead; the value of the same; the county in which it is situated; and such facts, in addition to that -of the insanity of the husband or.wifC) relating to the circum- stances and necessities of the applicant and his or her family, as he or she may rely upon in support . of the petition." Cal. Stats. 1873-74, p. 582, sec. 3. Order of court. " If the court shall make the order provided for in the first section of this act, the same shall be entered upon the minutes of the court, and thereafter any sale, conveyance, or mortgage made in pursuance of such order shall be as valid and efl'ectual as if the property affected thereby was the absolute property of the person making such sale, conveyance, or mortgage in fee- " simple." Cal. Stats. 1873-74, p. 582, sec. 4. Fees of public administrator. " For all services rendered by any public administrator under the provisions of this act, he shall be allowed a fee not exceeding twenty dollars, to be fixed by the court, and the same shall be ta?ced as costs against the person making application for the order herein provided for." Cal. Stats. 1873-74, p. 582, sec. 5. Laws repealed. " All acts and parts of acts in conflict with the provisions of this act are hereby repealed." Cal. Stats. 1873-74, p. 582, sec. 6. Effect. " This act shall take effect and be in force from and after its passage." Cal. Stats. 1873-74, p. 582, sec. 7. 203 SUPPORT OP FAMILY AND HOMESTEAD. § 143 Nevada. — "If the wife of any owner pf a homestead shall be iBsane, and such owner shall desire to convey such homestead, or any interest therein, he may petition the district court [of the district] in which such homestead may be situated for license to convey the same, and such court, upon reasonable and not less than twenty days' notice of such petition to the kindred of such insane wife, residing in this state (which notice may be personal or by publi- cation in some newspaper in the county, or [as] directed by the court), may hear and determine such petition, and may license such owner to convey such liomestead, or any interest therein, by his sole deed; whi-h license shall be recorded in the oiBce where such homestead is recorded, and thereupon such sole deed shall have the same operation as if such wife had been sane and joined in such deed." Gen. Stats., sec. 543. , " On granting such license, such court may make such special order as to the investment or disposition of the funds derived from conveyance as a court of chancery could do in the case of the funds of married women." Gen. Stats.» sec. 544. " On the hearing of such petition for license, any of such kindred may ap- pear and be heard in the premises, and may appeal from any order made on the sribject in the same manner provided for other appeals from decrees of the district court." Gen. Stats., sec. 545. Form No. 99. — Petition for Order to Sell and Convey (or Mortgage) Homestead of Insane Person. (Stats. 1873-74, pp. 582, 583.) In the Matter of the Application to Sell, etc., Homestead of , an Insane Person. To the Honorable Court of the County of , State of ; The petition of respectfully shows: — That and petitioner are, and for a long time past have been, husband and wife; . That said is of the age of years, and has been a resident of the county of , state of , for more than years last past; That there are now living the following named male children of petitioner, and said , to wit, , aged years, a resident of the —• — county of — ^, state of , etc. ; That on or about the day of , A, D. 18-^, said became and ever since has been and now is hopelessly insane, and was duly committed on the r day of - — , A, D. 18 — , to the insane asylum at , and is now in said asylum; That said and petitioner are the owners of certain real §143 PROBATE LAW AND PRACTICE. ' 204 estate which is community property, and which is described as follows, to wit (here insert description); That the actual cash value of said real estate is the sum of That a declaration was duly made, claiming said premises as a homestead, and was duly acknowledged, filed for record, and recorded in the office of the county recorder of the county of , state of , on the day of , A. D. 18 — , and was duly recorded in Book No. of Homesteads, on page; — (Here state such facts relating to the circumstances and necessities of petitioner and his or her family, as he or she may rely upon in support of this petition); — Wherefore petitioner prays for an order of this court author- izing petitioner to sell and convey (or mortgage) the said premises pursuant to the law in such case made and provided. , Petitioner. , Attorney for Petitioner. State of ■ , , County of , the petitioner above named, being duly sworn, deposes and says that he has heard read the foregoing petition and knows the contents thereof; that the same is true of his own knowledge, except as to the matters therein stated on his infor- mation and belief, and as to those matters, he believes it to be true. Subscribed and sworn to before me this day of , A. D. 18—. — ^, Notary Public. Form No. 100. — Notice of Application to Sell and Convey (or Mortgage) Homestead of Insane Per- son. [Title of Court and Matter as in Form No. 99.] Notice is hereby given that I, , wife of , have applied to the court of the county of , state of , for an order authorizing me to sell and convey (or mortgage) the homestead of said and myself, upon the ground that said is hopelessly insane, and because said sale (mortgage) has become necessary, for reasons which are more fully stated in my petition therefor on file in said court, and that the hear- J05 SUPPORT OP FAMILY AND HOMESTEAD. § 143 ing of said application and petition will be had on the day of , 18 — , at the hour of o'clock, — m., of said day. Said homestead is described as follows, to wit (here insert de- scription). . Applicant. Dated , 18—. Form No. 101. — Order Authorizing Sale and Con- veyance (or Mortgage) of Homestead of Insane Person. [Title of Court and Matter as in Form No. 99.] This matter coming on regularly for hearing upon the peti- tion of to sell and convey (or mortgage) certain real estate which has been dedicated as a homestead, and it appearing to the court thait due and legal notice was given of this applica- tion, and it appearing that said petition was filed in this court on the day of , A. D. 18 — , and that all the allega- tions therein contained are true, and that petitioner is entitled to the relief prayed for therein, — It is ordered, adjudged, and decreed that the petitioner, ,' be and she is hereby authorized and empowered to sell and convey (mortgage) in her own name the homestead of herself and husband which is described in said petition as follows, to wit (here insert description), and she is further authorized and empowered to make, execute, and deliver proper conveyances therefor to the purchaser thereof. Dated , 18 — . , Judge of the Court. Form No. 102. — Conveyance of Homestead of In- sane Person. This indenture, made the day of , A. D. 18 — , be- tween , wife of , of the county of , state of , the party of the first part, and , of the county of -^ — , in said state, the party of the second part, witnesseth, that whereas, , the said husband of the said party of the first part, is hopelessly insane; that the real estate hereinafter described has been dedicated as and is the homestead of the said party of the first part and her said husband; that it is to the best interest of the said, party of the first part and her said husband that their said homestead should be sold; and whereas such pro- § 143 PROBATE LAW AND PRACTICE. 206 ceedings were had in the matter of said homestead that the — ^ court of the county of , state of , after the filing of a proper petition therefor, and after due and legal notice of the hearing of such petition, on the day of , A. D. 18 — , made and entered an order authorizing the said party of the first part to sell and convey said real estate in her own name, which said order is hereby referred to and made a part hereof; that under and by virtue of said order said party of the first part has sold said real estate, and the party of the second part has become the purchaser thereof; : — Now, therefore, the said party of the first part, pursuant to said order, and in consideration of the sum of dollars to in hand paid, receipt whereof is hereby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does hereby grant, bargain, sell, and convey, unto the said party of the second part, his heirs and assigns forever, all that certain lot, piece, or parcel of land situate in the county of , state of , which is particularly described as follows, to wit (de- scription); — Together with all the tenements, hereditaments, and apput- tenances whatsoever to the same belonging or in any wise ap- pertaining; To have and to hold all and singular the above mentioned and described premises, togethet with the appurtenances, unto the said party of the second part, his heirs and assigns forever. In witness whereof, the said party of the first part has here- unto set her hand and seal, the day and year first above written. Signed, sealed, and delivered in the presence of . [seal] Form Not 103. — Mortgage of Homestead of Insane Person. This indenture, made on the day of , A. D. 18 — , between , wife of , of the county of , state of , the party of the first part, and — '-^, of the county of , in said state, the party of the second part, witnesseth, that whereas — — , the said husband of the said party of the first part, is hopeleBely insane; that the real estate hereinafter 207 SUPPORT OF FAMILY AND HOMESTEAD. § 143 described has been dedicated as and is the homestead of the said party of the first part and her said husband; that it is to the best interest of the said party of the first part and her said husband that their said homestead should be mortgaged; and whereas such proceedings were had in .the matter of said home- stead that the court 6f the county , state of , after the filing of a -proper petition therefor, and after due and legal notice of the hearing of such petition, on the day of , A. D. 18 — , made and entered an order authorizing the said party of the first part to mortgage said real estate in her own name, which said order is hereby re- ferred to and made a part hereof; that under and by virtue of. said order said party of the first part, as mortgagor, mortgages to the party of the second part, as mortgagee, all that real property situated in the — ■ — county of , state of , and known, designated, and described as (description), together with all the improvements thereon, and the hereditaments and appurtenances thereunto belonging, as security for the pay- ment to said inortgagee of a certain promissory note, in the words and figures fallowing: — $ . Sacramento, California, , 18 — . after date, for value received, — '-^ promise to pay , or order, dollars, in gold coin of the present standard of value, with interest thereon from date until pa.iA, at the rate of per cj6nt per — — , in like coin, payable -, and if not so paid, the interest may be added to the principal and bear like interest, and the whole note may, at the option of the holder, without notice to the maker thereof, b6 treated as due and col- lectible, both principal and interest to be paid at ; and also to secure all other indebtedness that may hereafteir, daring the continuance of this mortgage, be due, owing, oT existing from said tnorigagof, - — ^, to said mortgagee, not exceeding dollars. - , And it is hereby further agreed that the mortgagor Shall and will keep the improvements upon the mortgaged premises in- sured for , and will have such insurance made payable to the mortgagee, as additional security for the payment of the note aforesaid; and in default of keeping s'aid improvements insured as aforesaid, then said mortgagee may cause the same § 143 PROBATE LAW AND PRACTICE. 208 to be insured at the expense of the said mortgagor; and that the mortgagor will, on demand, repay to the mortgagee, in gold coin, all moneys paid by the mortgagee to obtain said insur- ance, and also all sums paid by the mortgagee to discharge any tax or assessment on said premises, or the improvements thereon, not chargeable against the mortgagee under the consti- tution and laws of said state, which payments the mortgagee is hereby authorized to make, and that this mortgage shall stand as security for the repayment to the mortgagee of all sums which he shall have paid for the purposes aforesaid, together with interest thereon from the date of the payment thereof, at the rate of ten per cent per annum, until repayment is made to the mortgagee; and in case it shall become necessary to defend or intervene to protect the title to said property, or the right to the possession therebf, or the right or lien of this mortgage, in any action of ejectment, suit for partition, or to foreclose a lien, or any other legal proceeding whatsoever, the said mortgagee or his assigns may take charge and control of such intervention or defense, and this mortgage shall stand as security for the re- payment of all moneys expended in such defense or interven- tion, for counsel fees or otherwise, together with interest thereon at the rate of ten per cent per annum. And in case default be made in the payment of said note, or of any installment thereof, or of any interest due thereon, then the mortgagee may, at his option, and without notice to the mortgagor, at once proceed to foreclose this mortgage, and in any such proceeding to foreclose he shall be allowed a reasonable and just sum, to be fixed by the court, with which to pay the attorney's and counsel fees in such foreclosure proceedings, in gold coin, which sum shalL be secured by this mortgage, and shall become due upon the filing of the complaint; and on the filing of such complaint in such' foreclosure proceeding, or at any time thereafter, the court shall, if requested by the plain- tifi', name some disinterested person as receiver, and shall au- thorize such receiver to at once take possession of the mortgaged premises, and collect the rents and profits thereof, and apply them to the satisfaction of such judgment, and to sell said premises in the same manner as lands are sold upon execution, and to continue in the use and possession of said premises, 209 SUPPORT OF FAMILY AND HOMESTEAD. § 143 ^ and to collect the rents and profits thereof until the premises are redeemed from such sale, or until title is vested in the pur- chaser by the' execution of a conveyance in pursuance of the sale. In witness whereof, the said mortgagor has hereto set her hand and seal the day and year first herein written. [seal] ARTICLE IV. or DOWER. § 143 a. Assignment of Dower. — " When a widow is entitled to dower in the lands of which her husband died seised, and her right to dower is not disputed by the heirs or devisees, or any person claiming under them or either of them, it may be assigned to her in whatever counties the lands may lie, by the county court of the county in which thp estate of the husband is settled, upon application of the widow or any other person interested in the lands; notice of which applica- tion shall be given to such heirs, devisees, or other persons, in such manner as the county court shall direct." Hill's Laws of Oregon, sec. 2961. " For the purpose of assigning such dower, the county court shall direct a warrant to issue to three discreet and disinter- ested persons, authorizing and requiring them to set off the dower by metes and bounds, when it can be done without in- jury to the whole estate." Hill's Laws of Oregon, sec. 2962. " The commissioners shall be sworn by a judge of any court of record or a justice of the peace faithfully to discharge their duties, and shall, as soon as may be, |et off the dower accord- ing to the cpmmand of such warrant, and make return of their doings, with an account of their charges and expenses, in writing, to the county court; and the same being accepted and recorded, and an attested copy thereof filed in the office of the county clerk of the county where the lands are situated, the dower shall remain fixed and certain, unless such confirmation be set aside or reversed; costs on appeal, and one half of the costs of such proceedings, shall be paid by the widow, and the other h^lf by the adverse party." Hill's Laws of Oregon, sec. 2963. 11 § 143 a PROBATE LAW AND PEACTICB. 210 Washington. — Dower abolished. Gen. Stats., 1405. Th.e court of probate can pro- trator of the . estate of her deceased tect dower interest of widow in husband: Bviler v. Smith, 20 Or. 126. money in the hands of the adminis- Form No. 1 04. — Petition for Admeasurement of Dower. [Title of Court and Estate.] The petition of '■ respectfully shows unto the court: — 1. That she is the widow of , deceased, whose estate is now in course of administration in this court, and that her said husband died on the day of , A. D. 18 — ; 2. That at the time of his death, and during the time that he was the husband of petitioner, he was seised in fee of and owned the following described real property, to wit (description) ; 3. That she has not had her dower therein assigned to her, but is now entitled thereto; — Wherefore she prays this honorable court for an admeasure- ment of her dower in said real estate, and that said dower be assigned to her. , Petitioner. , Attorney for Petitioner. Form No. 105. — Order of Notice of Petition for Admeasurement of Dower. [Title of Court and Estate.] The petition of , widow of , deceased, praying for the assignment of dower to her out of certain real estate of said deceased, having been filed herein, it is ordered that the same be set for hearing before this court on the day of , A. D. 18 — , at the court-room of this court in the above-named county, at the hour of ten o'clock, a. m., of said day. It is further ordered that notice thereof be given by the clerk of this court by posting said notice in three public places in this county, and that a copy of such notice be mailed by the clerk of this court to each of the heirs at law (legatees) of said deceased, addressed to him at the county seat of this county, postage prepaid (or that said notice be served by publication in the , a newspaper published in this county, for at least ten days prior to the hearing of said petition.) , County Judge. Dated , 18—. 211 SUPPORT OP FAMILY AND HOMESTEAD. § 143 a Form No. 106.— Order for the Appointment of Guardian. [Title of Court and Estate.] Now, on this day of , A. D. 18 — , , the widow of -, deceased, appeared in court, and alleged that she is about to make application to this court for the admeasurement of her dower, of certain lands and tenements, situated in said county, as the widow of said deceased, and that and are heirs of the said deceased (or are owners of such lands and tenements), and are minors, and prayed that guardians may be appointed for them. It is therefore ordered that be ap- pointed guardian for the said minors for the sole purpose of appearing for and taking care of the interests of said minors. in the premises. , Judge of the Court. Dated this day of , A. D. 18—. Form 107. — The Appointment of Guardian. [Title of Court and Estate.] To , Esq., of the County of , Greeting. Whereas , widow of , deceased, has this day appeared before the court of the county of , state of , and alleged that she is about to make application to said court for the admeasurement of her dower of certain land and tenements, situate in the town of , in the county of , in said state, as the widow of said deceased, and that and are heirs of said deceased (or are owners of the said lands and tenements), and are minors, and prayed that guardians might be appointed by said court for them, and an order for that purpose having been heretofore made herein by this court, you, the said , are hereby appointed guardian of the said and — -, minors as aforesaid, for the sole purpose of appearing for and taking, care of the interests of said minors in the premises. In witness whereof, we have hereunto subscribed our name, and have attached the seal of said court hereto, this day of , A. D. 18—. [seal] , Clerk of said Court. § 143 a PROBATE LAW AND PRACTICE. 212 Form No. 108. — Notice of Fetitiou for Admeasure- meut of Bo'v^er. Pitle of Court and Estate.] To , heirs at law (or as the case may be), legatees of said deceased, and all persons claiming under them. You are hereby notified that , the widow of , de- ceased, has filed in the above-entitled court, wherein the estate of said deceased is beiiig administered, her petition praying that an admeasurement of her dower be had, and that said dower be assigned to her out of the following described real property of said deceased, to wit (description). You are further notified that the hearing of said petition has been set for Monday, the twenty-first day of January, A. D. 1889, at the hour of ten o'clock, a. m., of said day, at the court- room of said court, at the county court-house 'of the above- named county, at which time and place you will show cause, if any there be, why said petition should not be granted. [seal] , Clerk. Form No. 109. — Order for Admeasurement of Dower. [Title of Court and Estate.] Now, on this day of , A. D. 18 — , the petition of coming on to be heard, praying that an assignment be made to her of her dower, and it appearing that is the widow of -, deceased; that his estate is being administered in this court; that during his lifetime, and while he was the husband of petitioner, said deceased was seised in fee and was the owner of the land "hereinafter described; that petitioner is entitled to dower out of said real estate; that due notice of the hearing of said petition has been given to the heirs at law (dev- isees) of said deceased, arid all persons claiming under them, as required by law and the order of this court heretofore made herein ;| and no reason appearing why said petition should not be granted, — It is ordered that a warrant be issued by the clerk of. this court to , , and , who are discreet and disinterested persons, authorizing and requiring them to set off to said , ^13 SUPPORT OF FAMILY AND HOMESTEAD. § 143 a widow of eadd , deceased, her dower in the following de- scribed real estate, by metes and bounds, if it can be done without injury to the whole estate; said real estate is described as follows, to wit (description); that after having set off said dower to said , as above directed, that they make a report, in writing, of their doings to this court, and file therewith a statement of their expenses and disbursements .herein. , Judge of Court. Form No. 110. — Warrant for Admeasurement of Dower. The People of the State of send Greeting to , , and . Whereas , widow of , deceased, has presented to the county court of the county of , state of , praying for an assignment of her dower out of the real property of deceased, which is described as follows (description); And whereas said court ias ordered that her said dower in said real estate be set apart and assigned to her as the law pro- vides, and has appointed you and each of you commissioners to admeasure such dower; — You are therefore authorized and empowered by this warrant to admeasure, lay off, and assign to , widow of said , deceased, her dower in said premises, to wit, a portion therecrf equal to an undivided one-third interest therein, as speedily as may be,.and thereafter to make a written report of yonr doings in that behalf, and also a report of your disbursements and ex- penses incurred in the execution of this warrant. , Clerk of the Court. Form No. 111.— Oath of Commissioners. [Title of Court and Estate.] State of ■ County of . j , , and , commissioners appointed to admeasure the dower of , widow of , deceased, being first duly Bworn, each, on oath, deposes and says that he will faithfttUy discharge his duty as commissioner to admeasure and assign § 143 a PROBATE LAW AND PRACTICB. 21' dower out of the real property of , deceased, to , hi widow. Subscribed and sw;orn to before me this day of A. D. 18—, (title of officer). Form No. 112. — Heport of Commissioners to Ad measure and Assign Dower [Title of Court and Estate.] We, the undersigned, heretofore appointed commissioners tc admeasure and set apart to , widow of , deceased, hei dower in the real estate of said deceased, respectfully report that we have performed our duties as directed by the annexed warrant, as follows: After receiving said warrant we each took the oath prescribed by law to be taken by us, which said oath is hereto attached; we then proceeded to view the land de- scribed in said warrant as the property of said , deceased; finding it necessary, we employed -, Esq., a competent .sur- veyor and his necessary assistants to aid us in the admeasure- ment, and we have assigned to said widow, as her dower, the following described portion of said real estate, to wit (descrip- tion). Our expenses and disbursements have been as follows: — Three days' services of ourselves, ai $5 per day each $45 00 Three days' services of said surveyor and his assistants, at $20 per day 60 00 Total $105 00 Respectfully submitted, etc., Commissioners as aforesaid. Dated , A. D. 18—. Form No. 113. — Order Confirming Report of Com- missioners. [Title of Court and Cause.] Whereas, , , and , commissioners appointed pur- suant to the former order of this court on the petition of , the 215 SUPPORT OF FAMILY AND HOMESTEAD. g 143 a widow of , deceased, situate in the county of ■■ , in this state, whereof the said died seised of an estate of inheri- tance, have this day made report to this court, among other things, that after having been sworn before legal authority faithfully, honestly, and impartially to discharge the duty and execute the trust reposed in them by the said appointment, they did, on the day of , A. D. 18-^, in the presence of the said , widow as aforesaid (or of , her lawful at- torney), and also in the presence of said and — — , heirs as aforesaid (or , their lawful attorney), cause a survey to be made of the lands and premises in the said petition, appoint- ment, and report mentioned, as will fully appear therefrom, reference being had .thereto, and caused a map thereof to be made, and that they had admeasured and allotted to the said , widow, as aforesaid, of said , deceased, for her dower, a portion of said lands equal to an undivided one-third part of the said lands and premises, which part so admeasured and allotted will fully appear by said report this day filed in this court, and entered at large on the minutes thereof; and whereas said , at said time and place first aforesaid, appeared before this court and prayed that said report be confirmed, and no cause appearing to the contrary, it is ordered that the said re- port and admeasurement be and the same are hereby confirmed. (If the report be contested, enter the order as follows: And whereas, on the day and at the place first aforesaid, the said and — , by their respective attorneys (or counsel), and after hearing the proofs and allegations of said parties, it is ordered.) , Judge of Court. BContana. — "Whenever the wife of any person shall liave become insane, imbecile, or idiotic, or from any cause shall be unable from defective intellect to join her husband in the conveyance of real estate, and shall have remained in that condition for more than two years, or when it shall be made to appear to the court or judge that such married woman is incurably insane, she may be barred of her right of dower in the lands of her husband, in the manner following, to wit." Laws 1889, p. 121, sec. 1. " The kiusband, or any person interested in such real estate, may apply to the district court, or judge, of the county where ^uch lands, or part of such lands, are situated, by petition, under oath, for the appointment of a guardian, and for leave to sell her inchoate right ot dower, which petition shall state, — 1. The name, age, and residence of such married woman, and the name, residence, and age of her husband, as near aa can be ascertained; 2. The § 143 iEl PROBATE LAW AND PEAGTlOB. 816 nature of the disability of such married Troman, and the length of time it has existed; 3. A full deecription of the lands and l)remises in this territory to be affected by such proceedings; 4. The value of each piece of real estate, and the amount of encumbrance upon it, if any, not aflFected by or jfrior to her claim of dower; 5. If the real estate is to be sold by the husband, or has been sold by him, the exact amount of the consideration of such sale as madeor agreed upon; 6. The reasons why such sale is desirable to said husband or peti- tioner." Laws 1889, p. 121, sec. 2. " Upon the filing of such petition, the said district judge or court shall enter an order that the petition be heard on a certain day, and notice of the hearing be given by publication or otherwise, in such manner and to such person as said judge or court shall direct." Laws 1889, p. 122, sec. 3. "At such hearing the said wife may appear by counsel, or by guardian ad litem appointed as in other cases by said court or judge, and may answer such petition in the time and manner said court or judge may direct, and npon the ' filing of an answer the case shall be deemed at issue, or if the said wife shall fail to appear as herein provided, the judge or court shall appoint some com- petent attorney on behalf of such wife, and proceed summarily upon written evidence taken under its orders to hear and determine the case, or, at its dis- cretibn, may refer it to a court commissioner, appointed by the court or judge for the purpose, to take proofs and report the same to the court or judge with his opinion, — 1. As to the insanity or imbecility of the respondent; 2. As to the propriety or necessity of selling said real estate or of barring said respond- ent's right of dower therein; 3. The cash value, at the time, of her dower in- terest in said premises, taking into consideration t&e respective ages of said husband and wife. Upon the coming in of said report the court or judge shall consider the same and enter such order as shall be just and equitable." Laws 1889, p. 121, sec. 3. "If said court or judge shall decide that the respondent is insane, and that it is desired that the right of dower should be barred, it shall fix the then pres- ent value of such dower, and thereafter shall appoint a guardian of such insane person, who shall be some person other than her husband, who shall give a bond in a sum to be fixed by the court or judge, with surety, or sureties to be approved by the court, conditioned to receive and invest any money that may come into his hands for her sole use and benefit, under the order and direction of the court or judge, both as to its investment and to the disposition of the income thereof." Laws 1889, p. 122, sec. 4. "Upon the approval of such bond, said guardian may proceed and sell, at private sale, as such guardian, the interest of such married woman in said land, at a sum not less than the value of said dower as fixed by said court. He may join with the husband in such conveyance; or if the husband has pre- viously sold and conveyed said property, may, by separate conveyances, deed said right of dower to the husband's grantee or grantees, his or their heirs and assigns, but to no other person. Said conveyance shall, in such cases, be as effective to bar the right of dower of said married women as if she had, being of sound mind, joined her husband in a deed of said premises." Laws 1889, p. 123, sec. 5. 217 SUPPORT OF FAMILY AND HOMESTEAD. § 143 a " Said guardian shall apply the ineome of said money to the support of said married woman, or allow the same to accumulate, as the court may direct; and upon the restoration of said married woman to sound mind, shall, upon the order of the court, transfer to heT all the funds in his hands, And upon her death shall deliver the same to her husband, if he shall be living at her death; if not living, then to her heirs at law; or in case such wife have no heirs at law, then to the heirs at law of her husband." Laws 1889, p. 123, sec. 6. " All acts and parts of acts in conflict with the provisions of this act are hereby repealed." Laws 1889, p. 123, sec. 7. Form No. 114. — Petition by Purchaser to Bar Dower Bights of Insane Wife. [Title of Court and.Bstate.] The petition of respectfully shows to this honorable court as follows: — 1. That is the husband of , who is hereinafter mentioned; that he, said husband, resides at , in the county of , state of Montana; that his name is , as above set forth; that his age is years; that the name of his said wife is , as above set forth, her age is years, and she resides at , in the county of , state of Mon- tana; 2. That said , the said wife of , is insane (or as the case may be, idiotic, etc.); that hqr said insanity is incurable; ' that she became so insane (or idiotic, etc.) on or about the day of , A. D. 18 — , and thence hitherto she has continu- ously remained insane (or idiotic, etc.),'^ and is now incurably insane,' as aforesaid (or state the facts according to the cir- cumstances) ; 3. That said is the owner in fee of all that real estate situate, lying, and being in the county of , state of Montana, which' is particularly described as follows (here insert full description of the lands to be affected by the proceedings, and each parcel thereof; 4. That the value of said real estate is $ (if there is more than one parcel, state separately the value of each parcel; and if there is any encumbrance prior to or not affected by the wife's claim of dower, state the nature and extent thereof fully); ■ In case the insanity is curable, this clause may be omitted. > If not incurable, iomit the words between these figures 2. § 143 a PEOBATE LAW AND PRACTICE, 218 5. That said has contracted with petitioner to sell said land to him, and petitioner desires to purchase the same, provided he can procure a perfect title thereto free from en- cumbrances; 6. That the reasons why such sale is desirable is (here state fully the reasons, etc.); 7. That the exact amount of the purchase price for said real estate, as agreed upon between said and petitioner, is 8. That said , the husband of said , cannot convey to petitioner a perfect title to said premises free from encum- brances, because said real estate is subject to the claim of dower of said , the wife of said , therein; 9. That by reason of her insanity (or imbecility, etc.), as aforesaid, she is not able to join her said husband in the con- veyance of said real estate; 10. That it is necessary that a guardian should be appointed for the said , the wife of said , to the end that such guardian may join with said , husband of said , in conveying said real property; — Wherefore petitioner prays that this honorable court will ap- point some suitable person, after due and legal notice given as guardian of the estate of said , wife of said , and that said guardian be empowered and directed to sell, her said right of dower, according to law. , Petitioner. , Attorney for Petitioner. Form No. 115. — Petition by Husband to Bar Dower of Insane Wife. [Title of Court aad Cause.] The petition of respectfully shows to this honorable court as follows: — 1. That he is the husband of , who is hereinafter men- tioned; that he resides at , in the county of , state of Montana; that his name is as above set forth, ; that he is years of age; that the name of his said wife is as above set forth, ; that her age is years, and her residence is at , in the county of , in said state; 219 SUPPORT OP FAMILY AND HOMESTEAD. § 143 a 2. That the said wife of petitioner is insane (or idiotic, etc.); that her said insanity is incurable;' that she became so insane (or idiotic, etc.) on or about the day of , A. D; 18 — , and thence hitherto she has continuously remained in- sane (or idiotic, etc.),' and is now incurably insane;' 3. That petitioner is the owner in fee of all that real estate situate, lying, and being in the county of -. >, state of Mon- tank, which is particularly described as follows (here insert full description of the lands to be affected by the proceedings, and each parcel thereof); 4. That the value of said real estate is $ (if there is more than one parcel, state separately the value of each, and if there is any encumbrance prior to or not affected by the wife's claim of dower, state the nature and extent thereof fully); 5. That petitioner has contracted to sell said real estate to one '-, who desires to purchase the same, provided he can procure a perfect title thereto free from encumbrances; 6. That the reasons why such sale is desirable is as follows (here insert reasons fully); 7. That the exact amount of the purchase price for said real estate, as agreed upon between said petitioner and said , is 8. That petitioner cannot convey to said a perfect title to said real estate free from encumbrances, because it is sub- ject to the right of dower of petitioner's said wife; 9. That by reason of her insanity, as aforesaid, the said wife of petitioner is unable to join him in the conveyance of said real estate; 10. That it is necessary that a guardian should be ap- pointed for the said wife of petitioner, to the end that such guardian may join with petitioner in conveying said real estate; — Wherefore petitioner prays that this honorable court will ap- point some suitable person as guardian of the estate of the said wife of petitioner, and that said guardian be empowered I ' If insanity is curable, omit this clause. ' If insanity is curable, omit words between these figures 2. § .1,43 a PROBATE LAW AND FRACTICB. 220 and ditected to sell the said aright of dower of the said wife of petitioner accordinsg to law. , Petitioner. , Attorney for Petitioner. Note. — The above petition must be verified by the oath of petitioner. For form of verification, see Form No. 55, § 80, ante. Form No. 116. — Order Setting Petition for Hear- ing, etc. ITitle of Court and Estate.] The verified petition of having been filed in the above- entitled cause in this court on the — — day of , A. D. 18 — , and it appearing therefrom that (if petitioner is the husband of the insane woman, follow subdivisions 1 to 10, inclusive, of Form No. 115, supra; but if the petitioner is not the husband of such insane wife, follow subdivisions 1 to 10, inclusive, in Form No. 114, swpra),— It is therefore ordered that said matter be heard by this court at the court-room thereof on the day of , A. D. 18 — , at the (hour of o'clock, — m., of said day, and that notice of said .hearing be given by citation to the following named persons, to wit, ; That such notice and citation be served upon each of said persons personally at least days before the day of such hearing; That Baid notice and citation be served upon said persons by publishing the same for at least days successively prior to said day of hearing in the Daily Evening Bugle, a newspaper of general circulation printed in this county. , District Judge. 221 CLAIMS AGAINST ESTATE. § 144 CHAPTER VI. OP CLAIMS A&AINST THE ESTATE. § 144. Notice to creditors. §145. Time expressed in the notice. § 146. Proof of notice and order made. § 147. Time within whioh claims presented. § 148, Claims allowed to bear interest as judgments. § 149. Judge may present claim. § 150. Allowance and rejection of claims. § 151. Approved claims to be iiled — Claims secured by liens — Lost claims. § 152. Rejected claims. § 153. Claims barred by statute of limitations. § 154. Claims must be presented before suit. § 155. Limitation. ^ 156. Claims in action pending at time of decease. § 157. Allowance of claim in part. § 158. Effect of judgment against executor. § 159. Execution. §160. What judgment' Is not a lien. § 161. Doubtful claims. § 162. Trial by referee. § 163. Liability of executor. § 164. Claims of executor. § 165. Executor neglecting to give notice to creditors, § ] 66. Executor to return statement of claims. § 167. Interest-bearing claims. § 144. [1490.] Notice to Creditors.— Every executor or administrator must, immediately after his appointment, cause to be published in some newspaper of the county, if there be one, if not, then in such newspaper as may .be designated by the courtj a notipe to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice. Such notice must be published as often as the judge or court shall direct, but not less than once ^ week for four weeks. The court or judge may also direct additional notice by publication or posting. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, his successor § 144 prob!a.tb law. and practice. 222 must give notice only for the unexpired time allowed for such presentation. Publication of Notice: .See § 451, post, Arizona. — Same. Rev. Stats., sec. 1107. Idaho. — Same; with the following added: " Provided, that when no news- paper is published in the county, the notice shall be posted in nqt less than three public places in the county, one of which shall be at the court-house door, for such time, not less than four weeks.'aa the court may order." Rev. Stats., sec. 5460. Montana. — Same as California. Comp. Stats., p. 310, sec. 147. Nevada. — " Every executor or administrator shall, immediately after his appointment, cause to be published in some newspaper published in the county, if there be one, if not, then in such newspaper as may be designated by the court, a notice to the creditors of the deceased, requiring all persons having claims against the deceased to exhibit them, with the necessary vouchers, within four months after the first publication of the notice, to such executor or administrator, at the place of his residence or transaction of business, to be specified in the notice. Such notice shall be published as often as a judge or court shall direct, but not less than once a week for four weeks. The court or judge may also direct additional notice by publication or posting. In case such executor or administrator resign, or be removed before the expiration of four months after the first publication of such notice, his successor shall give such notice only for the unexpired portion of the four months. After the notice shall have been given as required by the preceding section, a copy thereof, with the affidavit or affidavits of due application (publication), or of the pub- lication and posting, may be filed, and upon such affidavit or affidavits, or upon other testimony to the satisfaction of the court, a decree shall be made showing that due and legal notice to the creditors has been given, and direct- ing that such decree be entered in the minutes of the court." Stats. 1891, p. 105, sec. 2; amending Gen. Stats., sec. 2797. Oregon. — " Every executor or administrator shall, immediately after his appointment, publish a notice thereof, in some newspaper published in the county, if there be one, or otherwise in such paper as may be designated by the court, or judge thereof, as often as once a week, for four successive weeks, and oftener if the court or judge shall so direct. Such notice shall require all persons having claims against the estate to present them, with the proper vouchers, within six months from the date of such notice, to the executor or the administrator, at a place within the county therein specified." Hill's Laws, sec. 1131. Utah.. — Same as California. Comp. Laws, sec. 4120. Washington. — Same as first two sentences of California section. Code Proc, sec. 977. "In case of resignation or removal, for any cause, of any executor or admin- istrator, and the appointment of another or others, after notipe has been given by publication as required by law, by such executor or administrator first ap- pointed, to persons to present their claims against the estate, it shall be the 223 CLAIMS AGAINST ESTATE. § 144 duty of the jndge of the court to cause notice of such resignation or removal and such new appointment to be published two successive weeks in the same newspaper in which the original notice was published, if the publication of such paper is at the time continued, and if not, theu in some other newspaper pub- lished in the county, or if there be no newspaper published in such county, then in a newspaper published in the state and of general circulation in the county, and the estate shall be closed up and settled within the year from the date of said original notice, unless further time be granted by the court as provided by law." Code Proc, sec. 997. Wyoming. — "Within thirty days after letters are granted, the executor or administrator shall publish in some newspaper in the county, and if there be no newspaper published in the county, within some newspaper of general circulation in the state, and publish therein for three weeks a notice that let- ters testamentary or of administration have been granted to him, stating the date, and requiring all persons having claims against the estate to exhibit them for allowance to the executor or administrator within six months after the date of the letters, or they may be precluded from any benefit from such estate, and that if such claims be not exbibited within one year from the date of the said letters, they shall be forever debarred. Whenever there is more than one executor or administrator, the notice published and signed by one of them shall be sufficient." Laws 1890-91, pp. 269, 270, sec. I. A notice to the creditors of a itors of the estate of a deceased per- decedent requiring them to present son, made in advance of an order of their claims to the administrator may the court fixing the legal period of designate the office of his attorney as publication, is invalid; and where the the place where he transacts the bnsi- number of publications after the order ness of the estate, and the place for is made fall below the statutory mini- the presentation, although he does not mum, the presentation and allowance reside there, and transacts his ordinary of a claim more than four months business elsewhere: Bollinger v. Man- after the last publication are within ning, 79 Cal. 7. the time prescribed by law: Wise v. A publication of notice to cred- Williama, 88 Cal. 30. Form No. 117. — Order Directing Notice to Cred- itors. [Title of Court and Estate.] It is ordered that notice to creditors in the above-entitled estate be published once each week for four successive weeks in the — ^, a newspaper of general circulation published in this county. , Judge of the Court. Dated , 18 — . Form No. 118. — Notice to Creditors. Estate of , deceased. Notice is hereby given by the undersigned, , administra- tor (or executor) of the estate of , deceased, to the credi- §§ 145, 146 PROBATE LAW AND PRACTICE. 224 tors of, and all persons having claims against, said deceased^to exhibit them, with the necessary vouchers, within months after the first publication of this, notice, to s^id admiQi^trator at his oflBce (or reBidence) No. 602 K Street, Saeramente, Cal-- ifornia, the same being the plaoe for the transaction of the busi- ness of said estate in the county of Sacramento, California. Dated , 18 — . , Administrator (or ExecijtQr). , Attorney for Administrator (or Executor). § 145. [1491.] Time Expressed in the Notice.— The time expressed in the notice must be ten months after its first publication, when the estate exceeds in value the sum of ten thousand dollars, and four months when it does not. Arizona. — Same, except valuation of estate is three thouaand dollars for a four mouths' notice. Rev. Stats., sec. 1108. Idab.0. — Same as California, except valuation is fifteen hundred dollars for a four mouths' notice. Rev. Stats., sec. 5461. Blontana. —Same as Califoruia. Comp. Stats., p. 310, sec. 148. Nevada. — See Geu. Stats., sec. 2797, under preceding section. Oregon. -^ Six months' notice is always required. Hill's Laws, sec. 1131, undfir last section. TTtah. — Same as California, except that "three thousand " is substituted for "ten thousand." Comp. Laws, sec. 4121. Washington. — Same as California, except that one year's notice is always required. Code Proc, sec. 979. See § 147, post. Value in inventory and ap- properly given: Tn re Lqeven, Myr. 1 praisement the guide in determining Frob. 203. if the notice to creditors has been § 146. [1492.] Proof of Notice and Order Made.— After the notice is given, as required by the preceding section, a copy thereof, with the affidavit of due publication, or of pub- lication and posting, must be filed, and upon such aflidavit or other testimony to] the satisfaction of the court, an order or de- cree showing that due notice to creditors has been given, and directing that such order or decree be entered in the minutes and recorded, must be made by the court. Arizona. — Same. Rev. Stats., sec. 1109. Idabo. — Same. Rev. Stats., sec. 5426. Montana. — Same. Comp. Stats., p. 310, sec. 149. Nevada. — See Gen. Stats., see. 27i97, under § 144, ante. 225 CLAIMS AGAINST KSTATE. § 147 Oregon. — " Before the expiration of the six months mentioned in the last section [1131, under § 44, ante], a copy of the notice as published, with the proper proof of publication, shall, be filed with the clerk." Hill's Laws, sec. 1132. Utah. — Same as California, except t)iat "within thirty days" is prefixed to the section. Comp. Laws, sec. 4122. Washington. — "After the notice shall have been published, a. copy thereof, together with the afiidavit attached thereto of the publisher or printer of the paper in which the same was published, shall be filed by the executor or administrator in court." Code Proc, sees. 978. Wyoming. — " After the notice is given, as required by the preceding sec- tion, a copy thereof, with the affidavit of due publication, must be filed in the office of the clerk of court." Laws 1890-91, p. 270, sec. 2. Proof of Publication, how Made: Cal. Code Civ. Proc, sees. 2010, 2011. The affidavit of publication is lished for the statutory time: Wise r. only prima facie evidence of the facts WilUnms, 88 Cal. 30. therein stated, and may be contra- A decree establishing due no- dieted by the files of the newspaper tice to creditors is not conclusive, in which the notice was published, and may be controlled by proof that showing that the notice was not pub- Ijhe publication was insufficient: Id. Form No. 119. — Decree Establishing Notice to Creditors. [Title of Court and Estate.] , It appearing to the satisfaction of this court that due and legal notice to the creditors of said estate has been given, — It is hereby ordered, adjudged, and decreed that due and legal notice to the creditors of said , deceased, has been given, and that this decree be entered in the minutes of this court and recorded. , Judge of the Court. Dated , 18—. , §147. [1493.] Time within Which Claim Pre- sented. — All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the court, or a judge thereof, that the claimant had no notice as provided in this chapter, by reason of being out of the state, it may be presented at any time before a (decree of distribution is entered. 15 I 147 PROBATE LAW AND PEACTICE. 226 Arizona. — Same, except that the words of the above section are pre- ceded by the following: "If a claim arising upon a contract heretofore made be not presented within the time limited in the notice, it is barred forever, except as follows: If it be not then due, or if it be contingent, it may be pre- sented within one month after it becomes due or absolute; if it be made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator and the probate judge, that the claimant bad no notice, aa provided in this chapter, by reason of being out of the territory, it may be presented any time before a decree of distribution is entered. A claim for a deficiency remaining unpaid after a sale of property of the estate mortgaged or pledged must be presented within one month after such deficiency is ascer- tained." Rev. Stats., see. 1110. Idaho. — Same as California. Rev. Stats., sec. 5463. Montana. — Same as Arizona. Comp. Stats., p. 310, sec. 150. Nevada. — " If a claim be not presented within four months after the first publication of the notice, it shall be barred forever; provided, if it be not then due, or if it be contingent, it may be presented within four months after it sjiall become due or absolute; and provided further, that when it shall be made to appear by the affidavit of the claimant, to the satisfaction of the executor or administrator and the probate judge, that the claimant had no notice, as provided in this act, by reason of the absence from this territory, it may be presented at any time before a decree of distribution is entered." Stats. 1891, p. 105, sec. 3, amending Gen. Stats, sec. 2798. ^ Oregon. — "A claim not presented within six months after the first publica- tion of the notice is not barred, but it cannot be paid until the claims pre- sented within that period have been satisfied; and if the claim be not then due, or if it be contingent, it shall nevertheless be presented as any other claim. Until the administration has been completed, a claim against the estate not barred by the statute of limitations may be presented, allowed, and paid out of any assets then in the hands of the executor or administrator not otherwise appropriated or liable." Hill's Laws, sec. 1132. TTtah. — Same as California. - Comp. Laws, sec. 4123. Washington. — " If a claim be not presented within one year after the first publication of the notice, it shall be barred." Code Proc, sec. 979. Wyoming. — Same as California. Laws 1890-91, p. 270, sec. 3. A claim presented by the ex- tator is dead, inasmuch as it appears ecutor of one estate against the from such verification that affiant and estate of another decedent is suffi- claimant are the same person : Daujs v. ciently verified if in the verification Brmoniiw, 91 Cal. 605. thereof it is stated that the affiant is Statute of Limitations: See § 152, the executor of the estate in whose post. Claim allowed not affected by behalf the claim is made; that the statute of limitations: See § 213, post. amount, stating it, is justly due to Claims secured by liens on affiant as suph executor; "that no homesteads must be presented: See § payments have been made thereto 137, ante. which are not credited, and that there Interest on Claim: See next sec- are no offsets to the same, to the tion. knowledge of said claimant "; and Claim must be presented within stating that the reason why affiant the time prescribed by law: David- makes the claim is, that affiant's tes- son v. Eankin, 34 Cal. 503. A claim 227 CLAIMS AGAINST ESTATE. §147 may be presented before the publica- tion of notice to creditors: Janin v. Browne, 59 Cal. 37; Rkketson v. Rich- ardson, 19 Cal. 330. A party holding a claim against an estate is not bound to present it until after the publication of notice to creditors: Quivey v. Hall, 19 Cal. 97; Smith V. Hall, 19 Cal. 85; and the stat- ute of limitations does not run against it if presented in the time limited by said notice: Quivey v. Hall, 19 Cal. 98. The statute of limitations does not run in favor of an estate during the time there is no qualified adminis- trator of an estate: Quivey v. Hall, 19 Cal. 97; Smith v. Hill, 19 Cal. 85. An administrator cannot waive the necessity of presenting a claim: Harp V. Oalahan, 46 Gal. 222. The duty to present a claim is governed by the law in existence at the time the notice to creditors was published, not by the law in existence when the mortgage was executed or when action thereon was commenced: HVierma S. <& L. Soc. v. Hayes, 56 Cal. 297. The claim which the creditor of an estate may have against the executor by reason of the latter's act or omia-, sions is not contingent on the fact that the estate may prove insolvent, and in the event of the executor's death such claim must be presented against his estate: In re Hailed, 49 Cal. 111. The surviving partner, for ad- vances to the partnership, should not present a claim to the administrator of his deceased partner until the partner- ship affairs are wound up, after which time he has the same time as was al- lowed other creditors to present hia claim: Gleaxnn v. White, 34 Cal. 258. A surviving partner cannot bring suit against the adminis- trator of a deceased partner for his intere.st'in the partnership assets without first presenting his claim to the administrator, where all the assets have been taken possession of by such administrator: McKay v. Joy, 70 Cal. 581. A claim for overcharged rent against joint lessors who are partners need not be presented as a claim against the estate of a de- ceased partner, in order to enforce it against the firm; nor need the execu- tors of the deceased partner be joined a.'5 parties to an action to enforce such claim against the firm, and if joined, a judgment against the firm is not er- roneous because liot requiring that the amount awarded be paid in due course of administration of the deceased partner's estate: Oorson v. Beraon, 86 Cal. 434. The provision of law that it must appear to the satisfaction of the ad- ministrator and judge that the claim- ant had no notice gives to these officers no power or right, to arbitra- rily say they are not satisfied, and to therefore reject a claim. An affidavit of the claimant showing to the satis- faction of a reasonable, fair, and im- partial mind that he had no notice is all tfiat is required: Gullerton v. Mead, 22 Oal. 96. Presentation to the adminis- tratrix of a plainti£f 's claim for the amount of a note is not in any sense a demand of payment: Chase v. Evoy, 49 Cal. 467. Executor cannot present a claim to himself as an attorney in fact of another person: In re Keenan, Myr. Prob. 1S6. ' The words " claims " and *' claimant " are used as synonymous with the words "legal demand " and "creditor": Oi-ay v. Palmer, 9 Cal. • 616. If the deceased, during his life- time, mingled trust funds with his own, the cestui que trust only has a claim against the estate, and he must present it to the administrator for allowance: Lathrop v. Bampion, 31 Oal. 17. A vendor has a lien on the real estate, sold to deceased, in the h^nds of his administrator, for the unpaid purchase-money: Oahoon v. Bobinson, 6 Cal. 225. » Claim need not be presented by vendor to estate of deceased vendee for unpaid purcliase-money, where vendor proceeds only against the prop- erty, and demands noi^hing from the estate: Kerns v. Dean, 77 Cal. 555. "Claims" against estates of decedents are such debts or de- mands against the decedent as might have been enforced against him in his lifetime by personal actions for the recovery of money upon which a money judgment could have been rendered: Fallony, Butler, 21 Oal. 24; §147 PROBATE LAW AND PEACTICB. 228 In re McOauslana, 52 Cal. 568; Stutl- meister v. SupeHor Court, 72 Cal. 487. The word "claim," as used in the probate law, is broad enough to in- clude mortgage: Ellis v. Polliemus, 27 Cal. 350. A note secured by a mortgage is a claim against the estate, but the mort- gage given to secure the note is not such claim: Ellis v. Polhemus, 27 Cal. 350. Claimant of specific property is not bound to present a claim: OuiUer v. Janes, 9 Cal. 643. Presentation of claim secured by a pledge is not necessary, but adminis- trator, in paying such debt without presentation of claim, takes the risk of the property being of a greater value than the amount secured by it: In re Idenmuller, Myr. Prob. 87. The payee and legal owner, and not the equitable owner, of a note and mortgage, so long as it remains unas- signed, is the proper person to present the same for allowance; and if he does not do so within the time required by law, it is barred. The fact that the equitable owner resided out of the state, and did not know of the death of the payor, does not change the rule: Marsh v. Dooley, 52 Cal. 232. Where a promissory note is executed by one person and a mort- gage to secure the debt is given by another, if the payor of the note dies, and the holder thereof does not pre- sent his claim thereon to the adminis- trator of deceased for allowance, the claim is barred as against the estate, but the mortgage remains in force against the mortgaged property. - The rule is the same when the note is made by the husband for his own debt, and the wife mortgages her separate prop- erty to secure it, and the husband signs the mortgage to show his consent to it, and dies. This limitation applies solely to the claim against the estate, but does not affect the validity of the debt against other persons or their property: Sicliel v. Carillo, 42 Cal. 493. A wife, by mortgaging her separate estate to secure a note of her husband, does not create a claim against her es- tate: Hibernia Sav. sent his claim to the county court for allowance, giving the executor or ad- ministrator ten days' notice of such application to the court. The court shall have power to hear and determine in a summary manner all demands against any estate agreeably to the provisions of this act, and which have been so re- jected by the executor or administrator, and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment from which an appeal may be taken as in ordinary cases.'' Hill's Laws, sec. 1134. Utah. — Same as California. Comp. Laws, sec. 4128. Washington. — Same as California, except that the following is omitted: "If it be then due, or within two ihonths after it becomes due." Code Froc, sec. 9S4. "In an action against an executor or administrator as such, the remedies of arrest and attachment shall, not be allowed on account of the acts of his testa- tor or intestate; but for his own acts as such executor or administrator, such remedies shall be allowed for the same causes in the manner and with like effect as in actions at law generally." . Code Froc, sec. 710. Wyoming. — Same as California, except that the word " judge " is omitted. Laws 1890-91, p. 271, sec. 7. A claim may he considered re- jected, and suit brought thereon, if administratrix does not allow it within ten days after it is left with the clerk of her attorney at the attorney's office, that being the place designated in notice to creditors, and thereafter suit may be brought thereon: Ruddan v, Doane, 92 Cal. 555. In a suit against an estate for money had and received by a decedent, it must be distinctly proven that dece- dent individually received such money ' when be was a member of a firm by whom the money was received: Rud- dan V. Doane, 92 Cal. 555. An action may be maintained against the executor of a decedent to foreclose a mortgage on property of decedent's estate, without presenting the claim first, if all recourse against other property of such estate is waived. The action is not barred because the time for presenting claim expired be- fore it was commenced: German Sav. money, effect of a claim duly allowed to be which after trial resulted in a judg- paid in due course of administration, ment for the plaintiff, the judgment and does not give the creditor any should be made payable in due course further rights, or determine the right of administration, and not otherwise; of priority over other claims which but an erroneous judgment against mast be determined by the probate the executrix absolutely may be mod- co-irt when the assets are finally mar- ified upon appeal so as to make it so shaled and the order o'f payment di- payable: Preston v. Knapp, 85 ' Cal. termined by that court: McLean v. 559. Crow, 88 Cal. 644. § 159. [1505.] Executions. — When any judgment has been rendered for or against the testator (or) intestate in his life- time, no execution shall issue thereon after his death, except as provided in section six hundred and eightj'-six. A judg- ment against the decedent for the recovery of money must be presented to the executor or administrator, like any other claim. If execution is actually levied upon any property of the decedent before his death, the same may be sold for the satis- faction thereof; and the ofiicer making the sale must account § 159 PROBATE LAW AND PKACHCE. 248 to the executor or administrator for any surplus in his hands. A judgment creditor, having a judgment, which was rendered against the testator or intestate in his lifetime, may redeem- any real estate of the decedent from any sale under foreclosure or execution, in like manner and with like effect as if the judg- ment debtor were still living. Arizona. — Same. Rev. Stats., sec. 1122. Idaho. — Same. Rev. Stats., see. 5475. Montana. — Same. Comp. Stats., p. 314, sec. 162. Ifevada. — Same, to the word "except," then as follows: "But a certified copy of such judgment shall be presented to the executor or administrator, and be allowed and filed, or rejected, as any other claim, but need not be sup- ported by the afiBdavit of the claimant; and if justly due and unsatisfied, shall be paid in due course of administration; provided, however, that if the execution shall have been actually levied upon any property of the deceased, the same may be sold for the satisfaction thereof, and the ofScer making the sale shall account to the executor or administrator for any surplus in his hands. The executor or administrator may, however, require the affidavit of the claimant or other satisfactory proof that the judgment or any portion thereof is justly due and unsatisfied." Gen. Stats., sec. 2810. Oregon. — "A claim established by judgment or decree against the deceased in his lifetime need not be verified by affidavit, but it ia sufficient to present a certified copy of the judgment docket thereof to the executor or administra- tor for allowance or rejection, as in other cases; but tMs section is not to be construed to prevent an execution from being issued upon such judgment or decree, as elsewhere provided in this code." Hill's Laws, sec. 1136. Utah. — Same as California, Comp. Laws, sec. 4135. Washington. — " When any judgment has been rendered against the testator or intestate in his lifetime, no execution shall issue thereon after his death, but' it shall be presented to the executor or administrator as any other claim, but need not be supported by the affidavit of the claimant, and if justly due and unsatisfied, shall be paid in due course of administration; provided, however, that if it be a lien upon any property of the deceased, the same may be sold for the satisfaction thereof, and the officer making the sale shall account to the executor or administrator for any surplus in his hands." Code Proc, sec. 991. Wyoming. — Same as California, except that in lieu of the last clause of the first sentence, the following is substituted: " Unless the judgment be for the recovery of real or personal property or the enforcement of a lien thereon," and the last sentence is omitted. Laws 1890-91, p. 272, sec. 14. See § 156, ante. , A party against whom a money judg- modifying the judgment, but no new ment had been rendered moved for a judgment was entered. It was held new trial, and died before the motion that such modified judgment should be was determined. His executrix was paid in due course of administration, substituted as defendant, and prose- and need not be presented to the execu- cuted the motion and obtained an order trix: Bretman v. Brennan, 65 Cal. 517. 249 CLAIMS AGAINST ESTATE. §§ 160, 161 A judgment against an executor 6r administrator should be in the form given by the above section. Rice v, Iwnsheep, 34 Cal. 226; Sacomllat v. San- semin, 32 Cal. 396; Myers v. M'ott, 29 Oal. 363; though a variance in this respect may not be fatal.- Chase v. Swain, 9 Cal. 130. Th.e court ' may am.eiicl the record when it appears therefrom that a clerical error has been made: In re Schroeder, 46 Cal. 304. Judgm.eii.t against executor or administrator is no better than an approval of claim: Wells, Fargo, It is no valid objection to the In re Taylor, 16 Cal. 434. allowance by the county court of a The diaerence between the claims of claim held by an administrator that anexecutororadministrator and those such administrator has not filed his of other creditors, as to their presen- undertaking as administrator of the tation, is, that the former must be pre- partnership estate: In re Houck, Sup. sented to the judge only, and the latter Ct. Or., Feb. 29, 1888. ■ § 165. [1511.J Executor Neglecting to Give No- tice. ^If an executor or administrator neglects for two months after his appointment to give notice to creditors, as prescribed by, this chapter, the court must revoke his letters, and appoint some other person in his stead, equally, or the next in order, entitled to the appointment. Arizona. — Same. Rev. Stats., sec. 1128. Idaho. — Same. Rev. Stats., sec. 5481. Montana. — Same. Comp. Stats., p. 315, sec. 168. Nevada. — Same, to the words "and appoint"; balance omitted. Gen. Stats., sec. 2815. 253 CLAIMS AGAINST ESTATE. §§ 166, 167 Utah.. — Same aa California. Comp. Laws, sac. 4141. Wasliingtoii. — Same aa Nevada. Code Proe., sec. 995. § 166. [1512.] Executor to Seturn Statement of Claims. — At the same time at which he is required to return his inventory, the executor or administrator must ako return a statement of all claims against the estate which have been pre- sented to him, if so required by the court, or a judge thereof, and from time to time thereafter he must present a statement of claims subsequently presented to him, if so required by the court, or a judge thereof. In all such statements he must des- ignate the names of the creditors, the nature of each claim, when it became due or will become due, and whether it was allowed or rejected by him. Arizona. — Same. Rev. Stats., sec. 1129. Xdah.0. — Same. Bev. Stats., sec. 5482. llontana. — Same. Comp. Stats., p. 315, sec. 169. Nevada. — Same. Gen. Stats., sec. 2816. XTtah. — Same. Comp. Laws, sec. 4142. Washington. — Same. Code Proc, sec. 996. Wyoming. — " At the same time at which he is required to return his Ln- Tentory and appraisement, the executor must also accompany the same with a statement of all claims against the estate which have been presented to him or are within his actual knowledge, and six months from the date of his letters he must file a statement of all claims submitted to him for allowance, and one year from the date of said letters he must then file a statement of all addi- tional claims presented. la all statements he must designate the names of the creditors, the date when the claim is presented, the nature of each claim, when it became due or will become due, and whether it was allowed or rejected by him." Laws 1890-91, p. 273, 274, sec. 20. §167. [1513.] Interest-bearing Claims. — If there be any debt of the decedent bearing interest, whether presented'or not, the executor or administrator may, by order of the court, pay the amount then accumulated and unpaid, or any part thereof, at any time when there are sufficient funds properly applicable thereto, whether said claim be then due or not; and interest shall thereupon cease to accrue upon the amount so paid. This section does not apply to existing debts, unless the creditor consent to accept the amount. Arizona. — Same. Rev. Stats., sec. 1130. Idaho. — Same. Rev. Stats., sec. 5483. § 167 PEQBATE LAW AND PKAGTlCB. 254 Slontana. — Same. Comp. Stats., p. 315, sec. 170. Utah.. — Siune. Comp. Laws, sec. 4143, ' ■Wyoming. — Same, except that in the last sentence "debts not due'' is inserted in place of "existing debts/' Laws 1890-91, p. 274, sec. 21. A claim duly allowed and approved utor when: In re Titcomb, Myr. Prob. bears interest from the date of its ap- 55. proval by the judge: In re dlenn, 74 Interest on a claim iswaived by a Cal. 567. stipulation indorsed thereon, foregoing Cpmpovind interest on mort- any demand beyond a sum named: In gage claim cannot be paid by exec- re Bleakley, Myr. Prob. 235. 255 SALES AND CONVEYANCES. § 168 CHAPTER VII. OP SALES AND CONVEYANCES OP PROPERTY OP DBCEDENia Article I. Sales in General. n. Sales or Personal Pkopertt. ni. SuijMABT Sales op Mines and Minino Interests. rv. Sales of Real Estate, Iniebests tb^Rein, and Conubma- TION THEREOF. y. Mortgages and Leases. ARTICLE L SALES IN OENERAIi. § 168. Estate, how chargeable. § 169. No sales valid, except by order of conrt, § 170. Applications for orders of sale, § 171. One petition, order, and sale, §168. [1516.] Estate, how Chargeable, — All the property of a decedent shall be chargeable with the payment of the debts of the deceased, the expenses of administration, and the allowance to the family, except as otherwise provided in this code and in the Civil Code. And the said property, personal and real, may be sold as the court may direct, in the manner prescribed in this chapter. There shall be no priority as between personal and real property for the above purposes. Arizona. — Same. Rey. Stats., sec. 1131, Idaho. ' ' VS^hen a person dies intestate, all his property, real and personal, trithont any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this code." Rev, Stats., sec, 5751, "The personal estate of the decedent which comes into the hands of the ex- ecutor or administrator is first chargeable with the payment of the debts and expenses; if the goods, chattels, rights, and credits in the hands of the execu- tor or administrator are not sufficient to pay the debts of the decedent, the expenses of administration, and the allowance to the family, the whole of the real estate may be sold for that purpose by the executor or administrator." Rev. Stats., sec. 5490. Uontana, — Same as California. Corap. Stats., p. i518, sec. 171. Nevada. Same as Idaho, Rev. Stats., sec. 6490, supra. Gen. Stats., seo, 2784. I 169 PROBATE LAW AND PRACTICE. 256 Oregon. — " Wheu the proceeds of the sale of personal property have been exbanated, and the charges, expenses, and claims specified in section 1142 [§ 173, post] hare not all been satisfied, the executor or administrator shall sell the real property of the estate, or so much thereof as may be necessary for that purpose. If any o£ such real property have been specially devised, it shall be exempt from the operation of the order of sale io the same manner as personal property specially bequeathed." Hill's Laws, sec. 1145. Utah. — Same as California, except that "act" is substituted for "code and in the Civil Code.'' Comp. Laws, sec. 4144. Washing'ton. — Same as Id^Jio, Rev. Stats., sec. 5490, supra. Code Proc, sec. 966. "If intestate leave no widow or minor children, all his estate shall be assets in the hands of the administrator, after payment of funeral expenses and ex- penses of administration, for the payment of the debts of the deceased." Code Proc, sec. 976. Wyoming. — Same as California. Laws 1890-91, p. 274, sec. 1. In sale of property, real and per- Real estate of deceased parties sonal property are charged alike for is assets in the hands of the adminis- pay ment of debts; there is no priority: trator in California, to be administered In re Montgomery, 60 Cal. 645. See upon like personalty: Meelcs v. Vaa- § 175, post. sault, 3 Saw. 206. Where testator indicated no Oregon. — Nothing is assets in the preferenqe for any class of devisees, hands of the administrator for pay^ the real and personal estate devised ment of debts except money: United must contribute equally: In re Wood- States v. Eggleston, 4 Saw. 199. worth, 31 Cal. 596. See § 207, post. Property Chargeable with the This rule was formerly other- payment of debts: See § 444, post. wise: In re Woodworth, 31 Cal. 605; Certain Claims Preferred: See In re MauUon, 48 Cal. 193. § 445, 204-208, post. § 169. [1517.] No Sales Valid Except by Order of Court. — No sale of any property of an estate of a dece- dent is valid unless made under order of the superior court, except as otherwise provided in this chapter. All sales must he under oath, reported to and confirmed by the court, before the title to the property sold passes. Arizona. — Same. Rev. Stats., sec. 1132. Idaho. — Same. Rev. Stats., sec. 5491. Montana. — Same. Comp. Stats., p. 318, sec. 173. Nevada. — Same; last sentence omitted. Gen. Stats., sec. 2817. Oregon. — Same as Nevada. See Hill's Laws, sec. 1141. Utah. — Same as Nevada. Comp. Laws, sec. 4145. Washington. — "No sale of any property shall be valid nnless made nnder order of the court, unless otherwise provided by will." Code Proc, sec. 998. Wyoming. — Same as California, except that " superior '.' is omitted. Laws 1890-91, p. 274, sec. 2. 257 SALES AND CONVEYANCES. §170 All sales of personal property, whethei' made ab public or private sale, with or without an order of the probate' court, shall be returned by the executor or administrator to said court for confirmation at the next reg- ular term of said court after said rule shall have been made: In re Hadovich, 74 Cal. 536. Sales without Order of Court: See § 205, post. An executor has no authority, without an order of court, to sell currency belonging to the estate for coin, aud it rests in the discretion of the court to approve or disapprove the sale: In re Sanderson, 74 Oal. 199. An act of the legislature au- thorizing an administrator to sell real property belonging to the estate of his decedent, except in satisfaction of the lien of creditors, or for the pay- ment of family allowance, or tbe ex- penses of administration, is unconsti- tutional: Brenluin v. Story, 39 Cal. 179. Sales under our probate system are judicial; the statute of frauds does not apply in such case, the sale being made by the court. The con- tract need not be in writing, etc. : Hal- Uch V. Guy, 9 Cal. 181. The provisions of the code de- claring that no sale of any property of an estate shall be valid unless made upon an order of the court apply only to sales by executors and administra- tors. They have no reference to judi- cial sales under decrees of court, tior to sales in pursuance of testamentary authority: Fallon v. Butler, 21 Cal. 24; Cowell V. Buckelew, 14 Cal. 641; Payne V. Payne, 18 Cal. 292; NorrisY. Harris, 15 CaL 256. A sale of personal property which has been confirmed by the court cannot be treated aa invalid because the administrator took a note in part payment, when the balance was li'eld by the court to be the full cash value of the property: In re Kibbe, 57 Cal. 407. An order of sale or the proceed- ings under it cannot be collaterally attacked for defects, or on the ground of irregularity. A direct action must be brought to impeach them: Halkch V. Morse, 22 Cal. 266; Irwin v. Scriber, 18 Cal. 499. An administrator has no au- thority to sell real estate except by an order of a properly constituted court, properly issued, with which he must strictly comply: Broadwater v. Richards, 4 Mont. 80. A statute making valid all sales under orders of court, where there have been "defects of form, or omissions, or errors," does not validate void sales. It only covers cases which have arisen in the exercise of jurisdic- tion already acquired: Seaversv. Oerke, 3 Saw. 353. See Wright v. Edwards, 10 Or. 301; Oilman v. Taylor, 5 Or. 89. Where executor has sold person- alty of an estate without an order of court, the court may subsequently ratify such sale : Brewster v. Baxter, 2 Wash. Ter. 135. Sales where Property is Mort- gaged: See § 213, post. A Contract for the Purchase of Heal Estate may be sold: See § 209, post. Executor cannot Buy at or be interested in his own sale: See § 220, ^st. §170. [1518.] Petitions for Orders of Sale. — All petitions for orders of sale must be in writing, setting forth the facts showing the sale to be necessary, and, upon the hearing, any person interested in the estate may file his written objec- tions, which must be heard and determined. A failure to set forth the facts showing the sale to be necessary will not invali- date the subsequent proceedings, if the defect be supplied by the proofs at the hearing, and the general facts showing the necessity be stated in the order directing the sale. 17 § 171 PROBATE LAW AND PRACTICE. 258 Arizona. — Same. Rev. Stats., sec. 1133. Idaho. — Same. Rev. Stats., aec. 5492. Hontana. — Same. Comp. Stata., p. 318, sec. 174. Ifevada. — Same; last^ sentence omitted. Gen, Stats., see. 2818, Oregon. — "The application for an order of sale shall be by the petition of the executor or administrator." Hill's Laws, sec. 1141. Utali. — Same as California. Comp. Laws, sec. 4146. ■Wasliingto;n. — Same as Nevada. Code Proc, seo. 999. Wjroming. — Same as California. Laws 1890-91, p. 274, seo. 3. See note to next section. Opposition to sale of property of est in real estate cannot contest an estate: See § 186, post. order of court directing it to be sold: One who does not claim any inter- In re Schroeder, 46 Gal, 304, § 171. [1519.] But One Petition, Order, and Sale, — When it appears to the court that the estate is insolvent,' or that it will require a sale of all the property of the estate, of every character, to pay the family allowance, expenses of ad- ministration, and debts, there need be but one petition filed, but onfe order of sale made, and but one sale had, except in the case of perishable property, which may be sold as provided in section fifteen hundred and twenty-two. The court, when a petition for the sale of any property for any of the pur- poses herein named is presented, must inquire fully into the probable amount required to make all such payments, and if there be no more estate than sufficient to pay the same, may require but one proceeding for the sale of the entire estate. In such case, the petition must set forth substantially the facts required by section fifteen hundred and thirty-seven. Arizona. — Same, Rev, Stats,, sec. 1134. Idaho. — Same. Bev. Stats., sec. 5483. Montana. — Same. Comp. Stata., p. 319, sec. 175, Utah. — Same. Comp. Laws, sec. 4147. Wyoming. — Same, except that in the first sentence the words " or judge in vacation or recess" are interpolated after the word " court," and in lien of the words "section fifteen hundred and twenty- two" the words "the next succeeding seistion " are used. In the second sentence, after the word " court," the words " or judge " are interpolated. The last sentence is omitted. Laws 1890-91, p, 274, 275, sec. 4. A statement in an order of sale of feet its character: HaUeck v. Morse, personal property, that it is perishable 22 Cal. 266. property, and liable to assessment and Proceedings for the sale of real taxation, may be treated as surplusage, property are special, and the juris- and does not vitiate the order nor af- diction depends upon the facts stated 259 SALES AND CONVEYANCES. §172 in the petition. The petition is the commencement of the proceeding and the order is the judgment: Prior v. Downey, 50 Cal. 388; Haynes v. Meelcs, 20 Cal. 312; Oregm-y v. McPlieraon, 13 Cal. 562; Townsend v. Gordon, 19 Cal. 188; Gregory v. Taber, 19 Cal. 397; In re Spriggs, 20 Cal. 121. A petition which substantially complies with the directions of the statute when filed is sufficient to give the court jurisdiction in case of sales of real property: Stuart v. Allen, 16 Cal. 473; Fitch v. Miller, 20 Cal. 352; Haynes v. Meeks, 20 Cal. 288; Prior v. Downey, 50 Cal. 388; In re Boland, 55 Cal. 310; WUson v. Hastings, 66 Cal. 243. A general averment covering the matters, required by law to be stated in the petition is not sufficient: Haynes v. Meeka, 20 Cal. 312. Xhe jurisdiction is based upon the averments of the petition, and not upon the proof of the facts stated therein: Fitch v. Miller, 20 Cal. 352. The petition must state the facts requited by law to be stated, and un- less it does, the onler and the sale will be void: Gi-egoryv. Taber, 19 Cal. 397; Gregory v. McPlierson, 13 Cal. 5G2; but defects in the petition by reason of the failure to state such facts, if such facta are supplied by the proofs at the hearing and are stated in the order of sale, will not invalidate the subsequent proceedings: Dennis v. Winter, 63 Cal. 16; and if such facts do not appear in the petition, and are not stated in the order of sale to have been proved at the hearing, sucli order will be void for went of jurisdiction: In re Rose, 63 Cal. 346. Order of sale of realty is a judg- ment in a new, separate, and inde- pendent proceeding, depending for it^ validity upon the sufficiency of the facts alleged in the petition for the order: Ethell v. NidiolS, 1 Idaho, 741. The proceedings for the sale of real estate of an intestate are in the nature of an action, of which the presentation of a petition is the com- mencement and the order of sale is the judgment: Broadwater v. Rich- ards, 4 Mont. 80. ARTICLE n. SALES OF FEBSONAL PROPEKTY. § 172. Perishable property to be sold. § 173. Order to sell personal property. § 174. Partnership interests and chosea in action, how sold.' § 175. Order of sale, what to be first sold. § 176. Sale of personal property. § 173. [1522.] Perishable Property to be Sold.— At any time after receiving letters, the executor, administrator, or special administrator may apply to the court or judge and obtain an order to sell perishable and other personal property likely to depreciate in value, or which will incur loss or expense by being kept, and so much other personal property as may be necessary to pay the allowance made to the family of the de- cedent. The order for the sale may be made without notice; but the executor, administrator, or special administrator is re- sponsible for the property, unless, after making a sworn return, and on a proper showing, the court shall approve the sale. § 172 PROBATE LAW AND PRACTICE. 260 Arizona. — Same. Rev. Stats., sec. 1135. Idaho. — Same. Rev. Stats., see. 5494. Uontana. — Same. Comp. Stats., p. 319, sec. 176. Nevada. — Same, except that if there be delay in obtaining the order, the property may be sold without an order of sale, and the clause " the order for the sale may be made without notice " is omitted; also, "personal," before the words "property as," is omitted. Rev. Stats., sec. 2819. XTtall. — Same as Nevada. Comp. Laws, see. 4148. Washington. — "Within twenty days after the filing of the inventory, the executor or administrator shall apply for an order to sell the perishable property of the estate, and so much other property as may be necessary to be sold to pay the allowance made to the family of the deceased, and the order of sale may be made without notice of the application, but the executor or administrator shall be responsible for the value of the property, unless the sale be reported to and approved by the court.'' Code Proo., sec. 1000. Wyoming. — Same as California. Laws 1890-91, p. 275, sec. 5. Form No. 123.— Petition for Order to Sell Perish- able Property. [Caption, Form No. 1, subd. 5.] 1. That petitioner is the duly appointed, qualified, and acting administrator (or . executor or special administrator) of the estate of- , deceased; 2. That the following 'property of said estate is of a perish- able nature, to wit, four hundred crates of oranges, and it is to the best interest of said estate that the same should be sold; 3. That there is belonging to said estate seven hundred head of hogs, the keeping and care of which is very expensive, and it is to the best interest of said estate that they should be sold; — Wherefore petitioner prays that an order be made herein au- thorizing him to sell said perishable property as provided by law, and that such other or further order may be made as is meet in the premises. , Petitioner. , Attorney for Petitioner. Form No. 123. — Order of Sale of Perishable Property. [Title of Court and Estate.] Now, on this day of , A. D. 18 — , the petition of — — , administrator of the estate of , deceased, praying for an order to sell certain perishable property of said estate, coming on to be heard, and it appearing to the court that the property de- 261 SALES AND CONVBYANCKS. § 173 scribed in said petition is of a perishable nature, likely to depreciate in value, and will incur loss and expense by being kept, — It is therefore ordered that said personal property, which is hereinafter described, be sold at public auction for cash, gold coin; said property is described as follows, to wit (here insert description). , Judge of the Court. Dated , 18—. § 173. [1523.] Order to Sell Personal Property. — . If claims against the estate have been allowed, and the sale of property is necessary for their payment, or for the expenses of administration, or for the payment of legacies, the executor or administrator may apply for an order to sell so much of the personal property as may be necessary therefor. Upon filing his petition, notice of at least five days must be given of the hearing of the application, either by posting notices or by ad- vertising. He may also make a similar application, from time to time, so long as any personal property remains in his hands, and sale thereof is necessary. If it appear for the best interests of the estate, he may, at any time after filing the inventory in like manner, and after giwng like notice, apply for and obtain an order to sell the whole of the personal property belonging to the estate, whether necessary to pay debts or not. See §§ 305, 412, post. Arizona. — Same. Bev. Stata., sec. 1136. Idaho. — Same. Rev. Stats., sec. 5495. Montana. — Same. Comp. Stats., p. 319, see. 177. Nevada. — Same, except that the phrases ' ' or for the payment of legacies " and "whether necessary to pay debts or not" are omitted. Gen. Stats., sec. 2819. I Oregon. "Upon the filing of the inventory, or at the next term of the court, the executor or administrator may make an application to sell the per- sonal property of the estate for the purpose of paying the funeral charges, ex- penses of administration, the claims, if any, against the estate, and for the purposes of distribution; and it shall be the duty of the court or judge to grant such order, if in his judgment it is for the best interest of the estate, and tp direct and prescribe the terms of sale upon which such property shall be sold, whether for cash or on credit." Hill's Laws, sec. 1142. TXtah. — Same as California. Comp. Laws, sec. 4149. Washington. " If the claims against the estate have been allowed, or a sale of property shall Ije necessary for the payment of the expenses of th? § 173 PROBATE LAW AND PEACTIGB. 262 administration; he may also apply for an order to sell so mnch of the personsti estate as shall be necessary." Code Froc., sec. 1001. - Wyonung. — Same as California, except that in the first sentence the words " to the court or judge " are interpolated after the words " may apply, " and the second sentence is omitted. Laws 1890-91, p. 275, sec. 6. An administrator cannot be concealment, or false suggestion on hia charged with the value of property part in obtaining the order of sale: sold under an order of court without Skhardson v. Sage, 57 Cal. 212. proving gross negligence, fraudulent Form No. 184. — Petition for Order of Sale of Per- sonal Property. [Caption, Form No. 1, § 5, ante-l 1. That letters of administration (or testamentary) have heretofore been duly issued herein by this court to petitioner, and petitioner is now the duly qualified and acting adminis- trator (or executor) of said estate; 2. That the following claims against said estate have been duly allowed and approved by said administrator (or executor) and the judge of this court, and are filed herein, viz. (here in- sert list of claims allowed); 3. That the expenses of administration which have been in- curred herein are as follows (here insert list of said expenses); 4. That the amount of family allowance which is now due under the order of this court, heretofore made, to the widow and minor children of the decedent is the sum of dollars, and the amount which will become due to them under said order up to the time of the final distribution of said estate will be about the sum of dollars; 6. That the sum of dollars is due to persons named in ther will for legacies bequeathed to them in said will of decedent, and it is hereby referred to and made a part hereof; 6. That the commissions of the administrator (or executor), fees of'counsel, and other expenses of administering upon said estate will amount to about the sum of dollars; 7. That the total amount of claims due from said estate, costs and expenses of administration, family allowance, etc., amount to the sum of dollars; 8. That the inventory and appraisement of the property of eaid estate has been duly filed herein, containing a description andJhe value of all the real and personal property of said es- 263 SALES AND CONVEYANCES. § 178 tate, and said inventory and appraisement is hereby referred to and made a part hereof; 9. That of said personal property there has been set apart for the use and benefit of the family of decedent the following (here insert list and description of property so set apart) ; 10. That of said personal property the following has been specifically bequeathed (here insert list and description of be- quests); 11. That a sale of the remaining personalty of said estate will be sufiicient to pay all the above-enumerated items (or 11. That a sale of thc/whole of said remaining personalty is necessary for the payment of said items) ;'^ Wherefore your petitioner prays that an order of this court be made, directing that the whole or so much of said remaining personalty be sold at public auction" as shall -be necessary for the payment of said debts, family allowance, costs and expenses of administration, etc. , Petitioner. , Attorney for Petitioner. Form No. 125. — Notice of Hearing of Petition to Sell Personal Property. [Title of Court and Estate.] Notice is hereby given that , executor (administrator) of the estate of , deceased, has applied to the court of the county of , on the day of — — , A. D. 18 — , for an order to sell certain personal property of said estate, and that his petition therefor has been set for hearing at ten o'clock, A. m., of said day. ' > Clerk. Dated Form No. 136. — Opposition to Sale of Personal Property. [Title of Court and Estate.] the administrator of the estate of , deceased, having QQ tlie day of , A. D. 18 — , filed herein his petition praying for an order authorizing him to sell the personal prop- erty belonging to said estate, — • With reference to this allegation, see § 175, post, ' See § 176, post. § 174 PROBATB LAW AND PRACTICE. 264 Now comes , and alleges that she is the widow of said -, deceased, and that said deceased also left surviving him one minor child of the age of eight ye^TS, named That the following property mentioned in the inventory made and filed in said estate is exempt from execution, and under section 1465 of the Code of Civil Procedure of California ought to be set apart by this court for the use of the surviving wife of said deceased, and for which the undersigned, the widow of said deceased, has filed her petition herein, praying that the same may be so set apart, to wit, one oil-painting, one bedstead, one bureau, one commode, one wash-stand, one table, one ward- robe, one cigar-stand, one kitchen table, one ice-chest, fifteen yards carpet, one drop-light, one gold watch, one silver watch, five gold finger-rings and settings, three watch-chains (one gold, two silver), one locket, one pair sleeve-buttons, one gold pin, three pistols, two clocks, one guitar, lace curtains and cor- nices, one silver-plated water-pitcher, and two carving sets. The undersigned objects to an order being made that said personal property above mentioned, or any part thereof, be sold, and objects to the same being sold for any purpose, on the ground and for the reason that the same ought to be set, apart for the use of the widow of deceased, and she asks that the same be so set apart. , Widow of said Deceased. , Attorney for Widow. § 174. [1524.J FartnersMp Interests and Choses in I Action, how Sold. — Partnership interests, or interests belonging to any estate by virtue of any partnership formerly existing, interest in personal property pledged, and choses in action, may be sold in the same manner as other personal prop- erty, when it appears to be for the best interest of the estate. Before confirming the sale of any partnership interest, whether made to the surviving partner or to any other person, the court or judge must carefully inquire into the condition of the part- nership afiairs, and must examine the surviving partner, if in the county and able to be present in court. Arizona. — Same. Rev. Stats., sec. 1137. , Idaho. — Same. Rev. Stats., sec. 5496. Montana. — Same. Comp. Stats., p. 319, sec. 178. ,265 BALES AND CONVEYANCES. § 175 TTtall. — Same. Comp. Laws, see. 4150. Wyoming. — Same, except there are added the words "or before the judge in vacation time." Laws 1890-91, p. 275, sec. 7. § 175. [1525.] What Property to be Sold First — If it appear that a sale is necessary for the payment of debts or the family allowance, or for the best interest of the estate and the persons interested in the property to be sold, whether it is or is not necessary to pay the debts or family allowance, the court or judge must order it to, be made. In making orders and sales for the payment of debts or family allowance, such articles as are not necessary for the support and subsistence of the family of the decedent, or are not specially bequeathed, must be first sold, and the court or judge must so direct. Arizona. — Same. Bev. Stats., sec. 1138. Idaho. — Same. Rev. Stats., sec. S497. Blontana. — Same. Comp. Stats., p. 320, sec. 179. Nevada. — Same. Gen. Stats,, sec. 2820. Oregon. — See Hill's Laws, sees. 1142, 1144, under § 173, ante, Utah. — Same. Comp. Laws, sec. 4151. Washington. — Same as last sentence of California. Code Froc, sec. 1002. See Code Proc, sec. 1001, under last section. Executor or administrator may a stranger, without an order of the sell or dispose of choses in action court of probate: Weider v. Osborn, 20 by indorsement to a distributee, or to Or. 307. Form No. 127. — Order of Sale of Personal Property. [Title of Court and Estate.] Application having been made to this court by a petition in writing of , administrator of the estate of , deceased, filed in this court on the day of , A. D, 18—, for an order to sell at public or private sale all the personal property of said estate, or so much thereof as may be necessary to pay the family allowance, costs, and expenses of administration, and debts due from the estate; and such petition having by an order of court been duly set for hearing on the day of — — , j^ D. 18 — , at the hour of o'clock, a. m., of said day, and due notice of said hearing having been duly given to all per- sons interested in said estate, and now, on said day, said matter coming on regularly for hearing, and it appearing that there is due upon the family allowance the sum of about $ ; that § 176 PROBATE LAW AND PRACTICE. 266 the costs and expenses of administration amount to about $ ; that the following claims have been duly presented, allowed, and filed, to wit, California State Bank, for $- — , for $ , etc.; that a sale of the whole of said personal property- is necessary, in order that the proceeds may be applied to the payment of said claims, family allowance, and expenses of ad- ministration (or that it is for the best interest of the estate and of the persons interested in said personal property that the same be sold); — It is therefore ordered, adjudged, and decreed that said per- sonal property of said estate be sold by said administrator at public auction; said property is described as follows, to wit (here insert description). , Judge of the Court. Dated , 18—. § 176. [1526.] Personal Property, how Sold.— The sale of personal property must be made at public auction, for such money or currency as the court may direct, and after public notice given for at least ten days, by notices posted in three public places in the county, or by publication in a news- paper, or both, containing the time and place of sale, and a brief description of the property to be sold, unless for good reasons shown the court or a judge thereof orders a private sale or a shorter notice. Public sales of such property must be made at the court-house door, or at the residence of the dece- dent, or at some other public place, but no sale shall be made of any personal property which is not present at the time of sale, unless the court otherwise order. Arizona. — Same. Rev. Stats., sec. 1139. Idaho. — First seatence of section same, except that the words " for such money or currency as the court may direct " are omitted. Second sentence as follows: "Public sales shall not be made of any property which is not present at the time of selling it, unless the court otherwise order. " Rev. Stats., sec. 5498. Montana. — Same as California. Comp. Stats., p. 320, sec. 180. Nevada. — Same as California, except that the foUowiiig clauses and phrases are omitted: " For such money or currency as the court may direct "i "and a brief description of the property to be sold "; "unless the court other- wise order." Gen. Stats., sees. 2821, 2822. Oregon. — See Hill's Laws, sec. 1144, under § 173, ante. 267 SALES AND CONVEYANCES. ' § 176 " Thereafter the executor or administrator shall sell such personal property from time to time for the purposes specified in the last section, and as often and as much thereof as may be necessary. Such sale shall be conducted in the same manner as a sale of personal property on execution, unless otherwise provided in this title." Hill's Laws, sec. 1143. Utah. ^Same as California. Comp. Laws, sec. 4152. Washington. — " Sales of personal property shall be made at public auc- tion, and after notice given for at least two weeks, which notice shall be given by notices posted in ten public places in the county^ or by publication in a pewspaper, if the judge shall so order, in which shall be stated the time and place of sale." Code Proc, sec. 1003. "If it be made to appear to the satisfaction of the court that it will be for the interest of the estate to allow the executor or administrator to sell some or the whole of the personal estate at private sale, the court may so order." — Code Proc, sec. 1004. Wyoming. — Same as California, except that the clause "for such moneys or currency as the court may direct " is omitted from the first sentence. Laws 1890-91, p. 266, sec. 8. Notice of a sale of personal voidable, if not void: Haynes v. Meehs^ property of an estate must be by 10 Cal. 118; Halleck v. Morse, 17 Cal. posting in three public places. If it 340. is published in a newspaper and not Power of executor to sell per- posted, the sale will be void, unless the sonal property of estate has been court by its order authorized the no- curtailed by statute. He can only tice to be served by publication: Hal- sell by an order of court at public or Uck V. Mofse, 17 Cal. 340. private sale, as may be directed in A sale of the personal property of such order: Weider T. Osboitt, 20 Or. an estate upon insu£Scient notice is 307. Form No. 138. — Notice of Administrator's Sale of Personal Property. Notice is hereby given that in pursuance of an order of the superior court of the county of , California, made and entered on the day of , A. D. 18 — , in the matter of the estate of , deceased, the undersigned, administrator of said estate, will sell at public auction, for cash, subject to con- firmation by said superior court, on , the day of > A. D. 18 — , at the hour of eleven o'clock, A. M., of said day, at No. 1620 T Street, in the city of Sacramento, California, the fol- lowing described personal property, to wit (here insert descrip- tjoii)_ J Administrator of the Estate of , Deceased. Dated , 18—. § 176 PEOBATE LAW AND PRACTICB. 268 Form No. 129. — Return of Sale of Personal Prop- erty, and Petition for Confirmation. [Title of Court and Estate.] To the Honorable Superior Court of the County of , California. , the administrator of the estate of , deceased, re- spectfully returns the following account of sales made by him under the, order of this court dated on the day of — —, A. D. 18 — , and reports as follows, to wit: — That in pursuance of said order of sale he gave public notice for at least ten days by notices posted in three of the most public places in said county of , in which were spe- cified the time and place of sale, as will also and more fully appear by the affidavit marked "A," hereunto annexed and made a part hereof; That at the time and place specified in said notices, to wit, at No. 1620 T Street, in the city of Sacramento, county of Sac- ramento, California, on the day of , A. D. 18 — , at the hour of eleven o'clock, a. m., he caused to be sold, through Bell & Co., auctioneers, to the highest and best bidders, for cash, the property described in said notices, and mentioned in the account of sales contained in the affidavit marked " B," hereunto annexed and made a part hereof; That at such sales the persons named in said account of sales became the purchasers of the articles and at the prices set opposite their respective names; that all of the said prop- erty was present at the time of selling, except one gold ring with diamond setting, and one gold ring with emerald setting; that said sales were legally made and fairly conducted; that the bidding was good, and that the sums bid were not dispro- portionate to the value of the property sold; all of which will also and more fully appear by said affidavit marked " B," here- unto annexed and made a part hereof; — Wherefore said administrator prays that said sales be con- firmed and apprdved, and declared valid. , Administrator of the Estate of , Deceased. " A." Follow Form No. 142, post. 269 SALES AND CONVEYANCES. § 176 " B." State of California, ) County of Sacramento. ^ , being duly sworn, says that he is a resident of the county of , state of ■. , and is a member of the firm of Bell & Co., auctioneers, ip said county; that the prop- erty described in^ the foregoing notice of administrator's sale was sold by said auctioneers to the highest and best bidders for cash at No. — , Street, in said city and county, on the day of A. D. 18 — , at the hour of eleven o'clock, a, m., as follows, to wit (here insert in detail description of prop- erty, names of purchasers, and selling price of each article); that all of the property mentioned in said foregoing notice of administrator's sale was present at said sale, except one gold ring with diamond setting, and one gold ring with emerald Betting; that said rings were not sold for that reason; that said sales were legally made and fairly conducted, and the sums bid were not disproportionate to the value of the property sold. , Auctioneer. Subscribed and sworn to before me this day of , A. D. 18 — . , Notary Public. Form No. 130. — Order Confirming Sale of Per- sonal Property. [Title of Oourt and Estate.] , administrator of the estate of , deceased, having duly returned to this court an account and report duly verified of sales of personal property made by him under order of said court, and also filed a petition praying that said sales be con- firmed and approved; And from said account and report and other evidence it apn pearing to the satisfaction of this court that in pursuance of said order of sale said administrator gave public notice for at ' least ten days by notices posted in three public places in said county of , in which were specified the time and place of sale; That at thfe time and place mentioned in gaid notice he sold to the highest bidders, for cash, the property described in said notices and mentioned in said account of sales; §■§ 177, 178 PROBATE LAW AND PRACTICB. 270 That the said place of sale was a public place; that all of said property so sold by him was present at the time of selling; that the said sales were legally made and fairly conducted; that the sums bid were not disproportionate to the value of the property sold; and that said account and report are in all re- spects true; and no sufficient objections or exceptions being made or filed by any person interested in the estate or other- wise to the granting of said order prayed for; — It is therefore ordered by this court that the said sales be and the same are hereby confirmed and approved, and declared valid. , Judge of the Court. Dated , 18—. ARTICLE m. 8UMMABT SALES OF MINES ASn UlVIVa INTERESISi § 177. Mines may be sold, how. § 178. Petition for sale. § 179. Ordei to show cause. § ISO. Order of sale. § 181. Further proceedings. § 177. [1529.] Mines may be Sold, how. — When it appears from the inventory of the esta,te of any decedent that his estate consists in whole or in part of mines, or in- terests in mines, such mines or interests may be sold under the order of the court having jurisdiction of the estate, as herein- after provided. Arizona. — Same. Rev. Stats., sec. 1110. Idaho. — Same. Rev. Stats., sec. 5499. Hontana. — Same. Comp. Stats., p. 320, sec. 181. TTtah. — Same. Comp. Laws, sec. 4153. Wyoming. — Same, except that after the word "court" the words "or judge " are inserted. Laws 1890-91, p. 276, sec. 9. §178. [1530.] Petition for Sale. — The executor or administrator, or any heir at law, or creditor of the estate, or any partner or member of any mining company, in which in- terests or shares are held or owned by the estate, may file in the court a petition, in writing, setting forth the general facts of the estate being then in due course of administration, and particularly describing the mine, interest, or shares which it is 271 SALES AND CONVEYANCES, § 178 desired to sell, and particularly the condition and situation^ of the mines or mining interests, or of the mining company in which such interests or shares are held, and the grounds upon, which the sale is asked to be made. Arizona. — Same. Bev. Stats., sec. 1141. Idaho. — Same. Rev. Stats., sec. 5500. Montana. —Same. Comp. Stats., p. 321, sec. 182. TTtali. — Same. Comp. Laws, sec. 4154. Wyoming. — Same. Laws 1890-91, p. 276, see. 10. Estate ofBoland, 55 Cal. 310. Form No. 131. — Petition for Order of Sale of Mines and Mining Interests. [Caption, Form No. 1, § 5, cinte.'l 1. (Follow subd. 1 of Form No. 135, § 183, yosi.) 2. (Follow subd. 2 of Form No. 135, § 183, post.) 3. (Follow subd. 3 of Form No. 135, § 183, post.) 4. That, as appears from said inventory and appraisement, which is hereby referred to and made a part hereof, the prop- erty of said estate consists wholly (or in part) of mines (or in- terests in mines, or shares in mines, as the case may be); 5. The following is a full description of said mines (or inter- ests in mines, or shares in mines) of which the decedent died seised, or in which he had any interest, or in which his said estate has since acquired any interest, and the condition and value thereof: — a. (Here insert description); h. That said mine and the improvements thereon are ap- praised in the said inventory and appraisement at the sum of dollars, and are now of the same value; c. That upon said mine there is a substantial frame building used as a hoisting- works, in which there is situated two steam- boilers and necessary furnaces and appurtenances, a twenty-five- horse-power Corliss steam-engine, belts, pulleys, etc., hoisting apparatus, ropes, cages (give full description of all machinery in and about mine, and the location thereof, and also of all per- sonal property appertaining thereto); that a shaft five hundred feet in depth has been sunk upon said mine; that four drifts have been run from said shaft to various distances, at a depth of one, two, three, and four hundred feet in said shaft; § 178 PROBATE LAW AND PRACTICE. 272 d. That said mine ia difficult of access, and is remote from lines of transportation, and the working of said mine is thereby rendered very expensive; (If there is any other such property, here insert the condition, value, and situation of the same, as above) ; 6. That it is to the best interest of the estate that all of said mining property should be sold, because (here insert as many reasons as there are why it is to the best interest, etc.); (or as follows): — 6. That an immediate sale of said mining property is neces- sary, in order to secure the just rights and interests of the sur- viving tenants in common (or mining partners) of said mining property, because (here state reasons therefor);' — Wherefore your petitioner prays that an order be made by this court directing all persons interested to appear before this court at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to your petitioner to sell said mine (mining interests, shares, or stodks, as the case may be), and that after a full hearing of this petition and ex- amination qf the proofs and allegations of the parties inter- ested, and due proof of the publication of a copy of said order to show cause, etc., an order of sale be made authorizing your petitioner to sell at public auction said mine (mining interests, shares, or stocks, as the case may be), or that such other or further order may be made as is meet in the premises. , Petitioner. , Attorney for Petitioner. Verification as in Form No. 99, § 143, ante. Form No. 133. — Another Form for the Foregoing. [Caption, Form No. 1, § 5, anie.] 1. (Follow subd. 1 of Form No. 135, § 183, post.) 2. (Follow subd. 2 of Form No. 135, § 183, post.) 3. (Follow subd. 3 of Form No. 135, § 183, post.) 4. (Follow subd. 4 of Form No. 131, § 178, ante.) 5. (Follow subd.: 5 of Form No. 131, § 178, ante.) ' Note 1 to Form No. 135, § 183, pout, is applicable to this form. ^ Note 2 to Form No. 135, § 183, post, is applicable to this form. 2ii SALES ANt)' CONfiiYANClIS. § 179 « 6. (Follow subd. 4 of Form ]Nfo. 135, § 18Sf, ^os«.) 7. (Follow subd. 5 of Form No. 135, § 183, ^osf.> 8. (Follow subd. 6 of Form No. 135, § 183, post.) 9. (Follow subd. 7 of Form No. 135, § 183, post.) 10: (Follow subd. 8 of Form No. 135, § 183, post.) 11. (Follow subd. 9 of Form No. 135, § 188, post, down to the description.) "12. (Follow subd. TO of Form No. 135, § 183, post,) 13. (Follow subd. 6 of Form No. 135, § 183, post.) 14. (Follow subd. 12 of Form No. 135, § 183, post.) Prayer. (Follow prayer of Form No. 131). Verification as in Form No. 99, § 143, ante. §179. [1531.J Order to Show Cause — Notice. — Upon the presentation of such petition, the court, or a judge thereof, must make an order directing all persons interested to appear before such court at a time and place specified, not less than four or more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell such mine, mining iri- terests, shares, or stocks as are set forth in the petition and belonging to the estate. A copy of the order to show cause must be personally served on all persons interested in the es- tate, at least ten days before the time appointed for hearing the petition, or published at least four successive weeks in such newspaper as such court or judge shall specify. If all persons interested in the estate signify, in writing, their assent to such sale, the notice may be dispensed with. Arizona. ^-Same. Rev. Statg., see. 1142. Idaho. — Same. Rev. Stats., sec. 5501. Blontana. — Same. Comp. Stats., p. 321, sec. 183. trtali. — Same. Comp. Laws, sec. 4155. Wyoming. — Same, except that after the words "before such court," the Words "or judge" are inserted. Laws 1890-91, p. 276, sec. 11. Form No. 133. — Order to Show Cause on Sale of Mines or Mining Interests. [Title of Court and Estate.] It appearing to this court by the petition this day presented and filed by , the administrator of the estate of , de- ls § 180 PROBATE LAW AND PRACTICE. 274 * ceased, praying for an order of sale of the mining property of said estate, that it is to the hest interest of said estate that all of said mining property should he sold (or that an immediate sale of all of said mining property is necessary, in order to secure the just rights and interests of the surviving tenants in common (or raining partners) of said mining property), — It is therefore ordered by the court that all persons interested appear before this court on the day of , A. D. 18 — , at the hour of ten o'clock, A. m., of said day, at the court-room of said court, at the court-house at the city of Sacramento, county of Sacramento, state of California, to show cause why an order should not be granted to said administrator to sell all of said mining property; it is further ordered that a copy of this order be published four successive weeks in the Weekly Bee,, a news- paper printed and published in said county. Dated , 18 — . , Judge of Court. §180. [1532.] Order of Sale. — If, upon hearing the petition, it appears to the satisfaction of the court that it is to the interest of the. estate that such mining property or interests of the estate should be sold, or that an immediate sale is neces- sary, in order to secure the just rights or interests of the mining partners or tenants in common, such court must make an ofiFer authorizing the executor or administratdr to sell such mining interests, mines, or shares, as hereinafter provided. Arizona. — Same. Rev. Stats., sec. 1143. Idaho. — Same. Rev. Stats., sec. 5502. Montana. — Same. Comp. Stats., p. 321, sec. 184. Utah., — Same, Comp. Laws. sec. 4156. Wyoming. — Same as California, except that the words "or judge " are in- serted after the word " court," the first time it occurs in the section. Laws 1890-91, p. 276, 277, sec. 12. An executor having shares of stock Mining stocks belonging to an es- on hand liable to assessment should < tate which are only an expense to it either get an order to sell it, or if the should be sold, unless it is quite evi. estate is solvent without it, should turn dent that it would be for the best in- it over to the legatees. He should not terest of the estate to hold them: In borrow money to pay assessments: Lu- re MilleTiovicJt, 5 Nev. 161. etch V. Medin, 3 Nev. 93. 275 SALES AND CONVEYANCES. § 181 Form No. IS 4. — Order of Sale of Mines and Mining Interests. [Title of Court and Estate.] The administrator of the estate of , deceased, having, on the day of — ^, A. D. 18 — , presented his verified petition praying for an order to sell certain mines (mining interests, shares, or stocks in mines, as the case may be), which are herein- after descrihed, and which belong to the estate of said deceased, and the matter coming on regularly for -hearing this day, and it "appearing to the satisfaction of the court that due publication of a copy of the order to show cause has been duly and legally published as required by law before said hearing, as directed by this court, and it further appearing to the satisfaction of the court that it is to the best interest of said estate that all of said mines (etc.) should be sold (or that an immediate sale of said mining property is necessary, in order to secure the just rights and interests of the surviving tenants in common (or mining partners) of said mining property), — It is hereby ordered, adjudged, and decreed that the said , the administrator of said estate, be and he is hereby au- thorized to sell the following described mines (etc.) belonging to said , estate (here insert description) at public auction (or " private sale," or "either public or private sale, as said admin- istrator shall judge to be most beneficial for said estate, pur- suant to the prayer of said petition ") to the highest bidder, upon the following terrhs, to wit, for cash, gold coin of the United States, ten pei^ cent of the bid payable at the time of sale, and balance upon confirmation by this court. , Judge of the Court. Note. — The notes to Form No. 105 are applicable to the foregoing form. § 1 8 1. [1533.] Further Proceedings. — After the order of sale is made, all further proceedings for the sale of such mining property, and for the notice, report, and confirmation thereof, must be in conformity with the provisions of Article IV. of this chapter. For Article IV. of this chapter, see next section. Arizona. — Same. Rev. Stats., sec. 1 IjW. Idaho. — Same. Rev. Stats., sec. 5503. Montana. — Same. Oomp. Stats., p. 321, sec. 185, § 181 PROBATK LAW AND PRACTICE. 276 ■CWetli. — Same. Comp. -Laws; sec. 41-57. Wyoming. — " The court or judge may iSiake order for public sale of such mining property, to take place in the same manner as provided for public sales of personal property in this chapter," Law:, 1S30-91, p. 277, sec. 13. ARTICLE IV. THE SALE OF BBAL BSTATB, INTERESTS THEREIN, AND CONFIRMATION THEREOF. § 182; To sell real and personal eatsfte. * § 183. Verified petition, what to contain. § 184. Order to appear. § 185. Order to be served or published, or assent given. § 188. Hearing after proof of service — Presentation of claims. § 187. Who may be examined. § ] 88. To sell real estate or part when. § 189. Order of sale. § 190. What the order of sale must contain. § 191. Interested persons may apply for order. § 192. Notice of sale. § 193. Time and place. § 194. Private sale of real estate. § 195. Ninety per cent of value must be offered. § 196. Purchase-money on sale, how secured. § 197. When resale may be ordered. § 198. Objections, Who may file. § 199. Order of confirmation, when to be made. § 200. Conveyances. § 201. Order of confirmation, what to state. § 202. Sale may be postponed. § 203. Notice of postponement. § 204. Payment of debts, et6., provided for by will. § 205. Sale without order — Security. § 206. Where provision by will insufficient. § 207. Estate subject to debts, etc. § 208. CoatHbution among legatees. § 209. Contract for purchase of lands may be gold. § 210. Conditions of sale. §211. Purojiaaer to^ive bond. § 212. Executor to assign contract. § 213. Sales of lands under mortgage or lien. § 214. Holder of lien may purchase — His receipt a valid payment. § 215. Liability for misconduct in sale. § 216. Fraudulent sales. § 217. Limitation of actions for vacating sale, etc. § 218. To what cases preceding section not to apply. § 219. Account of sale to be returned, ' § 220. Who cannot purcliase. 277 SALES AND CONVEYAIifCES. § 182 § 182. [1536.] To Sell Real aud Personal Estate. — When a sale of property of the estate is necessary to pay the allowance of the family, or the debts outstanding against the decedent, or the debts, expenses, or charges of administration, or legacies, the executor or administrator may also sell any real as well as personal property of the estate for that purpose, upon the order of the court; and an application for the sale of real property may also embrace the sale pf personal property. Arizona. — Same, Rev. Stats., sec. 114^5. Idaho. — " The pereoual estate of the decedent which comes into the hands of the executor or administrator is first chargeable with the payment of the debts and expenses; if the goods, chattels, rights, and credit^ in the hands of the executor or administrator are not suflBoient to pay thp debts of the dece- dent, the expenses of administration, and the allowance to the family, tho whole of the real estate may be sold for that purpose by the executor or ad- ministrator." Rev. Stats., sec. 5490. " When the personal estate in the hands of the executtor or administ;r^- tor is exhausted, or insufBcient to pay the allowance of the family, the debts outstanding against the decedent, and the debts, expenses, and charges of ad- ministration, the executor or administrator may sell the real estate for that purpose, upon the order of the probate court." Rev. Stats., sec. 5504. Hontana. — Same as Idaho, sec. 5504, su^pra. jOomp. Stats., p. 320, sec. 186. Nevada. — Same as Montana. Gen. Stats., eec. 2823. " When a testator shall have giyen any legacy by will that is effectual to pass or charge real estate, and his goods, chattels, rights, and credits shpJl be insufficient to pay a legacy, together with his debts and the charges of ad- ministration, the executor or administrator with the will annexed may obtain an order to sell hia real estate for that purpose, in the same manner and upon the same terms and conditions as are prescribed in this chapter in case of a sale for the payment of debts." Gen. Stats., sec. 2815. Oregon. — ' ' When the proceeds of the sale of personal property have been exhausted, and the charges, expenses, and claims specified in section 1 142 have not all been satisfied, the executor or administrator shall sell the real property of the estate, or so much thereof as may be necessary for that purpose." Hill's Laws, sec. 1145. TTtali. — Same as California. Comp. Laws, see. 4158. Washington. — Same as Idaho, sec. 5490, mfra. Code Proc, sec. 966. See also Code Pr.oci, sec. 976, under § 168, ante. Same as Nevada, sec. 2845, ewpra. Code Proc, sec. 1025. Wyoming. — Same as California. Laws 1890-91, p. 277, sec. 14 "Whenever it appears to the court or judge, on any hearing of an appljfi^ tion for the sale of real property, that it would be for the interest of the estate that personal property of the estate, or some part of such property, should he first sold the court or judge may order or decree the sale of such personal § 183 PROBATE LAW AND PKACTICE. 278 property, or any part of it, and the sale thereof shall be oondnoted in the same manner as if the application had been made for the sale of such personal property in the first instance." Laws 1S90-91, p. 285, sec. 58. Sale, etc. : See § 191, post. The homestead of a family is A sale of real estate of a deceased not subject to sale by an admmis- wife may be ordered for the purpose trator to pay debts, nor can any part of paying a mortgage given by her to of it be given away by the widow, nor secure a husband's indebtedness: In re otherwise taken from the heirs, except Marsden, Myr. Prob. 184. See Wright by due process of law, in suits to which V. Edwards, 10 Or. 301. the heirs are parties: Cain's, Heirs v. Where there was no personal Young, 1 Utah, 361. property of a i decedent, it was On the decease of an intestate pre- proper to order a sale of the real emptor, whose title to the land "he estate to pay expenses of administra- occupied at the time of death is yet tion and taxes assessed against the inchoate, a salable possessory right real estate after the death of the de- passes to the administrator: Bwcli v. cedent, although no other debts were McDaniel, 2 Wash. Ter. 58. proved: Hanford v. Davies, 1 Wash. The administrator may dispose of 476. property in which the estate holds an An order for the sale of realty inchoate interest in such manner as is is void if made to pay for improve- demanded by the best interest of the ments made years after the death of estate, and it is his duty to perfect the the decedent, and while there, was no title in such property for the benefit administration: Cain a Heirs v. Young, of the heirs: Burck v. McDaniel, 2 1 Utah, 361. Wash. Ter. 58. § 183. [1537.] Petition, What to Contain. — To ob- tain such order for the sale of real property, he must present a verified petition to the superior court, or a judge thereof, set- ting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or estimated; the amount due upon, the family allowance, or that will be due after the same has been in force for one year; the debts, expenses, and charges of administra- tion already accrued, and an estimate of what will or may accrue during the administration; a general description of all the real property of which the, decedent died seised, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof, and whether the same be community or separate pitipferty; the names of the legatees and devisees, if any, and of the heirs of the deceased, BO far as known to the petitioner. If any of the matters here enumerated cannot be ascertained, it must be so stated in the petition; but a failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings if 279 SALES AND CONVEYANCES. § 183 the defect be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree. Arizona Same. Ker. Stats., sec. 1146. Idaho. — Same, to the words "a general description." The balance of sec- tion as follows: "A description of all the real estate of which the decedent died seised, or in which he had any interest, or in which the estate has ac- quired any interest, and the condition and value of the respective portions and lots thereof, and whether the same, he community or separate property; the names and ages of the devisees, if any, and of the heirs of the decedent. If all the matters above enumerated cannot be ascertained, it must be so stated in the petition." Be v. Stats., sec. 5505. Montana. — Same as California. Comp. Stats., p. 322, sec. 187. Nevada. — Same as Idaho. Gen. Stats., sec. 2824. Oreg^on. — "Xhe petition for the order of sale of real property shall state the amount of the sales of personal property, the charges, expenses, and claims still unsatisfied, so far as the same can be ascertained, a, description of the real property of the estate, the condition and probable value of the different portions or lots thereof, the amount and nature of any liens thereon, the names, ages, and residence of the devisees, if any, and of the, heirs of the de- deceased, so far as known." Hill's Laws, sec. 1146. i tTtah.> — Same as California. Comp. Laws, sec. 4159. Washington. — "To obtain such order, he shall present a petition to the court, setting forth the amount of the personal estate that has come to his hands, and how much, if any, remains undisposed of, a list and the amounts of the debts outstanding against the deceased, as far as the same can be as- certained, a description of all the real estate of which the testator or intestate died seised, the condition and value of the respective lots and portions, the names and ages of the devisees, if any, and of the heirs of the deceased, which petition shall be verified by the oath of the party presenting the same " Code Proc, sec. 1005. Wyoming. — Same as California. Laws 1890-91, p. 277, sec. 15. Petition, Order, and Sale: See cannot be paid out of nis personiu es- § 171, ante. tate and the income of his real estate; A sale made under order of the 2. Xhe insufficiency of the income of probate court by a guardian of infant the estate of the ward to maintain him devisees under a will, of the real es- and his family, or to educate his chil- tate devised to his wards, will not be dren, or to educate him when a minoi-; effectual to confer a valid title, unless 3. That it would be for the benefit of the court acquired jurisdiction of the the ward that his real estate, or a part proceeding for sale by the presenta- thereof, should be sold, and the pro- tion of a proper petition by the guar- ceeds put out at interest or invested in dian: Fitch v. Milter, 20 CaL 352, some productive stock: Fitch v . Miller, The petition, in order to give 20XIIal. 352. jurisdiction, must contain the state- The petition must set forth the ment and showing required by laW: condition of the estate; but it is only Fitch V. Miller, 20 Cal. 352. necessary to state the condition in The necessity or expediency of such manner as to enable the court to the sale must arise from one or more judge of the existence of one or more of these circumstances: 1. The exist- of the circumstances above specified: enoe of debts due from the ward which Filch v. Miller, 20 Cal. 352. 183 PROBATE LAW ANP PRACTICE. ^m The statute doe? not directly re- quire^ nor is it essential, fbai the value of the several items and parcels of property of which tlie estate con- sists should be stated: Fitch v. Miller, 20 Cal. 352. The jurisdiction, of the court to order the sale depends upon the suffi- ciency of the averments of the peti- tion, and not upon the truth of thosje averments; If the statements of a petition were untrue in fact, and in consequence thereof injustice should be done, this might furnish ground for setting aside the sale by a direct proceeding for that purpose; but it would not reach the point of jurisdic- tion, or authorize the sale to be treated as a nullity, when questioned collat- erally: Fitch V. Miller, 20 Cal. .352. So where the petition stated the interest of the wards in a certain ranoho to be two thousand acres, when in reality it was four thousand acres, but asked the sale of their whole in- terest: Held, that the mistake did not affect the jurisdiction of the court or the validity of the purchaser's title: Fitch V. Miller, 20 Cal. 352. In stating the facts and circum- stances tending to show the necessity or expediency of the sale, it ia not ab- solutely necessary that the petition should directly aver that there are debts to be paid, or that the income is not sufficient for the support and edu- cation of the wards, or that it would be for the benefit of the wards that the property should be sold and the proceeds put at interest. Ifi by a fair application of all the statements, it can be seen that one or more of these three contingencies exist, it is sufficient to give jurisdiction: Fitch v. Miller, 20 Cal. 352. Thus where a petition for the sale of an interest in the Sotoyome Rancho stated that the raneho was unproductive; that the greater part of it was occupied by persons who re- fused to pay any rent, and who were cutting down and destroying trees; and that it was subjected to heavy taxes, which would amount to more than the value of the land by the time all the infants should come of age: Held, that these statements presented a case for the exercise of the judgment of the court, as to the necessity or expediency of the sale for the purpose of inveeitujeatj and gave it jurisdictipij to make the order: Fitch v. Miller, 30 ,Cal. 352. A will by which interests in real estate w,ere devised to certain infants provided that th.e devisees might each "ta,ke out "one lialf of his share whe? he should come of age, and the other half not until all the other children should come of age, and it >vas ob- jected to the validity of a sale jmad9 by the guardian of the devisees under order of the probate court, that the above provision of the will so con- trolled the disposition of the property that it was not the subject of sale by the guardian: Held, that whatever effect this provision might have in controlling the Use of the property, the title to it, the estate qf the.devisee, vested in them upon the death of the testator, and this estate was the sub- ject of sale under the provisions of the statute, and the effect of its sale was to transfer whatever estate the wards had to the purchaser: Fitch v. Miller, 20 Cal. 352. The V liability of the property of wards to be sold by their guardians, under the order of the probate court, is not affected by the fact that their testator died before the adoption of the common law in this state: Fitch v. Miller, 20 Cal. 352. The fact that, in a proceeding in the probate court for the purpose of obtaining a sale of the real estate of infant devisees, certain adult co- devisees were allowed to appear, and their interests improperly made the subject of consideration in connection with the proceeding, and that these adults joined in the sale, and a parti- tion incidentally resulted therefrom, are not sufficient irregularities to in- validate the sale. It is sufficient, to support the sale, that the facts render- ing it necessary, or expedient were brought befofe the court by the peti- tion of the guardian, and that the es- tate of the infants was duly ordered to be sold: Fitch v. Miller, 20 Cal. 352. A petition for a probate sale may properly refer to the schedules of the inventory for a particular de- scription of Certain real property be- longing to the estate; and the fact that the inventory also refers to a map or diagram on file, which cannot be found at the time of a, subsequent m PALES .A,NP CONYEy^NCBS. §1S3 trial of a. cause ipyplving the yalidity of the sale, seventeen years afterward, will not affect the jurisdiction, if the inyenjtpry, takep in comiectioQ wjlbh the averments of tfa» petition, suffi- ciently shows what the interest of the deceased in the real property was at the time of his death, and contained a full description of the real property of the estate at the time' the sale was asked, and gave to thp co^rt all the inforniation upon that subject con- templated by the code: Richardson v. Butler, 82 Cal. 174. Th.e designation of a city lot as unimproved is a sufficient de- scription of its condition, in a petition for a probate sale, to give the court jurisdiction: Bkhardson v. Butler, 82 Cal. 174. Hie statement that there ar? no debts or expenses of administra- tion accrued and unpaid is sufficient to vest jurisdiction, so far as .that point is concerned, if prior accounts are settled, and the petition seeks a sale to provide for a family allowance and future expenses of admiuistra;tion: Richardson v. Butler, 82 Cal. 174. If schedules attached to a pe- tition for a probate sale, and made part of it, are placed after the verifi- cation, it will not affect the validity of the verification: Richardson v. But- ler, 82 Cal. 174. Averments of a petition for the sale of real estate which substantially copnply with the statute are sufficient, and a petition which fully and fairly answers the purpose of the statute will confer jurisdiction. The juris- diction depends on the averments of the petition, and not upon their truth or falsity: Richardson v. Butler, 82 Cal. 174. A substantial compliance with the law in regard to' probate sales is sufficient as against a collateral at- tack. Such a sale cannot be objected to as void for want of juris4iotion in ejectment by an heir of the decedent against the puyoh^er, upon the ground that the petition for the sale failed to state the value of the property sought to be sold, if it stated that a full de- scription of all the real estate of which the said decedent died seised, etc., and the condition and value of said real estate, are set forth in a certain schedule annexed to the petition, which gave a full description of the properfy in contest, and showed its condition and appraised value. In the absence of a special demurrer fb(r uncertainty, the averment iQ the body of the petition may be taken as an averment that the amount named in the sch^dule was the present value of the property at the tim(3 .of the peti- tion: Silverman y. Qundelfinger, 82 0^.548. A sale of real property of a de- cedent made under an order of court is not necessarily voidj although the petition for the order of sale, the ci- tation to the heirs, and the service of the citation are defective: Mitchell v. Campbell, 19 Or. 455. Such defects should be disregarded, Vhere the property sold at such sale h^is beep purchased for a valuable con- 8id,eration, which has been paid by ^he purchaser to the executor or adminis- trator, or his successor, in good faith, aud the sale has not been set aside, but has been 42onfirmed or acquiesced in by the court: Mitchell v. Campbell, 19 Or. 455. A substantial coznpliance with the above section is sumcieut in a pe- tition for an order to sell real property belonging to the estate of a d^ecedent: In re Arguellq, 85 Cal. 151. An order of sale of real estate to meet expenses of administration m;ty be made without a final adjudi- cation of the executor's account. It is only necessary that tjie petition should show a legal necessity for th,e sale: Abila v. Burnett, 33 Cal. 658; Haynes v. Muhs, 20 Cal. 288: In an application to sell real estate to pay debts of the estate, a judgment recovered against the ad- ministrator is prima facie evidence of the indebtedness of the estate, as against the devisee of the real estate or his grantee: 2n re Schroeder, 46 Cal. 304. The petition and subsequent pro- ceedings must be participated in by all the executors who qualify, or the sale will be yoid: Gregory v. McPher- son, 13 Cal. 562. Surplus and redundant matter in a petition for the sale of real estate does not affect the jvirisdiction of the court, and may be disregarded: Towmend v. Oordnn, 19 Cal. 188; Stu- ifH v. Alkn, 16 Cal. 473. §183 PROBATE UlW AND PKACTICB. 282 An alternative prayer in such petition renders it defective, but does not affect the jurisdiction of the court: Toionsend v. Gordon, 19 Cal. 188. But reference may be made in the petition to any other paper or thing to show the facts required by law to ex- ist: Stuart V. Allen, 16 Oal. 473; Mtch V. Miller, 20 Cal. 352; Wilson v. Has- tings, 66 Cal. 243; Tn re BenSa, 36 Cal. 687; Qregmy v. TaJbtr, 19 Cal. 397; Toumsend v. Gordon, 19 Cal. 207. The petition, in referring to the inventory for the particulars required by the statute, must state that the reference is made for description, or value, or condition. A statement that reference is made " for greater cer- tainty" is not sufficient: Wilson v. Hastings, 66 Cal. 243; In re Smith, 51 Cal. 563; Haynes v. Meeks, 20 Cal. 288. The petition must describe the condition of the land , to be sold. A clause in the statute that a failure to give such description shall not inval- idate the proceedings if the defect is supplied by proof and stated in the decree does not apply when the peti- tion is attacked by demurrer, or when the objection is taken upon appeal from the order of sale: In re Smith, 51 Cal. 563. The petition must contain a de- scription of all the real estate of which the testator or intestate deed seised: WSson V. Hastings, 66 Cal. 243; Qharhy v. Werner, 66 Cal. 389; Haynei V. Meeks, 20 Cal. 288; Toumsend v. Gordon, 19 Cal. 188. If such petition is deficient in this respect, it cannot be amended at the hearing so as to make an order of sale based thereon valid without further notice. The court should treat the petition, when amended, as a new petition, and pro- ceed de novo: In re Oharky, 57 Cal. 274. An insufficient description as to one of several parcels of land re- ferred' to in the petition will deprive the court of jurisdiction, although the remaining parcels are suJSciently de- scribed: Wilson V. Hastings, 66 Cal. 243. Description of lands as "the un- divided one-half part of one league of land on Clear Lake," or "the un- divided one-half part of a farm and vineyurd at Sonoma, containing 833 acrej more w less," are insufficient: Wilsmr v. Bnstings, 66 Cal. 243. But ■n accurata or exact description of real estate in a petition for its sale is not necessary. It is too strict a rule: 8tua}-t V. Allen, 16 Cal. 473. The petition must set forth the condition of the respective portions and lots: Wilson v. Hastings, 66 Cal. 243; Haynes v. MeeJcs, 20 Cal. 288; Toionsend v. Gordon, 19 Cal. 188. It must also set forth their value: Wilson V. Hastings, 66 Cal. 243j Towns- end V. Gordon, 19 Cal. 188. Where the petition averred that no personal property had come to the hands of the administrator; that to his knowledge there was none; that a former administrator of the same es- tate had disposed of the whole of it; that the petitioner was also a creditor, had made every effort in his power to collect from the former administrator the amount due to him on a judgment against the estate, without success. The petition did not state the amount ■ of the personal property which h^d come to the hands of the former ad- ministrator, nor what disposition had been made of it, nor that any effort had been made to ascertain what had become of it, or to compel the former administrator to account, nor the con- dition nor value of the real estate of which the intestate deed seised, nor the condition of the parcels described. . It was held to he fatally defective, and that the court acquired no jurisdiction of the proceedings for the sale; thfA the order to sell and the sale made in pursuance of it were void; that the purchaser acquired no title; that the invalidity of the sale, by reason of the defect in the petition, might be shown in bar of a recovery in eject- ment by the purchaser against one claiming under a conveyance from the heirs: Haynes v. Meeks, 20 Cal. 288. Failure to verify a petition, when the statute requires it to be veri- fied, is but an irregularity, and will not render the proceedings open to collateral attack: McCoy v. Ay res, 2 Wash. Ter. 207. It is immaterial whether a cred- itor has the right to petition for the sale of real property belonging to the estate, of a decedent, if the administra- tor joins in the petition: In re Argu- ello. 85 Cal. 151. The statute of limitations does not run while the administration is pending aud unsettled, as to a claim 283 SALES AND CONVEYANCES. § 183 against the estate vhicli has been al- of real property, when there has been lowed, so as to disqualify the creditor unreasonable delay without circum- from petitioning for an order of sale; stances to excuse it; but where the In re Arguelh, 85 Cal. 151, court finds that the delay was ex- Liaches will in some cases de- cusable, its decision allowing the pe- feat a creditor's petition for sale fit tition will not be reversed, unless it property of the estate, and the pro- appears that the court below has bate court has discretionary power to abused its discretion: Iri re ArgiieUo, deny a creditor's petition for the sale 85 Cal. 151. Form No. 135. — Petition for Order of gale of Real Estate. [Caption, Form No. 1, § 5, ante.} 1. That died intestate on the - — — day of , A. D. 18 — , in the , county of , state of , being at the time of death a resident of the county of , state of ; ■ , 2. That your petitioner is the duly appointed, qualified, and acting administratrix of the estate of said , deceased; 3. That your petitioner has duly made and returned to this court a true inventory and appraisement of all the estate of the said deceased which has come to her possession or knowledge, and she has caused to be published due and legal notice to the creditors of said decedent; 4. That the personal estate that has come to the hands of petitioner is as follows, to wit: Household furniture, pictures, and ornaments in dwelling-house No. 716, M Street, Sacra- mento City, appraised at the sum of $100; also the sum of $137.50 cash, being money received as rents of a portion of the real estate belonging, to the estate of decedent; 5. That a portion of said personal property has been disposed of as follows, to wit, the sum of $50 cash, paid out on account of expenses of adnlinistration, leaving in the hands of your petitioner the sum of $87.50 cash, and the above-mentioned household furniture, pictures, and ornaments; 6. That the debts outstanding against the said deceased, as far as can be ascertained or estimated, amount at this date to the sum of $703.61, and are the following claims, which have been duly allowed and approved by said administratrix and a judge of this court, and duly filed herein, to wit (here assert list of claims so allowed, approved, and filed); 7. That the debts, expenses, and charges of administration § 163 PROBATE LAW AJ>ll> PHACTIlOE. 284 already accrued and remaiiaing uopaid amount .to the sum of $12.75, and are as follows, to wit (here insert detailed statement of said debts,expenses, and charges of administration already accrued and remaining unpaid); , 8. That, the debts, expenses, and charges of administration that, will or may accrue during the administration are esti- mated by your petitioner at the sum of $335, and are as follows, to wit (here insert detailed statement of such debts, expenses, and charges of.administration); 9. That the said debts outstanding against the deceased, the said debts, expenses, and charges of administration already accrued and remaining unpaid, and the estimated debts, ex- penses, and charges of administration that will or may accrue, amount to the sum of $1,051.36; The following is a full description of all the real estate of which the decedent died seised, or in which she had any inter- est, or in which the said estate has acquired any interest, and the condition and value thereof: — a. The west quarter of lot No. 3, in the square bounded by M and N and Seventh and Eighth streets, in the city of , county of -, state of , as laid down on the official map of said city, and the improvements thereon appraised in the said inventory and appraisement at the sum of eighteen hun- dred dollars. Upon said west quarter of lot No. 3 is a substan- tial two-story brick dwelling-house facing on M Street, and also a small frame dwelling fronting on the all6y running through said square ; said brick dwelling is now, and has been for three years last past, rented at a monthly rental of twenty dollars, and said frame dwelling is now, and has been for two years last, rented at a monthly rental of eight dollars; h. The north half of the east quarter of lot No. 2 in the square bounded by N and ,and Fifth and Sixth streets, in said city, as laid down on the official map thereof, and the improvements thereon, appraised in the inventory and appraise- ment on file herein at the sum of one thousand dollars; the improvements referred to consist of a two-story frame building fronting on said N Street; said frame building is not now rented, and has not been within one year last past. 2S5 SALES AND CONVEYANCES. § 183 10. Your petitioner therefore alleges that the personal estate in the hands of your petitioner is greatly insufficient to pay the debts outstanding against the deceased, and the debts, ex- penses, and charges of the administrator, and that it is neces- sary to sell the whole or some portion of the rea:l estate for such purposes; 11. That your petitioner deems it for the best interest of the estate, and all the parties interested therein, that the said north half of the' east quarter of lot No. 2, in the square bounded by N and and Fifth and Sixth streets, of said city of Sacramento, and the improvements thereon, be sold, in order that the pro- ceeds may be applied to the payment of the debts outstanding against the deceased, and the debts, expenses, and charges of administration; 12. That the following are the names of the heirs of said deceased, to wit, — -— and , the children of said de- ceased;'— Wherefore your petitioner prays that an order be made by this court directing all persons interested in said estate to ap- pear before this court at a time and place specified, not less than four nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to your petitioner to sell so much of the real estate of the de- ceased as shall be necessary, and that after a full hearing of this petition and examination of the proofs and allegations of the parties interested, and due proof of the publication of a copy of said order to show cause, etc., an order of sale be made authorizing your petitioner to sell at public auction ' so much and such parts of the real estate as said court shall judge ne- cessary or beneficial, or that such other or further order may be made as is meet in the premises. , Petitioner. :, Attorney for Petitioner. Verification as in Form No. 99, § 143, ante. ' If a private sale is desired, here insert the following allegation: 13. In the opinion of your petitioner, a private sale of said property would be most bene- ficial for the estate. 2 When desired, in lien of the words "at public auction," insert "at private- sale," or "at either public or private sale, as the administrator (or executor) shall judge to be most beneficial for the estate," as the case may be. § 184 PROBATE LAW AND PRACTICE. 286 § 1 84. [1538.] Order to Appear. — If it appears to the court or judge, from such petition, that it is necessary to sell the whole or some portion of the real estate for the purposes and reasons mentioned in the preceding section, or any of them, such petition must be filed and an order thereupon made directing all persons interested in the estate to appear before the court, at a time and place specified, not less than four nor more than ten weeks from the time of making of such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the decedent as is necessary. Arizona. — Same. Rev. Stats., sec. 1147. Idaho. — Same. Rev. Stats., sec. 5506. . Kontana. — Same. Comp. Stats., p. 322, sec. ISS. Nevada. -7 Same. Gen. Stats., sec. 2825. Oregon. — "Upon the filing of the petition, a, citation shall issue to the devisees and heirs therein mentioned, and to all others unknown, if any such there be, to appear at a term of court therein mentioned, not less than ten days after the service of such citation, to show cause, if any exist, why an or- der of sale should not be made as in tiie petitioi^ prayed for." Hill's Laws, sec. 1147. Utah. — Same as California, Comp. Laws, sec. 4160. Washington. — Same as California, except as to time, which is, " not less than four nor more than eight weeks from the time of making such order." Code Proc, sec. 1006. Wyoming. — Same as California, except that after the words " before the court " the words " or judge " are inserted. Laws 1890-91, pp. 277, 278, sec. 16. An order to show cause is void tice, or than the time allowed by law if the interval between the date of the from the date of the order for inter- order and the day fixed for the hear- ested parties to appear and show ing of the petition for an order of sale cause. All proceedings based upon of real estate is less than the time such a void order are void; Towjisend fixed by law for the publication of no- TaUant, 33 Cal. 45. Forin No. 136. — Order to Show Cause Why Order of Sale of Keal Estate Should not be Made. [Title of Court and Estate.] It appearing to this court, by the petition this d'ay pre- sented and filed by , the administrator of the estate of , deceased, that it is necessary to sell the whole or some portion of the real estate of said decedent to pay the debts of decedent and the expenses and charges of administration, — 287 SALES AND CONVEYANCES. §185 It is therefore ordered by this court that all persons inter- ested in the estate of said deceased appear before the said su- perior court on , the day of , A. D. 18 — , at the hour of o'clock, — m., of said day, at the court-room of said , court, at the court-house in the city of , county of , state of California, to show cause why an order should not be granted to said administrator to sell so much ,of the said real estate as shall be necessary and that a copy of this order be published four successive weeks in the Weekly Bee, a news- paper printed and published in said county. Dated , 18 — . , Judge of Court. § 185. [1539.] To be Served — Hearing — Assent. — A copy of the order to show cause must be personally served on all persons interested in the estate, any general guardian of a minor so interested, and any legatee, or devisee, or heir of the decedent, provided they are residents of the county, at least ten days before the time appointed for hearing the petition, or be published four successive weeks in such newspaper in the county as the court or judge shall direct. If all persons inter- ested in the estate join in the petition for the sale, or signify in writing their assent thereto, the notice may be dispensed with, and the hearing may be had at any time. Arizona. — Same. Rev. Stats., sec. 1148. ' Idaho. — "A copy of the order to. show cause must be personally served on all persons interested in the estate, and on any general guardian of any minor, devisee, or heir of the decedent resident in the county, at least five days be- fore the time appointed for hearing the petition, or must be published at least four successive weeks in such newspaper as the court or judge shall direct. The notice is served if the publication is completed five days before the day set for hearing. If all persons interested in the estate join in the petition for tbe sale, or signify in writing their assent thereto, the notice may be dispensed with." Kev. Stats., sec. 5507. Montana. — Same. Comp. Stats., p. 322, sec. 189. •T Nevada. — "A copy of such order to show cause shall be personally served on all persons interested in the estate, at least five days before the time appointed for hearing the petition, or shall be published at least four successive weeks in such newspaper as the court or judge shall order; pro- vided, hoivever, if all persons interested in the estate shall signify in writing their assent to such sale, the notice -may be dispensed with." Gen. Stats. i, sec. 2826. Oregon. — " Upon an heir or deyisee known and resident within this state il86 PROBATE LAW At!t> PRACTICE. 288 such citaEion [flill's Laws, 8fec. 1147, under last seotion] shall be seized and returned as a summons, and upon an heir or, devisee- unknown or non-resi- dent it may be served by publication, not less th'an four weeks, or for such further time as the court or judge may prescribe. When service of the cita- tion is made by publication, there shall be published with it a brief description of the property described in the petitibtf." Hill's Laws, sec. 1148. ITtall. — Same as California. Cbmp. Laws, sec, 4161. Washington. — Same of Nevada. Code Proc, sees. 1007, 1009. Wyoming. — Same as Galifornia. Laws 1890-91, p. 278, sec. 17. FuTjlication of Notice: See § 315, poet. Ouardian. — When Infant a Party: Cal. Code Civ. Proc, sees. 372, 373. See §§ 332, 548, post. Court 'may Appoint Attorney: See § 328, post. There must be either personal or constructive service, or siM interested persons must join in the petition, or signify their consent in writing: Pear- son V. Pearson, 46 Cal. 635. An heir must be cited, and has a right to be heard: Beckett v. Selover, 7 Cal. 215. The ten days' notice wds not re- quired to be given to the attorney for minor heirs prior to 1865: Richardson V. Mmser, 54 Cal. 196. Notice is not waived by the ap- pearance of a minor in court: In re Bartels; Myr. Prob. 130. Publication of order to show cause why an administrator's petition for the sale of the real estate of a de- cedent should not be granted, and of the notice of the sale of such real es- tate, may be made in such newspaper in the county as the court or judge shall direct, for the number of succes- sive weeks required by the statute, though such paper be published weekly only, and though other papers are published daily in the same county: In re O'SuUivav, 84 Cal. 444. Where, upon petition to sell real estate of the deceased, the usual order ,to show cause, etc., was entered, and on the same day a guardian ad litem was appointed for absent and minor heirs, and on the same day said guar- dian appeared and consented to an order of sale, which was thereupon made, it was held that this order of sale is not void because the order to show cause, etc., WEts not served on the minor heirs, or because the guar- dian was appointed, and the order to show cause was made on the same day. The statute is silent as to the time the guardian ad litem is to he appointed.' StuaH V. AUen, 16 Cal. 473. After a guardian ad litem ap- pears, and consents to an order of sale, the court has jurisdiction over the subject and the parties. At what time after this the court should act upon tho«petition was within its dis- cretion: Stjuxrt V. Allen, 16 Cal. 473. The court-will not acquire juris- diction to make an order of sale of real property of an estate if the law requires an order of court directing all persons interested to show cause why the real estate should not be sold, to be published four successive weeks be- fore the return day in a paper desig- nated by the court, and this was not done, but said order was published three weeks in the paper designated by the court, and then one week in another paper designated by the ad- ministrator: Townsend v. Tallant, 33 Cal. 45. _ Sale is void as to infant heir who is not made a party: Fisk v. Kellogg, 3 Or. 503. Order of sale may be collater- ally attacked when it appears that an important party in interest was not made a party to the proceedings: In re Oibbs, Sup. Ct. Utah, April 20, 1885. §186. [1540.] Hearing after Proof of Service.— The court, at the time and place appointed in such order, or at such other time to which the hearing may be postponed, upon satisfactory proof of personal service or publication of a copy 289 BALES AND CONVEYANCES. §186 of the order, by affidavit or otherwise, if the consent, in writing, to such sale of all parties interested is not filed, must proceed , to hear the petition, and hear and examine the allegations and proofs of the petitioners, and of all persons interested in the estate who may oppose the application. All claims against the decedent not before presented, if the period gf presentatioQ has not elapsed, may be presented and passed upon at the hearing. Arizona. — Same. Rev. Stats., sec. 1149. Idaho. — Samej last sentence omitted. Rev. Stats., sec. 5508. Montana. — Same as California. Comp. Stats., p. 323, sec. 190. Nevada. — Same as Idaho. Gen. Stats.,' sec. 2827. Utah.. — Same as California. Cotnp. Laws, sec. 4162. Washington. — Same as Idaho. Code Proc, sees. 1808, 1496. ■Wyoming. — Same as California. Laws 1890-91, p. 278, sec. 18. If petition for sale of real prop- a right to go behind the allow- erty of estate, citation to heirs, and its anpe of claims, and to require proof service, are defective, the sale is not of the original indebtedness upon the necessarily void: Mitchell v. Campbell, hearing of the petjition for sale of real 19 Or. 455. estate to pay debts: Beckett v. Selover, It is no ground of opposition to 7 Cal. 215. the granting of an order ot sale of real At the hearing of an application estate, that the estate holds a litigated to sell real estate, heirs cannot raise claim against the grantee of a devisee: questions of heirship, or object to any /» re Schroeder, Myr. Prob. 7; affirmed delay or irregularity in the settlement 46 Cal. 304. of the estate: In re Houck, Sup. Ct. The heirs of the deceased have Or., Feb. 29, 1888. Form No. 137. — Objections to Granting Order of Sale of Real Estate. [Title of Court and Estate.] , one of the heirs at law of said deCedent, shows the fol- lowing causes why the order of sale of real estate prayed for in the petition of , heretofore ^led herein, should not be granted: — ' 1. That the order to show cause made herein was not pub- lished for four successive weeks in any newspaper printed in this county, nor was it served personally on any of the heirs at law who reside in this county; 2. That the estate of said deceased is not indebted to , as set forth in said petition, for the reason that the claim upon which said alleged indebtedness ig based was kt the time of the allowance thereof by the administrator barred by the pro^ visions of subdivision — ^ of section of the Code of Civil Procedure (state any other cause that exists);- 19 §§ 187, 188 PEOBATB LAW AND PRACTICE. 290 3. (State objections to any claim alleged to be due from the estate in the petition in the same manner); — Wherefore he prays that the order sought in said petition be denied. , Attorney for said Heir at Law. § 187. [1541.] Who may be Examined. — The execu- tor, administrator, and witnesses may be examined on oath by either party, and process to compel them to attend and testify may be issued by the court or judge, in the same manner and with like effect as in other cases. Arizona. — Same. Kev. Stats., sec. 1150. Idaho. — Same. Bev. Stats., sec. 5509. Montana. — Same. Comp. Stats., p. 323, sec. 191. Ifevada. — Same. Geo. Stats., sec. 2829. Utall. — Same, Comp. Laws, sec. 4163. Washington. — Same. Code Proc, sec. 1010 ^ Wyoming. —Same. Laws 1890-91, p. 278, sec. 19. § 188. [1542.] To Sell Real Estate, or Part, when. — If it appears necessary to sell a part of the real estate, and that by a sale thereof the residue of the estate, real or personal, or some specific- part thereof, would be greatly injured or diminished in value, or subjected to expense, or rendered un- profitable, or that after any such sale the residue would be so small in quantity or value, or would be of such a character with reference to its future disposition among the heirs or devisees, as clearly to render it for the best interests of all concerned that the same should be sold, the court may authorize the sale of the whole estate, or of any part thereof, necessary and for the best interest of all concerned. Arizona. — Same. Ker. Stats., sec. 1151. Idaho. — Same. Bev. Stats., sec. 5510. Slontana. — Same. Comp. Stats., p. 123, sec. 192. Nevada. — Same. Gen. Stats., sec. 2830. Oregon: — " If, upon the hearing, the court find that it is necessary that "the real property, or any portion thereof, should be so^, it shall make the order accordingly, apd prescribe the terms thereof, whether of cash or credit, or both; and if the court find that such property cannot be divided without probable injury aqd loss to the estate, it may order that it, or any specific lot or portion thereof, shall be sold wholly, whether otherwise necessary or not." Hill's Laws, sec. 1149. 291 SALES AND CONVEYANCES. § 189 Utali. — Same as California. Comp, Laws, sec. 4164. Washingtbu. — Same as California. Code Froc, sec. 1011. Wyoming. — Same as California, except the words " court or judge " are used in place of "judge." Laws 1890-91, p. 278, sec. 20. §189. [1543.] Order of Sale.— If the court is satisfijed, after a full hearing upon the petition and an examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary, for any of the causes mentioned in this article, or if such sale be assented to by all the persons interested, an order must be made to sell the whole, or so much and such parts, of the real estate described in the petition, as the court shall judge necessary or beneficial, Arizona. — Same. Bev. Stats., sec. 1152, Idaho. — Same. Rev. Stats., sec. 5511. Blontana. — Same. Comp. Stats., p. 323, sec. 193. Nevada. — Same. Gen. Stats., sec. 2831. Oregon. — Hill's Laws, sec. 1149, under last section, Utah.. — Same as California, with the following added: "Provided, no order of sale .granted in pursuance of this chapter shall continue in force more than one year after gran^ting the same, unless a sale has been made thereunder." Stats. 1890, pp. 4, 5, amending Comp. Laws, sec. 4165. Washington. — Same, with the following added: "At either public or private sale." Code Proc, sees. 1012, 1175. Wyoming. — Same as California.- Laws 1890-91, p. 278, 279, sec. 21. Order of sale need not recite the 20 Cal. 288; Tovmsend v. Gordon, 19 facts: See § 314, post. Cal. 189. Personal property, ordering sale An order of sale of real prop- of, or ordering sale of real estate: See erty made by the court after notice § 270, poii. to all the parties interested, as required Order refusing to set aside order by law, and after examination of the ofsale not appealable: Inre Smith, proofs presented, is an adjudication 51 Cal. 563. that the sale of the property described The petition and subsequent is necessary, and unless appealed from proceedings must be participated in is conclusive and binding upon the by all the executors who qualify, or administrator and all parties interested the sale will be void: Oregory y. Me- in the estate: In re Sprigg, 20 Cal. 121. Plverson, 13 Cal. 562. If an administrator procures Courts of probate should refuse an order of sale of real estate to pay an order for the sale of real estate, a debt which he had previously paid where there has been such delay in with funds of the estate, it is not a. making the appl ication as to amount fraud which will enable the order to to laches: In re Crash/, 55 Cal. 574. be attacked in a collateral proceeding. The authority of the iCOurt to Nor can such an order be set aside in order a probate sale of real prop- a collateral proceeding on the ground erty is derived from the statute, and that a small portion of such real es> can only be exercised in cases spe- tate would have been sufficient: Boyd cially designated: Haynes v. Meeka, v. Blanhman, 29 Cal. 19, , 190 PKOBATB LAW AND PRACTICE. 292 An order of sale of real estate should not be made while the latid ia held adversely, or there is a oloud over its title affecting its value: In re Hi- cavd, 57 Oal. 42l. After an order of sale has been made, the administrator may proceed at any time and sell under said order, unless said order has been revoked. There is no statute requiring the sale to be made within any given time after the order: In re Mdntgomery, 60 Cal. 645. Where titles of real estate will be injuriously affected, courts should not be held to too great strictness in pro- bate proceedings. A fair and liberal construction should be given to their alets: Stuart v. Allen, 16 Cal. 473. A mistake wUl be presumed, rather than that the order of sale was made before the return day: Sussell v. Lewis, 3 Or. 3S0. An order of sale of realty to pay a legitimate claim cannot be refused because the grantee of an heir offered to pay the claim upon condition that said claim should be assigned to him: Weill V. Clark, 9 Or. 387. ' iTo presumption will be in- dulged against the recitals of an order of gale; the burden of show- ing want of jurisdiction will be cast on him who disputes the truth of the recitals: Sussell v. Lewis, 3 Or. 380. The court should order 9 sale of so much of the real estate as will sat- isfy outstanding claims, when it ap- pears that the personal property has been exhausted: In re Houch, Sup. Ct. Or., Feb. 29, 1888. Whether findings are neces- sary upon probate orders of sale, qucere: In re Arguelh, 85 Cal. 151. If the rules in reference to find- ings apply to probate orders of sale, yet the party alleging error in the failure of the court belo^ to make such findings must af&rmatively show, by the record, that the findings were iiot waived, otherwise the intendment in the supreme court, which is always in support of the judgment, must be that they were waived: In re ArgueUo, 85 Cal. 151. § 190. [1544.] What the Order of Sale must Con- tain. — The order of sale must describe the lands to be sold and the terms of sale, which may be for cash or on a credit not exceeding one year, payable in gross or in installments, and in such kind of money, with interest, as the court may direct. The land may be sold in one parcel or in subdivisions, as the executor or administrator shall judge most beneficial to the estate, unless the court otherwise specially directs. If it ap- pears that any part of such real estate has been devised, and not charged in such devise with the payment of debts or legacies, the court must order the remainder to be sold before that so devised. Every such sale must be ordered to be made at pub- lic auction, unless, in the opinion of the court, it would benefit the estate to sell the whole or some part of such real estate at private sale; the court may, if the same is asked for in the petition, order or direct such real estate, or any part thereof, to be sold at either public or private sale, as the executor or ad- ministrator shall judge to be most beneficial for the estate. If the executor or administrator neglects, or refuses to make a sale under the order, and as directed therein, he may be compelle(^ 293 SALES AND CONVEYANCES. § 190 to sell by order of the court made on motion, after due notice, by any party interested. Arizona. — Same. Rev. Stats., see. 1153. Idaho. — Same. Rev. Stats., seo. 5512. Montana. — Same. Comp. Stats., p. 324, seo. 194. Nevada. — Same. Gen. Stata.; see. 2832. Oregon. — "Upon the order being made, the executor or administrator shall sell the property therein specified, upon the terms therein directed, and in the manner herein otherwise provided. Such sale shall be made in the same manner as like property is sold on execution; provided, however, that the judge may, if thought best, order said property to be sold on the premises." Hill's Laws, sec. 1150. Utah. — Same as California. Comp. Laws, sec, 4166. Washington. — "The order shall specify the lands to be sold and the terras of sale, which may be either for cash or on credit, and not exceeding si» months, as the court may direct. If it appear that any part of such real estate has been devised and not charged in such devise with the payment of debts, the court shall order that part descended to heirs to be sold before that so de- vised." Code Proc, sec. 1013. " Real property belonging to the estates of decedents, minors, idiots, and insane persons may be sold at private sale according to the following provis- ions." Code Proc., seo. 1174. Same as California, except that the third sentence is omitted, and the words "or guardian" added after the word "administrator," wherever it occurs. Code Proc, seo. 1176. "In all other respects, such sale shall be governed by the laws of the state of Washington now in force governing the sale of real property belonging to such estates." Code Froc, sec. 1183. The act of the state of Washington, entitled "Jm act relating to private sales of real property belonging to estates of decedents, minors, and iijsane persons," being Code of Procedure, sees. 1174-1183, inclusive, relate to public as well as private sales. These sections may be found under §§ 189-199 of this work. See articie 2, section 19, of the Washington constitution, as to the re- lation of the title of the act and as to its application. Wyoming. — Same as California, except that, in the JSrst sentence, the woirds "and in such kind of hioney, with interest," are omitted, and the.words " or judge " are inserted after " court " ia all places where it occurs but the third sentence. Laws 1890-91, p. 279, sec. 22. It is the better practice for the vides sale shall cease when the amount court, in all cases where there are sev- require* to be raised has been olitained eral distinct parcels of property, to does not render the order void when insert in its order a direction that the the property consists of several lots or sale cease when the amount required parcels: Richardson v. Butkr, 82 CaL has been obtained; but the omission 174. . of such a direction does not invalidate The order must itself sufSuiently the order or the sales made in pur- describe the land ordered sold. The Buanceof it: la re Sprlggs, 20 CaX. 121. description- cannot be helped out by The fact that order of sale pro- referring to any extraneous matter: § 190 PEOBATK LAW AND PRACTICE. 294 UiU V. Wall, 66 Cal. 130; Crosby v. Public Sale — Private Sale: /n Doiod, 61 Cal. 557. See SepulveUa v. re 'Dorsey, 75 Cal. 258. Batigh, 74 Cal. 468. Form No. 138. — Order of Sale of Real Estate. [Title of Court aud'Estate.] the administrator of the estate of , deceased, hav- ing on the day of , A. D. 18 — , presented his verified petition praying for an order to sell so much and such parts of the real estate belonging to the estate of said deceased as this court should judge necessary or beneficial, and the matter com- ing on regularly for hearing this day upon proof to the satis- faction of this court of the due publication of a copy of the order to show cause, for four successive weeks, before said hear- ing, in the Weekly Bee, a newspaper printed and published in said county of , as directed by this court and according to law, this court heard and examined the proofs and allegations of said petitioner, and on such hearing, and after a full exam- ination, it appearing to the satisfaction of this court that it is necessary that a portion of the real estate of the deceased be sold, in order that the proceeds may be applied to the payment of the debts outstanding against the deceased, and the debts, expenses, and charges of the administration; that it is for the best interest of the estate and of all the parties interested therein that that part of the real estate of decedent should be sold which is herein described,' and it further appearing that all the proceedings upon said application have been in all re- spects strictly conducted in accordance with law; — It is therefore ordered, adjudged, and decreed that the said , the administrator of said estate, be and he is hereby au- thorized to sell the following described real estate belonging to. said estate (here insert description), at public auction (or " pri- vate sale," or "either public or private sale, as said adminis- trator shall judge to beiftiost beneficial for said estate, pursuant to the prayer of said petition"), to the highest bidder, upon the following terms, to wit, for cash, gold coin of the United States, 1 When, ia the opinion of the court, it would benefit the estate to sell the realty at private sale (Code Civ. Proc, sec. 1544, SMprn), here insert the fol- lowing: "That a private sale of said real property vrould benefit the estate." 295 SALES AND C0NVEYANCB3. § 191 ten per cent of the bid payable at the time of sale, and balance upon confirmation by this court.' Dated, , 18 — . , Judge of the Court. §191. [1545.] Interested Persons may Apply for Order. — If the executor or administrator neglects to apply for an order of sale when it is necessary, any person may make application therefor, in the same manner as the executor or administrator, and notice thereof must be given to the execu- tor or administrator, before the hearing. The petition of such applicant must contain as many of the matters set forth in section fifteen hundred and thirty-seven.' as he can ascertain, and the decree of sale must fix the period of time within which the executor or administrator must make the sale, Arizona. — Same. Kev. Stats., sec. 1154. Idaho. — Same. Rev. ,Stats., sec. 5513. "Upon making the order mentioned in the last section, a certified copy of the order of sale must be delivered' by the court or the clerk to the executor or administrator, who is thereupon authorized and required to sell the real es- tate as directed." Bev. Stats., sec. 5514. Slonfana. — Same. Comp. Stats., p. 324, sec. 195. Nevada. — Same. Gen. Stats., sec. 2S33. Same as I(}aho, Kev. Stats., see. 5514, supra. Gen. Stats., sec. 2834. Utah.. — Same. Comp. Laws, see. 4167. Washington. — Same; last sentence omitted. Code Proc, sec. 1014. Same as Idaho, Rev. Stats., sec. 5514, supra, except that "a certified copy of," and also the words "and required," are omitted. Code Proc, sec. 1015. Wyoming. — Same as California. Laws 1890-81, p. 279, sec. 23. The term used in the above section, "any person," is quite general, but it has been held, in Garwood v. Oarwood, 29 Cal. 519, that " the first duty oast upon the court is to determine whether such person has any interest whatever in the subject-matter,'' and if not, that he must be excluded from further par- ticipation in the proceedings. The court may require exeou- creditor of the executor whose claim tor to proceed under a former order has been allowed by the court, states of sale; such order to proceed is not suflScient facta to justify the sale, and appealable: In re Martin, 56 Oal. 208. the petitioner introduces evidence Where petition for sale of real tending to prove every material alle- estate of decedent, presented by a gation of the petition, it is error to ' When the original bond of administrator is insufficient (Code OiV; Pr,bc., see. 1389, § 72, ante), add the following: " And it is further ordered that be- fore making such sale, said administrator execute an additional bond in the' penal sum of dollars, conditioned that the said administrator shall fait)i> fully execute the duties of the trust according to law." Sec. 1&3. ante. S 193 PROBATB LAW AND PKACTICB. 296 grant a nonsuit on motion of the dev- cedent, the means of $ecnring payment isees: In re Ctmtt, 87 Cal. 480. of their claims against the estate, and A claimant for Bervlces ren- contemplate expenses of administra- dered to the estate during adminis- tion which the executor neglects or tration, whose claim has been allowed refuses to pay: In re Couts, 87 Cal. by the court as a proper expense of 480. administration, may apply for a sale Allowance by court of a claim of the real estate to pay bis claim, if for services rendered to an executor the executor has not funds sufficient as part of the expenses of adminis- to pay it, and neglects to apply for the tration included in his account is con- order of sale: In re Couts, 87 Cal, elusive against all parties interested, 480. except those laboriiig under disability. Creditors — Expenses of Admin- if no appeal is taken from the order istration. — Sections 1536 and 1545 of settling the account, and cannot be the California Code of Civil Procedure questioned by the devisees upon a pe- are intended to afford creditors of the tition for the sale of realty to pay the executor, as well as creditors of the de- claim: In re Gouts, 87 Cal, 480, Section 1546 repealed. Cal. Stats, 1873-74, p, 371.] § 193. [1547.] Notice of Sale. — When a sale is ordered, and is to be made at public auction, notice of the time and place of sale must be posted in three of the most public places in the county in which the land is situated, and published it a newspaper, if there be one printed in the same county, but if none, then in such paper as the court may direct, for three weeks successively next before the sale. The lands and tene- ments to be sold must be described with common certainty in the notice. Arizona. — Same. Bev. Stat;., sec. 1155, Idaho. — Same. Rev. Stats., sec. 5515. Montana. — Same. Comp. Stats., p. 324, sec. 196, ITevada. — Same. Gen. Stats., sec. 2835. Oregon. — See Hill's Laws, sec. 1150, under § 190, ante, TTtall. — Same as California. Comp. ^Laws, sec. 4861. Washing^ton. — "When a sale is ordered, notice of the time and place of sale shall be posted in three of the most public places in the county where the land is situated, at least twenty days before the day of sale, and shall be pub- lished in some newspaper of said county, if any there be, and if not, in some newspaper of this state, in general circulation in said county, for three suc- cessive weeks next before such sale, in which notice the lands and tenements shall be described with proper certainty." Code Froc, sec, 1016. In re Osgood, Myr. Prob. 153. gale. It is sufficient if it be made for Notice of sale of real esta.te is four weeks successively at some time sufficient if directed by the court to prior to the sale: Walker v. Goldsmith, be made once a week for three sue- 14 Or. 125. cessive weeks: In re Cunningham, 73 Probate sale of real estate is Cal. 558. invalid if the notice is not propeily Publication need not be for four given: Gager v. Henry, 5 Saw. 237. successive weeks next preceding the 297 SALBS AND CONVEYANCES. §§ 193, 19^ FQrm No. 139.— Notice of Sale of Real Ijstate at Public Ruction. Notice is hereby given, that in pursiaance of an order of sale made and entered by the court of the coqnty of -^ — , state of , on the ■! — - day of -, A. D. 18 — , in the mat- ter of the estate of , deceased, the undersigned, admin- istrator of said estate will sell at public auction, subject to confirmation by said court, the following described real property (or mines, etc.), (here insert description); said sale will be made on the day of -, A. D. 18 — , at o'clock, — m., at the court-house door, in said county and statej terms of sale (here insert said terms fully). , Administrator of the Estate of , Deceased. Dated , 18—. § 193. [1548.] Time and Place. — Sales at public auc- tion must be made in the county where the land is situated; but when the land is situated in two or more counties, it may be sold in either. The sale must be made between the hours of hine o'clock in the morning and the setting of the sun on the same day, and must be made on the day named in the notice of sale, unless the same is postponed. Arizona.^ — Same. Rev. Stats., sec. 1156. Idah.0. — Same. Rev. Stats., sec. 5516. ' lloutaua. — Same. Comp. Stats., p. 324, se^!. 197. Nevada. — Same, to the words " and must "; balance oiliitted. Gen. Stats., sec. 2836. Utah. — Same. Comp. Laws, sec. 4169. Washington. — " Such sale shall be in the county where the lands are sit- uated, at public auction, between the hoUrs of ten o'clock in the morning and the setting of the sun the same day; but it the executor or administrator shall deem it for the interest of all concerned that the sale should be postponed, he may adjourn it for any time not exceeding fourteen days." Code Proc, sec. 1017. Wyoming. — Same as California. Laws 1890-91, p. 279, sec. 24. Postponement: See § 202, post. Notice of: See § 203, post. § 194. [1549.] Private Sale of Real Estate. — When a sale of real estate is ordered to be made at private sale, notice of the sale must be posted up in three of the most public places § 194 PKOBATE LAW AND PRACTICE. 298 in the counter in which the land is situated, and published in a newspaper, if there be one printed in the same county, if none, then in such paper as the court, or a judge thereof, may direct, for two weeks successively next before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be described with common certainty. The notice must state a day on or after which the sale will be made, and a place where offers or bids will- be received. The day last re- ferred to must be at least fifteen days from the first publication of notice; and the sale must not be made .before that day, but must be made within six months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice, or delivered to the executor or administrator per- sonally, or may be filed in the office of the clerk of the court to which the retqrn of sale must be made, at any time after the first publication of the notice, and before the making of the sale. If it be shown that it will be for the best interest. of the estate, the court or judge may, by an order, shorten the time of notice, which shall not, however, be less than one week, and may provide that, the sale may be made on or after a 3ay less than fifteen but not less than eight days from the first publication of the notice, in which case the notice of sale and the sale may be made to correspond with such order. Arizona. — Same, except order of publication must be made by court. Bev. Stats., see. 1157. Idaho. — Same as Arizona. Rev. Stats., sec. S517. Dlontana. — Same as Arizona. C!omp. Stats., p. 325, sec. 198. Nevada. — Same as the first sentence of the California section, except as to time, which is three weeks. Gen. Stats., sec 2835. Utah. — Same as California, except that the following ia omitted: "Or may be filed in the o6Sce of the clerk of the court to which the return of sale must be made"; and this ia added: "Provided, that when a sale of the whole or any part of the real estate is ordered to be made, and it shall appear from the in- ventory returned that the whole of said estate does not exceed the sum of one thousand dollars, the publication of the notice in a newspaper as provided in this section may be dispensed with." Coir^p. Laws, sec. 4170. Washing^ton. — Same as California. Code Proc, sec. 1177. Wyoming. — " When a sale of real estate ia ordered to be made at private sale, it shall not in any case be sold for less than its appraised value, and no such sale shall be made or confirmed unless such real estate haa been ap- praised within three months of the time of such sale. If it has not been so appraised, or if the court or judge is satisfied that the appraisement is too high 299 SALES AND CONVEYANCES. § 195 or too low, appraisers must be ajlpoinied, and they must make an Appraise- ment thereof in the same manner as in the case of an original appraisement of an estate. This may be done at any time before the sale or confirmation thereof." Laws 1890-91, p, 279, see. 25. ' In re Dorieji, 75 Cal. 258. vate sale must be for two weeks The validity of statutory pro- successively next before the day of ceedings to pass title to the real es- sale, and as often during the presr tate of a decedent depends upon a cribed period as the paper is regularly substantial compliance with the law; issued; and such publication, if in a the court caunot, by construction, in- weekly newspaper, is not required to graft upon the statute a new or addi- be made on or including the day of tional provision not contained therein, sale: In re 0' Sullivan, 84 Cal. 444. in order to declare the proceedings in- Purchaser is bound by written valid: In re O'iSullivan, 84 Cal. 444. bid: In re Otis, Myr. Frob. 222, Publication, of notice of a pri- Form No. 140. — Notice of Sale of Eea^ Estate at Private Sale. Under authority of an order of sale granted by the court of the — — r county of , state of , dated , 18 — , I will sell at private sale the following described real estate (here insert description). The sale will be made on or after July 3, 1886, and bids will be received at the office of Johi> J. West, 728 J Street, Sacramento City, state of . Terms of sale (here insert said terms fully). — — , Administrator of the Estate of , Deceased. Dated , 18—. § 195. [1550.] Ninety per Cent of Appraised Value must , be Offered. — No sale of real estate at private sale shall be confirmed by the court unless the sum offered is at least ninety per cent of the appraised value thereof,, nor un- less such real estate has been appraised within one year of the time of such sale. , If it has not been so appraised, or if the court is satisfied that the appraisement is too high or too low, appraisers must be appointed, and they must make an ap- praisement thereof in the same manner as in case of an original appraisement of an estate. This may be done at any time be- fore the sale or the confirmation thereof. Arizona. — Same. Rev. Stats., sec. 1158. Idaho. — Same. Bev. Stats., sec. 5518, Montana. — Same. Comp. Stats., p. 325, sec. 199. Nevada. ■. — Same; last sentence omitted. Gen, Stats., sec. 2836. Utah. — Same as California. Comp. Laws, sec. 4171. §§ 196, 197 PROBATE LAW AND PKACTICB. 800 Washingrton. — Same. Code Proc, see. 1178. Wyoming. — See last section. , The sufficiency of appraise- metit in confirming the sale is not open mentinformtogive infoi'mationtothe to be controverted upon a collateral court to enable it to exercise i^s judg- attack: Smith, v. Biscailuz, 83Cal. 341. § 196. [1551.] Purchase-money on Credit, how Secured. — The executor or administrator rnust, when the gale is made upon a credit, take the notes of the purchaser for the purchase-money, with a mortgage on the property to Becure their payment. Arizona. — Same. Rev. Stats., sec. 1159. Idalio. — Same. Rev. Stats., sec. 5519. Kontana. — Same. Comp. Stats., p. 326, sec. 200. Nevada. — Same. Gen. Stats., sec. 2837. Oregon. — Same. Hill's Laws, sec. 1150. Utah. — Same, with the following added: " Provided, that at least ten per cent of the purchase-money shall be paid at time of sale." Comp. Laws, sec. 4172. Washington. — Same, except the words "or gnardian"aTe added after the word "administrator." Comp. Laws, sees. 1179, 1019. Wyoming. — Same as California. Laws 1890-91, p. 280, sec. 26. Where the terms of sale were chaser elected to pay the whole amount one half of the purchase-money, cash, down, it was held that the purchaser is and the remainder in ninety days, with entitled to a reduction for the interest interest from date of sale at the rate on one half of the purchase-money: of one per cent per mouth, and the pur- Halleckv, Guy, 9 Cal. 181. §197. [1552.] When Resale may be Ordered.— The executor or administrator, after making any sale of real es- state, must make a return of his proceedings to the court, which must be filed in the ofiice of the clerk,. at any time subsequent to the sale. A hearing upon the return of the proceedings may be asked for in the return, or by petition subsequently, and thereupon the clerk must fix the day for the hearing, of which notice of at least ten days must be given by the clerk, by notices posted in three public places in the county, or by publidation in a newspaper, and must briefly indicate the land sold, the sum for which it was sold, and must refer to the return for further particulars. Upon the hearing, the court must examine the return and witnesses in relation to the same, and if the proceedings were unfair, or the Bum bid disproportionate to the value, and if it appear that a 301 SALES AND CONVEYANCBS. § 197 sum exceeding Buch bid at least ten per cent, exciusive of [the expenses of] a new sale, may be obtained, the court may vacate the sale and direct another to be had, of which notice must be given, and the sale in all respects conducted as if no previous sale had taken place; if an offer ten per cent more in amount than that named in the return be made to the court in writing, by a responsible person, it is in the discretion of the court to accept such offer and confirm the sale to such person, or to order a new sale. [Amendment approved March 31, 1891. Cal. Stats. 1891, p. 427.] Arizona. — The first sentence of the section adds the word "probate'' before the word "court," and the phrase "either in term or kvacation'' to the end of sentence; then follows: "If the sale is made at public auction, and the returns made and filed on or before the first day of the next term there- after, no notice is required of such return or of the hearing thereof, but the hearing may be made upon the first day of the term, or any subsequent day to which the same may be postponed. If the sale be not made at puClic auction, or if made at public auction, a hearing upon the return of proceedings be asked for in the return, or is brought on for a hearing upon a day before the first day of the next term thereafter, or upon any other day than the first day of the next term after such sale." The balance of section same. Rev, Stats., sec. 1160. Idaho. — Same. Rev. Stats., sec. 5520. lytontaiia. — Same as Arizona, except that the phrase " or upon any other day than the first day of the next term after such sale " is omitted. Comp. Stats., p. 326, sec. 201. Nevada,. — The latter part of section same as last sentence of California section; first part as follows: " The executor or administrator making any sale of any real estate shall, at the next term of the court thereafter, or at any subsequent sitting of the court after making any such sale, upon notice of at least ten days, to be given in such manner as the court or judge may direct, make a return of his proceedings to the probate judge." Gen. Stats., sec. 2838. Oregon. ■^— " At the terra of court next following the sale of real property, the executor or administrator shall make a return of his proceedings concern- ing such sale. At Such term, any of the persons cited to appear on the appli- cation for the order of sale may file his objections to the confirmation of such sale." Hill's Laws, sec. 1151. "Upon the hearing, the court shall confirm the sale, and decree that the executor or administrator make a conveyance to the purchaser, unless it appear that there were irregularities in the sale, or that the sum bidden tor the property is disproportionate to the value thereof, and that a sum exceed- ing such bid at least ten per centum, exclusive of the expenses of a new sale, may be obtained therefor, in either of which cases the court shall make an order vacating the sale, and directing that the property be resold; atid upon such second sale, the property, on any specific portion or lot thereof, ordered § 197 PKOBATB LAW AND PKACTICE. 302 to be resold shall be sold as if no previous sale had taken place. In case no ; objections are made to the confirmation of the sale as provided in section 1151 [supra], the court shall nevertheless examine the proceedings concerning such sale, and if it appear proper, may make the order of resale provided for in this section, in the same manner and with like effect as if, objections had been filed thereto." Hill's Laivs, sec. ] 152. Utah.. — Same, except that the return must be made within thirty days. Coinp. Laws, sec. 4173. Washington. — " The executor or administrator making any sale of real estate shall, within ten days thereafter, make a return of his proceedings to the court, which shall examine the same, and if the court shall be of opinion that the proceedings were unfair, or that tlie sum bidden is disproportionate to the value, and th^t a sum exceeding such bid at least ten per cent, exclusive of expenses of a new sale, may be obtained, the order Of sale shall be vacated [and] another sale shall be ordered. On a resale, notice shall be given, and the sale shall be conducted in all respects as if no previous sale had been made. '' Code Proc, sec. 1020. *- Same as California, except that "the court or judge must fix the day for the hearing," or notice may be given "by publication in a newspaper," "or by bpth posting and publishing," as the court or judge shall direct; and after the word "administrator" the words " or guardian " are added. Cod6 Proc., sec. 1180. Wyoming. — Same as California, except that these words are added to the first sentence: "And before the next term thereof." The words "court or judge" are inserted in lieu of the word "clerk," in the second sentence, and all after the word "bearing" is omitted from said sentence. In the third s6iitence, after the word "bid," the words "or received "are interpolated. Laws 1890-91, p. 280, sec. 27. The return of sale of real prop- This authority is limited to such a erty must be made under oath: Den- supervision and control that this end ■ nig V. Winter, 63 Cal. 16. See also may be effected: In re Spriggs, 20 Ca.\. § 169, ante. 121. Notice, contents: See § 322, post. If the court direct a resale of real Sale, Powers and Trusts for; property which had been previously See § 225, post. sold and confirmed, the persou to Court may Appoint Attorney: whom the confirmation was made may See § 328, post. appeal from the order: In re Boland, If the court make an order con- 55 Cal. 310. firming the sale, in the absence of an Where there is a new bid of ordsr fixing the time for hearing the more than ten per cent advance upon report of sale, and of the notice pre- the bid at the sale offered to the court, scribed by the above section, it is and it refuses to confirm the sale, it void for want of jurisdiction, and the may continue the matter, and may at court may set it aside on its own mo- a subsequent time accept such new tion: Perkins v. Oridley, 50 Cal, 97. bid, or it may order a resale. If the The provisions of the statute allow- order refusing to confirm the sale in- ing objections to be made to the sale, advertently declares the sale void, the and requiring for its efficacy a con- court may nevertheless, at a subse- firmatiou by the court, are intended quent time, accept the new bid: Orijm to secure such an execution of the v. Warner, 48 Cal. 383. order of sale that a just and fair price The substitution of another may be obtained for the property, bidder for one who fails to cou^ply 303 BALES AND CONVEYANCES. § 197 with the terms of the sale at an 'ex- the property was sold. At the oon- ecutor's sale cannot affect the validity firmation of said sale bids were re- ef the sale. Validity is given to the ceived, and said property was con- purchase by the order directing the firmed at the price of thirty-seven sale and the order confirming it: /)i re thousand dollars. The said second Durham, 49 CaL 490; Halleck v. Quy, party sued said first party to recover 9 Cal. 181. the difference between said twenty- A contract was entered into nine thousand five hundred dollars h::il between tlie executrix and an heir thirty-seven thousand dollars, ami it of deceased as one party, and another was held that even if the agreement person as a second party, that the be treated as an individual contract of latter shall procure a purchaser who said first party, it is contrary to the will raise the purchase price of real provisions of the statute, is against property of an estate sold at least ten the policy of the law, and is invalid: per cent, at the hearing of the con- Danielwitz v. Sheppard, 62 Cal. 339. finiiation, and that said second party Tlie finding of the court, in the should receive all of said sum in excess order confirming the sale, that notice of twenty-nine thoi^nd five hundred of the sale is posted in three public dollars, which would leave for the places, is conclusive as against a col- benefit of the estate about a five-per- lateral attack: Riclairdaon v. Butler, 82 cent advance on the amount for which Cal. 174. Form No. 141. — Return, Account of Sales, and Peti- tion for an Order Confirming Sale o!f Beal Estate. [Caption, ' Form No. 1, § 5, ante.'\ 1. , administrator (or executor) of the estate of , deceased, on this day of , A. D. 18 — , respectfully makes the following return of his proceedings under the order of this court heretofore made and entered herein, authorizing and directing a sale of the real estate belonging to the estate of said deqeasedj and reports as follows, to wit: — 2. That he caused to be posted, and published in the man- ner provided by law due and legal notice of the time and place of holding the sale authorized, by said order; 3^ That at the time and place of holding such sale he caused to be sold in two parcels (judging it to be most beiieficial for said estate), at public auction, to the highest bidder, for cash, subject to confirmation by this, court, the real estate directed in said order tq be sold, and, described in said notice; 4. That parcel No. 1 was sold to , for the sum of $ , and is described as follows (here insert description); 5. That parcel No. 2 was sold to , etc.; 6. That said sale was legally made and fairly conducted; that the sum bid is not disproportionate tO' the value of the property sold; tihat a sum exceeding said bid at least ten per cent, ex- clusive of the expenses of a new sale, cannot be obtained; § 197 PROBATE LAW AND PEACTlCE. S04 7. That the exhibits annexed hereto are hereby refefred to, and made a part of this return; 8. That the costs and expenses' of said sale are the sum of $ , as shown in said exhibit ; Wherefore said administrator (or executor) prays that the court fix a day for the hearing of this return of sale of real estate, and that at such hearing, after the proofs are made, that this honorable court will make an order confirming said sales, and directing the execution of conveyances to the purchasers. , Administrator of the Estate of , Deceased. , Attorney for Administrator. (Verification, Form No. 55, § 80, ante.) Form No. 142.— Affidavit of Posting Notices of Sale. Exhibit "A." State of , County of \ ^^■ -, being duly sworn, deposes and says that on the day of , A. D. 18 — , he posted exact and true copies of the annexed notice of the time and place of the sale mentioned in said notice in three of the most public places in the county of , state of , to wit, one copy of said notice at the door of the court-house of said county, one at the United States post-office in the city of , and one at the United States larid-ofiSce in said city; that the following is a copy of said notice (here insert said notice). — -, — Subscribed and sworn to before me this — — day of , A. D. 18—. , Notary Public. Form No. 143. — Affidavit of Fublicatiou of Notice of Sale. EXHIBII' "B." state of , County of ■ -, being duly sworn, on his bath, deposes and says that he is the printer (or foreman or principal clerk) of the Daily Bee; a newspaper of general circulation printed and published in the said county of , state of — '■ — ; that the following notice of sale was published for three weeks, successively, next before S05 SALES A'ND CONVEYANCES. | 197 the sale mentioned therein in said newspaper, commencing on on the day of , A. D. 18 — ; said notice is as foUoWS (here insert copy of notice). Subscribed and sworn to before me this day of , A. D. 18^. , Notary Public. Note. — If the paper in which the foregoing notice is published is a weekly, it should appear in said paper four times, and if it is a daily, it should appear , each, day from the commencement of the publication up to and including the day of sale, which should be at least twenty-two days from the first publica- , tion. Form No. 144. — Affidavit of Auctioneer. Exhibit "C." State of , ) County of ■ V being duly sworn, deposes and says that he is a li- censed auctioneer of the county of , state of ; that as such auctioneer, and under' the instructions and by the authority of , the administrator of the estate of , deceased, he, at the time and place mentioned in the notice of sale, to wit, on the day of A. D. 18 — , at , in the county , state of , ofiFered for sale, at public auction, as parcel' No. 1, the following described real property (here insert. ■ description of parcel Noi 1), that said parcel No. 1 was sold to — — for the sum of $^ , he being the highest and best bidder therefor, and that sum being the highest and best bid for the same; that at the sanje time and place he offered for sale, at public auction, as parcel No. 2, the following described real property (here insert description of parcel No. 2) that said parcel No. 2 was sold to for the sum of $ — ^-, he being the highest and best bidder therefor, and that sum being the highest and best bid for the same; that the account of sales of said property at said auction is as follows: — Gross proceeds of sale of said realty, , $13,600 CHARGES. Advertising in "Daily Bee" '. $30 Posting notices 5 Commissions, as per agreement 200 ' 235 , Net proceeds * $13,365 —r—^, Auctioneer. 20 § 197 PROBATE LAW AND PRACTICB. 306 Subscribed and sworn to before me this day of , A. D. 18— , Notary Public. Note, — In case the sale was private, omit the affidavit of the auctioneer, but an account of sales signed by the administrator (or executor) should accom- pany the return and the bids, which must be in writing, and must be annexed to the return as exhibits. Form No. 145.— Order Fixing Day of Hearing Keturu of Sale of Heal Estate. [Title of Court and Estate.] ■ , the administratrix of the estate of -, deceased, having this day made, a return to this court of her proceedings under the order of sale of real estate made bythis court on the ■day of , A. D. 18 — , and filed the said return herein, arfd a hearing upon the said return of proceedings being asked for in the said return, — It is ordered and directed that , the — ^ day of , A. D. 18 — , at the hour of ten o'clock, A. m., at the court-room of this court, be and the same is hereby fixed for the hearing upon said return, and that notice of at least ten days be given thereof by the clerk by notices posted in three public places in said — — county, and that said notices briefly indicate the land sold and the sum for which it was sold, and refer to the return for further particulars. — — , Judge of the Court. Dated , 18—. Form No. 146.— Notice of Hearing Beturn of Sale of Real Estate. '[Title of Court and Estate.] Pursuant to an order of this court made the day of , 18^, notice is hereby given that , the day of '■ , A. D. I8-7-, at ten o'clock, a. m., of that day, and the court-room of this court, at the court-house in the city of , have been appointed as the time and place for a hearing upon the return of the proceedings of , executor (administrator) of said eBt?ite, under an order of this court dated the day of , A. D. 18 — , authorizing the sale of certain real estate, situate, lying, and being in the county of , state of , and described as follows, to wit (here insert description of 307 SALES AND CONVEYANCES. § 198 premises), which said executor (administrator) has spld at public (private) sale for the sum of — — dollars to the person named in his said return, to which reference is made for further particulars, and notice is hereby given that any person inter- ested in the said estate may appear at the time and place above mentioned, and file written objections to the confirmation of the said sale, and may be heard and may produce witnesses in Biipport of his objections. , Clerk. By , Deputy Clerk. Form No. 147. — Offer of Ten per Cent Advance on Sale of Keal Estate. [Title of Court and Estate.] Now, on this day, the matter of the confirmation of the sale of the real property hereinafter described coming on for hearing, the undersigned hereby offers therefor the sum of $ , which is an advance of ten per cent upon the price for which said property was sold by the administrator of said estate to . The said property, is described as follows, to wit (here insert description). Respectfully, . Dated r, 18—. § 198. [1553.] Objections. — When return of the sale is made and filed, any person interested in the estate may file written objections to the confirmation thereof, and may be heard thereon, when the return is heard by the court or judge, and may produce witnesses in support of his objections. Arizona. — Same. Rev. Stats., sec. 1161. Idaho. — Same. Rev. Stats., sec. 5521. Montana. — Same. Comp. Stats., p. 326, sec. 202, Nevada. — Same. Gen. Stats., sec. 2839. Oregon. — Hill's Laws, sec. 1151, nnder § 197, ante. TTtah. — Same. Comp. Laws, sec. 4174. Washing^ton. — Same. Code Proc, sees. 1021, 1181. Wyoming. — Same. Laws 1890-91, p. 280, sec. 28. An objection that the sureties port the same: Broadwater y. Bichm'ds, on the additional bond were insolvent 4 Mont. 80. should be allowed: In re Arguello, 50 Objections to the confirmation Cal. 308. of sale of a decedent's real estate can ■ Objections to confirmation of be made only by parties interested ia sale may be filed by any person in- , the estate: Terry v. Clothier, 1 Wash, terested in the estate, and he may 475. produce evidence at hearing- to sup- § 190 PROBATE LAW AND PRACTICE. 808 Form No. 148. — Objections to Confirmation of Sale of Real Estate. [Title of Court and Estate.] Now comes , and in opposition to the confirmation of the sale of real estate heretofore made herein, shows to this court and alleg'es as follows, to wit: — 1. That he is one of the heirs at law of said deceased; 2. That the sale mentioned in the return of sale of , the administrator of the above-entitled estate, filed herein on the day of , A. D. 18-=-, was not legally made nor fairly conducted in this, that the auctioneer refused to accept the bid of one , for parcel 1, as described in said return of sale, to which reference is hereby made for a full description of said parcel 1; that said offered for said parcel at said sale, and was willing to pay therefor, the sum of dollars, but said auctioneer sold said property for a less sum, to wit, r dollars, to , as shown by said return; that said was a responsible and bona fide bidder for said parcel 1; 3. That the price for which parcel 2, mentioned in said re- turn, reference to which is hereby made for a full description thereof, to wit, the sum of dollars, is disproportionate to the value of the property sold, and a bid therefor of at least ten per cent more than the amount for which said parcel was sold, exclusive of the expenses of a new sale, can be obtained there- for; 4. That the notice of said sale was neither published nor posted as required by law; ' Wherefore, contestant prays that said sale be rejected, and not confirmed by this court. , Contestant. , Attorney for Contestant. § 199. [1554.] When Order of Confirmation to be Made. — If it appears to the court that the sale was legally made and fairly conducted, and that the sum bid was not dis- proportionate to the value of the property sold, and that a greater sum, as above specified, cannot be obtained, or if the increased bid mentioned in section 1552 be made and accepted' by the court, the court must make an order confirming the sale, and directing conveyances to be executed. The sale, 309 SALES AND CONVEYANCES. § 199 from that time, is confirmed and valid, and a certified copy of the order confirming it and directing conveyances to be exe- cuted must be recorded in the office of the recorder of the county within whicTi the land sold is situated. If, after the confirmation, the purchaser neglects or refuses to comply with the terms of sale, the court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property. If the amount realized on such resale does not cover the bid and the expenses of the previous sale, such purchaser is liable for the deficiency to the estate. Pot section. 1552, see § 197, ante. Arizona. — Same. Rev. Stats., sec. 1162. Idaho. — Same. Rev. Stats., sec. 5522. Montana. — Same. Comp. Stats., p. 326, see. 203. Nevada. — Same, except order of sale must also be recorded. Oen. Stats., sec. 2840. Oregon. — Hill's Laws, sec. 1152, under § 197, ante. i TTtah.. — Same as California. Comp. Laws, sec. 4175. Washin^on. — Same as California, to and iiicluding the word "valid"; balance omitted. Code Frbc. , sec. 1022. Same as first sentence of California section. Code Froc, sec. 1182. • Wyoming. — Same, except that, in the first sentence, afterthe word "bid," the words "or received" are inserted. The second sentence is omitted. In the third sentence, after the word "court," the words "or judge in vacation" are inserted. Laws 1890-91, p. 280, sec. 290. Substitution of New Bidder: qualify, he does not become an admin- Halhck v. Ouy, 9 Cal. 196. istrator. If he acts as such, and pro- Becording Order of Confirma- cures an order of sale of real estate, tion: See § 329, post. and sells the real property belonging An approval by the court of to the estate, such sale is void even the executor's accounts charging him- though it has been confirmed by the self with money, the proceeds of a court: Pry or v. Downey, 50 Cal. 388. sale of real estate, is not a confirma- Mere technical objections will tion of such sale, nor is a clause in a not be allowed to overturn a decree of distribution, confirming and title to realty, honestly acquired approving all the acts of the executor, under a probate sale, where there is a confirmation of such ftile: In re De- no pretense that the sale wag in fact laney, 49 Cal. 76. fraudulent, or without adequate con- The provision of law concern- sideration, or in any way unfair: Rich- tag the confirmation of sales and ardson v. Butler, 82 Cal. 174. the conveyance of the property sold, If the court makes an order have effect only upon sales made under confirming a sale without giving legal orders which the court had jurisdiction notice of the hearing of the report of to make: Ch-egory v. Tuber, 19 Cal. 397; sale, the order is void, and may be set Gregory v. McPherson, 13 Cal. 577. aside for want of jurisdiction: Halleck it the court makes an order v. Ouy, 9 Cal. 181; In re Durham, 49 appointing a person administrator Cal. 490. upon his giving a bond as required by If the executor agree to sell law, and he does not give the bond, or real estate in consideration that the § 199 PROBATE LAW AND PRACTICE. 310 purchaser will give an agreed sum at The legislature has no power the sale, and then petitions the court to make valid, by a retroactive statute, to confirm the agreement or to make that which is inherently a nullity, nor an order of sale, and the court orders render a sale of property eiincacious, a public sale, at which the purchaser when made in a manner which it had buys at the agreed price, tnat b^ing no power to authorize; but when the the highest bid offei^ed, the transaction sale is void, merely in consequence of is valid: Sluart v. Allen, 16 Cal. 474. a failure to comply with the condi- No title passes until the sale is tions upon which the power to make reported and confirmed by the court, it was delegated by the legislature. The report of sale must be made under and which it could have dispensed oath. A recital in the order of confirma- with in the beginning, and the sale tion that it was so made is conclusive been valid, it can, by the adoption of against a collateral attack: Dennis v. such a statute, legalize it: Mitchell v. Winter, 63 Cal. 16. Campbell, 19 Or. 198. Form No. 149. Order Confirming Sale of Keal Es- tate. [Title of Court and Estate.] , the administrator of the estate of , deceased, hav- ing made to this court and filed in the oflSce of the clerk thereof a return of the sale of the real estate hereinafter described, verified by aflBdavit, and the matter, after due notice given, as required by law, and an order of this court made and entered herein on the day of , A. D. 18 — , coming on regu- larly to be heard this day of , A. D. 18 — , and upon the proofs adduced, it appearing to the satisfaction of this court that, as required by law, said administrator caused, due and legal notice of the sale of said real estate to be posted in three of the most public places in the county of , state of , in which said county said real estate is situated, and to be pub- lished in the Daily Record-Union, a newspaper printed and published in said county (or if the sale was made at public auction, " three w^eks ") for two weeks successively next before the day on or after which the sale was ^,o be made, in which notice the real estate to be sold was descsibed with common certainty; that having bid the sum of dollars for said real estate, said administrator, on the day of , A. D. 18 — , accepted said bid, and sold said real estate to said for the said sum of dollars; that said sale was legally made and fairly conducted; that dollai's, the sum bid, is not disproportionate to the value of the property sold; that a sum exceeding said bid at least ten per cent, exclusive of the ex- penses of a new sale, cannot be obtained; that said real estate 311 SALES AND CONVEYANCES. § 199 has been appraised within one year of the time of said sale;* that the sum of dollars, offered by said , is more than ninety per cent of the appraised value of said real estate;' and that the said administrator in all things proceeded and man- aged such sale as by the statute in such case made and pro- vided; — It is hereby ordered, adjudged, and decreed that the said sale of the real estate hereinafter described be and the same is hereby confirmed, approved, and declared valid, and the proper and legal conveyances of said real estate are hereby directed to be executed to said by said administrator; said real es- tate is described as follows, to wit (here insert description). Dated , 18 — . , Judge of the Court. Form No. 160. — Order Confirming Sale of Seal Es- tate to Bidder in Open Court. [Title of Court and Eatate.] , the administratrix of the estate of , deceased, hav- ing made to this court and filed in the ofiice of the clerk thereof a return of the sale of certain real estate belonging to the es- tate of said decedent, verified by afiidavit, and the matter, after due notice given, as required by law, and an order of this court entered , 18 — , coming on regularly to be heard this day of , 18 — , and upon the proofs adduced, it duly ap- pearing to the satisfaction of this court, — That, as required by law, said administratrix caused due and legal notice of the sale of said real estate to be posted up in three of the most public places in said county of , in which the real estate ordered to be sold is situated, and to be published in the Daily Bee, a newspaper printed and published in the same county, for two weeks successively next before the day on or after which the sale was to be made, in which, notice the real estate to be sold was described with common certainty; that , having bid the sum of nine hundred dollars for said real estate, said administratrix, on the day of , 18 — , accepted said bid, and sold said real estate to said for the ' Omit this recital when the sale wag by public auction. ' Omit this recital when the sale waa by public auction. § 199 PROBATE LAW AND PRACTICE. 812 fi^id sum of nine hujjidred dollars; that the said sale was legally made and fairly conducted; And now, on this day, after due and legal notice of this hear- ing had been given, and the return of sale of said real estate coming on for hearipg, ■ comes in open court, and bids and in writing offers the sum of $990, being ten per cent in advance of the bid received and repojrted of for the said real estate, and no other person bidding or being willing to pay any fur- ther or greater sum, the said bid of said , for the said real estate situated in the said county of , state of , and particularly described as follows: The north half of the east quarter of lot No. 2, in the square or block bounded by L and M and Third and Fou.rth streets, in the city of Sacramento, as laid down on the oflBcial map thereof, and the improvements thereon, — is hereby accepted, and the sale of said property to said for said sum of $990 is hereby ordered, approved, and confirmed; and the proper and legal conveyances of said real estate are hereby directed to be executed to said by said administratrix. Dated , 18 — . , Judge of the Court. Form. No. 151. — Order ConfLrmiug Sale of B,eal Estate Made under Authority Given by Will. [Title of Court and Estate.] , the executor of the estate of , deceased, having made to this court and filed in Ijhe office of the clerk thereof a return of the sale of certain real estate belonging to the estate of said decedent, verified by affidavit, and the matter coming on regularly to be heard this day, and it appearing to the sat- isfaction of the court that due and legal notice of such hearing has been given; that said sale was authorized by the will of decedent to be made without first procuring from this court an order of sale thereof; that said will hg.s heretofore been admitted to probate in this court; that due and legal notice of the sale of said real estate was given as required by law; that said sale was legally made and fairly conducted; that the sum bid, to wit, the sum of dollars, was not disproportionate to the value of the property sold, and that a bid exceeding said sum at least ten per cent, exclusive of the expenses of a new sale, 313 BALES AND CONVEYANCES. § J.99 cannot be had; that became t^e purchaser of saiij prop- erty at Buch sale, — It is therefore ordered that said sale of the said property whic,h is hereinafter described be and the same is hereby confirmed to , said purchaser, and said executor is hereby directed to execute proper conveyances thereof to said . Dated , 18 — . , Judge of the — r- Court. Form No. 15S. — Notice to Purchaser of Motion to Vacate Sale, etc., aiid for a Resale of Keal Estate. [Title of Court and Estate.] To . Please take notice that on the day of , A. D. 18 — , at the hour of o'clock of said day, at the court-room of said court, a,t the county court-house of the above-named county, the administrator of the above-named estate will move the court to vacate and annul the sale heretofore made to you by said administrator of the following described real property of said estate, to wit (here insert description), and will also move said court to set aside, vacate, and annul the order confirming the sale of said property to you so far as said order relates to said property, on the ground that you have, up to the present time, failed, refused, and neglected to pay to said administrator the balance of the purchfise price due from you to him for said prop&rty, and because you have refused to comply with the terms of said sale, atid still continue to refuse, fail, and neglect to pay the same, or any part thereof, or to comply with said terms of sale in any manner. Said motion will be based upon the papers on file in the matter of the above-entitled estate and the orders of said court therein, and upon oral and documentary evidence to be introduced at the hearing of said motion. Dated , 18 — . ; , Attorney for Administrator. Form No. 153. — Order for Resale on Neglect or Re- fusal of Purchaser to Comply with Terms of Sale. [Title of Court and Estate.] Now, on this -day of , A. D. 18 — , the motion of , administrator of the estate of , deceased, to annul and set aside thi? sale of certain real property of said estate, which is § 200 PROBATE? LAW AND PKACTICE. 314 hereinafter described, coming on regularly for hearing, and it appearing that due notice of this motion has been regularly served upon -, the person to whom said sale was made and to whom said sale was thereafter confirmed by the order of this court on the day of , A. D. 18 — , and it appearing that said — — has heretofore refused and neglected, and still does refuse and neglect, to comply with the terms of said sale in this (here state in what particular he has not complied with the terms of sale), — It is therefore ordered that the sale of said property hereto- fore made to said by said administrator be and the same is hereby vacated, set aside, and annulled, and that the order of this court, made and entered on the day of , A. D. 18 — , approving the sales made by said administrator, so far as the same confirms the sale to said of said real property, is vacated, set aside, and annulled; The real property hereinbefore referred to is described as fol- lows, to wit (here insert description); And said administrator is hereby authorized, empowered, and directed to proceed under the order of sale heretofore made and entered by this court oh the day of , A. J). 18 — , and to do all things in the premises under said order as though said sale and the order confirming the same had not been made. , , Judge of the '■ Court. Dated , 18—. § 200. [1555.] Conveyances. — Conveyances must thereupon be (executed to the purchaser by the executor or administrator, and they must refer to the orders of the court authorizing and confirming the sale of the property of the estate, and directing conveyances thereof to be executed, and to the record of the order of confirmation in the office of the county recorder, either by the date of such recording, or by the date, volume, and page of the record, and such reference shall have the same effect as if the orders were, at large, inserted in the conveyance. Conveyances so made convey all the right, title, interest, and estate of the decedent in the premises at the time of his death; if, prior to the sale, by operation of law or otherwise, the estate has acquired any right, title, or interest 315 SALES AND CONVEYANCES. § 200 in the premises, other than, or in addition to, that of the dece- dent at the time of his death, such right, title, or interest also passes by such conveyances. Arizona. — Same. Rev. Stats., sec. 1163. Idaho. — Same. Rev. Stats., sec. 5523. Montana. — Same. Comp. Stats., p. 327, sec. 204 Nevada. — Same. Gen. Stats., sec. 2841. Oregon. — "A conveyance executed by an executor or administrator shall set forth the date of the order directing the sale, and the book, number thereof, and page containing the same, and the date of the order confir:niug the sale and directing the conveyance, and, the book, number thereof, and page containing the same, and the title of the court maljing such orders, and shall operate to convey all the estate, right, and interest of the testator or in- testate in the premises at the time of his death." Hill's Laws, sec. 1153. Utali. — Same as California. Comp. Laws, sec. 4176. Washington. — " Such conveyances shall thereupon be executed to the purchaser by the executor or administrator. They shall refer to the original order authorizing a sale, and the order confirming the sale and directing the con- veyance; and they shall be deemed to convey all the estate, rights, and interest of th^ testator or intestate at the time of his death." Code Proc, sec. 1023. Wyoming. — Same, except that in the first sentence, after "court, "the words "or judge " are added; and these words are omitted: " And to the record of the order of confirmation in the office of the county recorder, either by the date of such recording, or by the date, volume, and page of the record." Laws 1890-91, p. 281, sec. 30. Probate Sales convey only accepted, and the acceptance is void- such title as the decedent had at the able for error, but not void, the time of his death, and such as the es- successor of the administrator so re- tate may have subsequently acquired: signing, having sold lands under the Meyers v. Farquarnon, 46 Gal. 200. order of court, it was held that the Possessory interest in public purchaser could maintain ejectment lands may descend among the effects against a grantee of the heir, of a deceased person, and may be con- Whether the sale be void or voidable, veyed under a probate sale to another: the purchaser who has paid the debts Grover v. Hawley, 5 Cal. 486. of the estate should have a lien lipoa . An administrator's deed cannot the property for his purchase-money: contain a warranty. The rule of ca- ffnynee v. Meeks, 10 Cal. 110. veat emptor applies: Hallech v. Qay, 9 The court can compel the exe- Cal. 181. cution of a, proper conveyance after Where the resignation of an confirmation of a probate sale: In re administrator has been improperly Lewis, 39 Cal. 306. Form No. 154. — Deed of Administrator. This indenture, made the day of , A. D. 1*8 — , at the county of ^^ , state of , by and between , the duly appointed, qualified, and acting administrator of the estate of , deceased, the party of the first part, and ,.of the coimty of , state of , the party of the second part, witnesseth; — 200 PBOBATB LAW AND PRACSHeB. ^J6 That whereas, on the — ^ day of rrr,— , A. D. 18^, the court of th.e -^ couoty of , state of , mjide an order of sale authorizing the said party of the first part tp sell certain real estate belonging to said estate, and which is situated in the said county and state, and specified and particularly described in said order of sale, reference to which is hereby made;' And whereas, under and by virtue of said order of sale, said party of the first part, on the -r— day of , A. D. 18—, sold said real estate, subject to confirmation by said court, to said party of the second part, for the sum of dollars;" And whereas said court did, on the day of , A. D. 18^ — , make an order confirming said sale, and directing con- veyances to be executed to the said party of the second part, a certified copy of which order of confirmation was recorded in the office of the county recorder of county of , in said state, on the day of , A. D. 18 — , at 2:45 o|clock, p. m., in book of Deeds, page , and which said order of con- firmation now on file and of record in said court, and which said record thereof in said recorder's office, are hereby referred to, — ' Now, therefore, the said , administrator of the estate of said - — ■—, deceased, the party of the first part, pursuant to the order last aforesaid of the said court, for and in considera- tion of the said sum of dollars, gold coia of the United States, to him in hand paid by the said party of the second part, the receipt whereof is hbreby acknowledged, has granted, bargained, sold, and conveyed, and by these presents does grant, bargain, sell, and convey, unto the said party of the sec- ond part, his heirs and assigns forever, all the right, title, inter- est, and estate of the said , deceased, at the time of his death, and also all the right, title, and interest that the said estate,. by operation of law or otherwise, may have acquired, other than or in addition to that of the said intestate at the time of his death, in and to all that certain real property situ- ated in said ■; county of , state of , and particu- larly described as follows, to wit (here insert description); To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto Sl7 SALES AND dONVEYANCES. §' 2D0 the said pa^ty of the second part, his heirS and assigns for- ever; In witness whereof, the said party of the first part, adminis- trator as aforesaid, has hereunto set his hand and seal the day and' year first above written. [seal] , Administrator of the Estate of , Deceased. State of V -, County of - ss. On this day of , in the year one thousand eight hundred and eighty , before me, , a notary public in and for the said county of , state of , personally appeared , known to me to be the person wliose name is subscribed to the within instrument as the administrator of the estate of , deceased, and acknowledged to me that he, as such administrator, executed the same. In witness whereof, I have hereunto set my hand and affixed my official seal ait the Said county of , the day and year in this certificate first above written. , Notary Public. Form No. 155. — Another Form of the Foregoing. (Follow Form No. 154 to 1, and then continue as follows:) And whereas, under and by virtue of said order of sale, said party of the first part, on the day of , A. D. 18 — , sold said real estate, subject to confirmation by said court, to , for the sum of one thousand dollars; And whereas, the return of sale of said real estate came on regularly for hearing in said court on the day of , A. D. 18 — , and at said hearing , the said party of the sec- ond part, made his written ofier in due form, oflTering to give the sum of eleven hundred dollars for said real estate; and no other person bid or was willing to pay any further or greater sum; And whereas said court did, on the day of , A. D. 18 — , make an order accepting said, written offer and confirm- ing the sale of said property to -, and directing conveyances to be executed to him, a certified copy of which order of accept- ance and confirmation was recorded' in the office of the' county § 201 PROBATE JjAW AND PRACTICE. 318 recorder of county of , state of , on the day of , A. D. 18 — , at 2:45 o'clock, p. m., in book of Deeds, page , which said order of acceptance and confirma- tion now on file and of record in said court, and which said record thereof in said recorder's ofiice are hereby referred to. (Follow the remainder of Form No. 154 from 3.) Form No. 156. — Another Form of Deed. This indenture, made the 6ky of , A. D. 18 — , at the • county of , state of , by and between , the duly appointed, qualified, and acting executor of the estate of ■ deceased, the party of the first part, and , of the said county of , state of , the party of the second part, wit- nesseth: — That whereas, on the day of A. D. 18 — , the court of the countj' of , state of , made an order admitting a certain document to probate as the last will and testament of said , deceased, which said order is hereby referred to and made a part of this indenture; And whereas, by the terms of said last will and testament, reference to which is hereby made, the real estate hereinafter described was directed to be sold; And whereas, under and by virtue of said authority contained in said last will and testament, said party of the first part, on the day of , A. D. 18 — , sold said real estate, subject to confirmation by said court, to said party of the second part, for the sum of dollars. (Follow the remainder of Form No. 154 from 2.) § 201. [1556.] Order of Confirmation, What to State. — Before any order is entered confirming the sale, it must be proved to the satisfaction of the court that notice was given of the sale as prescribed, and the order of confirmation must show that such proof was made. Arizona.' — Same. Rev. Stats., sec. 1164. Idaho. — Same. Rev. Stata., sec. 5524. Montana. — Same. Comp. Stats, p. 327, sec. 205, Nevada. — Same. Gen. Stats., sec. 2842. XTtah.. — Same. Comp. Laws, sec. 4177. Wasliington. —Same. Code Proc, sec. 1024. 319 BALKS AND CONVEYANCES. §§ 202-204 § 202. [1557.] Sale may be Postponed.— If, at the time appointed for the sale, the executor or administrator deems it for the interest of all persons concerned therein that the same be postponed, he may postpone it from time to time, not ex- ceeding in all three months. Arizona. —Same. Rev. Stats., sec. 1165. Idaho. — Same. Rev. Stats., see. 5525. Montana. — Same. Comp. Stats., p. 327, sec. 206. ITevada. — Same. Rev. Stats., sec. 2843. Oregon. — Hill's Laws, sec. 1150, under § 196, antt. trtata.. — Same. Comp. Laws, sec. 4178. Washington. — Same, to the word, "he"; then as follows: "He may ad- jonrn it for any time not exceeding fourteen days." Code Proo., sec. 1017. Wyoming. — Same as California. Laws 1890-91, p. 281, sec. 31. §203. [155S.] Notice of Postponement. — In case f a postponement, notice thereof must be given, by a public declaration, at the time and place first appointed for the sale, and if the postponement be for more than one day, further no- tice must be given, by posting notices in three or more public places in the county where the land is situated, or publishing the same, or both, as the time and circumstances will admit. Arizona. — Same. Rev. Stats., sec. 1166. Idaho. — Same, Rev. Stats., sec. 5526. Montana. — Same. Comp. Stats., p. 327, sec. 207. Nevada. — Same. Gen. Stats., sec. 2844. Oregon. — HUl's Laws, sec. 1150, under § 196, anie, Utah. — Same. Comp. Laws, sec. 4179. Washington. — Same. Code Froc, sec. 1018. \ Wyoming. — Same, to and including the words " given by," and then as follows: "Publishing the same in the same manner as the original notice was given." Laws 1890-91, p. 281, sec. 32. California. — Section 1559 was repealed. Stats., 1873-74, p. 371. § 204. [1560.] Payment of Debts, etc., Provided for by "Will. — If the testator makes provision by his will, or designates the estate to be appropriated for the payment of , his debts, the expenses of administration, or family expenses, they must be paid,. according to such provision or designation, out of the estate thus appropriated, so far as the same is suffi- cient. Arizona. — Same. Rev. Stats., sec. 1167. Idaho. — Same. Bev, Statsl, sec. 5527. § 205 PROBATE LAW AND PRACTICB. 320 BContana. — Same. Corrip: Stats., p. 328, see 208. Nevada. — Same. Gen. Stats., sec. 2846. Utah. — Same.- Comp. Lavrg, sec. 4180. WasMngton. — Same. Code Froc, aec. 1026. 'Wyoming. —Same. Laws 1890-91, p. 281, sec. 33. § 205. [1561.] Sale without Order. —When property is directed by the will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate without order of the court, and at either public or pri- vate sale, and with or without notice, as the executor may de- termine; but the executor must make return of such sales as in other cases; and if directions are given in the will as to the mode of selling, or the particular property to be sold, such di- rections must be observed. In either case, no title passes un- less the sale be confirmed by the court. Arizona. — Same. Eev. Stats., sec. 1168. " Whenever, in a will, power is given to an executor to sell any property of the testator, no order of the probate judge shall be necessary to authorize the executor to make such sale, and when any particular directions are given by a testator in his will respecting the sale of any property belonging to his estate, the same shall be followed, unless such directions have been annulled or sus- pended by order of the court, as in this act provided." Kev. Stats., sec. 1267. "If a testator in his will directs his personal estate or any part thereof not to be sold, the same shall be reserved from sale, unless such sale be necessary for the payment of debts." Rev. Stats., sec. 1268. Idaho. — Same as California. Rev. Stats., sec. S528. Hontana. — Same as California. Comp. Stats., p. 328, sec. 209. Nevada. — Same as California, except that notice of sale must be given, and the sale conducted as if under order of the court, unless the will contains special directions to the contrary, and the court may require security, as in other sales, to be given by executor before confirmation. Gen, Stats., sec. 2847. Oregon. — All that part of the section beginning with the word " but " is the same, except last sentence, which is omitted. First part of section as fol- lows: "When the testator shall make provision in his will for the sale or dis- position of all or any particular portion of his estate for the payment of funeral charges, expenses of administration, or of claims against the estate, the property so appropriated may be sold or disposed of as directed, by the executor or administrator with the will annexed, without an order of the court therefor," Hill's Laws, sec. 1155. XTtall. — Same as California, except that "as the testator may have di- rected " is substituted for "as the executor may determine." Comp. Laws, sec. 4181. Washington. — Same as California. Code Proc. sec. 1040, 821 SALES AND CONVEYANCES. §205 " When such provision has been made, or any property directed to be sold, the executor or administrator with the will annexed may proceed to sell with- out the order of the court; but he shall be bound as an administrator to give notice of the sale, and to proceed in making the sale in all respects as if he were under the order of the court, unless there are special directions given in the will, in which case he shall be governed by such directions; but in no [all] cases he shall make return of the sale to the court, which shall vacate such sale, unless the same shall appear in all respects and be made according to law in like manner as upon sales made by administrators." Code Froc, sec. 1027. Wyoming. — Same as California. Laws 1890-91, p. 281, sec. 34. • Form of Order Confirming Sale: See § 199, ante. See § 18^, atUe, and notes. The return of sale required is the same as that mentioned in §' 197, ante. The provisions of this section do not apply where decedent devises his property in trust, with power to sell, convey, and pay claims without any order of court, nor need a sale made by such executor be confirmed by the court before conveyance to the pur- chaser: Til re Williams, 92 Cal. 183. It is the duty of the court, in Ruch case, on motion, to dismiss pro- ceedings for confirmation. It is error to refuse to do so, and to proceed and confirm a sale to a higher bidder: fn re Williams, 92 Cal. 183. Stock in this state may be sold by a foreign executor, under a- power contained in the will, without the issu- ance of letters of administration or giving the bond required in section 326 of the Civil Code: Brmvn v. S. F. O, L. Co., 58 Cal. 426. Where a will authorizes the executors to sell real property for the purpose of carrying the will into effect and paying debts, the deed of one of the executors is valid, and will convey title to the property. The sale need not be at auction, and if a part of the purchase-money is paid down, the heirs cannot rescind without returning the money: Panand v. J(me», 1 Cal. 488. If a will gives the executor a naked power to sell the estate, without any special directions, and not coupled with an interest therein, the sale made by him must be reported to and confirmed by the court; and if not, made at public auction, the judge must make an order fixing a day for hearing the report, and the clerk must 21 give notice thereof, as required by sec- tion 1552 of the Code of Civil Proce- dure: Perkins v. GHdley, 50 Cal. 97; In re. Durham, 49 Cal. 490. Where the will of a husband makes his wife sole executrix and dev- isee, with authority to dispose of the estate at public or private sale, with- out the previous order of any court: Held, that she may sell without any pirevious order of any court. A stat- ute declaring that "no sale of any property of an estate shall be valid unless made under order of the court " applies only to, sales in cases not pro- vided for by will. The statute is operative only in the absence of testa- mentary power: Payne v. Payne, 18 Cal. 291; Omeell v. Bnckelew, 14 Cal. 641; Larco v. Caaaneuava, 30 Cal. 560; Norris v. Harris, 15 Cal. 256; Fallon V, Butler, 21 Cal. 31; In re Durham, 49 Cal. 490. If the will devises real estate to the executor in trust, and directs him to sell the same, and does not speak of dispensing witli an order directing the sale or confirming it, the executor may make a valid sale without such orders: In re De Laney, 49 Cal. 76. A sale and conveyance by executors, without an order of court, under a will devising property to them in trust, but not authorizing any sale of the realty, otherwise than by a direction to pay the debts of the testator, is void, and passes no title to the purchasers: Huse v. Den, 85 Cal. 390. Administrator with will an- nexed can exercise all the powers under the will which were invested in the executor, unless there is a special limitation: Kidwell v. Brummagim, 32 Cal. 438. When a will directs the executor to sell testator's real estate within one 206 PROBATB LAW AND PEACTICE, 322 year, and apply the proceeds to cer- tain trusts, the power to sell is not limited to one year, but may be exer- cised after that time, unless there are express words in the will showing tes- tator's intention to thus limit the ex- ercise of the power: Kidwell v. Brum- magim. 32 Cal. 436. If the testator devises his real estate to his children, and, appoints an executor in his will, to whom he gives full power to sell his real estate, the executor does not hold the title thereto in trust for the children: Au- guisola v. Amaz, 51 Cal. 435. Beneficiaries entitled to resi- due of estate devised to executors, in trust, with power of sale may, at their option, have such residue distrib- uted to them in kind, or have a sale and a division of the proceeds: In re Delawy, Myr. Prob. 9; aflSrraed 49 Cal. 76. When the legal estate ia vested in executors for the purpose of sale and conveyance, it is not absolutely necessary that they should qualify or report their proceedings in that re- gard to the probate court: Hogan v. Wyman, 2 Or. 302; Brown v. Brown, 7 Or. 285. When a testator makes provis- ions in his will for the sale of land of which he died seised, the executors may sell the same by virtue of the power conferred by the will; but such sale must be reported to the county court and confirmed, as in other cases of sales of real property by executors and administrators: Ijorthrcj) v. Mar- quam, 16 Or. 173. In case of a child or children not named or provided for, a sale by the executors under the will transfers to the purchaser all that the executors could lawfully sell; but the interest of such child or children not named or provided for being excepted out of the will by the statute, remains unaf- fected by such sales: Northropv. Mar- qmm, 16 Or. 17.3. A will which directs the sale of the real estate of the testator by the executors does not work an equitable conversion of the interest of a child or children not named or provided for by the will: Northrop v. Marquam, 16 Or. 173. Where a will does not provide for the children of the testator, or show that the' omission to do so was intentional, but gives to the testator's wife all of his property, with absolute power to sell any or all of it without application to or approval or authority of any court, a sale of the property by the wife of the testator, without any previous order of the court therefor, which is not shown to have been neces- sary for the payment of debts of' the decedent, or expenses of administra- tion, although confirmed by the court, does not transfer to the purchaser the title to th^ laud as against the testa- tor's children: SmUh v. OlmsUad, 88 Cal. 582. § 206. [1562.] Where Provision by Will Insufia- cieut. — If the provision made by the will, or the estate appropriated therefor, is insufficient to pay the debts, expenses of administration, and family expenses, that portion of the estate not devised or ■ disposed of by the will, if any, must be appropriated and disposed of for that purpose, according to the provisions of this chapter. Arizona. — Same. Be v. Stats., sec. 1169. Idaho. — Same. Eev. Stats., sec. 5529. Montana. — Same. Comp. Stats., p. 328, sec. 210. Nevada. — Same. Gen. Stats., sec. 2848. TTtah. — Same. Comp. Laws, sec. 41 82. Washington. — Same. Code Proc, sec. 1028. Wyoming. — Same. Laws 1890-31, p. 281, sec. 35. 323 SALES AND CONVEYANCES. §§ 207, 208 §207. [1563.] Estate Subject to Debts, etc. — The estate, real and personal, given by will to legatees or devisees is liable for the debts, expenses of administration, and family expenses, in proportion to the value or amount of the several devises or legacies, but specific devises or legacies are exempt from such liability, if it appears to the court necessary to carry into efifect the intention of the testator, and there is other suf- ficient estate. Arizona. — Same. Rev. Statsl, sec. 1170. Idaho. — Same. Rev. Stats., sec. 5530. Montana — Same. Comp. Stats., p. 328, sec. 211. ' Nevada. — Same. Gen. Stats., sec. 2849. Oregon. — Same. Hill's'Laws, sec. 1157. TTtali. — Same, with these words omitted: "It appears to the court neces- sary to carry into effect the intention of the testator, and." Comp, Laws, sec. 4183. Washington. — Same as California. Code Proc, sec. 1029. Wyoming. — Same as California. Laws 1890-91, p. 282, sec. 36. § 208. [1564.J Contribution among Legatees. — When an estate given by will has been sold for the payment of debts or expenses, all the devisees and legatees must con- tribute according to their respective interests to the devisee or legatee whose devise or legacy has been taken therefor, and the court, when distribution is made, must, by decree for that purpose, settle the amount of the several liabilities, and decree the amount each person shall contribute, and reserve the same from their distributive shares, respectively, for the purpose of paying such contribution. Arizona. — Same. Rev. Stats., sec. 1171. Idaho. — Same. Rev. Stats., sec. 5531. Montana. — Same. Comp. Stats., p. 328, sec. 212, Nevada. — Same. Gen. Stats., sec. 2850. Oregon. — "When any testator in his last will shall give any chattel or real estate to any person, and the same shall he taken in execution for the payment of the testator's debts, then all the other legatees, devisees, and heirs shall refund their proportional part of such loss to such person from whom the bequest shall be taken," Hill's Laws, sec. 3095. Utah. — Same as California. Comp, Laws, sec, 4184, Washington. — Same as California. Code Proc, sec. 1030. Wyoming. — Same as California. Laws 1890-91, p, 282, sec. 37. §§ 209-211 PEOBATB LAW AND PRACTICE. 324 § 209. [1565.] Contract for Purchase of Lands may be Sold. — If a decedent, at the time of his death, was possessed of a contract for the purchase of lands, his interest in such land and under such contracts may be sold on the ap- plication of his executor or administrator, in the same manner as if he had died seised of such land, and the same proceedings may be had for that purpose as are prescribed in this chapter for the sale of lands of which he died seised, except as herein- after provided. Arizona. — Same. Rev. Stata., sec. 1172. Idaho. — Same. Rev. Stata., sec. 5532. Montana. —Same. Comp. Stata., p. 328, see. 213. Nevada Same. Gen. Stata., Bec.^2851. Oregon. — Same. Hill's Laws, sec. 1158. Utab. — Same. Comp. Laws, sec. 4185. Washington. —Same. Code P-roc, sec. 1031. Wyoming. — Same. Laws 1890-91, p. 282, sec. 38. Note. — All forms under this section are the same as those under sales of real property: See §§ 183 et aeq., ante. §210. [1566.] Conditions of Sale.— The sale must be made subject to all payments that may thereafter become /lue on such contracts, and if there are any such, the sale must not be confirmed by the court until the purchasers execute a bond to the executor or administrator for the benefit and in- demnity of himself and of the persons entitled to the interest of the decedent in the lands so contracted for, in double the whole amount of payments thereafter to become due on such contract, with such sureties as the court or judge shall approve. Arizona. —Same. Rev. Stats., sec. 1173. Idaho. — Same. Rev. Stats., aec. 5533. Montana. —Same. Comp. Stats., p. 329, aec. 214. Nevada. — Same. Gen. Stats., aec. 2852. Oregon. — Same. Hill's Laws, sec. 1159. Utah. — Same. Comp. Laws, aec. 4186. Washington. —Same. Code Proc, aec. 1032. Wyoming. —Same. Laws 1890-91, p. 282, aec. 39. § 211. [1567.] Purchaser to Give Bond. —The bond must be conditioned that the purchaser will make all payments for such land that become due after the date of the sale, and will fully indemnify ,the executor or administrator and the 325 SALES AND CONVEYANCES. § 211 persons so entitled against all demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such contract. Arizona. — Same. Kev. Stats., sec. 1174. Idabo. —Same. Rev. Stats., sec. 5534. Montana. — Same. Comp. Stats., p. 329, sec. 215. Nevada. — Same, with the following added: " But if there be no payments thereafter to become due on such contract, no bond shall be required by the purchaser." Gen. Stats., sec. 2853. Oregon. — Same as California. Hill's Laws, sec. 1159. Utab. — Same as California. Comp. Laws, sec. 4187. Washington. — Same as California. Code Proc, sec. 1033. Wyoming. — Same as California. Laws 1890-91, p. 282, sec. 40, Form No. 157. — Bond to be Given on Sale of Con- tract for Purchase of Lands. Know all men by these presents, that we, as princi- pal, and and as sureties, are held and firmly bound unto , for himself, and in trust for the estate of , de- ceased, and of the persons interested in said estate, to be paid to said , or his successors, heirs, or assigns, for which pay- ment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this — day of , A. D. 18—. ^ The condition of the above obligation is such, that whereas , now deceased, did, on the day of , A. D. 18 — ,i enter into a contract in writing with to purchase the following described real property, to wit (descriptiori); and whereas said contract of purchase has not been fully completed, and whereas said , as of the estate of said , de- ceased, has sold said contract of purchase and the interest. of said decedent therein, and said has purchased the same, and has agreed to perform all of the covenants in said contract agreed to be performed by said , now deceased, and make all payment now due or which shall become due thereon; and whereas said sale was made in pursuance of an Order of the court of the county of , state of ; — Now, therefore,, if all the conditions of the said contract of §§ 212, 213 PBOBATB LAW AND PRACTICE. 326 purchase of said real property, which by the terms of said con- tract of purchase were to be performed hy said , deceased, shall be fully performed by said , and if said shall well and truly pay all sums which are due, or which may be- come due, on said contract, and save said , the of said estate, and said estate, and all persons interested therein, harm- less by reason of and from said contract of purchase, then this obligation shall be void, otherwise to remain in full force and virtue. [seal] [seal] [seal] (Justification as in Form No. 53, § 70, ante.) § 812. [1568.] Executor to Assign Contract. — Upon the confirmation of the sale, the executor or administra- tor must execute to the purchaser an assignment of the con- tract, which vests in the purchaser, his heirs and assigns, all the right, title, and interest of the estate, or of the persons en- titled to the interest of the decedent in the lands sold at the time of the sale, and the purchaser has the same rights and remedies against the vendor of such land as the decedent would have had if he were living. Arizona. — Same. Rev. Stats., sec. 1175. Idah.0. — Same. Rev. Stats., sec. 5535. Dloutana. — Same. Comp. Stats., p. 329, sec. 216. Nevada. — Same. Gren. Stats., sec. 2854. Oregon. — Same. Hill's Laws, sec. 1160. Utali. — Same. Comp. Laws, sec. 4188. Washington. — Same. Code Proc, sec. 1034. Wyoming. —Same. Laws 1890-91, p. 282, sec. 41. Note. — The assignment mentioned iu the above section should he the same as deed under sales of real estate, § 200, ante. § 213. [1569.] Sales of Lands under Mortgages or Liiens. — When any sale is made by an executor or adminis- trator, pursuant to provisions of this chapter, of lands subject to g,ny mortgage or other lien, which is a valid claim against the estate of the decedent, and has been presented and allowed, the purchase-money must be applied, after paying the neces- sary expenses of the sale, first, to the payment and satisfaction of the mortgage or lien, and the residue, if any, in due course 327 SALES AND CONVEYANCES. § 213 of admiuistration. The application of the purchase-money to the satisfaction of the mortgage or lien must be made without delay; and the land is subject to such mortgage or IJen until the purchase-money has been actually so applied. No claim against any estate, which has been presented and" allowed, is affected by the statute of limitations, pending the proceedings for the settlement of the estate. The purchase-money, or so much thereof as may be sufficient to pay such mortgage or lien, with interest, and any lawful costs and charges thereon, may be paid into the court, to be received by the clerk thereof, whereupon the mortgage or lien upon the land must cease, and the purchase-money must be paid over by the clerk of the court without delay, in payinent of the expenses of the sale, and in satisfaction of the debt to secure which the mortgage or other lien was taken, and the surplus, if any, at once returned to the executor or administrator, unless for good cause shown, after notice to the executor or administrator, the court other- wise directs. Arizona. — Eev. Statsi, sec. 1176. Idaho. — Same. Rev. Stats., see. 5536. Montana. — Same. Comp. Stats., p. 329, sec. 217. XTevada. — Same; except last sentence is omitted; and the following is added: "Provided, hmoever, that when it shall be shown to be necessary, the court may direct that sufficient of such purchase-money be retained to meet such portions of the family allowance and charges and expenses of administra- tion as may properly be required from the holder of such claims; such reser- vation of a portion of the purchase-money shall not prevent the discharge of the mortgage or lien, and no lien against any estate shall be affected by the statute of limitations pending the proceedings for the settlement of such estate." Gen. Stats., sec. 2855. "In all cases in which land is sold by an ' executor or administrator, the necessary expenses of the sale shall first be paid out of the proceeds." Geii. Stats., sec. 2856. Oregon. — "If the deceased left any property, real or personal, under mortgage, and did not devise or provide for the redemption of the same by will, the court, or judge thereof, upon the application of the executor or admin- istrator, or the application of an heir or creditor, or other person interested in the estate, may order the executor or administrator to redeem such property out of the proceeds of the other personal property, if it appear that such re- demption would be for the interest of the estate, and not prejudicial to credi- tors." Hill's Laws, sec. 1161. "If, upon such application, such redemption be deemed not proper, or in- expedient, the court shall order auch property to be sold, in like manner and § 213 PROBATE LAW AND PKACTICB. 828 with like effect a,s is provided in other cases of the sale of real property by this title; and the conveyance to the.purohaser shall operate to convey to him all the estate, right, and interest which the deceased would have had in the property had not the same been mortgaged by him." Hill's Laws, sec. 1162, " Ten days before making an order for the application of the proceeds of snch sale, the mortgagee, or other person to whom the debt which is secured by such mortgage is payable, shall be cited to appear and show the amount of his debt, and make his objections, if any, to the report of the expenses of the proceeding and sale as claimed by the executor or administrator, and there- upon the court shall order that the proceeds of the sale be first applied to the payment of the proper expenses of the proceeding and sale, and secondly, to the satisfaction of such debt, and the residue, if any, in due course of admin- istration." Hill's Laws, sec. 1163. "Sections 1161, 1162, and 1163 shall not be construed to include a mortgage which has been foreclosed, or upon which a suit has been commenced for fore- closure, before the application for the order of redemption or sale is made, nor to any other lieu arising upon judgment or decree given against the deceased in his lifetime. '' Hill's Laws, sec. 1 1 64. "If the debt secured by the mortgage mentioned in section 1161 be not due at the time of the making of the order for redemption or application of the proceeds of the sale, the party to whom it is payable shall be entitled to re- ceive in satisfactioQ thereof such sum as may be ascertained to be equal to the present value thereof . " Hill's Laws, sec. 1165. Utali. — Same as California. Oomp. Laws, sec. 4189. Washingrton, — "If any person die, having mortgaged any real or personal estate,' and shall not have devised the same, or provided for the redemption thereof by Will, the court, upon the application of any person interested, may order the executor or administrator to redeem the estate out of the per- sonal assets, if it should appear to the satisfaction of the court that snch re- demption would be beneficial to the estate, and not injurious to creditors." Code Proc, sec. 1035. " If it shall be made to appear to the satisfaction of the court that it will be to the interest of the estate of any deceased person to sell other real or per- sonal estate of the decedent than that mortgaged by him, to redeem the real estate so mortgaged, the court may order any real or personal estate of the decedent which it may deem expedient to be sold for such purpose, which sale shall be conducted in all respects as other sales of like property ordered by the court." Code Proc, sec. 1036. " If such redemption be not deemed expedient, the court shall order snch property to be sold at public sale, which sale shall be with the same notice and conducted in the same manner as required in other cases of real estate provided for in this act, and the executor or administrator shall thereupon execute a conveyance thereof to the purchaser, which conveyance shall be effectual to convey to the purchaser all the right, title, and interest which the deceased would have had in the property had not the same been mortgaged by him, and the purchase-money, after paying the expenses of the sale, shall first be applied to the payment and discharge of such mortgage, and the residue in 329 BALES AND CONVEYANCES. §§ 214, 215 due conrse of administration. If said sale of the mortgaged premises shall be insufficient to secure the mortgage debt, the mortgagee shall file a claim for balance, authenticated as other claims, and payable in due course of adminis- tration." Code Proc, see. 1037. Wyoming. — Same as California. (The clause "must be paid over hy the clerk" reads "to the clerk"; but this is apparently a clerical error. — Ed.) Laws 1890-91, p. 283, sec. 42. The provisions of this section allowed: Wise v. Williams, 72 Cal. 544; are not controlled by the general pro- In re Schroeder, 46 Cal. 317; Dolis v. visions of the statute relating to the Dohn, 60 Cal. 255; Savings di LoanSoc payment of debts: In re Mun'ay, 18 v. Hutchinson, 68 Cal. S3. Cal. 687. SCortgage liens must be paid The statute of limitations does first out of proceeds of mortgaged not run against a note, the estate of property: In re Murray, IS Cal. 687. the maker of which was not cloaod A court of probate cannot foreclose when the suit was brought, and the a mortgage: Meyers v. Farquharson, claim on which note had then been 46 Cal. 200. §214. [1570.] Holder of Lieu may Purchase — His Receipt a Valid Payment. — At any sale, under or- der of the court, of lands upon which there is a mortgage or lien, the holder thereof may become the purchaser, and his receipt for the amount due him from the proceeds of the sale is a payment pro tanlo. If the amount for which he purchased the property is insufficient to defray the expenses and discharge his mortgage or lien, he must pay to the court or the clerk thereof an amount sufficient to pay such expenses. Arizona. — Same. Bev. Stats., sec. 1177. Idaho. — Same. Rev. Stats. , sec. 5537. Montana. — Same. Corap. Stats., p. 330, sec. 218. - TTtah. — Same. Comp. Laws, sec. 4190. Wyoming. — Same. Laws 1890-91, p. 283, sec. 43. Where a mortgage creditor pur- thereof paid to the administrator on chased the mortgaged premises, and the day of sale, it was held to be a credited the mortgage debt with the payment in full of the purchase price: amount of his bid, less ten per cent la re Lewis, 39 Cal. 306, § 315. [1571. J Liability for Misconduct in Sale. — If there is any neglect or misconduct in the proceedings of the executor in relation to any sale, by which any person inter- ested in the estate suffers damage, the party aggrieved may re- cover the same in an action upon the bond of the executor or administrator, or otherwise. Arizona. —Same. Rev. Stats., see, 1178, Idaho. — Same. Rev. Stats., sec. 5538. Montana. — Same. Comp. Stats., sec. 330, p. 219. §§ 216, 217 PEOBATK LAW AND PRACTICB. 33C Nevada. — Same. Gen. Stats., aec. 2857< Xrtah. — Same. Comp. Laws, sec. 4191. Washington. — Same. Code Proc, sec. 1038. , Wyoming. — Same. Laws 1890-91, p. 283, sec. 44. In an action to recover on the any proceedings in the probate conrt bond of an executor or administrator, subsequent to the confirmation of the tinder the above section, for his mis- sale, and affirmatively shows that the conduct in proceedings relating to a laud was sold for its full value, no sale of the real estate of deceased, the damage is alleged, and plaintiff will complaint must show that the sale be left to his remedy in the probate actually damaged plaintiff; where it court: Weihe v. Statham, 67 Cal. 245. contains no averments with respect to §216. [1572.] Fraudulent Sales. — Any executor or administrator who fraudulently sells any real estate of a dece- dent, contrary to or otherwise than under the provisions of this chapter, is liable in double the value of the land sold, as liqui- dated damages, to be recovered in an action by the person hav- ing an estate of inheritance therein. Arizona. — Same. Rev. Stats., sec. 1179. Idah.0. — Same. Rev. Stats., sec. 5539. Slontana. — Same. Comp. Stats., p. SZQ, sec. 220. Nevada. — Same. 6en. Stats., sec. 2858. TTtali. — Same. Comp. Laws, sec. 4192. Washington. — Same. Code Proc, see. 1039. Wyoming. — Same. Laws 1890-91, p. 283, sec. 45. Richardson v. Sage, 57 Cal. 212. person having an estate of inheritance An executor or administrator who therein, but they are not recoverable fraudulently sella the decedent's realty from the sureties on the bond of such is liable in damages in double the executor or administrator: Weihe v. value of the land sold; such damages Statham, 67 Cal. 245. being recoverable in an action by the § 317. [1573.] Limitations of Actions for Vacat- ing Sale, etc. — No action for the recovery of any estate sold by an executor or administrator, under the provisions ol this chapter, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after the settlement of the final account of the executor or administrator. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud, or other grounds upon which the action is based. Arizona. — " The sale " substituted for " the settlement of the final ao count of the executor or administrator"; otherwise same. Rev. Stats., sec 1180. 33i SALES AND CONVEYANCES. §§ 218, 219 -Idaho. — Same as Arizona. Rev. Stats., sec. 5540. Kontana. — Same as Arizona. Comp. Stats., p. 330, sec. 221. Nevada. — Same as Arizona, except that last sentence is omitted. Gen. Stats., sec. 2859. TTtah. — Same as Arizona. Comp. Laws, sec. 4193. Wyoming. — Same as California. Laws 1890-91, p. 284, sec. 46. Setting aside Fraudulent have died since the passage of the Sales: Cal. Code Civ. Proc, sec. 338. probate act, whether such sales be Distribution: See § 289, post, and void or voidable; and the rule applies, notes. though the invalidity of the sale re- Iiimitation of actions for the re- suited from an insufficiency in the covery of real property sold by an notice for appointment of the admin- executor or administrator does not bar istrator: (?ana/i2 v. Scjier, 68 Cal. 95; minor heirs, if the person who assumes Harlan v. Peck, 33 Cal. 515. to act as administrator had not taken The above section does not apply to out letters of administration, and had a sale, under an order of court, of land not given an official bond as public which had devolved upon the heirs by administrator, and had not taken the virtue of their ancestor's death, prior oath of office as such: Staples v. Con- to any legislation in this state regu- nw; 79 Cal. 14. lating the administration of decedent's The requirement of the probate estates: McNeil v. First Cojig. Society i law that " no action for the recovery 66 Cal. 105. of any estate sold by an executor or A sale maije under order of a pro- administrator, under the provisions of bate court by an administrator, even this chapter, shall be maintained by though such sale is void, will be aus- any heir or other person claiming un- tained, unless an action is brought der the deceased testator or intestate, within the next three years after it is unless it be commenced within three made to recover the lands sold from years next after the sale," is applica- the possession of the purchaser: Meelcs ble to all sales made by probate courts v. VassauU, 3 Saw. 206. of real estate belonging to persons who § 218. [1574.] To What Cases Preceding Section not to Apply. — The preceding section shall not apply to minors or others under any legal disability, to sue at the time when the right of action first accrues; but all such persons may commence an action at any time within three years after the removal of the disability. Arizona. — Same. Ke v. Stats. , sec. 1181. Idaho. — Same. Kev. Stats., sec. 5541. Montana. — Same. Comp. Stats., p. 3.30, sec. 222. Nevada. — Same. Gen. Stats., 2860. TTtah. ^— Same, except that the limitation is one year. Comp. Laws, sec 4194. Wyoming. — Same as California. Laws 1890-91, p. 284, sec. 47. § 219. [1575.] Account of Sale to be Heturned. — When a sale has been made by an executor or ad,niini8trator, of any property of the estate, real or personal, he must return to the court, within thirty days thereafter, an account of § 220 PROBATE LAW AND PRACTICE. 332 Bales, verified by his afiBdavit. If he neglects to make such return, he may be punished by attachment, or his letters may be revoked, one day's notice having been first given him to appear and show cause why sbch attachment should not issue, or such revocation should not be made. Arizona. — The return must be made at the next term of court after the sale; otherwise same. Rev. Stata., sec. 1182. Idah.0. — Same as Arizona. Rev. Stats., sec. 5542. Montana. — Same as Arizona. Comp. Stats., p. 331, sec. 223. Nevada. — Same as Arizona. Gen. Stats., sec. 2861. TTtali. — Same. Comp. Laws, sec. 4195. "Wyoming. — Same as California. Laws 1890-91, p. 284, sec. 48. Ketum of Sales: See §§ 176, 197, ante. §220. [1576.] Who cannot Purchase. — No execu- tor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale. Arizona. — Same. Bev. Stats., sec. 1183. Idah.0. — Same. Rev. Stats., sec. 5543. Montana. — Same. Comp. Stats. 331, sec. 224. Nevada. — Same, except that the clause "nor must he be interested in any gale" is omitted. Gen. Stats., sec. 2862. Oregon. Same as Nevada. Hill's Laws, sec. 1166, Utah.. — Same as California, Comp. Laws, sec. 4191. Wyoming. — Same as California. Laws 1890-9], p. 284, sec. 49. An executor named in the will and firmation and report, will be decreed appointed by the court does not be- a trustee at the instance of the heirs, come a trustee of the estate until he and compelled to account to them, al- qualifies; and contracts made by him though no understanding was had be- with the executrix, if fair and just, tween the executor and the purchaser are not void although be is benefited prior to the sale, and although the thereby: Bcnvden v. Pierce, 73 Cal. property brought a fair price: Q'Con- 459. nor v. Flynn, 57 Cal. 293. A contract by an executrix If an adioinistrator at his own with third persons, who have full sale, made under an order of court, knowledge of the facts, that they buys the land of the estate through shall buy the personal property of the another person, the sale is not void, estate ata probate sale thereof for her but only voidable, at the election of account and risk, and advance the the heirs, or other persons interested purchase price, and that she will pay in the estate. They may have the them '^ percentage on the amount of sale set aside and the administrator the purchase, and also on the amount declared a trustee: Boyd v. Blankman, of resales by them, is unlawful and 29 Cal. 19; Scott v. Umbarger, 41 Cal. void, without regard to any beneficial 410; Bernal v. Lynch, 36 Cal. 146, result to the estate: Jones v. Hanna, where the following cases are cited to 81 Cal. 507. this point: Kchey v. Abbott, 13 Cal. An executor purchasing prop- 609; Moss v. Sliear, 25 Cal. 38; Mc- erty sold under order of court, from Minn v. Wheinn, 27 Cal. 318; Coppinffer the bidder at the sale, prior to the con- v. Rice, 33 Cal. 408. See § 251, jposU 333 SALES AND CONVEYANCES. § 221 Where an executor buys land made by him with the executrix, if ■from a devisee, and a deed thereof is fair and just, are not void, although made to his wife, and afterwards the they redounded to his benefit: Bowden executors make a deed of the same v. Pierce, 73 Cal. 459. property to her, under a power of sale Thei-e is nothing in the probate in the will, and thereafter the prop- law to pi'ohibit an executor trom be- erty is distributed to her under a de- coming interested in property of the cree of the probate court, \t being estate of his testator after the estate admitted that she acted for the execu- has ceased to have any interest in it: tor, the executor cannot plead such or- Inre. Milknovicli, 5'Sev. 161. der of distribution by way of estoppel Tho provision prohibiting ex- to an action brought against him by the ecutors or administrators from pur- devisees to set aside the sale, the ques- chasing claims against an estate is for tion of setting aside the deed not the protection of the estate : Furth v. having been presented and considered Wyatt, 17 Nev. 180. upon the application for distribution: Executors are prohibited by Oolmn V. Dunlap, 73 Cal. 157. statute from being interested in the The fact that one who was purchase of the estate, yet if such a named in a will as executor ap- purchase be made, the court may plied for letters, which the court affirm it, the only consideration in granted, does not make him a trustee such case being the promotion of the of the estate, when he refused or interest of the estate: In re MiUeno- neglected to qualify; and contracts vicA, 5 Kev. lUl. ARTICLE V. MOBTGAOES AND LEASES. ' § 221. Mortgage or lease of real property. § 222. Manner of obtaining authority. § 223. Obtaining order to lease. § 321. [1577.] Mortgage or Lease of Real Prop- erty. — Whenever, in any estate now being administered or that may hereafter be. administered, it shall appear to the superior court, or a judge thereof, to be for the advantage of the estate to raise money by a mortgage of the real property of any decedent, or of a minor, or an incompetent person, or any part thereof, or to make a lease of said realty, or any part thereof, the court or judge, as often as occasion therefor shall arise in the administration of any estate, may, on a petition, notice, and hearing, as provided in this article, authorize, em- power, and direct the executor or administrator, or guardian of such minor or incompetent person, to mortgage or lease such real estate, or any part thereof. (Amendment approved March 31, 1891. Cal. Stats. 1891, p. 247.) SEontana. — "In all cases the executor or administrator of an estate, instead of selling the property of the estate to pay the charges and demands against the same, may borrow money at the lowest rate of interest at which § 222 PROBATE LAW AND PKACTICK. ' 334 it ^nay be had, and for such length of time the court may allow, to pay such claims, when it shall be made to appear to the court, by petition and evidence, that an immediate sale of the property of the estate will be detrimental to the' heirs, devisees, legatees, or other persons having an interest therein; and in such case the estate shall be chargeable with the payment of such sum so borrowed, and interest thereon. Such petition may be made by the executor or administrator, or by any one of the heirs of the deceased, or other person interested in the estate. Notice shall be given as follows; If by the executor or administrator, to all the heirs, devisees, legatees, residing in the territory; and if by any heir, devisee, or legatee, to the administrator or executor, and to all other heirs, devisees, and legatees residing in the territory, — which notice shall be given as notice to creditors by an executor or administrator ia required by the provisions of this act." Comp. Stats., p. 318, sec. 172. Oregon. — See § 549, prai. Interest on money borrowed by thority to borrow money for the use an executor or administrator should of the estate: Inre Millenovich: 5'Nev, not be allowed, because he has no au- 161. § 233. [1578.] Manner of Obtaining Authority.— To obtain an order to mortgage such realty, the proceedings to be taken and the effect thereof shall be as follows: — 1. The executor, administrator, guardian of any minor, or incompetent person, or any person interested in the estates of such decedents, minors, or incompetent persons, may file a verified petition, showing, — 1. The particular purpose or pur- poses for which it is proposed to make the mortgage, which, shall be either to pay the debts, legacies, or charges of admin- istration, or to pay, reduce, extend, or renew some lien or mort- gage already subsisting in [on] said realty, or some part thereof; 2. A statement of the debts, legacies, charges of administration, liens, or mortgages to be paid, reduced, extended, or renewed, as the case may be; 3. The advantage that may accrue to the estate from raising the required money by mortgage, or provid- ing for the payment, reduction, extension, or renewal of the subsisting liens or mortgages, as the case may be; 4. The amount to be raised, with a general description of the property proposed to be mortgaged; and 5. The names of the legatees and devisees, if any, and of the heirs of the deceased, or of the minor, or of the incompetent person, as the case may be, so far as known to the petitioner. 2. Upon filing such petition, an order shall be made by the court or judge, requiring all persons interested in the estate to 335 SALES AND CONVEYANCES. § 222 appear before the court or judge, at a time and place specified, not less than four nor more than ten weeks thereafter, then and there to show cause why the realty (briefly indicating it), or some part thereof, should not be mortgaged (for) the amount mentioned in the petition, stating such amount, or such lesser amount as to the court or judge shall seem meet, and referring tO' the petition on file for further particulars. 3. The order to show cause may be personally served on the persons interested in the estate, at least ten days before the time appointed for hearing the petition, or it may be published for four successive weeks in a newspaper of general circulation published in the county. 4. At the time and at the place appointed iuv the order to show cause, or at such other time and place to which the hear- ing maybe postponed (the power to make all needful postpone- ments being hereby vested in the court or judge), having first received satisfactory proof of personal service, or publication of the order to' show cause, the court or judge must proceed to hear the petition, and any objections that may be. filed or pre- sented thereto. Upon such hearing, witnesses may be com- pelled to attend and testify, in the same manner and with like effect as in other cases; and if after a full hearing the court or judge is satisfied that it will be for the advantage of the estate to mortgage the whole or any portion of the real estate, an order must be made authorizing, empowering, and directing the executor or administrator, or the guardian of such minor or incompetent person, to make such mortgage. The order may direct that a lesser amount than that named in the petition be borrowed, and may prescribe the maximum rate of interest and period of the loan, and require that the interest, and the whole or any part of the principal, be paid, from time to time, out of the whole estate, or any part thereof, and that any build- ings on the premises to be mortgaged shall be insured for fur- ther security of the lender, and the premiums paid from such income. 5. After the making of the order to mortgage, the executor, administrator, or guardian of a minor or of an incompetent per- son, shall execute, acknowledge, and deliver a mortgage of the premises for the amount and period specified in the order, set- § 222 PROBATE LAW AND PRACTICE. 336 ting forth in the mortgage that it is made by authority of the order, and giving the date of such order. A certified copy of the order shall be recorded in the oflSce of the county recorder of every county in which the encumbered land or any portion thereof lies. No bond, note, or other personal obligation shall be given with the mortgage or created thereby. 6. Every mortgage so made shall be effectual to mortgage and hypothecate all the right, title, interest, and estate which the decedent, minor, or incompetent person had in the prem- ises described therein at the time of the death of such dece- dent, or at the time of the appointment of the guardian of such minor or of such incompetent person, or prior thereto, and any right, title, or interest in said premises acquired by the estate of such decedent, minor, or incompetent person, by op- eration of law or otherwise, since the time of the death of such decedent, or the appointment of the guardian of such minor or incompetent person. Jurisdiction of the court to administer the estate of such decedent, minor, or incompetent person shall be effectual to vest such court and judge with jurisdiction to make the order for the mortgage, and such juris- diction shall conclusively inure to the benefit of the mortgagee named in the mortgage, his heirs and assigns. No irregularity in the proceedings shall impair or invalidate the same, or the mortgage given in the pursuance thereof; and the mortgagee, his heirs and assigns, shall havej,nd possess the same rights and remedies on the mortgage as if it had been made by the dece- dent prior to his death, the minor after reaching the age of maturity, or the incompetent person when legally competent; provided, however, that upon any foreclosure, if >the proceeds of the encumbered property are insuifBcient to pay the mortgage, no judgment or claim for any deficiency of such proceeds, to satisfy the mortgage, or the costs or expenses of sale, shall be had or allowed, except in cases where the mortgage was given to pay, reduce, extend, or renew a lien or mortgage subsisting on the realty, or some part thereof, at the time of the death of the decedent, and, the indebtedness secured by such lien or mortgage was an allowed and approved claim against his estate, or when the interest of the minor vested in him, or at the time the incompetency of the incompetent person was so declared by 337 SALES AND CONVEYANCES. § 222 the court; and provided also, that in cases affecting the estate of the deceased persons, the part of the indebtedness remain- ing unsatisfied must be classed and paid with other demands against the estate, as provided in article III., chapter X., of title XI., part III., of this, code, with respect to mortgages subsisting at the time of death. [Amendment approved March 31, 1891. Cal. Stats. 1891, p. 247.] See §§ 272-2S2, post. Form No. 158. — Petition for licave to Mortgage Kealty. [Caption, Form No. 1, § 5, ante.'] 1. That he is executor (administrator) of the estate of , deceased, which is now in course of administration in this court; 2. That the names of the legatees and devisees of said dece- dent are as follows, to wit (here insert names), and that the names of the heirs of said deceased, so far as known to petitioner, are as follows, to wit (here insert names); 3. That said estate of said decedent is seised in tee of that certain real property situate, lying, and being in the county of , state of , known and described as follows, to wit (here insert description of property) ; * 4. That the value of said realiy is about $ , and the an- nual rents, issues, and profits thereof amount to about the sum of $ ; 5. That the following claims have been duly presented and allowed, and are on file herein, and are ranked among the ac- knowledged debts of said estate, viz. (here insert claims); That the following legacies are due from said estate, viz., to , the sum of $ , etc.; That the charges and expenses of administration amount to That there is a subsisting mortgage upon said property, made, executed, and delivered by said decedent in his lifetime to , to secure the payment of a certain promissory note described in said mortgage, for the sum of $ , together with interest thereon, at the rate of per cent per annum, from the •■ day of , A. D. 18 — , until paid; that there is now due, owing, and unpaid on said mortgage the sum of $ , making 22 § 222 PROBATB LAW AND PEACTICB. 338 a total indebtedness of said estate, which it is necessary should be paid, of $ ; 6. That it is to the best interest of said estate that said prop- erty should not be sold, but that the same should be mortgaged for the purpose of raising funds with which to pay said debts, legacies, charges of administration, mortgage, etc., for the fol- lowing reasons, to wit: — o. That said real property is producing a high rate of interest on its value; that a portion thereof could not be sold without great injury to the residue thereof; that the amount to be raised to pay the indebtedness, etc., of said estate amounts to less than one fifth of the value of said realty, and the income of said property will be suflBcient to pay oflF said mortgage rapidly; 6. (State any other advantage that may accrue to the estate from raising the required money by mortgage);— r Wherefore petitioner prays that an order be entered herein authorizing, empowering, and directing the executor (admin- istrator) of said estate to mortgage said property for the purpose of raising a sum sufficient to pay said debts, etc. Dated , 18 — . , Petitioner. (Verification, Form No. 55, § 80, ante.) Form No. 159. — Order to Show Cause why Realty should not be Mortgaged (Leased). [Title of Court and Estate.] Upon reading and filing the petition of , praying that the executor (administrator) of the estate of : , deceased, be authorized, empowered, and directed to mortgage (lease) the real estate belonging to said estate, which is described as follows, to wit (here insert description of property); It is ordered that all persons interested in said estate appear before the above-entitled court on the day of , A. D. 18 — , at the hour of o'clock, — u'., at the court-room of said court, to show cause, if any they can, why the said real estate should not be mortgaged (leased) for the purpose of securing the sum of $ (for the annual rental of $ ), as is more fully set forth in said petition, reference to which is hereby made for further particulars. Dated , 18 — . , Judge of the Court. 339 SALES AND CONVKYANCBS. § 222 Form No. 160. — Order to Mortgage, [Title of Court and Estate.] Now, on thiB day of , A. D. 18 — , the petition of , praying for an order authorizing, empowering, and directing the executor (administrator or guardian, as the case may be) to mortgage the real property hereinafter described, coming on regularly to be heard, and it appearing that the order to show cause heretofore made and entered herein has been personally served upon all persons interested in said estate 'at least ten days prior to the time appointed for hearing said petition (or has been published for four successive weeks in the , a newspaper of general circulation published in, this county), and^ it appearing that no objections have been filed or pre- sented to said petition, and it having been proven to the satis- faction of the court that it will be for the advantage of- said estatqi^o mortgage the real property hereinafter described, — It is therefore ordered that the executor (administrator, etc.) of said estate be and he is hereby authorized, empowered, and directed to mortgage, for the purpose of securing the payment > of $ , with interest thereon, at not exceeding the rate of per cent per annum, for the term of years, the following described real property, which is situate in the county of , state of , and is known and described as follows, to wit (description). , Judge of the Court. Dated -, 18—. Form No. 161. — Mortgage of Realty of Estate. This indenture, made the day of , A. D. 18 — , be- tween , the duly appointed, qualified, and acting of the estate of , deceased, the party of the first part, and , of the county of , state of , the party of the sec- ond part, witnesseth: — That whereas, on the day of , A. D. 18 — , the court of the county of , state of , made and en- tered an order authorizing, ehapowering, and directing the said party of the first part to mortgage certain real estate of the said , deceased, situated in the county of — '—, state of , and specified and particularly described in said order, , § 222 PKOBATS LAW AND PEACTICB. 340 which said order is now on file and of record in said court, and is hereby referred to, and made a part of this indenture; And whereas, under and by virtue of said order, said party of the first part has agreed to mortgage the real estate herein- after described, to said party of the second part, to secure the sum of dollars, which said party of the* second part has agreed to" loan to the said party of the first part, for the use and benefit of said estate, for the period of years, — Now, therefore, in consideration of the premises and said loan of said sum for said period, the said party of the first part, mort- gagor, mortgages to the said party of the second part, mort- gagee, all that real property situate in the county of , state of , which is known, designated, and described as (de- scription), as security for the payment, on the day of , A.D. 18 — , to said mortgagee of the said sum of dollars, in gold coin of the present standard of value, with interest thereon from date until paid, at the rate of per cent per , in like coin, payable , and if not paid, the interest may be added to the principal, and bear like interest, and the principal sum mentioned herein may, at the option of the holder hereof, without notice to the maker hereof, be treated as due and col- lectible, both principal and interest to be paid at ; and it is hereby further agreed that the mortgagor shall keep the improvements upon said premises insured for , and will have the policies of such insurance made payable to the mort- gagee as additional security for the satisfaction hereof, and in default of keeping said improvements insured as aforesaid, then said mortgagee may cause the same to be insured in his own name at the expense of said estate, and the mortgagor will, on demand, repay to the mortgagee, in gold cpin, out of the funds of said estate, all moneys paid by the mortgagee to obtain said insurance, and this mortgage shall stand as security for such repayment to the mortgagee of all sums which he shall have paid for the purposes aforesaid, together with interest thereon, from the date of the payment thereof, at the rate of per cent per , until such repayment is made; and in case it shall become necessary to protect the title to said property, or the right to the possession thereof, or the lien of this mortgage, in any action or legal proceeding whatsoever, said mortgagee or 341 SALES AND CONVEYANCES. § 223 his assigns may take charge or control of such action or pro- ceeding, and protect said possession, title, or lien, and this mortgage shall stand as security for the repayment of all mon- eys expended in such action or proceeding, for counsel fees or otherwise, together with interest thereon at the rate of per cent per . And in case default be made in the payment of the whole of said principal sum, or of any installment thereof, or of any in- terest d,ue thereon, then the mortgagee may, at his option, and without notice to the mortgagor, at once proceed to foreclose this mortgage; and on the filing of the complaint in such fore- closure proceeding, or at any time thereafter, the court shall, if requested by the plaintiff, name some disinterested person as receiver, and shall authorize such receiver to at once take pos- session of the mortgaged, premises, and collect the rents and profits thereof, and apply them to the satisfaction of the judg- ment which may be given in said action, and to sell said prem- ises in the same manner as lands are sold upon execution, and to continue in the use and possession of said premises, and to collect the rents and profits thereof, until the premises are re- deemed from such sale, or until title is vested in the purchaser, by the execution of a conveyance in pursuance of the sale. In witness whereof, the said mortgagor has hereto set his hand and seal the day and year first herein written. [seal] , Administrator (Executor) of the Estate of , Deceased. § 223. [1579.] Order to Lease. — To obtain an order to lease the realty, the proceedings to be taken and the effect thereof shall be as follows: — 1. The executor, administrator, guardian of a minor or of an incompetent person, or any person interested in the estates of such decedents, minors, or incompetent persons, may file a veri- fied petition, showing, — 1, The advantage or advantages that may accrue to the estate from giving a lease; 2. A general de- scription of the property proposed to be leased ; 3. The term, rental, and general conditions of the proposed lease; and 4. The names of the legatees and devisees, if an^, and of the heirs of § 223 PROBATE LAW AND PRACTICB. 342^ the deceased, or of the minor, or of the incompetent person, so far as known to the petition [er]. 2. Upon filing such petition, an order shall be made hj the court or judge requiring all persons interested in the es- tate to appear before the court or judge, at a time and place specified, not less than two nor more than four weeks there- after, then and there to show cause why the realty (briefly indicating it) should not be leased for the period (stating it), at the rental mentioned in the petition (stating it), and referring to the petition on file for further particulars. 3. The order to show cause may be personally served on the persons interested in the estate at least ten days before the time appointed for hearing the petition, or it may be pub- lished for two successive weeks in a newspaper of general circulation in the county. 4. At the time and place appointed to show cause, or at such other time and place to which the hearing may be postponed (the power to make all needful postponements being hereby vested in the court or judge), the court or judge having first received satisfactory proof of personal service or publication of the order to show cause must proceed to hear the petition^ and any objections that may have been filed or presented* thereto. Upon such hearing, witnesses may be compelled to attend and testify, in the same manner and with like efi'ect as in other cases, and the court may, in its discretion, appoint one or more, not exceeding three, disinterested persons to ap- praise the rental value of the premises, and direct that a rea- sonable compensation for the services, not to exceed five dollars per day, be paid by the estate. If, after a full hearing, the court or judge is satisfied that it will be for the advantage of the es- tate to lease the whole or any portion of the real estate, an order must be made authorizing, empowering, and directing the ex- ecutor, administrator, or the guardian to make such lease. The order may prescribe the minimum rental to be received for the premises, and the period of the lease, which must in no case be longer than for five years, and may prescribe the other terms and conditions of such' lease. 5. After the making of the order to lease, the executor, ad- ministrator, or guardian of a minor, or of an incompetent per- 343 SALES AND CONVEYANCES. § 223 son, shall execute, acknowledge, and deliver a lease of the premises, for the term and period and with the conditions speci- fied in the order, setting forth in the lease that it is made by authority of the order, and giving the date of such order. A certified copy of the order shall be recorded in the office of the county recorder of every county in which the leased land or any portion thereof lies. 6. Every lease so made shall be effectual to demise and let, at the rent, for the term, and upon the conditions therein prescribed, the premises described therein. Jurisdiction of the court to administer the estate of the decedent, the minor, or of the incompetent person, shall be effectual to vest such court and judge with jurisdiction to make the order for the lease, and such jurisdiction shall conclusively inure to the benefit of the lessee, his heirs and assigns. No omission", error, or irregu- larity in the proceedings shall impair or invalidate the same, or the lease made in pursuance thereof. [Amendment approved March 31, 1891. Cal. Stats. 1891, p. 249.] Th.e administrator of a dece- be terminated by the final distribntion dent's estate may, during the period of the estate and the discharge of the of administration, lease the real prop- administrator: Doolan'V. McCatiley, 66 erty belonging to the estate, but any Cal. 476. See § 221, ante. ■ lease for a definite term is subject to Form No. 163.— Petition for Leave to Lease Realty. [Caption, Form No. I, § 5, ante.} (Follow subdivisions 1, 2, and 3 of Form No. 158.) 4. That said realty is at present unproductive, but the same can be leased for an anual rental of $ , and it is proposed to lease said premises under the terms and conditions- of a lease of which the following is a copy, to wit (insert copy of lease), — Wherefore petitioner prays that an order be entered herein authorizing, empowering, and directing the executor (adminis- trator or guardian) of said estate to lease said property in ac- cordance with the terms and conditions of said proposed lease. Dated , 18 — . , Petitioner. (Verification, Form No. 55, § 80.) Order to Sh,ow Cause wliy Bealty should not be Leased: See Form No. 159, under last section. § 223 PROBATB LAW AUD PRACTICE. 844 Form No. 163.— Order to Lease. [Title of Court and Estate.] (Follow Form No. 160, § 222, ante, to the end of the recitals therein, and then proceed as follows:) It is therefore ordered that the executor (administrator or guardian) of said estate be and he is hereby authorized, em- powered, and directed to lease for the term of years, at an annual rental of not less than dollars, that certain real property situate, lying, and being in the county of , state of , and known and described as follows, to wit (descrip- tion). The terms of said lease shall be as follows (state fully such terms). , Judge of the Court. Dated ,18—. Form No. 164. — Lease of Kealty of Estate. This indenture, made the day of ^ A. D. 18 — , be- tween , the duly appointed, qualified, and acting of the estate of — — , deceased, the party of the first part, and — — , of the county of , state of, the party of the second part, wit- nesseth: — That whereas, on the day of , A. D. 18 — , the court of the county of , state of , made and en- tered an order authorizing, empowering, and directing the said party of the first part to lease certain real estate of the said , deceased, situated in the county of , state of , and specified and particularly described in said order, and which said order is now on file and of record in said court, and is hereby referred to and made a part of this indenture; And whereas, under any by virtue of said order, said party of the first part has agreed to lease the real estate hereinafter described, on the terms arid conditions hereinafter stated, to the party of the second part, for the term of years, — Now, therefore, in consideration of the premises, the said party of the first part has letten, and by these presents does let, unto the said party of the second part, all that certain lot, piece, or parcel of land situate, lying, and being in the county of , state of , known and described as follows (descrip- tion), with the appurtenances, for the term of from the day of . A. D. 18 — . at the rent or sum of — — 345 BALES AND CONVEYANCES. | 228 dollars, payable in advance, in equal payments of dollars; and it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter the said premises and to remove all persons therefrom. And the said party of the second part does hereby covenant to pay to the said party of the first part the said rent herein reserved in the manner herein specified, and not to let or underlet the whole or any part of said premises without the written consent of the said party of the first part; and at the expiration of said term the said party of the second' part will quit and surrender the premises hereby demised, in as good state and condition as reasonable use and wear will permit, damages by the elements excepted. The party of the first part reserves for himself, his agent and attorney, the right to enter to view said premises, and to eject the tenant if he sufiier any strip or waste thereof. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. [seal] , Administrator (Executor or Guardian) of the Estate of , Deceased. 224 PROBATE LAW AND PRACTICB. 346 CHAPTER VIII. OF THE POWERS AND DUTIES OP EXECUTORS AND ADMIN- ISTRATORS, AND OF THE MANAGEMENT OF ESTATES. S 224. Executors to take poaaeasion of the entire estate. § 225, Executors may sue and be sued. § 226. May maintain actions for waste, etc. § 227. May be sued for waste or trespass of decedent. § 228. Surviving partner to settle business — Interest to be appraised — Ac. count to be rendered. § 229. Actions on bond may be brought by whom. § 230. What executors are not parties to actions. § 23]. May compound. § 232. Recovery of property fraudulently disposed of. § 233. When executor to sue. § 234. Disposition of estate recovered. §224. [1581.] Executors to Take Possession of the Entire Estate. — The executor or administrator must take into his possession all the estate of the decedent, real and personal, and collect all debts due to the decedent or to the estate. For the purpose of bringing suits to quiet title or for partition of such estate, the possession of the executors or ad- ministrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purposes of administration, as provided in this title, Arizona. — Same. Rev. Stats., sec. 1184. Idaho. — Same. Rev. Stats., sec. 5550. lEontana. — Same. Comp. Stats., p. 331, sec. 225. Nevada. — Same. Gen. Stats., sees. 2863. ITtah.. — Same. Comp. Lawsj sec. 4197. WaEihin^on. — Same as first sentence of the California section. Code Proc, sec. 1041. Wyoming. — Same as California. Laws 1890-91, pp. 285, 286, sec. 1. " The effect of a judicial record of tion of the government under which a sister state is the same in this state he was invested with his authority": as in the state where it was made, ex- Cal. Code Civ. Proc, sec. 1913. cept .... and except also that the Executor, etc., may Sell Glioses authority of a guardian or committee, in Action: See § 175, ante. or of an executor or administrator, A special propertjr in the real does not extend beyond the jurisdic- and personal estate of a decedent vests 347 MANAGEMENT OF ESTATES. §224 in the administrator. Ha becomes a trustee not only to apply it in pay- ment of claims presented, but to per- form such acts as the law imposes upon him in carrying out the contracts of his decedent: Jamn v. Browne, 59 Cal. 38. The exclusive right to the posses- sion of realty of an estate and of the action to recover it is vested in the administrator pending administration: Mtelcs V. Vasaault, 3 Saw. 206. The heir canhot maintain an action to recover the realty of a de- ceased person, after administration has commenced upon his estate, until the administration is closed: Meeka v. Vasmult, 3 Saw. 206. It is not an executor's duty to pursue an insolvent debtor of his testa- tor's estate, unless he has good grounds to believe that something can be re- covered: In re Stow, Myr. Prob. 97. An administrator has no power to compensate an attorney by giving him an interest in the property of the estate for his services in recovering it: In re Page, 57 Cal. 238. An administrator has no power to consent to the laying out of a highway across the lands of the es- tate: Rush V. McDermott, 50 Cal. 471. The local administration of the estate of a deceased non-resident may be treated as ancillary, and the surplus, after the payment of the local debts and expenses, may, by order of the court, be delivered to the execu- tor or administrator of the domicile, and to that end the latter may apply to the California court for such an or- der; but beyond such right the execu- tor or administrator of the domicile can have no authority over the local assets: Lewis v. Adams, 70 Cal. 403. To vest the incoming adminis- trator with title to the estate, there must be a grant of administration to him; the mere handing over the papers by the old administrator to the Liew is not sufficient: Sogers v. Hoberlein, 11 Cal. 120; Becketl y. Sel- over, 7 Oal. 216. Administrator may recover pos- session of the estate of his decedent from an heir or devisee: Page v. Tucker, 54 Cal. 121; Beckett v. Selover, 7 Cal. 215; Harwood v. Marye, 8 Cal. 580. The order for the appointment, the qualification of the appointee, and the issning of letters to him thereon, are all necessary proceedings to invest such appointee with the office of an administrator of an estate. The ap- pointment is in fieri until the appointee has qualified and received his letters: In re Hamilton, 34 Cal. 464. Upon the death of the ancestor, the heir becomes vested with the full property at once. His estate is inde- , feasible, except to pay debts, costs of administration, etc., and subject to the temporary right of posaessioa of the administrator. The legislature cannot order a sale of his vested interest in his inheritance, any more than it can direct the sale of the property of any other person acquired in any other way: Bren!iam v. Story, 39 Cal. 179. The title to land under a private laud claim vests in the claimant so as to descend among his assets, even though the patent therefor is exe- cuted after his death, where the same was surveyed by the United States prior to such death: Watei-man v. Smith, 13 Cal. 373. An assignment of funds to pay debts of assignor vests the title in the assignee for the purposes of the trust, and after assignor's death his adminis- trator has no right to them: Pierce v. Eohinson, 13 Cal. 116. Administrator may bring ac- tion to quiet title to real estate which belonged to his decedent. Such action may be brought by any one who has the right of possession against any one who claims an estate or inter- est adverse to such right: Pennie v. Hildreth, 81 Cal. 127. The administrator's possession and title to land is not adverse to the heir, but the administrator is in privity with and represents both heirs and creditors; and so far as any but creditors are concerned, the heir ill whom the title vests, subject only to the right of the administrator to dis- pqse of the land to pay debts, has the right to the title and possession, aud the right to maintain an action and recover possession, as against any one except the administrator, and may convey his title and right of possession while the estate remains undistributed: Spotty V. Hanky, 85 Cal. 155. Where land is inherited, one half from the father, and two thirds of the other half from the mother, whose ea- §224 PROBATE LAW AND PKACTICE. 348 tate is being administered upon, the heirs cannot, pending the administra- tion of the mother's estate, recover in ejectment the portion inherited from her as against her administrator, who is entitled to the possession of the 'whole of her estate, and they can only main- tain a, right of possession as tenants in common with the administrator by reason of inheritance from the father: £urgel v. Piisser, 89 Cal. 70. Executors, administrators, re- ceivers, and trustees are, in their official capacity, indifferent persons, as between the real parties in interest, and cannot litigate any question which arises only between those parties, nor have they any concern as to who shall bear the costs of litigation: Ooldtree V. Thompson, 83 Cal. 420. Administrator entitled to pos- session of property of deceased, real and personal, for the purposes of administration: Butler v. Smith, 20 Or, 126. It is the duty of a domiciliary executor togather in and account for tile foreign assets of his testator to the extent of his conscious ability to do so, and the court of the domicile may compel him to account for willful neglect to perform such duty: In re Ortiz. 86 Cal. 306. Where the will of a resident of this state expressly authorizes tbe executor to collect all of the assets of the testator, and he has taken domi- ciliary administration in this state, and ancillary foreign administration, and obtained control of foreign assets of the estate, he may be compelled by the coum of the domicile to account for the residuum of the foreign assets, after deducting all proper demands and charges against them, and to dis- tribute such residuum as domiciliary executor, although the ancillary ad- ministration of the foreign assets may not have been closed, if it appears that he might have closed it with ordinary diligence, and have had the residuum transferred to him in this state before he filed his final account, and has will- fully neglected to do so: In re Ortiz, 86 Cal. 306. Administrator may maintain possessory action to recover the realty of his intestate: Our^ v. Duffield, 1 Ariz. 509. Administrator is, presumed to have done his duty until the con- trary is shown: Territory v. Mix, 1 Ariz. 52. Actions for the possession of realty or damages thereto cannot be maintained by an administrator: Car' hart V. Mont. Co., 1 Mont. 245. A conveyance of land to which a deceased person was entitled before his death, to his administrator as such, puts the legal title in the administra- tor: In re Smith, 4 Nev. 2.54. Administrators, while they must act in utmost good faith and must strictly perform official duty, are only bound to perform such duties as are imposed upon them by statute: Royce v. Hampton, 16 Nev. 25. The heir is entitled to recover from a stranger real property which he has inherited, notwithstanding there is an acting executor or admin- istrator of the ancestor's estate: Oos- sage v. Grown Point O. No. 1, § 5, a'ntt.'\ 1. That there is in the hands of petitioner the sum of dollars, which is now on deposit in the Dime Savings Bank at Highland Park, county of , state of ; 2.' That for several months last past there had existed in the state of a financial panic, and petitioner is informed that said bank has been affected thereby, and that said bank is no longer a safe and reliable depository of said funds; — Wherefore petitioner prays that this court make an order directing that said funds be invested in such securities of the United States or of the state of , as this court may deem advisable. , Petitioner. , Attorney for Petitioner. 411 ^ ACCOUNTS KENDERED. § 271 Form No. 193. — Order Directing: Publication of Notice of Hearing of Foregoing Petition. [Title of Court and Estate.] Upon filing the petition of for an order authorizing and directing the administrator to invest the funds of the above- named estate in such securities of the United States or of this state as the court may deem advisable, — It is ordered that potice thereof be published one time in the , a newspaper published in this county. Dated , 18 — . , Judge of the Court. Form No. 194. — Notice of Hearing Petition for Order to Invest Funds. [Title of Court and Estate.] Notice is hereby given tha,t , the administrator of the estate of , deceased, has filed his petition herein praying that this court make an order directing that the funds of said estate be invested in such securities of the United States or of the state of as this court may deem' advisable, for the fol- lowing reasons, to wit (here state reasons); and the hearing of said petition has been fixed for , the day of , A. D. 18 — , at the hour of o'clock, — m., at the court^room of the above-named court, at which time any person may ap- pear and present to this court his objections to the granting of slach order. [seal] , Clerk. Dated , 18—. Form No. 195 — Order Directing Investment of Funds. [Title of Court and Estate.] Now, on this day of , A. D. 18^-, the petition of , praying for an order directing the investment of the funds of the above-named estate, coming on regularly to he heard, and it appearing to the court that due and legal notice of the hearing thereof has been given; that there is a large amount of money, to. wit, the sum of dollars, in the hands of the adminis- trator of said estate, uninvested^ that it is to the best interest § 272 PROBATE LAW, AND PRACTICE. 412 of said estate that said money should be invested in securities of the United States or of this state, — It is ordered that said money be invested in bonds of the United States. Judge of the Court. Dated , 18— ARTICLE III. THE PAYMENT OF DEBTS OF THE ESTATE. § ZJ2. Order in ^hich debts to be paid. § 273. Where property insufficient to pay mortgage. § 274. Estate insufficient, a dividend to be paid. § 275. Funeral expenses and expenses of last sickness. § 276. Order for payment of debts, and discharge. § 277. Provision for disputed and contingent claims. § 278. Executor personally liable to creditors when. § 279. Claims not included in order for payment of debts. § 280. Order for payment of legacies and extension of time. § 281. Final account, when to be made. § 282. Neglect to render final account. § 273. [1643.] Order in Which Debts to be Paid. — The debts of the estate subject to the provisions of section twelve hundred and five must be paid in the following order: — 1. Funeral expenses; ' 2. The expenses of the last sickness; 3. Debts having preference by the laws of the United States; 4. Judgments rendered against the decedent in his lifetime, and mortgages, in the order of their date; 5. All other demands against the estate. For section 1205, see California Code of Civil Procedure. It relates to liens. Order of Payment: See § 132, ante, § 275, post. Arizona. — Rev. Stats,, sec. 1232. Subdivisions 1, 2, 3, same. Subdivision 4: "Debts having preference by the laws of this territory." Subdivisions 5 and 6 same as 4 and 5. Idaho. — Same as California. Rev. Stats., sec. 5606. Montana. — Same as California, to subdivision 3; then as follows: "3. The wages of each miner, mechanic, salesman, clerk, servant, or laborer, for ser- vices rendered within forty days next preceding the death of the employer, not exceeding one hundred dollars; 4. Debts due the county, territory, or United States; 5. All other demands against the estate, except that where a lien exists by mortgage, pledge, attachment, or judgment, such lien shall have preference to the extent of such demand on any specific property to which such lien may attach." Comp. Stats., p. 341, sec. 273. 413 ACCOUNTS RENDERED. § 27^ ITevada. —Same as California. G-en. Stats., sec. 2908. Oregon. — "The charges and claims against the estate which have been presented and allowed, or presented and disallowed, but subsequently estab- lished by judgment or decree within the first six months after the date of the notice of appointment of the executor or administrator, shall be paid in the following order, and those presented' and allowed, or established in like manner within each succeeding period of six months thereafter, during the continuance of the administration, in the same manner: 1. Funeral charges; 2. Taxes of whatever nature due the United States; 3. Expenses of last sickness; 4. Taxes of whatever nature due the state, or any count}^ or other public corporation therein; 5. Debts preferred by the laws of the United States; 6. Debts which at the death of the deceased were a lien upon his property, or any right or interest therein, according to the priority of their several liens; 7. Debts due employees of decedent for wages earned within the ninety days immediately preceding the death of the decedent; 8. All other claims against the estate." Hill's Laws, sec. II83. XTtata.. — Same as California, to end/ of subdivision 2, and then as follows: " 3. All debts which were liens on the property of the decedent at the time of his death; 4. All other demands against the estate." Comp. Laws, sec. 4245. Washingrton. — Code Proc, sec. 1075. Subdivisions 1, 2, and 3 same as California. Subdivision 4: " Taxes or any dues to the territory. " Subdivis- ions 5 and 6 same as subdivision 4 and 5 of California. Wyoming. — "All demands against the estate of any deceased person sball be divided into the following classes: 1. Funeral expenses and expenses of administration; 2. Expenses of the last sickness, and of any sn ms of money that may be due by decedent personally to servants and employees for services rendered within the sixty days next preceding his death; 3. Claims for medi- cine and medical attendance during the last sickness of the deceased; 4. Judg- ments rendered against the decedent in his lifetime, mortgages given by him in the order of their date, and liens upon his real estate; 5. All debts, without regard to quality, which shall be exhibited against the estate within six months after the granting of the first letters on the estate; 6. All demands thus exhibited within one year after the letters are granted." Laws 1890-91, p. 291, sec. 21. See also § 213, ante. Laborers' claims preferred: Cal. Code Civ. Proc, sec. 1205. The debts of the community' paid out of the proceeds of the mort- are not to be regarded as the Individ- gaged property: In re Murray, 18 Cal. nal debts of the husband, but as the 686. debts of both husband and wife, for all Neither the administrator nor purposes connected with the adminis- the court can change the order in tration of the community property: which debts are to be paid, hence an Pacleard v. Arellanea, 17 Cal. 525. order directing partnership debts to Expenses of administration be paid before the debts of the estate should be assessed proportionately are paid is void, and if he obeys the upon decedent's separate and com- order, the sums paid under it cannot munity property: In re Patton, Myr. be allowed to him until all the debts Ptoh. 241. of the estate are paid: Tompkhia v. mortgage liens must be first Wteks, 26 Cal. SO. § 273 PROBATE LAW AND PRACTICE. 414 Debts created by an executor but this does not inclnde the costs for the benefit of an estate are expenses and expenses of defending an action of administration: Dodaon v. Nevitt, 5 where the claim was prima fade yxat, Mont. 518. and ought to have been allowed: Vmted The fees of an administrator is States v. Eggkaton, 4 Saw. 199. an Expense of administration, and Expenses of last illness are a should be allowed in preference even "debt due from the deceased," and a to funeral expenses: In re Nicholson, debt due the United States is to be 1 Nev. 518. preferred to them, but if duly paid by Insurance paid on property of the administrator, without notice of th.e estate is an expense of adminis- the annual account and each semi-annual account thereafter, the court shall ascer- tain and determine if th« estate be suMcient to satisfy the claims presented and allowed by the executor or administrator within the first six months, or any succeeding period of six months thereafter, after the date of the notice of his appointment, after paying the funeral chair^eg and expenses of adminis- tration; and if so, it shall so order and direct; but if the estate be insufiScient for that purpose, it shall ascertain what per centum of such claims it is suffi- cient to satisfy, and order and direct accordingly." Hill's Laws, sec. 1172. tJta.li. — Same as California. Comp. Laws, sec. 4249. Washington. — Last sentence omitted; otherwise same as California. Code Proc, sec. 1079. ^ Wyoming. — Same, except that the words " order or " are inserted before " decree," and the words " or judge " are inserted after " court " whenever it occurs. Laws 1890-91, p. 291, sec. 25. It is error for the court to order creditor of an estate in the probate the creditors of an estate to be paid in court to compel an executor to render gold coin, when the property of the an account, and to obtain a decree re- estate has been sold for and paid for quiring the executor to pay such cred- in legal tenders: In re Den, ' 39 Cal. iter's claim, is in the nature of an ac- 70. tion to recover the money which the A decree made by the court re- executor has in his hands, and to quiring an executor to pay money in which the creditor is entitled. The his hands to legatees or creditors may decree in such a proceeding is a judg- compel the payment of the same kind ment: Magraw v. McOlynn, 26 Oal. of money received by the executor: 420. Magraw v. McOlynn, 26 Cal. 420. Money in the hands of an ad- If the decedent in his lifetime ministrator is not assets applicable made an equitable assignment of cer- to the payment of a claim until its tain funds for the payment of certain payment has been directed by a court debts, and such funds come into the of probate: United States y. Eggleston, hands of' the executor or administra- 4 Saw. 199. tor, they are not general assets for the By paying claims in advance of benefit of the creditors at large, but in order by the court, an executor or are subject in his hands to the same administrator takes the risk of secur- trust which attached to them in dece- ing the approval of his acts by the dent's lifetime: Pierce v. Sobinson, 13 court when his accounts and vouchers Cal, 116. shall be presented: Hosier v. Moral, A proceeding commenced by a 19 Or. 181. § 277. [1648,] Provision for Disputed and Con- tingent Claims. — If there is any claim not due, or any 27 § 278 PROBATE LAW AND PRACTICE. 418 contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be en- titled tp if the claim were due, established, or absolute, must be paid into the court, and there remain, to be paid over to the party when he becomes entitled thereto; or if he fails to estab- lish his claim, to be paid over or distributed as the circum- stances of the estate require. If any creditor whose claim has been allowed, but is not yet due, appears and assents to a de- duction therefrom of the legal interest for the time the claim has yet to run, he is entitled to be paid accordingly. The payments provided for in this section are not to be made when the estate is insolvent, unless a pro rata distribution is ordered. Arizona. — Same.' Rev. Stats., sec. 1237.] Idaho. — Same. Rev. Stats., see. 5611. Montana. — Same. Comp. Stats., p. 342, sec. 27S. Nevada. — Same, except that the last sentence is omitted. Gen. Stats,, sec. 2913. Oregon. — "A debt due and payable is not entitled to preference over one of the same class not due, if the latter be presented within the same period. A debt not due, whether contingent or absolute, upon being presented, shall, if absolute, be satisfied by the payment of such sum as the court or judge thereof may prescribe by order, to be equal to its present value, and if contingent, by the payment into court for the benefit of the creditor, subject to the contin- gency, of a sum, to be ascertained in like manner, equal to its present value." Hill's Laws, sec. 1189. Utah.. — Same as California. Comp. Laws, sec. 4250. Washington. — Same as Nevada. Code Proc, sec. 1080. Wyoming. — Same as California. Laws 1890-91, p. 292, sec. 26. The provisions of this section to be authenticated and presented: are cautionary, and do not -iflfect Pico v. J>e la Guerra, 18 Cal. 430. the process by which such claims are § 278. [1649.] Executor Personally Liable to Creditors when. — When a decree is made by the court for the payment of creditors, the executor or administrator is per- sonally liable to each creditor for his allowed claim, or the divi- ^dend thereon, and execution may be issued on such decree, as upon a judgment in the court, in favor of each creditor, and the same proceeding may be had under such execution as under execijtion in other cases. The executor or administrator is liable therefor, on his bond, to each creditor* Arizona. — Same. Rev. Stats., sec. 1238. Idaho. — Same. Rev. Stats,, sec. 5612. 419 ACCOUNTS KENDERED. § 279 Montana. —Same. Comp. Stats., p. 343, sec. 279. Nevada. — Same. Gen. Stats., sec. 2914. Oregon. — "When, upon the filing of a. semi-annual account, an order is made determining and prescribing the amount of assets applicable toi the claims then presented, as provided in section 1172 [Hill's Laws, § 276, ante], thereafter the executor or administrator is personally liable to each creditor included in such order f on such amount." Hill's Laws, sec. 1190. Utah. — Same as California. Comp. Laws, sec. 4251. Washington. — Same as California. Code Proc, sec. 1081. Wyonuug. — Same as California. Laws 1890-91, p. 292, sec. 27. Esecutions: Cal. Code Civ. Proc, sees. 681 et seq.; Wash. Code Proc, sees. 464 et seq. A decree of the court ordering The allowance of a claim by a claim paid on the petition of the executor and probate judge is not administrator is final and conclusive, such a proceeding as to make the and cannot be assailed on the ground claim a judgment of a court, and so that it was rendered on insufiBcient , become interest-bearing. It is not a evidence: In re Cook, 14 Cal. 129. judgment uiitil it has passed through Claims allowed and approved account and settlement, and been or- caanot be garnished in the hands of dered paid: In re Selby, Myr. Prob. an executor or administrator, where 125. no order of distribution to creditors A decree for the payment of has been made, neither can they be money in probate proceedings cannot seized and sold under an execution be enforced as for a contempt. The against the claimant; Norton v. Clark, proper process is an execution; Roster 18 Nev. 247. v. Morat, 19 Or. 181. § 279. [1650.] Claims not Included in Order for Payment of Debts. — When the accounts of the adminis- trator or executor have been settled, and an order made for the payment of debts and distribution of the, estate, no creditor whose claim was not included in the order for payment has any right to call upon the creditors who have been paid, or upon the heirs, devisees, or legatees to contribute to the pay- ment of his cla,im; but if the executor or administrator has failed to give the notice to the creditors, as prescribed in sec- tion fourteen hundred and i^inety-one, such creditor may recover on the bond of the executor or administrator the amount of his claim, or such part thereof as be would have been entitled to had it been allowed. This section shall not apply to any creditor whose claim was not due ten months before the day of settlement, or whose claim was contingent' and did not become absolute ten months before such day. Arizona. — Same. Rev. Stats., sec. 1239. Idaho. — Same. Kev. Stats., sec 5613. Montana. — Same. Comp, Stats., p. 343, sec 2S0. §§ 280, 281 PROBATE LAW AND PRACTICE. 420 Nevada. —Same. Gen. Stats., sec. 2915. Utah. — Same. Comp. Laws, sec. 4252. Washington. — Same, except the time is one year. Code Proc, Seic. 1082. Decree of Distribution Bars Creditors: In re Dall, Myr. Prob. 159. § 280. [1651.] Order for Payment of Legacies and Extension of Time. — If the whole of the debts have been paid by the first disti'ibutlon, the court must direct the payment of legacies and the distribution of the estate among the heirs, legatees, or other persons entitled, as provided in the next chapter; but if there be debts remaining unpaid, or if, for other reasons, the. estate be not in a proper condition to be closed, the court must give such extension of time as may be reason- stble for a final settlement of the estate. Arizona. — Same. Rev. Stats., sec. 1240. Idaho. — Same. Rev. Stats., sec. 5614. Montana. — Same. Comp. Stats., p. 343, sec. 281. Nevada. — Same. Gen. Stats., sec. 2916. Oregon. — "If all the charges and claims shall have been satisfied npon the first distribution of the assets, or as soon thereafter as they may be, the court or judge thereof shall direct the payment of legacies and the distribution of the remaining proceeds of the personal property among the heirs or other per- sons entitled thereto." Hill's Laws, see. 1191. Utah. — Same as California. Comp. Laws, sec. 4253. Washington. — Same as California. Code Proc, sec. 1083. § 281. [1652.] Final Account, when to be Made. — At the time designated in the last section, or sooner if within that time all the property of the estate has been sold, or there are sufiicient funds in his hands for the payment of all the debts due by the estate, and the estate be in a proper condition to be closed, the executor or administrator must render a final account, and pray, a settlement of his administration. Arizona. — Same. Rev. Stats., sec. 1241. Idaho. — Same. Rev. Stats., sec. 5615. Kontana. — Same. Comp. Stats., p. 343, sec. 282. Nevada. — Same. Gen. Stats., sec. 2917. Oregon. — See §§ 253 et seq., ante. Utah. — Same. Comp. Laws, sec. 4254. Washingtoil. — Same. Code Proc, sec 1084. Bach co-executor may keep a chargeable with the full amoant of separate account, and present the assets that have come into his hands, same for final settlement. Each is and is entitled to be credited with all 421 ACCOUNTS RENDERED. 282 disbursements legally made: Hope v. Jones, 24 Cal. 89. By our proTjate law, claims against an estate which have beeu allowed by an administrator or execu- tor and the judge have the force and effect of judgments. It is error in the court to rpiect, on th^ final settleme^t of accounts, sums paid on claims sp allowed, but this rule does not apply to expenses incurred or disbursements made in due course of administration: Deck's Estate v. Oherke, 6 Cal. 666. An allowed claim may be con- tested a^ the sett}e)^e(i]b of the final accoiint if it has not already been passed upon, and the contestant is entitled to except to any adverse ruling of the court: ]n re ffill, 62 Cfil. 186. Proceedings in a probate court for sale of decedent's real property to pay an alleged forced claim will not operate aa an estoppel of the minor heirs of deceased to dispute the cor- rectness of the administrator's account as to such claim: In re Hill, 67 Cal. 238. If the final account of an execu- tor is attacked, and he is charged with fraud an4 embezzlemept, apd is ac- quitted of these charges, but a sum is deducted from his account as improp- erly paid, it is not an error f,or t^B court to direct the jury fee to be paid out of the funds of the estate: In re Mulling, 47 Cal. 450. It is ^rror for the court to find that certain sums had been paid for the redemption of real property be- longing to the estate from a tax sale, when there is nothing in the account or report or any of , the pr6ceedings upon which to base such findings: In re Parsons, 65 Cal. 240. § 282. [1653.] Neglect to Render Final Account. — If he neglects to render his account, the same proceedings may be had as prescribed in this chapter in regard to the first account to be rendered by him; and all the provisions of this chapter relative to the last-mentioned account, and the notice and settlement thereof, apply to his account presented for final settlement. Arizona. — Same. Key. Stats., sec. 1242. Idah.0. — Same. Rev. Stats., sec. 5616. llontana. — Same. Comp. Stats., p. 343, sec. 283. Nevada. — Same. Gen. Stats., sec. 2918. Oregon. — See §§ 253 et seq., ante. TTtah. — Same, to and including the words "last-mentioned account "; then as follows: " Shall apply to his account presented for final settlement, except the notice of settlement, which shall be as prescribed in section 20 of this chapter." (Said section 20 is section 4238, Compiled Laws, § 265, ante.) Comp. Laws, sec. 4255. Washington. — Same as California. Code Proc, sec. 1085, 283 PKOBATE LAW AND PEACTICE. 422 CHAPTER XL OF THE PARTITION, DISTRIBUTION, AND FINAL SETTLEMENT OF ESTATES. Articlb I. Partial Distribution Prior to Final Sbttlembnt. II. Distribution on Final Settlement. III. Distribution AND Partition. IV. Agents for Absent Interested PartiBs — Disoharob of Executor or Administrator. V. Settlement of Accounts of Trustees after Distribution OF Estates, and their Compensation, e'^c. ARTICLE L partial distribution prior id final settlement. § 283. Payment of legacies upon giving bonds. § 284. Notice of application for legacies. § 285. Executor or other person may resist application. § 286. Decree -^ Partition — Costs. § 287. Order for payment of bond, and suit thereon.' § 287 a. Distribution after one year. § 283. [1658.] Payment of Liegacies upon Giving Bonds. — At any time after the lapse otfour months from the issuing pf letters testamentary or of administration, any heir, devisee, or legatee may present his petition to the court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with security, for the pay- ment of his proportion of the debts of the es{-,ie. Arizona. — Same. Rev. Stats., sec. 1243. Idaho. — Same. Rev. Stats., sec. 5621. Kontana. — Same. Coiiip. Stats., p, 345, sec. 284. ITevada. — Same. Gen. Stats., sec. 2919. Oregon. — " At any time after the filing of the first semi-annual account, any heir, devisee, or legatee may apply to the court, by petition, for an order that he have the possession and rents and profits thereof of the portion of the real property to which he may be entitled, and that payment be made to him of his legacy or distributive share pi the personal property of such estate, as the case may be." Hill's Laws, sec. 1193. Ij, Utall. — Same as California. Comp. Lav7s, sec. 4256. 423 PAETITION AND DISTRIBUTION. § 284 Waslxing^on. — Same a^ California, except that the time is six mouths. Code Proc, sec. 1086. See also § 487, post. Wyoming. — Same as "Washington. Laws 1890-91, p. 292, sec, 1. See § 135, ante, and notes. Payment of Iiegacy: See § 445, post. > An executor is not authorized tion of estate, under sections 1658 and to petition for a partial distribution of 1659 of Code of Civil Procedure, to estate: In re Letellier, 74 Cal. 311. determine a question of contested " Heir " signifies all who are en- heirship or right to inherit, though titled to succeed to the property of the right is claimed by reason of the decedent, and includes widow.* In re adoption of an illegitimate child of the Bicaud, Myr. Prob. 158. deceased, without a prior determina- Superior court has JTurisdiction, tion of that right under section 1664 upon petition for partial distribu- of said code: In re Jeasup, 81 Cal. 408. Form No. 196. — Petition for Partial Distribution Prior to Final Settlement. [Caption, Form No. 1, § 5, ante.] 1. That petitioner is one of the heirs at law of , deceased, to wit, a son, and, as such, is entitled to one third of the residue of said estate, after the. payment of debts, etc.; that the only other heirs at law of said deceased are and , both residents of the county of , in this state; that said deceased died intestate; 2. That more than, four months have elapsed since the. issu- ance of letters of administration of said estate to — ^ — , who is the duly appointed, qualified, and acting administrator thereof; that said estate is but little indebted; that the debts outstand- ing against said estate, and the costs, expenses, and charges of administration will probably not exceed the sum of five hun- dred dollars; 3. That there is a large amount of assets in the hands of said administrator, to wit, the sum of about ten thousand dollars; — Wherefore petitioner prays that this court make an order distributing to petitioner the share of said estate to which he is entitled upon his delivering to said administrator such bond as is required by law. i , Petitioner. , Attorney for Petitioner. § 284. [1659.] Notice of Application for Lega- cies. — Notice of the application must be given to the execu- tor or administrator, personally, and to all persons interested § 28j5 PKOBATB LAW XSO PRACTICB. 424 in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator. Arizona, — Same. Rev. Stata., sec. 1244. Idaho. —Same. Rev. Stats., sec. 5622. Montana. — Same. Comp. Stats., p. 345, sec. 285, Nevada. —Same. Gen. Stats., sec. 2920. Oregon. — "Hotice of the application shall be given to the executor or admin* istrator tea days before the term at which it is made." Hill's Laws, sec. 1194. TJtali. — Same as California. Comp. Laws, sec. 4257. Washin^on. — Same as California. Code Proc, sec. 1087. Wyoming. — Same as California, Laws 1890-91, p. 293, sec. 2. See Abila v. Burnett, 33 Cal. 658, Notice: See § 264, ante. § 285. [1660.] Executor or Otner Person may Resist Application. — The executor or administrator, or any person interested in the estate, may appear at the time named and resist the application, or any other heir, devisee, or legatee may make a similar application for himself, , Arizona. — Same. Rev. Stats., sec. 1245, Idaho. — Same. Rev. Stats., sec. 5623. BContana. — Same. Comp. Stats., p. 345, sec. 286. Nevada. — Same. Gen. Stats., sec. 2921. Utah. — Same. Comp. Laws, sec. 4258. Washington. — Same. Code Proc, 1088. Wyoming. — Same. Laws 1890-91, p. 293, sec. 3. Form Wo. 197. — Objections to Partial Distribution! [Title of Court and Estate.] , the executor of the last will and testament of , de- ceased, objects to the granting of the petition of — — , one of the legatees under said will, and for grounds thereof alleges: — That the estate of said decedent is heavily indebted, to wit, in the amount of about $ , and the share of said can- not be allowed to him without loss to the creditors of the estate, and that the allegations in said- petition are not true; — Wherefore he prays that the order sought in said petition be denied. , Executor. , Attorney for Executor. § 288. [1661.] Decree — Partition — Costs. — If, at 436 PARTITION AND DISTSIBUTION. § 2S0 the hearing, it appear that the estate is but little indebted, and that the share of the party applying may be allowed to him with- out loss to the creditors of the estate, the court must make an order in conformity with the prayer of the applicant, requiring, — 1. Each heir, legatee, or d,evisee obtaining such order, before receiv'ng his share, or any pojrtion thereof, to execute and de- liver to the executor or admiiiistj'ator a bond, in such sura as shall be designated by the court, or a judge thereof, with sure- ties to be approved by the judge, payable to the executor or administrator, and conditioned for the payment, whenever re- quired, of his proportion of the debts due from the estate, not exceeding the value or amount of the legacy or portion of the estate to which he is entitled; 2. The executor or administrator to deliver to the heir, legatee, or devisee the whole portion of J;he estatp to which he may be entitled, or only a part thereof, designating it. If, in the execution of the order, a partition is necessary between two or more of the parties interested, it must be made in the manner hereinafter prescribed. The costs of these proceed- ings shall be paid by the applicant, or if there be more than one, shall be apportioned equally amongst them. Arizona. — Same. Rev. Stats., sec. 1246. Idaho. — Same. Rev. Stats., sec. 5624. SContana. — Same. Comp. Stats., p. 345, sec. 287. Nevada. —Same. Gen. Stats., sees. 2922-2925. Oregon. — "If, upon the hearing, it appear that the estate is but little in debt, the court, in its discretion, may grant the petition, or some part thereof, upon the condition that such applicant file with the clerk, within a time in the order specified, an undertaking, with one or more sufficient sureties,, for the benefit of whom it may concern, in a sum double the value of such real prop- erty, legacy, or distributive share, to be void upon the condition that such , heir, legatee, or devisee will pay, when required, his proportion towards sat- isfying any claim against the estate." Hill's Laws, sec. 1194. "The sureties in such undertaking shall have the same qualiflcations as sureties in bail upon arrest, and shall justify before the court or judge thereof in like manner. The costs of the proceeding shall be paid by the applicant." Hill's Laws, sec. 1195. Utah.. — Same as California. Comp. Laws, sec. 4259. Washington. — Same as California, except that the words " or a judge thereof," in the ninth line, are omitted. Code Proc, sees. 1089-1092. Wyoming. — Same as California, except that "judge or clerk" may ap- prove the bond. Laws 1890-91, p. 293, sec. 4. Taxes: See § 293, post. § 286 PROBATE LAW AND PKACTICB. 426 Qualification of Sureties: See § 76, ante. Partition: See § 294, post. Becording: Order: See § 329, post. Th.e court may order a part pay- interested in the estate, awarding the ment of a legacy to the legatee under widow a certain portion of the per- the above section when the executor sonal estate, when the debts charge- has sufficient funds on hand to pay the able to the estate are not settled, is same, although said funds amount to void; and this although she is entitled no more than the commissions that to the same under specific devise in will be due the executor on final set- the will, for devises will not be ex- tlement, if it appears that the remain- onerated from the payment of debts, ing assets are sufficient to pay the com- etc., where the Residue of the estate missions and all other claims against is insufficient for that purpose. If the estate: In re Dunne, Q5 Cal. 378. such portion of the estate has passed An order of partial distribution into her hands as her own, and she is is appealable by the executor, but will one of the executors administering the not be reversed unless the record shows estate, such property must be con- that the condition of the estate was sidered as part of the estate in her not such as to justify the order: In re hands as executrix, and if it is not in Kellny, 63 Cat. 106. being, then she is chargeable in her An order of tb.e court made accounts with it: Abila v. Burnett, 33 without notice to all the parties Cal. 658. Form No. 198.— Decree for Partial Distribution. [Title of Court and Estate.] Now, on this — — - day of , A. D. 18 — , the petition of for partial distribution of the property of the estate of , deceased, coming on regularly for hearing, and it appear- ing that notice hereof has been duly and legally served upon the administrator and all persons interested in said estate; that more than four months have elapsed since the issuance of letters of administration upon said estate; that said estate is but little indebted; that the debts outstanding against said estate, together with the costs, expenses, and charges of admin- istration, will probably not exceed the sum of five hundred dollars; that there is a large amount of assets, to wit, the sum of ten thousand dollars, in the hands of said administrator, of which the distributive share of the petitioner will be about the sum of three thousand three hundred dollars; — It is therefore ordered that said administrator pay over to said petitioner, , the sum of twenty-five hundred dollars as a portion of his share of said estate, upon the giving by him to said administrator of a bond, conditioned according to law, in the sum of five hundred dollars, with two or more sufficient sureties, to be approved by a judge bf this court. Dated , 18—. , Judge of tile Court. 427 PAKTITION AND DISTRIBUTION. § 287 Form Noi 199. — Bond Given on Distribution Prior to Final Settlement. Know all men by these presents, that we, — — as principal, and and as sureties, are held and firmly bound to — — , the administrator (executor) of the estate of — ■■ — , deceased, in the sum of dollars, lawful money of the United States of America, to be paid to the said administrator, for which pay- ment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this '■ day of , A. D. 18—. The condition of the above obligation is such, that whereas, on the day of , A. D. 18 — , the court of the county of' , state of — — , by its order duly made and en- tered therein authorizing and directing skid administrator (executor) to pay over to , one of the heirs at law of said decedent, the wtiole of his share of the property of said estate,, upon his delivering to such administrator a bond in said penal sum, conditioned according to law; — Now, therefore, if the above-bounden principal shall well and truly pay, or cause to be paid, whenever required so to do, his proportion of the debts due from the estate of said decedent, to an amount not exceeding the value and amount of his portion of said estate, to wit, the sum of $ -, so paid to him by au- thority of said order, then this obligation to be void, otherwise to remain in full force and effect. ' — '— [seal] [seal] [seal] Justification as in Form No. 53, § 71, ante, § 387. [1662.] Order for Payment of Bond, and Suit thereon. — When any bond has been executed and de- livered, under the provisions of the preceding section, and it is necessary for the settlement of the estate to require the pay- ment of any part of the money -thereby secured, the executor or administrator must petition the court for an order requiring the payment, and have a citation issued and served on the party bound, requiring him to appear and show cause why § 287 PROBATE LAW AND PEACTICE. 428 the order should not be made. At the hearing, the court, if satisfied of the necessity of such payment, must make an or- der accordingly, designating the amount and giving a time within which it must be paid- If the money is not paid within the time allowed, an action may be maintained by the executor or administrator on the bond- Arizona. — Same. B.ev.' Stats., sec. 1247. Idaho. — Same. Rev. Sjats., sec. 56*25. Montana. — Sai^e. Gomp. St^ts., p. 346, sec. 2S8. If evada. — Same. Gen. Stats., see. 2926. Oregon, — "If, after the giving of such undertaking, it shall become ne- cessary to satisfy any claim against the estate, to require the payment of all or any part of the sum therein specified, it shall be the duty of the executor or administrator to apply by petition to the court for a decree to that effect. Notice of the application shall be given to the party filing the undertaking ten days before the term at which the application is made." Hill's Laws, sec. 1196. "If, upon the hearing, it appear necessary and proper that such payment should be made, the court shall decree accordingly, specifying therein the amount to be paid, and within wjiat time; and if the ^nount be not paid within the time specified, the decree may be enforced against such party and the sureties in the undertaking by execution in the same manner as a decree in the circuit court." Hill's Laws, sec. 1197. Utah.. — Same as California. Comp. Laws, sec. 4260. Washington. — Same as Califprnia, Code Proc, sec. 1093. Citation: See §§ 317-321, post. Form No. 200. — Petition for an Order Requiring Legatee, etc., to Kefund Sufficient Money to Fay- Debts of an Estate. [Caption, Form No. 1, § 5, ante.'] 1. That heretofore this court duly made and entered its or- der requiring petitioner, as administrator of the above-named estate, to pay to , one of the heirs at law of said decedent, the sum of two thousand five hundred dollars upon the giving of a bond to said administrator in the penal sum of five thou- sand dollars, conditioned according to law; 2. That thereafter, on the day of , A. D. 18 — , said gave to said administrator said bond, as required in said order, and thereupon, in pursuance of said order, said admin- istrator paid to him said sum of two thousand five hundred dollars; 429 PARTITION AND DISTRIBUTION. § 287 a 3. That the debts, costs, charges, and expenses of adminis- tration have far exceeded the estimate placed upon them by the court in making said order, and amount to the sum of five thousand dollars, instead of the sum of five hundred dollars, as stated in said order; It is therefore necessary that said should refund a por- tion of said sum of two thousand five hundred dollars to cancel the indebtedness of said estate; — Wherefore petitioner prays that said be required to pay to the administrator of said estjtte, out of the sum so received by him as aforesaid, a sum sufficient to liquidate his share of the indebtedness of said estate. , Petitioner. , Attorney for Petitioner. Form No. 301. — Order RdQ^uiring Legatee, etc., to Befund SufB.cient Money to Fay Debts of an Es- tate. [Title of Court and Estate.] The petition of , the administrator of the above-named estate, coming on regularly for hearing this day, and it appear- ing that a citation has been duly issued herein and served upon , one of the heirs at law of said decedent, requiring him to show cause on this day why he should not be required to refund to the administrator of said estate a sufficient sum out of the funds heretofore received by him, under and by virtue of an order of this court herein, to pay his proportion of the indebt- edness of said estate, and no sufficient reason being shown by him why he should not be required to do so, and it appearing that in order to cancel the indebtedness of said estate it is necessary that said should refund to said administrator the sum of dollars; — It is therefore ordered that said be and he is hereby required to pay to said administrator out of said funds said sura of dollars within ten days from this date. Dated — --, 18 — - , Judge of the Court. § 287 a. [1663.] Distribution after One Year. — At any time after the lapse of one year from the issuance of letters testamentary or of administration, any heir, devisee, or § 287 a PROBATE LAW AND PRACTICE. 430 legatee may present his or her petition to the court for the dis- tribution of the net proceeds of the share of the said estate to which he or she will be entitled. Notice of the application must be given as required by section sixteen hundred and fifty- nine.' The executor or administrator, or any other person in- terested in the estate, may appear at the time named and resist the application, or any other heir, devisee, or legatee may make a similar application for himself. If, at the hearing, it appear that the estate is but littl6 indebted, and that the share of the party applying may be allowed to him without loss to the cred- itors of the estate, the court must make an order in conformity with the prayer of the applicant, requiring, — 1. Each heir, legatee, or devisee obtaining such order, before receiving his share, or any portion thereof, to execute and de- liver to the executor or administrator a bond, in such sum as shall be designated by the court, or a judge thereof, with sure- ties to, be approved by the judge, payable to the executor or administrator, and conditioned for the payment, whenever re- quired, of his proportion of the debts due from the estate, not exceeding the amount or portion of the proceeds of the estate which he has received; provided, that where the time for filing or presenting claims has expired, and all claims that have been allowed have been paid, or are secured by mortgage upon real estate suflScient to pay them, and the court is sa:tisfied that no injury can result to the estate, the court may dispense with the bond; ?. The executor or administrator to deliver to the heir, lega- tee, or devisee tlie proceeds of the estate to which he may be I entitled, or only a part thereof, designating it. If, in the opin- ion of the court, it be necessary, in order to ascertain the pro- ceeds, that any or all of the heirs, legatees, or devisees may be entitled, that the interest of any heir, legatee, or devisee in one or more pieces or parcels of property of the estate shall be de- termined or ascertained, the court may suspend proceedings and" direct the petitioner or petitioners to take proceedings tinder section sixteen hundred and sixty-four'' of this code to ascertain the interest the petitioner or petitioners will have • For section 1659, see § 284, ante. / ' For section 1664, see § 288, fost. 431 PARTITION AND DISTRIBUTION. § 288 under the will in any piece or parcel of property. The order must describe the property in relation to which proceedings are to be taken. Whenever any bond has been executed and de- livered, proceedings upon any su,ch bond may be taken under section sixteen hundred and sixty-two.' The costs of these pro- ceedings shall be paid by the applicant, or if there be more than one, shall be apportioned equally between them. Petition for Distribution: See Form No. 195, ante. Objections to Distribution: See Form No. 196, ante. Decree of Distribution: See Form No. 197, ante. Bond on Distribution: See Form No. 19S, ante. Petition for Order to Kefund: See Form No. 199, § 287, ante. Order to Kefund: See Form No. 200, § 287, ante. Reticle n. DISTKIBUTION ON FINAL SETTLEMENT. S 288. Frocednre to determine interests in estate. § 289. Distribution of estate, how made, and to whom. § 290. What the decree must contain. § 291. Distribution when decedent not resident of state. § £92. Decree to be made only after notice. § 293. No distribution till all taxes on personal property paid. § 288. [1664.] Proceedings to Determine Inter- est in Estate. — In all estates now being administered, or that may hereafter be administered, any person claiming to be heir to the deceased, or entitled to distribution in whole or in any part of such estate, may, at any time after the expiration of one year from the issuing of letters testamentary or of ad- ministration upon such estate, file a petition in the matter of such estate, praying the court to ascertain and declare the rights of all persons to said estate and all interests therein, and to whom distribution thereof should be made. Upon the filing of such petition, the court shall make an order directing ser- vice of- notice to all persons interested in said estate to appear and show cause, on a day to be therein named, not less than sixty days nor over four months from the date of the making of such order, in which notice shall be set forth the name of the deceased, the name of the executor or administrator of ' For section 1662, see last section. § 288' PKOBATa LAW AA'D PRACTICE. 432 sdd estate, tbe names of all persons who may have appeared claiming any interest in said estate in the course of thef administration of the same, up to the time of the making of said order, and such other persons as the court may direct, and also a description o^ the feal estate whereof said deceased died seised or possessed, so far as known, described with cer- tainty to a common intent, and requiring all said persons, and all persons named or not named having or claiming any interest in the estate of said decea;sed, at the time and place in said order specified, to appear and exhibit, as hereinafter provided, their respective claims of heirship, ownership, or interest in said estate, to said court, which notice shall be served, in the same manner as a summons in a civil action, upon proof of which service, by affidavit or otherwise, to the satisfaction of the court, the court shall thereupon acquire jurisdiction to ascertain and determine the heirship, owner- ship, and interest of all parties in and to the property of said deceased, and such determination shall be final and conclu- sive in the administration of said estate, and the title and ownership of said property. The court shall enter an order or decree establishing proof of the service of such notice. All persons appearing within the time limited, as aforesaid, shall file their written appearance in person or through their authorized attorney,' such attorney filing at the same time written evidence of his authority to so appear,' entry of which appearance shall be made in the minutes of the court and in the register of proceedings of said estate.' And the court shall, after the expiration of the time limited for appear- ing as aforesaid, enter an order adjudging the default of all persons for not appearing as aforesaid, who shall not have appeared as aforesaid.' At any time within twenty days after the date of the order or decree of the court establishing proof of the service of such notice, any of such persons so appear- ing may file his complaint in the matter of the estate, setting forth the facts constituting his claim of heirship, ownership, or interest in said estate, with such reasonable particularity as the court may require, and serve a copy of the same upon each of the parties or attorneys who shall have entered their written appearance as aforesaid, if such patties or such alttor- 433 PARTITION AND DISTRIBUTION. § 288 neys reside within the county; and in case any of them do not reside within the county, then service of such, copy of said complaint shall be made upon the clerk of said court for them, and the clerk shall forthwith mail the same to the address of such party or attorney as may have left with said clerk his post-office address. Such parties are allowed twenty days after the service of the complaint, as aforesaid, within which to plead thereto, and thereafter such prpceedings shall be had upon such complaint as in this pode provided in case of an ordinary civil action; and the issues of law and of fact arising in the proceeding shall be disposed of in like manner as issues of law and fact are herein provided to be disposed of in civil actions, with a like right to a motion for a new trial and appeal to the supreme court; and the provisions in this code contained regulating the mode of procedure for the trial of civil actions, the motion for a new trial of civil actions, state- ments on motion for a new trial, bills of exception, and state- ments on appeal, as also in regard to undertakings on appeal, and the mode of taking and perfecting appeals, and the time within which such appeals shall be takep, shall be applicable thereto; provided, however, that all appeals herein must' be taken within sixty days from the date of the entry of the judg- ment or the order complained of. The party filing the petition as aforesaid, if he file a complaint, and if not, the party first filing such complaint, shall, in all subsequent proceedings, be treated as the plaintiff therein, and all other parties so appear- ing shall be treated as the defendants in said proceedings, and all such defendants shall set forth in their respective answers the facts constituting their claim of heirship, ownership, or in- terest in said estate, with such particularity as the court may requirei and serve a copy thereof on the plaintiff. Evidence in support of all issues may be taken orally or by deposition, in the same manner as provided in civil actions. Notice of the taking of such depositions shall be served only upon the parties, or the attorneys of the parties, so appearing in said proceeding. The court shall enter a default of all persons failing to appear, or plead, or prosecute, or defend their rights as aforesaid; and upon the trial of the issues arising upon the pleadings in such proceeding, the court shall determine the § 288 PROBATE LAW AND PRACTICE. 434 heirship to said deceased, the ownership of his estate, and the interest of each respective claimant thereto or therein, and persons entitled to distribution thereof, and the final determination of the court thereupon shall be final and con- clusive in the distribution of said estate, and in regard to the title to all the property of the estate of said deceased. The cost of the proceedings under this section shall be apportioned in the discretion of the court.* In any proceeding under this section, the court may appoint an attorney for any minor men- tioned in said proceedings not having a guardian. Nothing in this section contained shall be construed to exclude the right Tipon final distribution of any estate to contest the question of heirship, title, or interest in the estate so distributed, where the same shall not have been determined under the provisions of this section; but where such questions shall have been litigated, under the provisions of this section, the determination thereof as herein provided shall be conclusive in the distribution of said estate. Wyonling. — Same, except that all is omitted from figure 1 to figure 2, ■wherever such figures appear in above California section (1664), and that the time for hearing, in second sentence, is as follows: "To appear and show cause at the first day of the next ensuing term of the court, held in the county where said order is made, in which notice," etc. This sentence is also in- serted, viz. : " And the court shall, after the expiration of the time limited for appearing as aforesaid, enter an order adjudging the default of all persons for not appearing as aforesaid, who shall not have appeared as aforesaid." Laws 1890-91, pp. 294, 295, sec. 10. Effect of Judgment. — "The ef- reason entitled to letters of adminis- fect of a judgment or final order in an tration upon his estate in preference action or special proceeding before a to collateral kindred: Howell v. Budd, court or judge of this state .... 91 Cal, 350. having jurisdiction to pronounce the The word "party," as used in the judgment or order is as follows: 1. California Code of Civil Procedure, In case of a judgment or order against section 170, includes persons whose a specific thing, or in respect to the. interests are represented by parties: probate of a will or the administration Howell v. Budd, 91 Cal. 352. of the estate of a deicedent The fact that a petition has the judgment or order is conclusive been filed in acfiordance with the pro- upon the title to the thing, the will, visions of the above section, and cita- or administration ": Cal. Code Civ. tion issued thereon, is no ground for a Proc, sec. 1908. continuance, at the instance of the pe- The judgment to be rendered by a titioner, jf proceedings by the execa- court upon the petition of a child of a tor of the estate for final distribution, decedent for letters of administration be^unon the day citation issued on said ujjon the ancestor's estate will deter- petition: In re Oxarart, 78 Cal. 109. mine for all time and in all courts, so An administrator, having been far as the parties to the proceedings made a formal party defendant in s are concerned, whether petitioner is contest between heirs, to settle the the child of decedent, and for that rights of all persons in the estate, filed 435 PARTITION AND DISTRIBUTION. § 288 crosB-interrogatories, and applied to term as defined in the Code of Civil have them annexed to a commission to Procedure, and the court, in the exer- i take depositions which had been is- cise of its jurisdiction, is limited to the sued. His application was refused, terms and conditions of the statute whereupon he filed a petition for man- under which the proceedings are au- damus to compel the probate judge to tiioiized: Smith v. Westerjield, 88 Cal. grauc it, and it was held that the ad- 374. ministrator was not entitled to con- Time for Proceeding — Jurisdic- test the claim of the parties- to heirship tion. — The court has no jurisdiction , in the estate or to distribution, and to determine the heirship of a deceased that ■mandamus would not lie: Roach person until after the expiration of V. Coffey, 73 Cal. 281. one year from the issuing of letters of Determination of Heirship — administration upon the estate, and "Special Proceeding." — The de- has no power to determine it until termination of the heirship of claim- upon or after the settlement of the ants to an estate is a "special pro- final accounts of the administrator: ceeding," within the meaning of that Smith v. Westerjield, 88 Cal. 374. Form No. 202. — Petition to Determine Interests in Estate. [Title of Court and Estate.] The petition of respectfully shows: — That more than one year has expired since the issuance of letters testamentary herein; that petitioner is a devisee under the last will and testament of , deceased (or that peti- tioner is the widow and one of the heirs at law of deceased) ; That the rights of the various persons claiming an interest in the estate of said deceased have not been determined by any judg- ment, order, or decree of any court of competent jurisdiction; — Wherefore petitioner demands that an order be made and entered herein, as provided by Section 1664 of the Code of Civil Procedure, requiring all persons interested in said estate to set , forth the nature of their claim on or before a day to be specified in said order, not less than sixty days nor more than four , months from the date of said order, and that this court ascer- tain and declare the rights of all persons to said estate, and all interests therein, and to whom distribution of said estate should be made. , Petitioner. , Attorney for Petitioner. Form No. 203. — Order and Citation on the Fore- going Petition. [Title of Court and Estate.] Upon reading and filing the petition of , praying this court to ascertain and declare the rights of all persons inter- § 288 PEOBATE LAW AND PRACTICE. 436 ested in the estate of , deceased, and to whom distribution thereof should be made; — It is ordered that the following named persons be made parties to this proceeding, to wit, , executor of said estate, and , the heirs at law of said deceased, and , , and , all the legatees and devisees of said decedent. and and , persons who claim some interest in the estate of said decedent, and John Doe and Richard Roe, whose real names are unknown, and who are therefore men- tioned by fictitious names, they being persons who claim some interest in said estate. It is further ordered that all persons interested in said estate, including the persons above named, appear on the day of , A, D. 18 — , and set forth the nature and extent of their respective claims in, to, or upon the property and estate of said decedent, of which the following described real property forms a part (here insert a description of all the real property belong- ing to the estate). It is further ordered that a notice containing a statement of the matters mentioned in this order be served upon all persons interested in said estate in the same manner as summons in a civil action. , Judge of the Court. Dated , 18—. For form of notice, see Form Ko. 29, § 26, ante. Form No. 204. — Order Establishing Proof of Ser- vice of Citation. [Title of Court and Estate.] It is ordered that due and legal service has been made upon the persons hereinafter named of the notice of the -proceedings herein as directed, by the order of this court heretofore made and entered herein, in the matter of ascertaining and declaring the rights of all persons interested in the estate of , de- ceased, and to whom distribution thereof should be made, to wit (here insert names), and the same is hereby established of record. , Judge of the -^ — Court. Dated , 18—. 437 PAKTITION AND DISTRIBUTION. § 288 Form No. 205. — Authority of Attorney in Matters of HeirsMp'. [Title of Court and Estate.] I hereby authorize , Esq., an attorney and counselor at law, of the state of , to appear for me in the above-entitled court and cause, and represent me and my interest in the mat- ter of the determination of the rights of all persons to the above-named estate, and all interest therein, and to whom dis- tribution thereof should be made, and I further authorize my said attorney to do and perform all things necessary in the premises as I could or might do if personally present. Dated , 18—. Note. — The court does not take judicial knowledge of the signature of pri- vate individuals. It would therefore be well to have the foregoing authority acknowledged before a proper officer. I Form No. 205 a.— Complaint in Matters of Heirship. [Title of Court and Estate*.] Now cpraes , and filing his complaint in the matter of ascertaining and declaring the rights of the heirs and all persons to the property of the estate of , deceased, and all interests therein, and to whom distribution thereof should be made, alleges: — 1. That he is the son of said decedent, and one of his heirs at law; 2. That the other heirs at law of said decedent are , his widow, and and -, his children; 3. That the community property of said estate is as follows, to wit (here insert description of community property); 4. That the separate property of said decedent is described as follows, to wit (here insert description of separate property) ; 5. That of said community property plaintifiF, , is en- titled to one sixth, and said plaintiff is entitled to one fourth of said separate property; — Wherefore said plaintiff prays that this court will declare by its judgment herein that he is entitled to share in the property and estate of said decedent as above claimed by him. , Attorney for Plaintiff. § 288 PKOBATE LAW AND PRACTICE. 438 Form No. S06. -^ Answer in Matters of Heirship. The answer is in all respects the same in form as the com- plaint, except that the word " answer " takes the place of the word " complaint," and the word " defendant " takes the place of the word " plaintifif," wherever they occur. (See form No. 205, dnte.) If it is necessary to deny any allegation of the plaintiff or of any co-defendant, such denials should follow a statement of the claims of the defendant, in the answer in the same manner as denials to a complaint in any other proceed- ing or action would be made. - Form No. 207. — Decree in Matters of Heirship. [Title of Court and Estate.] Now, on this day of , A. D. 18 — , this cause com- ing on to be heard upon the complaint of , and the an- swers of , :, and , and the evidence, both oral and documentary, having been introduced by the respective parties, and the cause having been submitted to the court for its de- cision, and the court being fully advised, — It is adjudged that , the widow of deceased, is entitled to one half of all the community property of said decedent, and also that she is entitled to one fourth of all the separate prop- erty of decedent; that , , and are each entitled to one sixth of said community property of said decedent, and they are each entitled to one fourth of the said separate prop- erty of decedent; That said community property is described as follows, to wit (here insert description); That said separate property i^ described as follows, to wit (here insert description). It is hereby further ordered and adjudged that the costs of this proceeding shall be paid pro rata by the parties hereto in proportion to the amount which each is entitled to receive as his distributive share of. said estate, and said costs are hereby taxed at the sum of $ ■. Dated , 18 — . , Judge of the Court. NoTE.j — The other proceedings hereia are in all respects the same as simi- lar proceedings in ordinary civil actions. 439 PARTITION AND DISTRIBUTION. § 289 § 289. [1665.] Distribution of Estate, how Made, and to Whom. — Upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the court must proceed to distribute the residue of the estate in the hands of the executor or admin- istrator, if any, among the persons who by law are entitled thereto; and if the decedent has left a surviving child, and the issue of other children, and any of them, before the close of administration, have died while under age and not having been married, no admihistration on such deceased child's estate is necessary, but all the estate which such deceased child was entitled to by inheritance niust, without administration, be dis- tributed to the other heirs at law. A statement of any receipts and disbursements of the executor or administratot, since the rendition of his final accounts, must be reported and filed at the time of making such distribution, and a settlement thereof, together with an estimate of the expenses of closing the estate, must be made by the court and included in the order or decree; or the court or judge may order notice of the settlement of such supplementary account, and refer the same as in other cases of the settlement of accounts. Arizona. — Same. Rer, Stats., sec. 1248, Idaho. — Same. Eev. Stata., sec. 5626. Montana. —Same. Comp. Stats., p. 346, sec. 289. Nevada. — The first clause of the first sentence of section same; re. maiader of sentence omitted. Second sentence same, except that the follow- ing clause, " unless distribution of the real estate only be made," is inserted after the word " distribution." Gen. Stats., sec. 2927. Utah. — Same as California. Comp. Laws, sec. 4261. ' " The rights of a purchaser or encumbrancer of real property, in good faith and for value, derived from any person claiming the same by succession, are not > impaired by any devise made by the decedent from whom succession is claimed, unless the instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the probate court having jurisdiction thereof, or unless written notice of such devise is filed 'with the recorder of the county where the real property is situated, within four years after the devisor's death." Comp. Stats., sec. 2725. _^ Washington. — "Upon the settlement of the account of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or any, heir, devisee, or legatee, the court shall proceed to distribute the residue of the estate among the persons Who are by law entitled." Code Proc, sec. 1094. §289 PROBATK LAW AND PEACTICK. 440 Wyoniiilgr. — " At any time after one year from the date of appointment, whenever the estate is in condition for distribution, any executor or adminia- ' trator may make final settlement of said estate in the following manner: He shall publish for four weeks, in some newspaper in the state of general circu- lation in the countyin which the estate is situated, a notice to all creditors and others interested in the estate that he intends to make final settlement at the next term of the district court. At that term of court, if it appears that such notice was duly published, and that the estate has been fully adminis- tered, and that final settlement of all the accounts of the executor or of the administrator have been made, the court must proceed, on the application of the executor or administrator, or of any legatee or devisee, to distribute the resi- due of the estate in the hands of such executor or administrator to any, among the persons who are by law entitled thereto, and in the proportions as now provided by law; and if the decedent has left a surviving child, and the issue of other children, and any of them, before the close of administration, have died while under age, and have not been married, no administration on snch deceased child's estate is necessary, but all the estate which the decedent's deceased child was entitled to by inheritance must, without administration, be distributed to the other heirs at law in their proper proportions." Laws 1890-91, pp. 293, 294, sec. 5. Jurisdiction: See Cal. Code Civ. Proc, sec. 97, subd. 7. Citation and Notice: See §§ 317-321, poet, § 264, ante. Ths estate is not ready for dis- tribution when there is not an ascer- tained balance of assets in the hands of the administrator, or the assets are merely claimed to exist, or the right to them is involved in litigation. It is in the discretion of the court to delay the distribution until the right to the assets is judicially determined and the balance of assets for distribu- tion is aaoertamed: In re Kicaud, 57 Cal. 421. Distribution is mandatory when the estate is ready for it: In re Pritch- ett, 51 Cal. 568; In re Ricaud, 57 Cal, 421. A surety of an administrator cannot question the validity of a de- cree settling the account of the ad- ministrator and distributing the esi:ate, if it shows that proof was made to the satisfaction of the court that notice was given as req That said deceased died intestate, and his Only heirs at law are his ^aid widow, , and three minor- children, ,- , and , all residents of the county of Solano, in this state, who, a^ such heirs, are each entitled to one eighth of said resi- due;— It is therefore ordered, adjudged, and decreed that said resi- due of said estate be. distributed as follows, to wit,, five eighths thereof to said widow, , and one eighth thereof to each of said minor children, — — , , and ; That the property afifected by this decree is described as fol- lows, viz.: Cash on hand, five thousand dollars; one horse and buggy, valued in the inventory at five hundred dollars; also the following described real estate, to wit (here insert particular description of realty, together with its valuation as stated in the inventory). , Judge of the Court. Dated -^— , 18—. § 391. [1667.] Distribution when Decedent not Resident of , State. — Upon application for distribution, after final settlement of the accounts of administration, if the dece- dent was a non-resident of this state, leaving a will which has been duly proved or allowed in the state of his residence, and an authenticated copy thereof has been admitted to probate in this state, and it is necessary, in order that the estate, or any part thereof, may be distributed according to the will, that the estate in this state should be delivered tp the executor or ad- ministrator in the state, or place, of his residence, the court may order such delivery to be made, and, if necessary, order a sale of the real estate, and a like delivery of the proceeds. The de- livery, in accordance with the order of the court, is a full dis- charge of the executor or administrator with the will annexed, in this state, in relation to all property embraced in suclT order, which, unless reversed on appeal, binds and concludes; all par- ties in interest. Sales of real estate, ordered by virtue of this .Bection, must be made in the same manner as other sales of real estate of decedents by order of the court. 447 PARTITION AND DISTRIBUTION. § 292 Arizona. — Same. Rev. Stats., sec. 1250. Idaho. — Same. Rev. Stats., sec. 5628. Montana. — Same. Comp. Stats., p. 347, sec. 291. TTtah. — Same. Comp. Laws, sec. 4263. Sales of Bealty: See §§ 182 et seq., ante. i The distribution of the decedent's state will deal with property within personal property will generally be- its jurisdiction, so far as creditors are governed by the law of his domicile at concerned: In re Apple, 66 Cal. 432. the time of his death, although each § 292. [1668.] Decree Made only after Notice. — The order or decree may be made on the petition of the execu- tor or administrator, or of any person interested in the estate. Notice of the application must be given by posting or publica- tion, as the court may direct, and for such time as may be or- dered. If partition be applied for, as provided in this chapter, the decree of distribution shall not divest the court of jurisdic- tion to order partition, unless the estate is finally closed. Arizona. — ^^Same. Rev. Stats., sec. 1251. Idaho. — Same. Rev, Stats., sec. 5629. Kontana. — Same. Comp. Stats., p. 347, sec. 292. Nevada. — First sentence same; then as follows: " And shall Only be made after notice has been given or waived, and proceedings had in the manner pro- vided in sections one hundred and fifty-two to and including one hundred and ninety-five of this, act, in regard to an application for the sale of land by an executor or administrator. " Last sentence same. G-en. Stats. , sec. 2929. TTtabi. — Same as California. Comp. Laws, sec. 4264. Where a decree of distribution that it was given: Daly v. Pennie, 86 shows that proof was made to the Cal. 5-53. satisfaction of the court that notice A decree of distribution will was given as required by statute, and be vacated and annulled after the there is nothing in the record on ap- discharge of an administrator and his peal showing to the contrary, this will - bondsmen, where it appears that no be taken as conclusive: In re Sbarbara, inventory or appraisement was ever 70 Cal. 147; McCUUau v. Downey, 63 made, no notices to heirs given by Cal. 520. mailing the. same in addition to pnb- The statute does not require lication, and the administration of the personal notice to be given of estate will be opened for regular ad-: the application for final distri- ministration. The costs in such case bution; and if the complaint does will be taxed against the administrator not allege that the notice required by personally: In re McFarland, 10 Mont. law was not given, it will be presumed 586. Form No. 210. — Order Directing Notice of Hearing of Petition for Distribution. [Title of Court and Estate.] The petition of , praying f&r the distribution of the property of the estate of , deceased, having been filed § 293 PROBATE LAW AND PBACTICB. 448 herein, it is ordered that notice of the hearing thereof be given by the clerk of this couH by posting said notices in three pub- lic places in the county of , state of , at least ten days before said hearing, and , the day of , A. D. 18 — , is hereby fixed as the time for hearing said peti- tion. , Judge of the — — - Court. Dated , 18—. Note. — The order, instead of directing notices to be posted, may direct that they be published. Form No. 211.— Notice of Hearing of Petition for Distribution. [Title of Court and Estate.] Notice is hereby given that the petition of , the admin- istrator of the estate of , deceased, for a final distribution of said estate has been filed, and that the day of , A. D. 18 — , at ten o'clock, A. m., at the court-room of said court, has been duly appointed by said court for hearing said petition, at which time any person interested in said estate may appear and file his exceptions, in writing, to said petition, and contest the same. , Clerk. By , Deputy Clerk. §293. [1669.] No Distribution Ordered till all Taxes on Personal Property are Paid. — Before any decree of distribution of an estate is made, the court must be satisfied,'^ by the oath of the executor or administrator, or otherwise, that all state, county, and municipal taxes, legally levied upon personal property of the estate, have been fully paid. "The superior court must require every administrator or executor to pay out of the 'funds of the estate all taxes due from such estate; and no brder or decree for the distribution of any property of any decedent among the heirs or devisees mnst be made until all taxes against the estate are paid." Oal. Pol. Code., sec. 3752. Arizona. — Same, except taxes to be paid on "all property." Rev. Stats., sec. 1252. Idaho. — Same. Rev. Stats., sec. 5630. Hontana. — Same. Comp. Stats., p. 347, sec. 293. Xrtata.. — Same. Comp. Laws, sec. 4265. Wyoming. —Same. Laws 1890-91, p. 294, sec 7. 449 Pi^RTITION AND DISTRIBUTION. § 294 P^K^cutpr ,is entitiled to i9ti-%9 ^V^sh specific Revise: In re Morgan, and profits arising out of, cmd niifst Hyr. Frob. 80. , pay taxes upon, property of estate de- JB^ecutor p^ould pt^y taxes on vised conditionally, until the condition property devised specifically: In re is complied with: In re Broad, Myr. Mwgan, Myr. Prob. 80. Frob. 188. T^x^s p,iid street asBwaimQiits Executor is entitled to be reizn- are neither debts of the decedent nor bursed for tEvxes paid by hi^ on expenses, etc., of administration: In special devises before distribution of re Morgcm, Myr. Frob. 81. ARTICLE m. DISTBIBUTfQir ANP FASX^lIOir. §294. Estate in common — CommiEisioners. § 295. FiMrtitipn, and notice thereof — Petition. § 296. Estate in different counties, how divided. § 297. Partition made, although some heirs have parted with interest. § 298. Shares to be set out by metes and bounds. § 299. Whole estate may be assigned to one. § 300. Payments for equality of partition. § 301. Estate may be sold. § 302. Kotice — Duties of commissioners. § 303. To make report — Partition to be recorded. § 304. When commissioners not necessary. § 305. Advancements made to heirs. §294. [1675.] Estate in Common — Commis- sioners. — When the estate, real or personal, assigned by the decree of distribution to two or more heirs, devisees, or lega- tees, is in common and undivided, and the respective shares are not separated arid distinguished, partition or distribution may be made by three disinterested persons, to be appointed commissioners" for that purpose by the court, who must be duly sworn to the faithful discharge of their duties, a certi- fied copy of the order of their appointment, and of the order or decree assigning and distributing the estate, must be issued to them as their warrant, and their oath must be indorsed thereon. Upon consent of the parties, or when the court deems it proper and just, it is suflBcient tp appoint one commissioner only, who hfis the same authority, and is governed by the same rules as ~ if three were appointed. Arizona. — Same. Rev. Stats., sec. 1253, Xdata.0. — Same. Rev. Stats., sec. 5631. Uontana. — Same. Comp. Stats., p. 347, sec, 294. 29 §294 PEOBATB LAW AND PKACTICK. 450 Nevada. — Same, except that it includes property held in common by the estate with other parties. Gen. Stats., sec. 2930. Utah. — Same as California. Comp. Laws, sec. 4266. Washington. — Same as California, to and including the word " duties "; then as follows: "And the court shall issue a warrant to them for that pur- pose." Code Proc, sec. 1097. Wyoming. — Same as California, except that, after " court," "or judge " is added. Laws 1890-91, pp. 295, 296, sec. 11, The probate powers of the of the estates of deceased persons, and county court do not extend to de- for the purpose of distribution to the terminiug what persons are entitled heirs or devisees of such estates; and to realty, nor to making partition of never had jurisdiction over the inter- the real estate of decedent: Hammer v. est of any persons who might be ten- Silver, 20 Or. 336. ants in common with the estate or its The court never had jurisdic- distributees, and who did not deraign tion to make partition of real estate, their title through the estate: Rich- except in the course of the settlement ardson v. Loupe, 80 Cal. 490. Form No. 212. — Order Appointing Commissioners to Make Partition of Estate. [Title of Court and Estate.] The petition of , praying for the appointment of com- missioners to make partition of the property of the estate of , deceased, coming on regularly this day for hearing, and it appearing that due and legal notice thereof has been given as required by law and the order of this court, and it appear- ing that a decree of distribution has been made and entered herein, distributing said property in undivided shares to those entitled thereto, and that it is necessary to appoint said com- missioners to make a partition thereof, — It is ordered that , , and be and they are hereby appointed commissioners to make partition of said property to those entitled thereto, in accordance with the decr.ee of distribu- heretofore entered herein. r, Judge of the Court. Dated , 18—. Form No. 213. — Oath, of Commissioner. Note. — The oath of office' of the commissioners must be indwsed upon their commission. This commission consists of the order distributing the estate in undivided shares, and the order appointing cominissioners. The oath of office is the same as that of executor or administiator; See Form No. 52, § 70, ante. \ 451 PARTITION AND DISTRIBUTION. § 295 § 295. [1676.] Partition, and Notice thereof— Peti- tion. — Such partition may be ordered and had in the superior court on the petition of any person interested. But before com- missioners are appointed, or partition ordered by the court as directed in this chapter, notice thereof must be given to all persons interested, who reside in this state, or to their guar- dians, and to the agents, attorneys, or guardians, if any in this state, of such as reside out of the state, either personally or by public notice, as the court- may direct. The petition may be filed, attorneys, guardians, and agents appointed, and notice given at any time before the order or decree of distribution, but the commissioners must not be appointed until the order or decree is made distributing the estate. Arizona. — Same. Bev. Stats., sec. 1254. Idaho. — S^me. Ber. Stata., sec. 5632. Montana. — Same, Comp. Stats, p. 348, sec. 295. Nevada. — Same, with tte following added: "But when the application is made solely to have partition between the estate administered upon and any other parties, such application may be made and such partition ordered at any time the court may direct." Gen. Stats., sec. 2932. , TTtalx. — Same as California. Comp. Laws, sec. 4267. Washington. — First and second sentences same as corresponding sen- tences of California, except that the words "commissioners are appointed, or," are omitted from the second Sentence. Last sentence omitted. Code Froc, sec. 1099. 1 "Before any partition shall be made, or any estate divided, as provided in this chapter, guardians sheill be appointed for all minbrs and insane persons interested in the estate to be divided; and some discreet person shall be appointed to act as agent for such parties as reside out of the state, and notice of the appointment of such agent shall be given to the comlnissioners in their warrant; and notice shall be given to all persons interested in the partition, their guardians or agents, by the commissioners, of the time when they shall proceed to make partition." Code Proc, sec. 1106. Wyoming. — Same as California, except that "superior " is omitted, and, after " court," " or judge " is added. Citation: See §§ 317-321, post. Notice: Cal. Code Civ, Proc, sec. 1010. Form No. SI 4.— Petition for Partition. [Caption, Form No. 1, § 5, ante.} 1. That heretofore letters of administration were duly issued herein to , and he immediately entered upon his duties as administrator of the estate of , deceased; § 296 PROBATE LAW AND PKACTICK. 4,52 2. That said est9;te has been fully administered upon, and a decree of distribution has been entered herein; 3. That it appears by said decree, which is hereby referred t|0 and made a part hereof, that the rea,l estate described therein has been distributed in undivided shares to the lieirs at law of said deceased, who are napaed in said order; 4. That petitioner is one of said heirs; — Wherefore petitioner prays that an order pf this court be made and entered appointing commissioners to segregate and assign to each one of said heirs at law hia share of said rea,l estate. -^^-> Petitiprier. , Attorney for Petitioner. Form No. 215. — Order Directing Notice qf Hearing of Petition fqr Fa,rtition. [Title ef Court and Eata^te. ] The petition of , praying for the partition of the property of the estate of -, deceased, having been filed herein, it is ordered that , the day of , A. D. 18 — , be and it is hereby fixed as the time for the hearing of said petition, and it is further directed that notice of said hearing be published for at least ten days before said hearing in the , a newspaper published in the county of , state of . Dated , 18 — . , Judge of the ■ Court. Note. — Notice may be directed to be giveu by posting, or it may be di- rected that personal notice be given. § 296. [1677.] Estate in Different Counties, how Divided. — If the real estate is in difi'erent counties, the court may, if deemed proper, appoint commissioners for all or difi'erent commissioners for each county. The estate in each county must be divided separately among the heirs, devisees, or legatees, as if there were no other estate to be divided, but the commissioners first appointed must, unless otherwise directed by the court, make division of "such real estate, wherever, situated within this state. Arizpna. — Same. Rev. Stats., sec. 1255. Xdata.0. — Same. Kev. Stats., sec. 5633. Kontana. — Skme. Comp. Stata., p. 348, see. 296. Nevada. — Same. Qea. Stats., sec. 2031. 453 PARTITION AND DISTRIBUTION. § 297 Uttbll. — "If the real estate is in different counties, the court may, i{ deemed proper, appoint commissioners, ytho shall make division of such real estate, wherever situated within this territory." Cemp. Laws, sec. 4268. Washington. — Same as Califoniia. Code Froc, sec. 1098. Wyoming. — Same as California, except that " court " is followed by "or judge." Laws 1890-91, p. 296, sec. 13. § 297. [678.] Partition Made, although Some Heirs have Farted with Interest. — Partition or dis- tribution of the real estate may be made as provided in this chapter, although some of the original heirs, legatees, or devi- sees may have conveyed their shares to other persons, and such shares mast be assigned to the person holding the same, in the same manner as they otherwise would have been to such heirs, legatees, or devisees. Arizona. — Same. Rev. Stats., sec. 1256. Idaho. — Same. Kev. Stats., sec. 5634. Montana. — Same. Comp. Stats., p. 348, sec. 297. Nevada. — Same. Gen. Stats., sec. 2933. trtah. — Same. Comp. Law^i sec. 4269. ^ Washington. — Same. Code Proo., sec. 1100. Wyoming. — Same. Laws 1890-91, p. 296, sec. 14. Assignee of heir is entitled to a an order distributing to him the share distribution directly to himself, but of his assignor: Harrington v. La court cannot distribute property under Hocqite, 13 Or. 344. an assignment coupled with a defea- Assignee takes nothing if his sance: In re ifiie, Myr. Prob. 232. assignor is one of two devisees, where A decree of partial distribu- the will provides that the whole-estate tion of the estate of a decedent ad- shall go to them and to the survivor judging that all the interest of the of them if his assignor dies prior to widow in certain specified real estate distribution: In re Oronin, Myr. Pfob. has passed to her vendee, and getting 252. apart to him her estate in the land, The court has jurisdiction, does not confer upon him any greater under section 264 of the Probate Act title than she possessed in law, and (sec. 16T8, Code Civ. Proo., now. — makes him only a tenant in common -Ed.), to assign the real estate of the with children of the decedent omitted deceased among the alienees of the from the will, though the whole land heirs or devisees in the same propor- was devised to the widow. The court tion as to such heirs or , devisees: had no power to adjudicate any other De Castro v. Barry, 18 Cal. 96. or greater title in him under his peti- Assignment by legatee of his tion for distribution claiming that he interest in an estate as security for a' had succeeded to all the interest of the debt entitles his assignee to receive in devisee in the land described; and the the distribution so much of the legacy , decree, if construed to set apart to as is necessary to pay the amount due him the whole of the land, is a nullity upon thq debt at the time of distribu- as respects the interests of the omitted tion: In re PhUlipa, 71 Cal. 285; In re Bhildren: In re Orider, 81 Cal. 571. HUe, Myr. Prob, 232. The assignee of an heir or lega- Distribution of person's inter- tee is a stranger in the probate pro- est in an estate to his assignee's as- ceedings in an estate, and cannot have signee should not be refused because ot §§ 298, 299 PROBATE LAW AND PRACTICB. 454 the pendency of an action to set aside the assignment brought a few days before th^ date fixed for distributicin, against the original assignee, in which suit no service had been made nor ap- pearance entered: In re Phillips, 71 Cal. 285. So long as the administration, of an estate remains unclosed, the successor in interest of one of the distributees, who enters into posses- sion of land under a decree of partial distribution, cannot acquire title by limitation or adverse possession as against those who are legally entitled to claim an interest in the land as ten- ants in common, though he claims title to the whole of the land, and pays all taxes thereon: In re Orider, 81 Cal. 571. Partition between heirs or dev- isees, where commissioners are ap- pointed to make division, is particu* larly referred to in the above section, which nierelj^ gives the right to a grantee of an heir to have the share of his grantor set dS to him. The rights of a prior grantee of an heir are not afifected by a subsequent ordinary de- cree of distribution to the heir to which the grantee was no party. On rendering ordinary decrees of distriliu- tion, the probate court deals only with issues and parties legitimately before it: Chever v. CMng Hong Poy, 82 Cal. 68. A legatee sells all his interest in an esta,te and receives the purchase price therefor. He does not execute a deed for the realty, but executes and delivers to the purchaser an irrev- ocable power of attorney to receive the property. A decree of distribu- tion is given and malde by the court distributing the property to the lega- tee. Such decree and power will not vest the title in the purchaser. The property may be taken in attachment by a creditor of the legatee. A deed made by the legatee to the purchaser after an attachment has been levied upon the property will not relate back to the time of sale in such a manner as to cut oS. the rights of the attach- ing creditor: Freeman v. Rahm, 58 Cal. 112. § 298. [1679.] Shares to be Set out by Metes and Bounds. — When both distribution and partition are made, the several shares in the real and personal estate must be set out to each individual in proportion to his right, by metes and bounds, or description, so that the same can be easily distin- guished, unless two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided. Arizona. — Same. Eev. Stats,, sec. 1257. Idaho. — Same. Rev. Stats., sec. 5635. Montana. — Same. Comp. Stats., p. 348, see. 298. ' Nevada. — Same. Gen. Stats., sec. 293i. Utah. — Same. Comp., Laws, sec. 4270. Washington. —Same. Code Proc, sec. 1101. Wyoming. —Same. Laws 1890-91, p. 296, sec. 15. § 299. [1680.] Whole Estate may be Assigned to One. — When the real estate cannot be divided without preju- dice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to share therein, who will accept it, always preferring the males to the females, 455 PARTITION AND DISTRIBUTION. ' § 299 and among children, preferring the elder to the younger. The parties accepting the whole must pay to the other parties inter- ' ested their just proportion of the true value thereof, or secure the same to their satisfaction, or in case of the minority of such party, then to the satisfaction of his guardian, and the true value of the estate must be ascertained -and reported by the commissioners. When the commissioners appointed to make partition are of the opinion that the real estate cannot be divided without prejudice or inconvenience to the owners, they must so report to the court, and recommend that the whole be assigned as herein provided, and must find and report the true value of such real estate. On filing the report of the commissioners, and on making or securing the payment as before provided, the court, if it appears just and proper, must confirm the report, and thereupon the assignment is complete, and the title to the whole of such real estate vests in the person to whom the same is so assigned. Arizona. — Same. Rev. Stata., sec. 1258. Idaho. — Same. Bev. Stata., sec. 5636. Montana. — Same. Comp. Stats., p. 349, sec. 299. Nevada. — Same, except that the last two sentences are omitted. Gen. Stats., sec. 2935. Utah.. — Same as California. Coinp. Laws, sec. 4271. ' WiEtshington. — Same as California, to the word " always"; then as follow?: "Providing the party so accepting the whole shall pay to the other parties in- terested their just proportion of the true value thereof, or secure the same to their satisfaction, and the true value of the estate shall be ascertained by the commissioners appointed by th^ court and sworn for that purpose." Code Proc, sec. 1102. Wyoming. — Same. Laws 1890-91, pp. 296, 297, sec. 16. Form No. 216. — Order Confirming Report of Com- missioners, and Birecting Sale to be Made. [Title of Court ^nd Estate.] The report of , , and , the commissioners here- tofore appointed by this court to make partition of the prop- erty of the above-named estate, having been filed herein, and it appearing therefrom that said commissioners have performed their duties as required by law, — It is therefore ordered that said report be and the same is hereby confirmed; and it appearing from said report that the § 300 PROBATE LAW AND PEACTICa. 456 property 6f said estate cannot be divided without prejudice (or inconvenience) to the owners, and that the true value of said property as shown by said report is $ , and that no one of tlie persons inter^ted in said estate will take all of said prop- erty and pay its said value so that the money accruing there- from may be divided among those entitled thereto, and it further appearing that in order to secure art equitable division of said property a sale thereof is necessary, — It is further ordered that the whole of said property of said estate be Sold according to law, and that before making such sale the administrator of said egtate file an additional bond in the sum of dollars. , Judge of the — — Court. Dated -^, 18— Form 217. — Order Confirming Report of Commis- sioners. [Title of Court and Estate.] The report of , , and ■ , the commissioners here- tofore appointed by this court to make partition of the prop- erty of the above-named estate, having been filed herein, and it appearing therefrom that said commissioners have performed their duties as required by law, — It is therefore ordered that said report be and the same is hereby confirmed. It is further ordered that said property be distributed as follows, in pursuance of said report (here insert distribution as reported by commissioners, giving the name of the party to whom each parcel is distributed, together with a correct description of the parcel distributed to such person). Dated , 18 — . , Judge of the Court. § 300. [1681.] Payments for Equality of Parti- tion. — When any tract of land or tenement is of greater value than any one's share in the estate to be divided, and cannot be divided without injury to the same, it may be set ofi' by the commissioners appointed to make partition to any of the par- ties who will accept it, giving preference as prescribed in the preceding section. The party accepting must pay or secure to the others such sums as the commissioners shall award to make the partition equal, and the commissioners must make their 457 PAKTITION AND DISTRIBUTION. § 301 award accordingly; but such partition must not be established by the court until the sums awarded are paiid to the parties entitled to the same, or secured to their satisfaction. Arizona. — Same. Rev. Stats., sec. 1259. Idaho. — Same. Rev. StatSi, sec. 5637. montaiia. — Same. Comp. Stats., p. 349, sec. 300. Nevada Same. Gen. Stats., sec. 2936. tXtah. — Same. Comp. Laws, sec. 4272, WasMngtoii. — Same. CbdfeProo., sec. 1103. ■Wyoming. — Same. Laws 1890-91, p. 297, sec. 17. §301. [1682.] Estate maybe Sold. — When it ap- pears to the court, from the commissioners' report, that it can- not otherwise be fairly divided, and should be sold, the court may order the sale of the whole or any ^art of the estate, real or personal, by the executor or administrator, or by a commis- sioner appointed for that purpose, and the proceeds distributed. The sale must be conducted, reported, and confirmed in the same manner and under the same requirements provided in Article IV., Chapter VII., of this Title. Arizona. — Same. Rev. Stata., sec. 1260. Idaho. — Same. Rev. Stats., sec. 5638. Montana. — Same. Comp. Stats., p. 349, sec. 301. Nevada. — Same. Gen. Stats., sec. 2937. "When partition of real estate among heirs or devisees shall be required, and such real estate shall be in common and undivided with the real estate of any other person, the commissioners shall first divide and sever the estate of the deceased from the estate in which it lies in common, and such division so made and established by the probate court shall be binding upon all the per- sons interested. Upon application by petition of the heirs or creditors, or any of them, the probate court may authorize the executor or administrator to bring suit for such partition in the district court. Such suit may also be brought by the executor, when so authorized by the will.'' Gen. Stats., sec. 2938. Utah.. — Same as California. Comp. Laws, sec. 4273. Washington. — " When it cannot be otherwise fairly divided, the whole or any part of the estate, real or personal, may be recommended by the com- missioners to be sold; and if the report be confirmed, the court may order a sale by the executor or administrator, and distribute the proceeds." Code Proc, sec, 1104. "When partition of real estate among heirs or devisees shall be required, and such real estate shall be undivided and in common with the real estate of any other person, the commissioners shall first divide and sever the estate of the deceased from the estate with which it lies in common; and such division . EO made and established by the court shall be binding upon all the persons interested," Code Proc, sec. 1105. §§ 302, 303 PKOBATE LAW AND PRACTICE. 453* § 302. [1683.] Notice— Duties of Commissioners. Before any partition is made or any estate divided, as provided in this chapter, notice must be given to all persons interested in the partition, their guardians, agents, or attorneys, by the comrnissioners, of the time and place when and where they shall proceed to make partition. The commissioners may take testimony, order surveys, and take such other steps as may be necessary to enable them to form a judgment upon the matters before them. Arizona. — Same. Rev. Stats., sec. 1261. Idaho. — Same. Rev, Stats., sec. 5639. Montana. — Same. Comp. Stats., p. 350, sec. 302. Nevada. — Same. Gen, Stalls., sec. 2939. TTtah.. — Same. Comp. Laws, sec. 4274. Washington. — See Code Proc, sec. 1106, under § 295, ante. Wyoming. — Same as California; last sentence omitted. Laws 1890-91, p. 297, sec. 18. Notice: See §§ 317-321, post; Cal. Code Civ. Proc, sec. 1010. Form No. 218. — Notice to Appear before Commis- sioners in Partition. [Title of Court and Estate.] To (here insert the names of all parties interested in the estate, including the executor or administrator). You are hereby notified that the undersigned commissioners, heretofore appointed to make partition of the above-entitled estate, will meet at the ofiice of , No. 410 Capitol Avenue, Sadramento, California, at o'clock, — m., on the day of , A. D. 18 — , to make said partition, at which time you may produce any testimony relevant to such matter. Commissioners. Dated - — , 18—. § 303. [1684.] To Make Report — Partition to be Recorded., — The commissioners must report their proceed- ings, and the partition agreed upon by them, to the court, in writing, and the court may, for sufficient reasons, set aside the report and commit the same to the same commissioners, or ap- 459 PARTITION AND DISTRIBUTION. § 303 point others; and when such report is finally confirmed, a certi- fied copy of the judgment, or decree of partition made thereon, at- tested by the clerk under the seal of the court, must be recorded, lin the oflfice of the recorder of the county where the lands lie. Arizona. — Same. Rev. Stats., sec. 1262. Idaho. — Same. Rev. Stats., sec. 5640. Montana. — Same. Comp. Stats., p. 350, sec. 303. Nevada. — Same. Gen. Stats., sec. 2940. Utah. — Same. Comp. Laws, sec. 4275. Washington. — Same. Code Proo., sec. 1107. ■Wyoming. — Same, except that "judge " may also act. Laws 1890-91, p. 297, sec. 19. Form No. 319. — Report of Commissioners. [Title of Court and Estate.] To the honorable court of the county of , state of The undersigned, heretofore appointed by this court to make partition of the estate of , deceased, in pursuance of an order of distribution heretofore made and entered herein (a certified copy of which said order of distribution and order ap- pointing said commissioners was duly issued to us as our com- mission to act as such commissioners, and is annexed hereto), respectfully make the following report: ^- 1. That in pursuance of law, our oath of office as such com- missioners was indprsed upon our said commission, and was subscribed by each of us, and we each took said oath of office before an officer authorized to administer oaths and certify thereto, and said oath has been properly certified by said offi- cer, all of which will fully appear by reference to said commis- sion above referred to; 2. That they gave due and legal notice of the time when and place where they would make said partition of said property of said estate to all persons interested therein; 3. That in pursuance of said notice, and at the time and place mentioned therein, to wit, at , said commissioners met, all being present, and proceeded to hear the allegations and proofs of the said interested parties, and to make partition of the property of the estate of said , deceased, situated in the said county of , state of ; § 303 PEOBATi! LAW AND PEACTICBl. 460 4. That afte* hearing said proofs and allegations, and dfter viewing the said property, said commissioners find a partition thereof cannot be had without prejudice and inconvenience to the owners thereof; 5. That the true value of said property is as follows (here insert a list of property, correctly describing it, and state the value of each parcel separately); 6. That we recommend that the whole of said property be assigned to , one of said interested parties, who elects to take the same and pay the value thereof. > Commissioners. Dated , 18—. > Form No. 220. — Report of Commissioners. [Title of Court and Estate.} (Ppllow Form No. 219, ante, to subdivision 4, and then as follows:) 4. That after hearing said proofs and allegations, and after viewing the said property, said commissioners made partition thereof as follows: — They assigned to the following described property, to wit (here insert particular description); / They assigned to , etc. All of which is respectfully submitted. Commissioners. Dated , 18- (Or as follows:) 5. That after hearing as follows: — They assigned to William Jones the following described property, to wit (here insert particular description), together with the sum of one hundred dollars, to be paid by Hank Jones, to whom the next assignment is made; They assigned to Hank Jones the following described prop- erty, to wit (here insert particular description), provided, how- ever, that said Hank Jones pay to said William Jones, above named, the sum of one hundred dollars, in order to equalize 461 PARTITION AND DISTSIBUTION. §§ 304, 305 the difiference in value between the two pieces of property as- signed to each respectively; Etc. All of which is respectfully submitted. Commissioners. Dated , 18—. § 304. [1685.] When Commissioners not Neces- sary. — When the court makes a judgment or dec(ree assign- ing the residue of any estate to one or more persops entitled to the same, it is not necessary to appoint commissioners to make partition or distribution thereof, unless the pj^rties to whona the assignment is decreed, or some of them, request that such partition be made. Arizo^ia. —Same. Re". Stats., sec. 1263, Idahp. — ^anfie. Rer. States., sec. 56il. Montana. — Same. Comp. Stats., p. 350, sec. 304. ir«vada. — Same. (xen. Stats., sec. 2941. TTtali. — Same. Comp. Laws, sec. 4276. Washington. — Same. Code Proc, sec. 1108. Wyoming. —Same. Laws 1890-91, p. 297, sec. 20. § 305. [1686.] Advancements Made to Heirs. — All questions as to advancements made, or alleged to have been made, by the decedent to his heirs may be heard and deter- mined by the court, and must be specified in the decree assign- ing and distributing the estate; and the final judgment or decree of the court, or in case of appeal, of the supreme court, is binding on all parties interested in the estate. Arizona. — Same. Rev. Stats., sec. 1264. Zdah.0. — Same. Rev. Stats., sec. 5642. Montana. — Same. Comp. Stabs., p. 3S0, sec. 305. Nevada. — Same. Gen. Stats., sec. 2942. Utah. — Same, except that "district" is substituted for "supreme." Comp. Laws, sec. 4277. Washington. — Same as California. Code Proc, sec. 1109. Wyoming. — Same as California. Laws 1890-91, p. 298, sec. 21. § 306 PROBATE LAW AND PRACTICE. 462 ARTICLE IV. AGENTS rOK ABSENT INTERESTED PARTIES — DISCHARGE OP EXECUTOR OR AD- MINISTRATOR. § 306. Court may appoint agent for absentees. § 3p7. Agent to give bond, and his compensation. § 308. Unclaimed estate, how disposed of. § 309. When real and personal property to be sold. § 810. Liability of agent on his bond. § 311. Certificate to claimant. §312. Final settlement, decree, and discharge. § 313. Discovery of property. § 306. [1691. J Court may Appoint Agent for Ab- sentees. — When any estate is assigned or distributed by a judgment or decree of the court, as provided in this chapter, to any person residing out of and having no agent in this state, and it is necessary that some person should be authorized to take possession and charge of the same for the benefit of such absent person, the court may appoint an agent for that purpose, and authorize him to take charge of such estate as well as to act for such absent person in the distribution. Arizona. — Same. Rev. Stats., sec. 1270. Idaho. — Same. Rev. Stats., sec. 5643. Hon tans. — Same. Comp. Stats., p. 350, sec. 306. iTevada. — Same. Gen. Stats., sec. 2943. TTtah.. — Same. Comp. Laws, sec. 4278. Washington. — Same. Code Proc, sec. 1110. Wyoming. —Same. Laws 1890-91, p. 298, sec. 22. See Cal. Pol. Code, sec. 437, under § 485, post. Form No. 221. — Order Appointing Agent to Take Possession for Absent Distributees. [Title of Court and Estate.] Whereas a decree of distribution has been duly given, made, and entered herein, and by the terms thereof the following de- scribed property has been distributed to one , to wit, one bay gelding, one roan stallion, and the following described real estate, to wit (here insert description); and whereas said does not reside in this state, and does not have an agent therein authorized, to receive said property; and whereas it is necessary that an agent be appointed to take possession and charge, of 463 PARTITION AND DISTRIBUTION. § 307 said property for the benefit of said -- — , ajid it appearing that said property is of the value of about $ ; — It is therefore ordered that be and he is hereby appointed Buch agent, and he is hereby authorized to take possession and charge of said property and dispose of it according to law. Dated ^ , 18 — . , Judge of the Court. § 307. [1692.] " Agent to Give Bonds — Compensa- tion. — The agent must execute a bond to the state of Califor- nia, to be approved by the court, or a judge thereof, conditioned that he shall faithfully manage and account for the estate. The court appointing such agent may allow a reasonable sum out of the profits of the estate for his services and expenses. Arizona. — Same. Bey. Stats., sec. 1271. Idaho. — Same. Be v. Stats., sec. 5644. Slontana. — Same. Comp. Stats., p. 355, sec. 307. Nevada. — Same. Gen. Stats., sec. 2944. TJtall Same. Comp. Laws, sec. 4279. Washington. —Same. Code Proc, sec. 1111. Wyoming. —Same. Laws 1890-91, p. 298, sec. 23. Form No. 222. — Bond of Agent Appointed to Take Possession for Absent Distributees. [Title of Court and Estate.] Know all men by these presents, that we, as principal, and and as sureties, are held and firmly bound to the state of in the penal sum of dollars, lawful money of the Unitefi States, to be paid to the said state of , for which payment well and truly to be made we bind our- selves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Signed and sealed this day of , A. D. 18 — . The condition of the above obligation is such, that whereas by an order duly made and entered by the court of the county of , state of ^^ , the above-named principal was appointed agent to receive and take charge of the dis- tributive share of , one of the heirs at law of , de- ceased, and hold the same subject to her order and to dispose of the same according to law, — Now, therefore,' if the said principal shall well and faithfully § 308 PKOBATE LAW AND PEACTICE. 464 perform tbe duties of his said trust, then this obligation to be void and of no effect, otherwise to remain in full force aijd virtue. [seal] [sfal] [seal] (justification as in Fqrm No. 53, § 71, an^e.) § 3Q8. [1693.] IjQclalaied Estate, how Disposed of. — When persqnal property rems^ins ^^ the hands of the agent unclaimed for a year, a^d it appears to the court that it is for t^e benefit of those interested, it sh^U be sold under the order pf the court, and the proceeds, after deducting the ex- penses of the Sftle al|o\^ed by tjie court, inust be paid into the state treasury. When the payment ip made, the agent must take from the treasury duplicate receipts, one of which he must file in the oflice of the controller, and the other in the court. Arizona. —Same. 'Rev, Stats., sec. 1272. Idaho. — Same. Be v. Stats., sec. 6645. Kontana. — Same. Comp. Stats., p.' 351, sec. 308. 19'evada. — Same, except that "the estate" is substituted for "per- sonal property"; " territorial auditor " is substituted for "controller"; and the following is omitted: "And it appears to the court that it is for the benefit of those interested." Gen. Slidts., sec. 2915. Utah. — Same as Califorjiia, to the word "state"; then as follows: " County treasury of the county wherein administration is had. When the payment is made, the agent must take from the ti easurer duplicate receipts, one of which he must file in the office of the County clerk of such county." Comp. Laws, sec. 4280. Washington. — Same as California. Code Froc, sec. 1112. Wyoming. — Same as California. Laws 1890-91, p. 298, sec. 24. TJnclaimedProperty.— The court and claim it within a year. The cannot direct tbe portion of an estate money should be paid into the state allotted to a non-resident heir to be treasury: Pyatt v. Brockman, 6 Cal. distributed among the other heirs, if 418; and see also §§ 488-491, post, the non-resident heir fails to appear Form No. 223. —Petition for Sale of Personal Prop- erty in the Possession of Agent for Absent Dis- tributees. [Title of Court and Estate.] respectfully shows to the court that on the day of ■ , A. D. 18 — , by the order of this court duly made and entered, he was appointed agent for , and was authorized by such order to take possession and charge of certain personal 465 PARTITION AND' DISTRIBUTION. §308 property, to wit, one bay gelding and one roan stallion; that thereupon he immediately qualified as such agent and is now the duly qualified and acting agent of said for the pur- poses aforesaid; That said property has remained in the hands of petitioner as such agent for more than one year last past and has not been claimed; That said property is of such a character that it is a source of constant expense, and that the earnings of said property is much less than such expense; That said property is constantly deteriorating in value, and it is for the benefit of those interested that it should be sold; — Wherefore petitioner prays that said property be ordered sold in such manner as to the court may seem proper. , Attorney for Petitioner. , Petitioner. Form No. 224. — Order of Sale of Personal Prop- erty in the Possession of Agent for Absent Dis- tributees. [Title ot Court and Estate.] The petition of for an order of sale of the personal prop- erty remaining in his hands as agent for coming on for hearing this day, and it appearing to the satisfaction of the court that said property has remained in the hands of said petitioner for more than a year last past, and has not been claimed, and that it is for the benefit of those interested that it should be sold, — It is therefore ordered that said personal property, consisting of one bay gelding and one roan stallion, be, sold by said agent at public auction, after such notice and in such manner as is provided by law for the sale of personalty by executors and administrators. , Judge of the ■ Court. Dated , 18—. Form No. 225. — Beceipt of State Treasurer to Agent for Absent Distributees. [Title of Conrt and Estate.] Received of , the duly appointed, qualified, and acting agent of , one of the distributees of the estate of , de- 30 § 309 PEOBATE LAW AND PRACTICB. 466 ceased, the sum of $ , the same being her distributive share of said estate and the proceeds of the sale thereof heretofore made under the order of the superior court of the county of , state of . , State Treasurer. Dated , 18—. § 309. [1694.] When Real and Personal Property to be Sold. — The agent must render the court appointing him, annually, an account, showing: — 1. The value and character of the property received by him, what portion thereof is still oh hand, what sold, and for what; 2. The income derived therefrom; 3. The taxes and assessments imposed thereon, for what, and whether paid or unpaid; 4. Expenses incurred in the care, protection, and manage- ment thereof, and whether paid or unpaid. When filed, the court may examine witnesses and take proofs in regard to the account; and if satisfied from such accounts and proofs that it will be for the benefit and advantage of the persons in- terested therein, the court may, by order, direct a sale to be made of the whole or such parts of the real or personal prop- erty as shall . appear to be proper, and the purchase-money to be deposited in the state treasury. Arizona. — Same. Rev. Stats., sec. 1273, Idaho. — Same. - Bev. Stats., sec. 5646. Montana. ^ — Same. Comp. Stats., p. 351, sec. 309. Utah.. — Same, except that "county "is substituted for "state.'' x!omp. Laws, sec. 4281, Wyoming, — Same. Laws 1890-91, p, 298, sec, 25, Form No. SS6, — Account of Agent for Absent Distributees, [Title of Court and Estate.] (This account does not differ from an ordinary mercantile account, and for form of report and oath to accompany this account, see form of report and oath accompanying annual or final account of administrator,) 467 PARTITIOli AND DISTRIBUTION. § 310 rorm No. 227. — Order of Sale of Property upon the Settlement of Annual Account of Agent for Absent Distributees. [Title of Court and Estate.] : , the agent of , heretofore appointed by the order of the court herein, having filed his annual account and a report of his proceedings as such agent as provided by law, and the court having examined witnesses and taken proofs in regard to said account, and the court being satisfied from such account and proofs that it will be for "the best interest, benefit, and advantage of the persons interested that the whole of the property in the hands of such agent should be sold, — It is therefore ordered that said account be and the same is hereby allowed, confirmed, and approved, and it is further ordered that the whole of the property in the, hands of said , as such agent, be sold by him' at public auction, after such notice and in such marnner as is provided by law for the sale of real (personal) property by executors and administra- tors, and that said agent report his proceedings under this order to this court;' the property affected by this order is de- scribed as follows, to wit, one bay gelding and one roan stal- lion, and the following described real estate, to wit, lot No. 1, in the block between J and K and Twentieth and Twenty- first streets, in the city of , county of , state of ^. , Judge of the Court. Dated , 18—. Form No. 228. — Order Confirming Sale of Prop- erty by Agent for Absent Distributees. [Title of Court and Estate.] (For form of this order, see Forms Nob. 149, 150, which will apply, with slight changes in the recitals.) § 310. [1695.] Liability of Agent on his Bond. — The agent is liable on his bond for the care and preservation of the estate while in his hands, and for the payment of the proceeds of the sale as required in the preceding sections, and may be sued thereon by any person interested. § 311 PfiOBATE LAW AND PRACTICE. 468 Arizona. — Same. 'Rev. Stats., sec. 1274. Idaho. — Same. Rev. Stats., sec. 5647. Montana. — Same. Comp. Stats., p. 351, sec. 310. ITevada. — Same. Gen. Stats., sec. 2946. TTtali. — Same. Oomp. Laws, sec. 4282. Washington. — Satne. Code Proc, sec. 1113. Wyoming. — Same, 'with this added: " Or such suit may be ordered by the court." Laws 1890-91, p. 299, sec. 26. §311. [1696.] Certificate to Claimant. — When any person appears and claims the money paid into the treasury, the court making the distribution must inquire into such claim, and being first satisfied of his right thereto, must grant him a certificate to that effect, under its seal; and upon the presentation of the certificate to him, the controller must draw his warrant on the treasurer for the amount. Arizona. — Same. Kev. Stats,, sec. 1275. Idaho. — Same. Rer. Stats., sec. 5648. Montana. — Same. Comp. Stats., p. 351, sec. 311. Nevada. — Same, except that "territorial auditor" is substituted for "controller." Gen. Stats., sec. 2947. tJtah. — Same as California, except that " county clerk " is substituted fop "controller." Comp. Laws, sec. 4283. Washington. — "When any person shall appear and claim the money paid into the treasury, the court making the distribution, being first satisfied «f his right, shall order the payment of such money, and upon the presenta- "tion of a certified copy of the order to the county auditor, he shall draw his warrant on the county treasurer for the amount." Code Proc, sec. 1114. Wyoming. — Same as California, except that "auditor" is substituted for "controller," and this is added: "And the treasurer must pay the same." Laws 1890-91, p. 299, sec. 27. Form No. 229. — Petition of Claimant for Certificate that He is Entitled to Money Deposited in the State Treasury by Agent. [Title of Court and Estate.] The petition of respectfully shows: — That she is one of the heirs at, law of , deceased; that on the day of , A. D. 18 — , in the matter of said es- tate, this court made and entered its decree, distributing to petitioner certain property of said estate, to wit, one bay 'geld- ing, one roan stallion, and the following described real estate (here insert description); that at the date of said decreee, peti- 469 PARTITION AND DISTRIBUTION. § 312 tioner was not a resident of this state, but resided in the state of ; that in pursuance of law, this court appointed one an agent to take possession of said property for petitioner, and that such proceedings were had herein that on the day of , A. D. 18 — , said agent, acting under the order of this court, deposited the proceeds of a sale of said property in the state treasury of this state; that petitioner is the identical person mentioned as in said decree, and in all proceed- ings herein subsequent thereto, and is entitled to said proceeds , so deposited; — ^ Wherefore petitioner prays that a certificate be granted to him, showing that he is entitled to receive from the state treas- ury the proceeds of said property. , Petitioner. , Attorney for Petitioner. Form No. 230. — Certificate of Judge Entitling Claimant to Money in State Treasury. [Title of Court and Estate.] It appearing from the petition of , heretofore filed herein, that she is the identical person mentioned in the proceedings herein by the name of ; that said is one of the dis- tributees of the estate of , deceased, and that the funds representing her share of the said estate have been deposited in the treasury of this state by due and legal proceedings herein, and the court being fully satisfied of her right to such funds; — It is therefore ordered and certified that 'said is entitled to withdraw said funds, amounting to $ , from the state treasury of this state, and the is hereby authorized" and directed to draw his warrant therefor in favor of said . Dated , 18 — . , Judge of the Court. [seal] Attest: , Clerk. § 313. [1697.] Final Settlement, Decree, and Dis- charge. — When the estate has been fully administered, and it is shown by the executor or administrator, by the pro- duction of satisfactory vouchers, that he has paid all sums of money due from him, and delivered up, under the order of the court, all the property of the estate to the parties entitled. § 312 PROBATE LAW AND PEACTICE. 470 and performed all the acts lawfully required of bim, the court must make a judgment or decree, discharging him from all liability to be incurred thereafter. Arizona. — Same. Rev. Stats., sec. 1276. Idaho. — Same. Rev. Stats., sec. 5649. Montana. — Same. Comp. Stata., p. 351, sec. 312. Nevada. — Same. Gen. Stats., sec. 2948. Utah. — Same. Comp. Laws, see. 4284.- Washington. — Same. Code Proc, sec. 1115. Wyoming.— Same. Laws 1890-91, p. 294, sec. 81. The superior court sitting as a equivalent. Until the entry of a de- probate court has, independently of cree discharging him from his liabil- statute, full power to set aside and ity, he is not discharged from his annul a decree of final discharge of trust: McCrea v. HarasziJiy, 51 Cal. "the administrator of a decedent's es- 146; Dohs v. Do!is, 60 Cal. 255; Dean tate, where made and entered inad- Superior Court, 63 Cal. 473. vertently; and having jurisdiction to The settlement of the account do so, error, if committed, cannot be and the discharge of an administrator corrected on a writ of prohibition: is a bar to an action against him by W.iggin v. Superior Court, 68 Cal. 398. his successor for neglect to bring suit Kelief against decree of dis- for land-in possession of adverse claim- charge cannot be had on motion after ants, by reason of which the land was six months from its rendition; the lost to the estate: Reynolds v. Bruma- remedies left are by appeal and in gim, 54 Cal. 254; Ch-culy v. Porter, 53 equity: Dean v. Superior Court, 63 Cal. Cal. 680. 473. When an administrator has The allowance of a final ao- been discharged, he has no longer count is not a discharge of the exec- any authority to appear for or bind utor or administrator from his trust, the estate in any manner: Willis v. nor is it a decree of distribution or its Farley, 24 Cal. 490. Form No. 231. — Receipt on Distribution. [Title of Court and Estate.] Received of ^ administrator of the estate of , de- ceased, the sum of $ (and if any other property, insert description here), being in full of my distributive share of said estate. , Heir at Law (devisee or legatee) of , Deceased. Dated , 18—. Form No. S3S. — Petition for Final Discharge. [Title of Court and Estate.] Now comes , administrator (executor) of the estate of , deceased, and shows to this court: — ■ That he has paid all sums of money due from him, and has delivered up, under the order of this cpurt, all the property of 471 PAKTITION AND DISTRIBUTION. § 313 the said estate to the parties entitled thareto, and that he has performed all the acts required of him by law, that said estate has been fully administered, and that he has filed vouchers, as provided by law, in this court, — , Wherefore petitioner prays that he be discharged from the further administration of said estate. , Petitioner. , Attorney for Petitioner. Form No. 233. — Decree of Final Discharge. [Title of Court and Estate.] The petition of , the administrator of the estate of , deceased, coming on regularly for hearing, and it appearing that said estate has been fully administered, and that said ad* ministrator has paid all sums of money due from him, and has delivered up all property of said estate to the parties entitled .thereto, in pursuance of the orders and decrees of this court, and has filed herein satisfactory vouchers thereof, — It is ordered, adjudged, and decreed that said administrator be and he is hereby discharged from further administering said estate, and his sureties are released from any liability to be hereafter incurred. ' , Judge of the Court. Dated , 18—. §313. [1698.] Discovery of Property. — The final settlement of an estate, as in this chapter jri-pvided, shall not prevent a subsequent issue of letters testamentary or of admin- istration, or of administration with the will annexed, if other property of the estate be discovered, or if it become necessary or proper for any cause that letters should be again issued. Arizona. — Same. Rev. Stats., sec. 1277. Idaho. — Same. 'Rev. Stats., sec. 56-50. ISCoutaxia. — Same. Comp. Stata., p. 352, sec. 313. Nevada. — Same. Ged, Stats., sec. 2949. XTtah. — Same. Comp. Laws, sec. 4285. Washington. — Same. Code Proc, sec. 1116. Wyoming. — Same. Laws 1890-91, p. 294, sec. 9. / § 313 a PROBATB LAW AND PRACTICB. 472 ARTICLE V. 8ETTLBMEKT OT ACCOUNTS OF TRUSTEES AFTER DISTRIBUTION OF ESTATES AND THEIR COMPENSATION, ETC. § 313 a. Jurisdiction after distribntion, § 313 b. Compensation of trustees. § 313 c. Appeal — Decree, when conolnsive. §313 a. [1699.] Jurisdiction after Distribution. — Where any trust has been created by or under any will to continue after distribution, the superior court shall not lose jurisdiction of the estate by final distribution, but shall retain jurisdiction thereof for the purpose of the settlement of ac- counts under the trust. And any trustee created by any will, or appointed to execute any trust created by any will, may, from time to time, pending the execution of his trust, or may at. the termination thereof, render and pay for the settlement of his accounts as suph trustee, before the superior court in which the will was probated, and in the manner provided for the settlement of the accounts of executors and administrators. The trustee, or in the case of his death, his legal representatives^ shall for that purpose present to the court his petition setting forth his accounts in detail; and upon the filing thereof the court or judge shall fix a day for the hearing, and a citation shall be issued, citing all the beneficiaries of the said trust to appear and show cause why the account should not be allowed; such citation shall be personally served upon all the benefi- ciaries in the state, in the manner provided for the service of summons in civil actions, and shall be served upon all the beneficiaries, who shall appear by affidavit to be absent from the state, by publication in such manner as the court or judge may order, for not less than two months. And any such trus- tee may, in the discretion of the court, upon application of any beneficiary of the trust, be ordered to appear and render his account, after being cited by service of citation as provided for the service of summons in civil cases. Upon the filing of the account so ordered, the same proceedings for the hearing and settlement thereof shall be had as are hereinabove provided. Corporation may be Trustses: See § 76, ante. 473 PARTITION AND DISTRIBUTION. §§ 313 b, 313 C Where a testator provided in sented to tbe substitution of the son his will that his wife should manage as trustee, the order of substitution ia his estate as trustee, and that in case not void for want of notice to the of her death before certain grand- minor trustees, who were not benefi* children, named as trustees, shonld claries under the will, or interested in become of age, the management of the the management of the property dur- property should devolve upon hia son, ing the life of the widow: Moore v. named in the will, and the widow vol- Superior Court, 86 CaL 495. untarily renounces her trust, and con- §313b. [1700.] Compensation of Trustees. — On all such accountings the court shall allow the trustee or trus- tees the proper expenses and such compensation for services as the court may adjudge to he just and reasonable, and shall apportion such compensation among the trustees according to the services rendered by them respectively, and may, in its dis- cretion, fix a yearly compensation for the trustee or trustees, to continue as long as the court may judge proper. "Except as provided in section 1700 of the Code of Civil Procedure [§ 313 b, supra], when a declaration of , trust is silent upon the subject of compensation, the trustee is entitled to the same compensation as an executor. If it specifies the amount of his compensation, he is entitled to the amount thus specified and no more. If it directs that he shall be allowed a compensation, but does not specify the rate or amount, he is entitled to such compensation as may be reasonable under the circumstances." Cal. Civ. Code, sec, 2274. § 313 c. [1701.] Appeal — Decree, when Conclu- sive. — From a decree settling such account appeal maybe taken in the manner provided for an appeal from a decree settling the account of an executor or administrator. The decree of the superior court, if aflSrmed on appeal, or becoming - final without appeal, shall be conclusive. This act shall take efiect immediately, and shall apply to all estates of dece- dents, where a final decree of distribution has not heretofore been made. § 314 PEOBATE LAW AND PKACTICB. 474 CHAPTER XII. OF ORDERS, DECREES, PROCESS, MINUTES, RECORDS, TRIALS, APPEALS, AND PROCEEDINGS TO TERMINATE LIFE ESTATE. § 314. Orders and decrees to be entered in minutes. § 315. How publication'made. § 316. Recorded decree or order is notice from date of filing. § 317. Citation, how directed, and what to contain. § 318. Citation, bow issued. § 319. Citation, how served. § 320. Personal notice given by citation. § 321. Citation to be served five days before return. § 322. When description of realty need not be published. § 323. Rules of practice, generally. § 324. New trials and appeals. § 325. Within what time appeal must be taken. § 326. Issues joined, how tried and disposed of, § 327. Court to try case when — Issues for jury trial. § 328. Attorney for minor heirs, etc. — Compensation. § 329. Decree relative to homestead, and effect thereof. § 330, Costs, by whom paid in certain cases. § 331. Exeout.or, etc., removed for contempt. § 332. Process may be served on guardian. § 333. Life estate, proceedings to terminate. § 314. [1704.] Orders and Decrees to be Entered in Minutes. — Orders and decrees made by the -court, or a judge thereof, in probate proceedings, need not recite the ex- istence of facts, or the performance of acts, upon which the jurisdiction of the court or judge may depend, but it shall only be necessary that they contain the matters ordered or adjudged, except as otherwise provided in this title. All orders and de- crees of the court or judge must be entered at length in the minute-book of the court. Arizona. -7- Same, with the following added: " And upon the close of each terra the judge must sign the minutes." Rev. Stats., sec. 1278. Idaho. — Same as Arizona, except that the first sentence is omitted. Her. Stats., sec. 5655. Montana. — Same as Arizona. Comp. Stats., p. 353, sec. 314. Nevada. — Same as Idaho. Gen. Stats., sec. 2956. 475 ORDERS, DECREES, ETC. §315 Utah.. — Same as California. Comp. Laws, sec. 4286. Wyoming. —Same as California. Laws 1890-91, p. 301, sec. 1. On an appeal from an order re- fusing to change the record so as to show that a decree was in fact entered at a later date than appears from its face, where the affidavit of appellant's attorney and the clerk, as to the time of entering the decree, are directly in conflict, the conclusions of fact by the court below will not be disturbed: In re Fisher, 75 Cal. 523. There is no uniformity in the manner in which the different judges sign or attest orders and proceedings in the settlement of the estates of de- ceased persons. , Sometimes they use their simple signatures without any designation of their ofScial character, and sometimes they add the designa- tion "county judge," and sometimes "probate judge," and it has never been held or supposed that the validity of the orders Or proceedings was in any respect affected by the absence of . the officia designation from the signa- ture, or the presence of the designation " county judge " instead of ' ' probate judge": TmicJiardv. Crow, 200al. 158. Presumption does not arise in favor of the regularity of order of court, where it is made in a matter over which the court has no jurisdic- tion: Territory v. Mix, 1 Anjz. 52. Order reciting the existence of jurisdictional facts is not conclusive when the record afSrmatively shows that such facts do not exist, even though the judgments of the court have the same force and effect as courts of general jurisdiction: In re Ghnrlehois, 6 Mont. 373. Where an order is lost from the files, and is not recorded in the min- utes of the court, by reason of the carelessness of the clerk, an adminiS; trator who has paid out money under it is protected, and proof of such order may be made dehors the record: In re Millenooich, 5 Nev. 161. A probate court may correct its own errors, either as to matters of law or of fact, at any time before final settlement; provided, such corrections can be made from the record without opening the proof in the case: Lucich V. Medin, 3 Nev. 93. See also In re Milknovich, 5 Nev. 163. § 315. [1705.] How Publication Made. —When any -publication is ordered, such publication must be made daily, or otherwise, as often during the prescribed period as the paper is regularly issued, unless otherwise provided in this title. The court, or a judge thereof, may, however, order a less number of publications during the period. Arizona. — Same. Bev. Stats. , sec. 1279i "Whenever proof of notice shall be required by the provisions of this act, the certificate of the probate judge that such notice has been duly given shall be deemed sufScient proof." Rev. Stats., sec. 1295. Idaho. — Same as California. Bev. Stats., sec. 5656. Montana. — Same as California. Comp. Stats., p. 353, sec. 315. ITevada. — Same as California. Gen. Stats., sec. 2956. trtah. — Same as California, Comp. Laws, sec. 4287. Proof of Publication: See Cal. Code Civ. Proc, sees. 2010, 2011, This section applies where the be made: In re Cunningham, 73 Cal. publication is directed by statute to 55S. §§ 316, 317 PKOBATE LAW AND PRACTICE. 476 Form No. 234.— Affidavit of Publication. [Title of Court and Estate,] State of , County of ■ SB. , being first duly sworn, upon his oath says that he is the proprietor of the , a daily (or weekly) newspaper of general circulation printed and published in the county of , state of ; that a true copy of the attached printed matter (which is made a part of this affidavit), which is a , has been published in said paper dailj' (or on Wednesday of each week), commencing on the day of , 18 — , and to and including the day of , 18 — , in pursuance of the order of court herein. Subscribed and sworn to before me this day of , 18—. § 316. [1706.] Decree, etc., to be Recorded.— When it is provided in this title that any order or decree of the court, or a judge thereof, or a copy thereof, must be recorded in the office of the county recorder, from the time of filing the same for record, notice is imparted to all persons of the contents thereof. ' Arizona. — Same. Rev. Stats., sec. 1280. Idaho. — Same. Rev. Stats., sec. 5657. Montana. — Same. Comp. Stats., p. 353, sec. 316. Utah. — Same. Comp. Laws, sec. 42S8. Wyoming. — Same, except that "county clerk" is inserted in place of " county recorder." Laws 1890-91, p. 301, sec. 2. § 317. [1707.] Citation, how Directed, and What to Contain. — Citations must be directed to the person to be cited, signed by the clerk, and issued under the seal of the court, and must contain: — 1. The title of the proceeding; 2. A brief statement of the nature of the proceeding; 3. A direction that the person cited appear at a time and place specified. Arizona. — Same. Rev. Stats., sec. 1281. Idaho. — Same. Rev. Stats., sec. 5658. Montana. —Same. Comp. Stats., p. 353, sec. 317. 477 ORDERS, DECREES, ETC. § 318 ITevada.' — Same, except that the citation may be directed to the sheriff of the proper county, and must require him to cite the party to appear before the court or judge, as the case may be, at a time and place to be named in the citation; or the citation may be addressed directly to the person to be cited. Gen. Stats., sec. 2957. Utah. — Same as California. Comp. Laws, sec. 4289. Washington. — Same as Nevada, except that the provision relating to the citation being addressed directly to the person cited is omitted. Code Froc, sec. 848. Wyoming. — Same as California. Laws 1890-91, p. 301, sec. 3. An order of the probate court, sufficient to give the court jurisdiction adjudging the amount due by a guar- to bind the guardian by its order made dian upon an accounting instituted by upon a settlement of the account: the ward, is not binding upon the sure- Spencer v. Houghton, 63 Cal. 82. ties on the guardian's bond unless notice ITotice will be presumed to have of the proceedings was given to the guar- been properly given where order ad- dian, in conformity to sections 1707 mitting will to probate recites " that (supra) et seq. of the California Code notice has been given of the time ap- of Civil Procedure. The mere service pointed for proving said will and for on him of an order of the court direct- hearing said petition, and that cita- ing him to file an account is not suffi- tions have been duly issued and served, cient. Under section 1709 (§ 319, post) as required by the previbus order of of said code, the citation is to be served this court, and it appearing to this in the same manner as a summons in court that notice has been given ac- a civil action; therefore, if the guar- cording to law to all parties inter- dian has left the state, the citation ested," if there is an entire absence should be served on him by publica- of other record evidence: Moftre v. tion, and such service by publication ia Earl, 91 Cal. 635. Form No. 235. — Citation. [Title of Court and Estate.] The people of the state of to , , and , greet- ing. By order of this court, you, said , , and , are hereby cited to appear before the court (or before Hon. , judge of the court) of the county of , state of , at the court-house, on the day of , ,18 — , at o'clock, — M., of that day (state briefly the purpose for which the presence of the persons cited is required). In testimony whereof, I, ,, clerk of the '■ court afore- said, do hereunto set my hand and aflSx the seal of said court, at oflSce in the city of , this day of A. D. 18 — . [seal] , Clerk. By , Deputy Clerk. §318. [1708.] Citation, how Issued. — The citation may be issued by the clerk upon the application of any party, §§ 319, 320 PROBATE LAW AND PRACTICE. 478 without an order of the judge, except in cases in which such order is by the provisions of this title expressly required. Arizona. — Same. Bev. Stats., sec. 1282, Idaho. —Same. Rev. Stats., sec. 5659. Montana. — Same. Comp. Stats., p. 853, sec. 318, Nevada. — Same. Gen. Stats., sec. 2960. Utah. — Same. Comp. Laws, sec. 4290. Wyoming. — Same, except that after "judge,'' "or commissiouer '' is added.' Laws 1890-91, p. 302, sec. 4. See Spencer v. Houghton, 68 Cal. 82. §319. [1709.] Citation, how Served. — The citation must be served in the sailie manner as a summons in a civil action. Arizona. — Same. Eev. Stats., sec. 1283. Idaho. — Same. Rev. Stats., sec. 6660. Montana Same. Comp. Stats.,' p. 353, sec. 319. Nevada. — Same. Gen. Stats., sec. 2957. "The officer to whom the citation is directed shall serve it by delivering a copy to the person therein named, or to each of them if there be more than one, and shall return the original to the conrt, according' to its direction, in- dorsing thereon the time and manner of service. All proofs of publication, or other mode or modes of giving notice or serving papers, may be made by the affidavit of any person competent to be a witness, which affidavit shall be filed, and shall constitute pnma fade evidence of such publication or notice of ser- vice." Gen. Stats., sec. 2958. Utah. — Same as California. Comp. Laws, sec. 4291. Washington. — "The officer to whom the citation is directed shall serve it by delivering a copy to the person or persons named therein, and shall return the original to the court according to its direction, indorsing thereon the time and manner of service." Code Proc, sec. 849. Wyoming. — Same as California. Laws 1890-91, p. 302, sec, 5, Service : Cal. Code Civ. Proc, sec*. 410 et seq. Time of: See § 321, post, A citation is to be served in render his final account, unless sucAceta- the same manner as a summons, turn has been served upon him: Ashurst and therefore, in a proper case, may be v. Fountain, 67 Cal. 18. served by publication: Ashurst v. The affidavit or other paper on Fountain, 67 Cal. 18; Spencer v. Hough- which the citation was issued must Urn, 68 Cal. 82. be served with the citation, in order Sureties on administrator's un- to meet the requirements of this see- der taking are not liable for his fail- tion: See SmUiiern Pac. R. S. Go. v, ure, after citation issued therefor, to Superior Court, 59 Cal. 471. § 320. [1710.] Personal Notice Given by Cita- tion. — When personal nqtice is required, and no mode of giving it is prescribed in this title, it must be given by citation. 479 ORDEES, DECKEES, ETC. §§ 321-323 Arizona. — Same. Rev. Stats., sec. 1284, Idalio. — Same, Kev, Stats., sec, 5661. Montana. — Same, Comp, Stats., p. 353, sec. 320. Nevada. — Same. Gen. Stats,, sec, 2957. Utah. — Same, Comp, Laws, sec. 4292. Washington. — Same, Code !proe., sec, 848, Wyoming. —Same, Laws 1890-91, p. 302, sec, 6. § 321. [1711.] Time of Service. — When no other time is specially prescribed in this title, citations must be served at least five days before the return day thereof, Arizona. — Same. Rev. Stats., sec. 1285, Idaho. — Same, Rev. Stats., sec. 5662. Montana. — Same. Comp. Stats., p. 353, sec, 321, ITevada, — Same. Gen, Stats.-, sec. 2959. Utah. — Same, Comp, Laws, sec. 4293, Washington. — " In all cases in which citations are issued from the supe- rior court in probate proceedings, they shall be served at least ten days before the term [time] at which they are made returnable, except when issued from the court in cases where the law requires the judge to issue them upon his own motion, and he does so issue them,. and in such cases they shall be served in sufficient time to allow the person served to be in attendance on the court." Code Proc, sec. 850, 'Wyoming. — Same as California, Laws 1890-91, p, 302, sec, 7. § 323, [1712.] When Description of Realty need not be Published, — When a complete description of the real property of an estate sought to be sold has been given and published in a newspaper, as required in the order to show cause why the sale should not be made, such description need not be published in any subsequent notice of sale, or notice of a petition for the confirmation thereof. It is suflBcient to refer to the description contained in the publication of the first no- tice, as being proved and on file ill the court. Arizona. — Same, Rev, Stats,, sec, 1286, Idaho. — Same, Rev. Stats,, sec. 5663, Montana. —Same, Comp. Stats., p, 353, sec. 322. Utah. — Same, Comp. Laws, sec, 4294. Wyoming. — Same, Laws 1890-91, p, 302, sec, 8. §323, [1713.] Rules of Practice, Generally, — Ex- cept as otherwise provided in this titles, the provisions of Part II, of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title. §§ 324, 325 PROBATE LAW AND PKACTICB. 480 Arizona. — Same. Rev. Stats., sec. 12S7. Idaho. — Same. Rer. Stats., sec. 6664. Montana. — Same. Comp. Stats., p. 354, sec. 323. Nevada. — Same. Gen. Stats., sec. 2962, Utah.. — Same, Comp. Laws, sec. 4295. Wyoming. —Same. Laws 1890-91, p. 302, sec. 9. See In re Conmn, 61 Cal. 160; In re Crosby, 55 Cal. 574; Haffneger v. Bruce, 64 Cal. 416. For Part 11., see Cal. Code Civ. Proo., sees. 307-1059. Issues of Fact, how tried: See § 326, post, Hxceptions to an account are ment, provided, such corrections can aids to the court in scrutinizing it, but be made^ from the record without are not issues of fact to be submitted opening the proof in the case: Luckh to a jury: In re Sanderson, 74 Cal. v. Jferfm, 3 Nev. 93. SeelnreMilleno- 199. vich, 5 Nev. 163. A probate court may correct its An error in the names of the own errors in the settlement of estates, petitioners in a case in probate pend- either.in regard to matters of law or ing and undetermined may be cor- fact, at any time before final settle- rected: Luckh v. Medin, 3 Nev. 93. § 324. [1714.] New Trials and Appeals. — The pro- visions of Part II. of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title. Arizona. — Same. Rev. Stats., sec. 1287. Idaho. — Same. Rev. Stats., sec. 6665. Hontana. — Same. Comp. Sta::3., p. 354, sec. 324. Nevada. — Same. Gen. Stats., sees. 2966-2973. Utah. — Same, except that' the words "and appeals" are omitted. Comp. Laws, sec. 4296. "Either party may move for a new trial upon the same grounds and errors, and in like manner, as provided for civil actions tried by the district coart without a jury." Comp. Laws, sec. 4298. Wyoming. ; — Same as California. Laws 1890-91, p. 302, sec. 10. For Part II., see Cal. Code Civ. Proc, sees. 656-663, 936-971. Where the record on appeal that it will be presumed that the an- from an order refusing to appoint a disclosed evidence influenced the ac- guardian because of his unfitness failed tion of the lower court: In re WinkU' to contain all the evidence, it wad held man, 9 Nev. 303. § 325. [1715.] Appeal. — The appeal must be taken within sixty days after the order, decree, or judgment ia entered. Arizona. — " Except as otherwise provided in this title, the provisions of the code of procedure in civil cases are applicable to, and constitute the rules of practice in, the proceedings mentioned in this title." Rev. Stats., aeo. 1287. Idaho. — Same as California. Rev. Stats., sec. 5666. 481 ORDERS, DECREES, ETC. §§ 326, 327 Kontana. — Same as California. Coinp. Stats., p. R51, sec. 325. Nevada, — Same as California, except as to time, which is " tw«uty days." Gen. Stats., sec. 2967. See In re Burton, 64 Cal. 428; In re Borland, 64 Cal. 379; In re Barns, 54 Gal. 323; In re FUlier, 75 Cal. 523. An appeal from a decree of dis- limits the time to sixty days aft^r the tribution of an estate of a decedent entry of the decree, and will be dis- is governed by section 1715 of the Cal- missed if taken after the lapse of that ifoinia Code of Civil Procedure, which peiiod: In re Wiard, 83 Cal. 619. § 326. [1716.] Issues Joined, how Tried and Dis- posed of. — All issues of fact joined in probate proceedings must be tried in conformity with the requirements of Article II., Chapter II., of this title, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. Judgments therein, on the issue joined, as well as for costs, may be entered and enforced by execution or other- wise by the court as in civil actions. Arizona. — Same. Rev. Stats., sec. 1228, Idaho. — Same. Bev. Stats., sec. 5667. Montana. — Same. Comp. Stats., p. 354, sec. 326. lT«vada. — " All issues of fact shall be disposed of in the same manner as is by law provided upon the trial of issues of fact in the district court. All qnestions of costs may be determined by the probate court, and execution may issue therefor, in accordance with the order of the probate court." Gen. . Stats., sec. 2963. Utah. — Same as California. Comp. Laws, sec. 4297. For Article It., Chapter IL, see Cal. Code Civ. Proc, sec. 1312-1313. Burden of Proof: See § 15, ante. See § 323, ante. Sections 15 to 21, inclusive, ante, be cpnsidered as granting an absolute do not apply to proceedings for grant- right to a jury trial in oases of the set- ing letters of administration. There tlement of accounts of executors and the petitioner is plaintifif, and if an administrators, in view of the fact administrator has been already ap- that the language of the code in many pointed, he is the defendant: In re places implies that the settlement is Woolen, 56 Cal. 324. to be by the court: In re Moore, 72 The provisions in this and the Cal. 335. next section for trial by jury cannot § 827. [1717.] Court to Try Case when— How Is- sues Made for Jury. — If no jury is demanded, the court must try the issues joined. If, on written demand, a jury is called by either party, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice to the opposite party, must settle and frame the issues to be tried, 81 § 328 PROBATE LAW AND PKACTICE. 482 and submit the same, together with the evidence of each party, to the jury, o^i which they must render a verdict. Either .may move for a new trial upon the same grounds and errors, and in like manner, as provided in this code for civil actions. Arizona. — Same, except last sentence omitted. 'Rev, Stats. , sec. 1289. Idalio. — Same as California, Kev. Stats., sec. 5668. KContana. — Same as California. Comp. Stats., p. 355, sec. 327. Wyoming. — "If no jury is demanded, the court must try the issues joined. If, on written demand, a jury is called for by either party, one shall be had as in other civil cases, and if the issues are not sufficiently made," etc.; balance of section same as California. Laws 1890-91, p. 302, sec. 11. New Trials: See § 324, ante. The verdict being only advi- the instructions, cannot affect the sub- sory, if the court finds upon all the stantial rights of the parties: In re issues submitted, mere irregularity in Moore, 72 Cal. 335. the formation of the jury, or error in § 328. [1718.] Attorney' for Minor Heirs, etc.— Compensation. — At or before the hearing of petition's and contests for the probate of wills, for letters testamentary, or of adminisjtration; for sales of real estate, and confirmations thereof; settlements, partitions, and distribution of estates set- ting apart homesteads, and all other proceedings where all the parties interested in the estate are required to be notified thereof, — the court may, in its discretion, appoint some com- petent attorney at law to represent in all such proceedings the devisees, legatees, heirs, or creditors of the decedent who are minors and have no general guardian in the county, or who are non-residents of the state; and those interested who, though they are neither such minors or non-residents, are unrepre. sented. The order must specify the names of the parties, so far as known, for whom t-fee attorney is appointed, who is thereby authorized to represent such parties ;n all such pro- ceedings had subsequent to his appointment. The attorney may receive a fee, to be fixed by the court, for his services, which must be paid out of the funds of the estate as neces- sary -expenses of administration, and upon distribution may be charged to the party represented by the attorney. If, for any cause, it becomes necessary, the court may substitute another attorney for the one first appointed, in which case the fee must be proportionately divided. The non-appointment of an attor- ney will not affect the validity of any of the proceedings. 483 OKDEES, DECREES, ETC. § S28 Arizona. — Same. Rev. Stats., sec. 1290. Idaho. — Same. Rev. Stats., sec 5669. ; Hontaua. — Same. Comp. Stats., p. 355^ sec. 328. Nevada. — Upon an application for the sale of real estate, the court shall appoint some disinterested person as attorney for minors, and may £lso appoint such attorney for heirs, devisees, or creditors interested in the estate. Gen. Stats., sec. 2828. ' Some disinterested person shall be appointed by the court to represent any minor interested in the estate, upon the hearing th^ account of an administra- tor or executor, who shall be allowed by the court, for his services, a reasonable compensation. The court shall also, if it deems it necessary, appoint ai attor- ney to represent the absent heir and devisees. Gen. Stats., sec. 2904. In proceedings for partition, some discreet person shall be appointed by the court to act as agent for such parties as reside out of the territory, or an attorney for all absent heirs and persons interested. Gen. Stats., sec. 2939. "When, upon any proceeding in an estate, an attorney has been appointed . for minors and absent persona in interest in the estate, such attorney shall represent such parties in any subsequent proceeding had, unless on such sub- sequent proceedings another person be appointed, and provided such attorney be present in court in such subsequent proceedings. When any such attorney has been appointed a reasonable compensation may be allowed out of the estate to such attorney .... for the services he may have' rendered.' Gen. Stats., sec. 2964. Utah.. — Same as California. Comp. Laws, sec. 4299, Washington. — "If any of the devisees or heirs of the deceased are minors, and have a general guardian'in the county, the copy of the order shall be served on the guardian. If they have no such guardian, the- court shall, before proceeding to act on the petition, appoint some disinterested person their guardian, for the sole purpose of appearing for them, and taking care of their interests in the proceedings." Code Proc, sec. 1009. " If there be any minor interested in the estate who has no legally appointed guardian, the court shall appoint some disinterested person to represent him, who, on behalf of the minor, may contest the account as any other person interested might|Contest it, and who shall be allowed by the court a reasonable compensation for his services." Code Proc, sec. 1071. Wyoming. — Same as California, except that "or commissioner" is iu- sertedafter " court, '' each time it occurs. Laws 1890-91, pp. 302, 303, sec. 12. Partition of Estate, Guardians in: See § 295, ante. Xhe appointment of an attor- is not unfounded. An allowance of ney for absent heirs in the contest of fifty dollars for representing an heir a will, and the allowance to him of a in proceedings to sell real estate is fee, to be paid by the estate, are not excessive: In re Simmons, 43 Cal. matters entirely within the discretion 547. of the probate court; and if such Attorney appointed by court allowance be improvident or indis- in probate proceedings cannot bind erect, the court may vacate it, at the minors: In re Devoe, Myr. Prob. 6; suggestion of any one, or upon its own In re Qameto, Myr. Prob. 75. motion: In re Rety, 75 Cal. 256. A court cannot appoint an Counsel fees being authorized by attorney to represent minor heirs this section, an order allowing them who reside in the county, and an order §§ 329, 330 PROBATE LAW AND PEACTICE. 484 making auoh an appointment under If the record ahowB that an such ciccumstances is void. Any attorney was appointed to represent appearance made by such attorney a jninor heir on proceedings set on thus appointed is a nullity, and does foot by the administrator to sell lands not give the court jurisdiction in the to pay debts, it will not be presunied matter: Randoliih v, Bayue, 44 Cal. a guardian ad litem was appointed: 366. Townsend v. Tallant, 33 Cal. 45. Form No. S36. — Order Appointing Attorney. [Title of Court and Estate.] A document purporting to be the last will and testamrent of -, deceased, having been filed in this courts together with a petition for the probate thereof, and it appearing that and are minors who are interested in said estate,— It is ordered that , Esq., be and he is hereby appointed as an attorney to represent said minors, and , in all proceedings had herein. , Judge of the Court. Dated , 18—. §829. [1719.] Decrees to be Recorded. — When a judgment or decree is made setting apart a homestead, con- firming a sale, making distribution of real property, or deter- mining any other matter aflPecting the title to real property, a certified copy of the same must be recorded in the ofiice of the recorder of the county iu which the property is situated. Arizona. — Same. ^ev. Stats., sec. 1291. Idaho. —Same. Rev. Stats., sec. 5670. Montana. — Same. Comp. Stata., p. 335, sec. 329. Nevada. — Same. Gen. Stats., sec. 2965. Utah. — Same. Comp. Laws, sec. 4300. § 330. [1720.] Costs. — When it is not otherwise pre- scribed in this title, the superior court, or the supreme court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. Execution for the costs may issue out of the superior court. Arizona. — Same. Rev. Stats., sec. 1292. Idaho. — Same. Rev. Statsi, sec. 5671. Montana. — Same. Comp. Stats., p. 356, sec. 330. iTevada. — Same. Gen. Stats., sec. 2978. Oregon. — Same; last sentence omitted. < Hill's Laws, sec. 1081. XJtah. — Same as California, except that these words are interpolated after 485 ORDERS, DECREES, ETC. §§ 331, 332 the word "this," "act, the probate court, or the district conrt on appeal, or the supreme court on an appeal from the district court," in lieu of the words "title, the superior court, or the supreme court on appeal." Comp. Laws, sec. 4301. Wyoming. — Same as California, except that "superior" is changed to " district," and after " court," the first time it occurs, the words "or judge " are added. Laws 1890-91, p. 303, sec. 13. Costs: See In re Mulling, 47 Cal. 4S0. Where, in a contest of the ac- the property of the deceased, and counts of au executor, the court below therefore the necessary expenses of deducted a considerable sum, and then administration are first to be paid, but allowed the balance of the accounts, this does not include the costs and held, that the contestants were enti- expenses of defending an action where tied to tlieir costs: In re MiUenovich, 5 the claim was prima facie just and Nev. 161. ought to have been allowed: United The priority of the United States Slates v. Eggleston, 4 Saw. 199. only extends to the net proceeds of § 331. [1721.] Letters Revoked for Contempt.— Whenever an executor, administrator, or guardian is committed for contempt in disobeying any lawful order of the court, or a judge thereof, and has remained in custody for thirty days without obeying such order, or purging himself otherwise of the contempt, the court may, by order reciting the facts, and with- out further showing or notice, revoke his letters and appoint some other person entitled thereto executor, administrator, or guardian in his stead. Arizona. — Same. Bev. Stats., sec. 1293. Idaho. — Same. Rev. Stats., sec. 5672. Montana. — Same. Comp. Stats., p. 356, sec. 331. Utah. — Same. Comp. Laws, sec. 4302. Fi^ilure to pay to distributee his contempt of court: In re Taylor, Myr. share of estate after order entered is Prob. 160; In re Smith, 53 Cal. 204. § 333. [1722.] Service of Process on Guardian.— Whenever an infant, insane or incompetent person, has a guar- dian of his estate residing in this state, personal service upon the guardian of any process, notice, or order of the court con- cerning the estate of a deceased person, in which the ward ii interested, is equivalent to service upon the ward, and it is the duty of the guardian to attend to the interests of the ward in .the matter. Such guardian may also appear for his ward and waive any process, notice, or order to show cause which an adult or a person of sound mind might do. § 333 PROBATE LAW AND PRACTICE. 486 Arizona. — Same. Rev. Stats., sec. 1294, Idaho. — Same. Rev. Stats., sec. 5673. Montatia. — Same. Comp. Stats, p. 356, see. 332. Utah.. — Same. Comp. Laws, sec. 4303. Wyomingr. — Same. Laws 1890-91, p. 303, sec. 14. § 333. [1723.] Life Estate, Proceedings to Termi- nate. — If any person has died, or shall hereafter die, who at the time of his death was the owner of a life estate which ter- minates by reason of the death of such person, any person in- terested in the property, or in the title thereto, in which such life estate was held, may file in the superior court of the county in which the property is situated his verified petition, setting forth such facts, and thereupon, and after such notice, by pub- lication or otherwise, as the court may order, the court shall hear such petition and the evidence offered in support thereof, and if, upon such hearing, it shall appear that such life estate of such deceased person absolutely terminated by reason ofhis death, the court shall make a decree to that efifect, and there- upon a certified copy, of such decree maybe recorded in the oflSce of the county recorder, and thereafter shall have the same effect as a final decree of distribution so recorded. Idaho. — Same. Rev. Stats., sec. 5674. Utah. — '■ Same. Comp. Laws, sec. 4304. ■Wyoming. — Same, except that "superior"' is omitted, and "county re- corder" is changed to "county clerk." Laws 1890-91, pp. 303, 304, sec 15. Form No. 237. — Petition for Decree Showing that liife Estate has Terminated. [Title of Court.] , In the matter of the life estate of . The petition of respectfully shows: — That he is the owner of the reversionary interest in the fol- lowing described real property, to wit (here insert description); that , on the day of , A. D. 18 — , became the owner of an estate therein during his own life; that said died on or about the day of , A. D. 18 — , and his life estate in said premises has absolutely terminated, and petitioner has become entitled to the possession of said premises; — Wherefore petitioner prays that a decree of this court be ■ made, showing that said is now deceased, that his life es- 487' ORDERS, DECREES, ETC. § 333 tate in said premises has terminated, and that petitioner is the owner of said premises and entitled to the possession of the same. , Petitioner. , Attorney for Petitioner. (Verification as in Form No. 55, § 80, ante.) Form No. 237. — Decree Showing that Life Estate has Terminated. [Title of Court.] In the matter of the life estate of . The petition of coming on regularly to be heard this day, and the court having heard said petition and the evidence offered in support, thereof, and it appearing that had a life estate in the property hereinafter described; that he is now dead; that his said estate has absolutely terminated, and that said petitioner is the owner of said real property, and entitled to the possession thereof; — It is therefore ordered, adjudged, and decrefed that the life estate of has absolutely terminated in the following de- scribed real property, to wit (here insert description); that such termination of said estate has been caused by the death of said , who departed this life on the day of , A. D. 18 — . , Judge of the Court. Dated — -, 18—. 334 PROBATE LAW AND PRACTICE. 488 CHAPTER XIII. MISCELLANEOUS PROVISIONS. Abticle I. Ov Public Administbatok. II. Miscellaneous Pbovisions. III. Of Communiiy and Separate Fbofebi7. ARTICLE L OF PUBLIC ADMINISTRATOR. $ 334. Duty of public administrator. § 335. To obtain letters, when and bow — His bond and oath. § 336. Duty of persons in whose house any stranger dies. § 337. Must administer estates according to this title. § 338. When he must deliver up estate. § 339. Civil officers to give notice of waste to. § 340. Suits for property of decedents. § 341. Order to examine party embezzling estate. § 342. Punishment for refusing to attend. § 343. Order on public administrator to account. § 344. To make and publish return of condition of estate when. § 345. Disposition of funds: § 346. Not to be interested in the payments, etc. § 347. To settle with county clerk — Unclaimed estate. § 348. Proceedings upon failure to pay over money. § 349. Fees of officers, when and by whom paid, § 350. Public administrator to administer oaths. § 351. Chapters applicable to public administrator. §334. [1726.] Duty of Public Administrator.— Every public administrator, duly elected, commissioned, and qualified, must take charge of the estates of persons dying within his county, as follows: ^ 1. Of the estate of decedents for which no administrators are appointed, and which, in consequence thereof, are being wasted, uncared for, or lost; 2. Of the estate of decedents who have no known heirs; 3. Of the estates ordered into his hands by the court; and 4. Of the estates upon which letters of administration have been issued to him by the court. / 489 MISCELLANEOUS PROVISIONS. § 335 Arizona. — "Every person holding the ofiSce of adihiuistrator who will- fully refnses or neglects to perforin the duties thereof, or who violates any provisions of law relating to his duties, or the duties of his office, for which some other punishment is not prescribed, is punishflble by tine not exceeding five thousand dollars, or imprisonment in the territorial prison not exceeding two years, or both." Pen. Code, see. 228. Idaho. — Same as California. Rev. Stats., sec. 5681. " The county treasurers of the various counties of this territory are hereby declared to be ex offieio public administrators in their respective counties." Rev. Stats., sec. 5680. Montana. — Same as California. Comp. Stats., p. 357, sec. 333. ITevada. — " The public administrator pf each county shall have the right* and it is hereby made his duty, to administer, according to laW, upon the estate of any person who died intestate in, or was at the time of his or her death a resident of, the ooanty, or had assets thereiny not administered on in some other county, or of a deceased stranger, or of, t> deceased testate when no executor is appointed, or if appointed fails to qualify, unless administered upon within one month after the death of the testate, or within the time pro- vided by law for an intestate, or by a relative by blood or marri5tge within the fourth degree of consanguinity or legal relation." Gen. Stats., sec. 2223, S ^Wyoming. — Duty of County Attorney upon Learning of tlie Death of a Person — Duty of Clerk when Petition Filed. — "Upon information being received by the county attorney of any county from an officer or citizen of such county, that a person has died within such county, leaving an estate estimated to be of the valae of five hundred dollars or less, it shall be the duty of such attorney to cause a full and complete inventory of such estate to be made, following as near as may be the provisions of this act in so doing, and file the same, with a petition setting forth all the facts of the case, in the district court of such county, and the property belonging to such deceased person shall also be surrendered to the clerk of such court, who shall have the same power to receive and receipt for debts due such deceased per- sons as are given executors and administrators by this act, and the same power to account and dispose of such estate in the interests thereof; and the court or judge' shall review the proceedings thus had and provide for the further or final disposition thereof to the heirs as provided by law, and upon such terms and under such conditions eis shall seem to the best advantage of the estate and heirs thereof." Laws 1890-91, p. 304, sec. 16. * Sections Made Applicable: See § 352, post; Beckett v.Selover, 7 Cal. 215. Pees: See § 252, ante. § 335. [1727.] To Obtain Letters, when and how — His Bond and Oath. — Whenever a public administrator takes charge of an estate, which he is entitled to administer without letters of administration being issued, or under order of the court, he must, with all convenient dispatch, procure letters of administration thereon, in like manner and on like § 336 PROBATE LAW AND PRACTICK. 490 proceedings as letters of administration are issued to other persons. His ofEcial bond and oath are in lieu of the admin- istrator's bond and oath; but when real estate is ordered to be sold, another bond may be required' by the court. Idab.0. — Same, except tljat the following is added: "No notice of appli- cation for letters by a public administrator is necessary." Rev. Stats., sec. 5682. DIontaiia. — Same as California. Comp. Stats., p. 357, sec. 331. Nevada. — "Public administrators are authorized to administer on the estate of any deceased person in any case where by law he is entitled to administer by virtue of his office, and shall be required to make formal appli. cation for letters of administration as in the case of administrators, but he shall not be required to file or have approved any bond, except as such public administrator, in any case; provided, that the bond of any public administrator may be increased as provided in this or other acts." Gen. Stats., sec. 2233. Bond on Sale of Beal Estate: See § 72, ante. Sections Made Applicable: See § 351, post. . An order appointing the public his office a right to administer upon administrator to administer upon an estate, but must be appointed aa an estate failed to mention his official such administrator by the court: Bed- capacity, as also did his letters of ad- ett v. Selover, 7 Cal. 215; in re Hamilton, ministration. The petition for letters 34 Cal. 464; Sogers v. Hoherlein, 11 was made in his official capacity; it Cal. 128; In re Aveline, 53 Cal. 260. was held; in an action on his official The public ' administrator may bond, that the letters were issued to receive letters of administration not- him in his official character, and that withstaudihg the deceased expressed his sureties were liable for money of a wish to have another person settle the estate wrongfully appropriated by his estate: Tn re Morgan, 53 Cal. 243. him: Mitchell v. Hecker, 59 Cal. 558. In a contest between the public As the public administrator administrator and a creditor, if other gives an official bond and takes an creditors request his appointment, the oath of office, it seems to have been court has the discretion to do so: In the intention of the legislature to dis- re Doak, 46 Cal. 573. pease with the oath and bond required Grant of administration suffi- of other administrators: Beckett v. Sel- Cient, even though no letters have oicer, 7 Cal. 215. been issued thereunder to the public ad- He does not acquire by virtue of ministrator: Abel v. Love, 17 Cal. 233. § 336. [1728.] Duty of Persons in whose House Any Stranger Dies. — Whenever a stranger, or person with- out known heirs, dies intestate in the house or premises of an- other, the possessor of such premises, or any one knowing the facts, must give immediate notice thereof to the public admin, istrator of the county; and in default of so doing, he is liable for any damage that may be sustained thereby, to be recov- ered by the public ad ministrator, or any party interested* Idaho. — Same. Rev. Stats., see. 5683. Montana. — Same. Comp. Stats., p.' 337, sec. 335, \ 49J MISCELLANEOUS PROVISIONS. §§ 337-339 § 337. [1729.] Must Administer Estates Accord- ing to This Title. — The public administrator must make and return a perfect inventory of all estates taken, into his possession, administer and account for the same, according to the provisions of this title, subject to the control and directions of the court. Idaho. — Same. Rev. Stats., sec. 5684. Hontaua. — Same. Comp. Stats., p. 358, sec. 336. See Beckett v. Selover, 7 Cal. 215. Sections Made Applicable: See § 352,, post. The public administrator is lia- iaters, unless that ide^ is excluded by ble personally upon a, contract made the contract itself: JJwirielle v. lUnri- in relation to estates which he admin- qtiez, 1 Cal. 387. § 338. [1730.] When He must Deliver up Estate. — If, at any time, letters testamentary or of administration are regularly granted to any other person on an estate of which the public administrator has charge, he must, under the order of the court, account for, pay, and deliver to the executor or ad- ministrator thus appointed all the money, property, papers, and estate of every kiiid in his possession or under his control. Idaho. — Same. Kev. Stats., sec. 5685. Montana. — Same. Comp. Stats,, p. 358, sec. 337. See Beckett v. Selaver, 7 Cal. SI'S. Sections Made Applicable: See § 351, post. § 339. [1731.] Civil Officers to Give Notice of Waste to Him. — All civil officers must inform the public administrator of all property known to them, belonging to a decedent, which is liable to loss, ifijury, or waste, and which, by reason thereof, ought to be in possession of the public ad- ministrator. Idaho. — Same. Rev. Stats., sec. 5686. Montana. — Same. Comp. Stats., p. 358, sec. 338. Nevada. — "It shall be the duty of all persons, especially of all civil oflB- oers, to give all information in their possession to public administrators respect- ing estates and the property and condition thereof, upon which no other person has then administered. Public administrators may, and it is hereby made their official duty, to institute, maintain, and prosecute all necessary actions at law and in equity for the recovery and for the protection of the property, debts, papers, or other estate of any deceased person upon whose estate they may be administering." Gen. Stats., seo^, 2228, §§ 340-343 PROBATE LAW AND PRACTICE. 492 § 340. [1732.] Suits for Property of Decedents. — The public administrator must institute all suits and prosecu- tions necessary to recover the property, debts, papers, or other estate of the decedent. Idaho. — Sa.me., R^r. Stats., sec. 5687. Montana. — Same. Comp. Statp., p. 358, sec. 339. Nevada. — See Gen. Stats., sec. 2228, under last section. Sections Made Applicable: See § 487, post. §341. [1733.] Order to Examine Party Embezzling Estate. — When the public administrator complains to the superior court, or a judge thereof, on oath, that any person has concealed, embezzled, or disposed of, or has in bis possession, any money, goods, property, or efifects, to the possession of which such administrator is entitled in his oflScial capacity, the court or judge may cite such person to appear before the court, and may examine him on oath touching the matter of such complaint. Idaho. — Same. Rev. Stata., sec. 5688. Montana. — Same. Comp. Stats., p. 358, sec. 340. Citation: See §§ 317-321, anU. § 342. [1734.] Punishment for Refusing to At- tend. — All such interrogatories and answers must be reduced to writing and signed by the party examined, and filed in the court. If the person so cited refuses to appear and submit to such examination, or to answer such interrogatories as may be put to him touching the matter of such complaint, the court may commit him to the cQunty jail, there to remain in close custody until he submits to the order of the court. Idaho. — Same. Rev. Stats., sec. 5689. Montana. — Same. Comp. Stats., p. 358, sec. 341. § 343. [173.5.] Public Administrator to Account. — The court may at any time order the public administrator to account for and deliver all the money and property of an estate in his hands to the heirs, or to the executors or administrators regularly appointed. • Idaho. — Same. Rev. Stats., sec. 5090. Montana. — Same. Comp. Stats., p. 358, sec. 342. 493 MISCELLANEOUS PROVISIONS. §§ 344, 345 Xh« public addiinistrator con- aside or indirectly revoked by another tinues as administrator of an estate appointment: Sogers v. Hoberkin, fl after the expiration of his term of office Cal. 120. ^aid case is cited and ex- and until his authority is directly set pkiaed in Abel v. Love, 17 Cal. 234. § 344. [1736.] When to Make and Publish Re- turn of Condition of Estate. — The public administrator must, once in every six months, make to the superior court, under oath, a return of all estates of decedents which have come into his hands, the value of the same, the money which has come into his hands from such estate, and what he has done with it, and the amount of his fees and expenses incurred, and the balance, if any, remaining in his hands; publish the same six times in some newspaper published in the county, or if there is none, then post the same, legibly written or printed, in thfe ofl5ce of the county clerk of the county. Idaho. — Same, except provision as to publication and posting omitted. Rev. Stats., sec. 5691. Kontana. — Same. Comp. Stats., p. 358, sec. 343. Nevada. — "Each public administrator shall, on the first Monday in Jan- nary and July in each year, and at the termination of his official duties, make a verified written report to the district judge having jurisdiction in the prem- ises, of all estates of deceased persons which have officially passed into his hands, the value of the same, the expenses, if any, paid thereon, and the bal- ance of property, effects, or money, if any, remaining in his hands; and the jndge to whom such report is made shall cause it to be made public by publi- cation or posting, as he may deem just and right." Gen. Stats., sec. 2224. Publication: See § 315, ante. Sections Made Applicable: See S 351, post. § 345. [1737.] Disposition of Funds. —It is the duty of every public administrator, as soon as he shall receive the same, to deposit with the county treasurer of the county in which the probate proceedings are "pending all moneys of the estate not required for the current expenses of the administra- tion; and such moneys may be drawn upon the order of the executor or administrator, countersigned by a superior judge, when required for the purposes of administration. It shall be the duty of the county treasurer to receive and safely keep all such moneys, and pay them out upon the order of the executor or administrator, when countersigned by a superior judge, and not otherwise, and to keep an account with such estate of all moneys received and paid to him; and the county treasurer § 346 PROBATE LAW AND PRACTICE. 494 shall be allowed one per cent upon all moneys received and kept by him, and no greater fees for any services herein pro- vided; and for the safe-keeping and payment of all such moneys, as herein provided, the said treasurer and his sureties shall be responsible upon his official bond. The moneys thus deposited may, upon order of the court,«be invested, pending the proceed- ings, in securities of the United States, or of this state, when such investment is deemed by the court to be for the best in- terests of the estate. After a final settlement of the afifairs of any estate, if there be no heirs, or other claimants thereof, the county treasurer shall pay into the state treasury all moneys and effects in his hands belonging to the estate, upon order of the court; and if any such moneys and effects escheat to the state, they must be disposed of as other escheated estates. Idaho. — " After a final settlement of the affairs of any estate, if there be no heirs or other claimants thereof, the public administrator must pay into the territorial treasury all moneys and effects in his hands belonging to the estate, as provided in chapter 11 of this title for payments by agents," Key. Stats., sec. 5692. SEontaria. — Same as California, Comp. Stats., p. 359, sec. 344, Nevada. — "Each exeputor, administrator, and public administrator, on final settlement of an estate and proper order of the court having jurisdiction in the matter thereof, or before final settlement, upon the regular order of the court aforesMd, shall pay over all moneys of such estate to the lawful heirs, or legatees or devisees thereof, and if there be none of either, then to the county treasurer, and the county treasurer shall pay the same to the state treasurer, and if the same escheat to the state, the state treasurer shall place the same in the fund devoted and pledged to educational purposes." Gen. Stats., sec. 2225. See In re Walsh, Myr. Prob. 251. Sections Hade Applicable: See § 351, post. Public administrator may deposit moneys with certain corporation: See § 76, emte. § 346. [1738.] Not to be Interested in Pay- ments, etc. — The public administrator must not be interested in the expenditures of any kind made on account of any estate he administers; nor must he be associated, in business or other- wise, with any one who is so interested, and he must attach to his report and publication, made in accordance with the pre- ceding section, his affidavit to that effect. Idah.0. — Same, except last clause, omitted. Rev. Stats., sec. 5693. KContaua. — Same as California. Comp. Stats., p. 359, sec. 345. 495 MISCELLANEOUS PKOVISIONS. §§ 347-350 ITevada. — Same as California, except that he must so state in his semi- annual reports in lieu of the affidavit. Gen. tStats., sec. 2226. Sections Kade Applicable: See § 351, post. § 347. [1739.] To Settle with County Clerk— Un- claimed Estate. — Public administrators are required to account under oath, and to settle and adjust their accounts, relating to the care and disbursement of money or property belonging to estates in their hands, with the county clerks of their respective counties, on the first Monday in each month; and they must pay to the county treasurer any money remain- ing in their hands of an estate unclaimed, as provided in sec- tions sixteen hundred and ninety-three to sixteen hundred and ninety-six, both inclusive. Montana. — Same. Comp. Stats., p. 359, sec. 346. Sections BCade Applicable: See § 351, jiost. § 348. [1740.] Proceedings upon Failure to Pay over Money. — When it appears, from the returns made in pursuance of the foregoing sections, that aiiy money remains in the hands of the public administrator (after a final settle- ment of the estate), unclaimed, which should be paid over to the county treasurer, the superior court, or a judge thereof, must order the same to be paid over to the county, treasurer; and on failure of the public administrator to comply with the order within ten days after the same is made, the district attorney for the county must immediately institute the requisite pro- ceedings against the public administrator for a judgmlent against him and the sureties on his official bond, in the amount of money so withheld, and costs. Idabo. — Same, except that "territorial treasurer" is substituted for "county treasurer." Rev. Stats., sec. 5694. Montana. — Same. Comp. Stats., p. 360, sec. 347. Sections Hade Applicable: See § 351, post. § 349. [1741.] Fees to be Paid.— The fees of all offi- cers chargeable to' estates in the hands of public administra- tors must be paid out of the assets thereof, so soon as the same come into his hands. Montana. — Same. Comp. Laws, p. 360, sec. 348. § 350. [1742.] Public Administrator to Admin- ister Oaths. — Public administrators may administer oaths §§ 351-353 PKOBATB LAW AND PRACTICE. 496 in regard to all matters toncliing the discharge of their duties, or the administration of estates in their hands. Hontana. — Same. Comp. Stats., p. 360, sec. 349. § 351. [1743.] Chapters Applicable to Public Ad- ministrator. — When no direction is given in this chapter for the government or guidance of a public administrator in the dis- charge of his duties, or for the administration of an estate in his hands, the provisions of the preceding chapters of this title must govern. Idaho. — Same. Kev. Stats. , sec. 5695. Uontana. — Same. Comp. Stats., p. 360, sec. 3S0. Nevada. — Same. Gen. Stats., sec. 2229. ARTICLE II. UISCELLANE0(7S FBOVISIONS. § 352. " Will " includes codicil. § 353. Minors, ivho are. f 354. Powers of persons whose incapacity has beenjidjndged. g 355. Children of annulled marriage. § 352. [14.] Will Includes Codicil.— The word "will" includes codicils. Arizona. — Same. Bev. Stats., sec. 2932, Idaho. — Same. Rev. Stats., sec. 16. Nevada. — Same. Gen. Stats., sec. 3020, Oregon. — Same. Hill's Laws, sec. 3096. tJtah. — Same. Comp. Laws, sec. 2997. Washington. — Same. Gen. Stats., sec. 1477. ■Will: See § 367, post. § 353. [25.] Minors, Who are. — Minors are: 1. Males tinder twenty-one years of age; 2. Females under eighteen years of age. Idaho. — Same. Rer. Stata., sec. 2405. Nevad^. — Same. Rev. Stats., sec. 2943. Oregon. — Same. Hill's Laws, sec. 2951. XTtah, — Same, except that the following is added: "Bat all minors obtain their majority by marriage." Comp. Laws, sec. 2560. Washington. — " Males shall be deemed and taken to be of full age for all purposes at the age of twenty-one years and upwards; females shall be deemed and taken to be of full age at the age of eighteen years and upwards." Gen. Stats., sec. 1416. 497 MISCELLANEOUS PKOVISIONS. §§354,355 " All females married to a person of full age shall, be deemed and taken to be of full age." Gen. Stata., sec. U17. Wyoming. — Age of majority for both men and women is twenty-one years. Rev. Stats., p. 30, sec. 5; also Rev. Stats., p. 321, sec. 1103. § 354. [40.] Powers of Persons whose Incapacity has been Adjudged. — After his incapacity has been judi- cially determined, a person of unsound mind can make no con- veyance or other contract, nor delegate any power or waive any right, until his restoration to capacity. But a certificate from the medical superintendent or resident physician of the insane asylum to which such person may have been committed, showing that such person had been discharged therefrom, cured and restored to reason, shall establish the presumption of legal capacity in such person from the time of such discharge. Idaho. — Same. Rev. Stats., sec. 2412. § 355. [84.] Children of Annulled Marriage. — Where a marriage is annulled on the ground that a former husband or wife was living, or on the ground of insanity, chil- dren begotten before the judgment are legitimate, and succeed to the estate of both parents. Idaho. — Same. Rev. Stats., sec. 2452. Kontana. — "The issue of all marriages null in law, or dissolved by divorce, are legitimate." Comp. Stats., p. 397, sec. 536. ARTICLE ra. COMMUNITY AND SBPAEATB FBOFERTT. § 356. Separate property of wife. § 356 a. Separate property of husband. § 356 b. Community property. § 356 c. Wife living apart from husband — Property of, in earnings of herseU and of her minor children. § 357. Children presumed legitimate when. § 358. Same. § 359.^ Legitimacy, who may dispute — How illegitimacy proven. § 360. Property, who may hold, etc. § 361. Alien claiming property — Limitation. § 362. Posthumous children. § 363. Qualities of expectant estate. § 364. Possibility not an interest. § 365. Effect of will on gift. § 366. Tenure to homestead. § 356 PROBATE LAW AND PRACTICE. 498 §356. [162.] Separate Property of Wife. — AH property of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. See Cal. Civ. Code, sec. 169. Arizona. — Same, except that the word "bequest "is omitted, and after "property " the words "both real and personal "are inserted. Rev. Stats., sec. 2100. Idaho. — Same, except that the words "with the rents, issues, and profits thereof " are omitted. Rev. Stats., sec. 2495. See also Rev. Stats., sec. 2497. B/ents, Issues, and Profits are community property, except in certain cases: See Rev. Stats., sec. 2497, under § 356 b, post. - Montana. — " That the property owned by any married woman before her marriage, and that which she may acquire after her marriage by descent, gift, grant, devise, or otherwise, and the increase, use, and profits thereof, shall be exempt from all debts and liabilities of the husband, unless for necessary arti- cles procured for the use and benefit of herself and her children under the age of eighteen years; provided, however, that the provisions of this chapter shall extend only to such property as shall be mentioned in a list of the property of such married woman as is on record in the office of the register of deeds of the county in which such married woman resides." Comp. Stats., p. 1044, sec. 1432. "From and after the passage of this act, women shall retain the same legal existence and legal personalty after taarriage as before marriage, and shall receive the same protection of all her rights as a woman, which her husband does as a man." Act approved March 3, 1887. Comp. Stats., p. 1045, sec. 1439. Nevada. — Same as California. Gen. Stats., sec. 499. " When the husband has allowed the wife to appropriate to her own use her earnings, the same, with the issiies and profits thereof, is deemed a gift from him to her, and is, with such issues and profits, her separate property." Gen. Stats., sec. 513. Oregon. — "The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise, or inheri- tance, shall not be subject to the debts or contracts of her husband, and she may manage, sell, convey, or devise the same by will to the same extent and in the same manner that her husband can property belonging to him. '' Hill's Laws, sec. 2992. See also Const., art. 15, sec. 5. "All laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband are hereby repealed." Hill's Laws, sec. 2998. "The property, either real or personal, acquired by any married woman during coverture, by her own labor, shall not be liable for the debts, contracts, or liabilities of her husband; but shall in all respects be subject to the same exemptions and liabilities as property owned at the time of her marriage, or afterwards acquired by gift, devise, or inheritance. " Hill's Laws, sec. 2993. 499 MISCELLANEOUS PROVISIONS. §§ 356 a, 356 b Waslungton. — " Every married person shall hereafter have the same right and liberty to acquire, hold, enjoy, and dispose of every species of property, and to sue and lie sued, as if he or she were unmarried." Gen. Stats., sec. 1408. " The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise, or inheritance, with the rents, issues, and profits thereof,, shall not be subject to the debts or contracts of her husband, and she may manage, lease, sell, convey, encumberj or devise by will such property, to the same extent and in the same manner that her husband can property belonging to him." Gen. Stats., sec. 1398. "A wife may receive the wages of her personal labor, and maintain an action therefor in her own name, and hold the same in her own right, and she may prosecute and defend all actions at law for the preservation and protec- tion of her rights and property as if unmarried." Gen. Stats., sec. 1402. Whatever property a woman has at her marriage, or acquires afterwards by- gift, devise, or inheritance, remains hers until she voluntarily parts with it: Brummet v. Weaver, 2 Or. 173; Hugh v. Ottenheimer, 6 Or. 231; AUerberry v. Atterhtrry, 8 Or. 224; Besaer v. Joyce, 9 Or. 310; Starr v. Hamilton, 1 Deady, 272; Stubbkfield v. Menzies, 8 Saw."<41. ~ § 356 a. [163.] Separate Property of Husband. — All property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property. Arizona. — Same, except that after "property" the words "both real and personal " are inserted, and the word "bequest "is omitted. Bev. Stats., sec. 2100. Idaho. — Same as California, except that the words " with the rents, issues, and profits " are omitted. Rev. Stats., sec. 2496. Kents, issues, and profits are community property, except in certain cases: See Rev. Stats., sec. 2497, under § 356 b, post. Montana. — See last section. , Nevada. — Same as California. Gen. Stats., sec. 499. Oregon. — See Hill's Laws, sec. 2869. Common-law Rule in Force: Pitman v. Sands, 4 Or. 298; Ml/elt v. Tench, 5 Or. 255. , Washington. — "Property and pecuniary rights owned by the husband before marriage, and that acquired by him afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, shall not be subject to the de1)ts or contracts of his wife, and he may manage, lease, sell, convey, encumber, or devise by will such property without the wife joining in such management, alienation, or encumbrance, as fully and to the same effect as though he were unmarried." Gen. Stats., sec. 1397. § 356 b. [164.] Community Property. — All other property acquired after marriage, by either husband or wife, or both, is community property. § 356 C PROBATE LAW AND PRACTICE. 500 Arizona. — Same. Rev. Stata., sec. 2102. Idaho. — " All other property acquired after marriage by either husband or wife, includiug the rents and profits of the separate property of the hus- band or wife, is community property, unless by the instrument by which any such property is acquired by the wife it is provided that the rents and profits thereof be applied to her sole and separate use, in which case the management and disposal of such rents and profits belong to the wife, and they are not liable for t^e debts of the husband." Her. Stats., sec. 2497. " Community property is property acquired by hnsband and wife, or either, during marriage, when not acquired as the separate property of either." Rev. Stats., sec. 2829. Nevada. — "All other property acquired after marriage, by either hus- band or wife, or both, except as provided in sections 14 and 15 of this act [Gen. Stats., sec, 512, 513J, is community property." Gen. Stats., sec. 500. Washingfton. — "Property, not acquired or owned as prescribed in the next two preceding sections, acquired after marriage by either husband or wife, or both, is community property. The husband shall have the manage- ment and control of community personal property, with a like power of dis- position as he has of his separate personal property, except he shall not devise by will more than one half thereof." Gen. Stats., sec. 1399. "The husband has the management and control of the community real property, but he shall not sell, convey, or encumber'the community real estate, unless the wife join with him in executing the deed or other instrument of conveyance by w)iich the real estate is sold, conveyed, or encumbered, and such deed or other instrument of conveyance must be acknowledged by him and his wife.'' Gen. Stats., sec. 1400. Husband and wife may agree concerning the status or disposition of the whole or any part of the community property owned or to be owned by them, to take effect upon the death of either. Gen. Stats., ,sec. 1401. Iiand th.e title to whicli is to the widow and children of decedent taken in a wife's name, but which is without administration, where the paid for with community funds, is com- property was acquired by the husband munity property, and after the death under the Mexican law in force in of the wife, belongs to the surviving California in 1849, and at hia request husband, without administration, and a conveyance was made to his wife, ■ the estate of the wife takes no title or which said property was thereafter interest in it which can be conveyed to held by her as community property any person: Deanv. Pariec, 88 Cal. 283. until his death: Lataillade v. OretUi, Community property descends 91 Cal. 579. § 356 c. [169.] Earnings, etc., of Wife and Minor Children. — The earnings and accumulations of the wife, and of her minor children living with her or in her custody, while she is living separate from her husband, are the separate prop- erty of the wife. Arizona. — Same. Rev. Stats., sec. 2101, Idaho. — Same. Rev. Stats., sec. 2502. Nevada, — Same. Gen. Stats., sec. 512. 501 MISCELLANEOUS PROVISIONS. §§ 357-360 Washington. — Same. Gen. Stats., sec. 1403. " The earnings and accumulationB of the wife, and of her minor children liv- ing with her or in her custody, while she is living separate from her husband, are the separate property of the wife." Gen. Stats., sec. 1403. The act of a husband in filing a baud, in an action to quiet title against petition for letters of administration a grantee of the purchaser of the prop- on his deceased wife's estate, setting erty as the estate of the wife, at the forth therein that the land in contro- probate sale, from showing that the versy was his wife's separate estate, property was community property, and causing the same to be sold as and belonged to the husband: Dean v. such by order of the probate court, Parker, 88 Cal. 283. does not estop a grantee of the hua> § 357. [193.] Legitimacy of Children Born in Wedlock. — All children born in wedlock are presumed to be legitimate. § 358. [194.] Children after Dissolution of Mar- riage. — All children of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage. § 359. [195.] Legitimacy, Who may Dispute — How Proven. — The presumption of legitimacy can be dis- puted only by the husband or wife, or the descendant of one or both of them. Illegitimacy in such case may be proved like any other fact. The declarations of a testator of his children, in a case where the made in his will are competent persons so declared his wife and chil- evidence after his death, tending to dren are the devisees; Pearson v., prove his marriage and the legitimacy Pearson, 46 Cal. 610. § 360. [671.] Who may Hold Property. — Any per- son, whether citizen or alien, may take, hold, and dispose of property, real or personal, within this state. Arizona. — Alien may take by devise or descent. Rev. Stats., sec. 1472. See also U. S. Stats. 1887, o. 340, p. 476. Idaho. — Same as California. Rev, Stats., sec. 2827. See alsoU. S. Stats. 1887, c. 340, p. 446. " Widows or heirs who are aliens, or who have not declared their intentions to become citizens, are not prevented from holding lands by inheritance; but all lands so acquired shall be sold within five years after the title thereto shall be perfected in such alien, and in default of such sale within such time, such real estate shall revert and escheat to the state of Idaho. Mining lands, etc., are excepted from the provisions of this law." Laws 1890-91, pp. 108, 109, sec. 1. % 361 PKOBATE LAW AND PRACTICE. 502 Montana. — Kesident aliens take as citizens. Comp. Stats., p. 400, sec. 553. See also U. S. Stats. 1887, c. 340, p. 446. Oregon. — White resident foreigners take by succession, as citizens. Const., art. 1, sec. 31; Hill's Laws, p. 82; also Hill's Laws, sec. 2988. WasMngfton. — Any alien, except such as by the laws of the United States are iqeapable of becoming citizens of the United States, may acquire and hold lauds, or any right thereto or interest therein, by purchase, devise, or descent, and he may convey, mortgage, and devise the same, and if he shall die intestate, the same shall descend to his heirs; and in all cases such lands shall be held, conveyed, mortgaged, or devised, or shall desceud in like man- ner and with like effect as if such alien were a citizen of this state or of the United States. Gen. Stats., sec. 2956. Section 17, article I., of the above section, is broad enough to in- constitution does not inhibit the elude the taking by descent as well as legislature from extending the by purchase. This taking of property rights of succession or inheri- is not confined to an alien residing in tance to non-resident alien heirs: the state. Section672, subdivision 361, People V. Sogers, 13 Cal. 169; In re of the Civil Code confirms this inter- BlUings, 64 Cal. 593. pretation of said section: In re BilUngs, The word "take," used in the 65 Cal. 594. § 361. [672.] Aliens must Claim within Five Years. — If. a non-resident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred. The property in such case is dis- posed of as provided in Title VIII., Part III., Code of Civil Procedure. t For Title VIII., Part III., see Escheated Estates. Arizona. — " In making title to land by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intes- tate is or hath been an alien; and every alien to whom any land may be de- vised or may descend shall have five years to become a citizen of the territory and take possession of such land, or shall have five years to sell the same be- fore it shall be declared forfeited or shall escheat to the government; ■provided, that the treaties of the United States with the nation to which such alien may belong do not otherwise direct; and provided further, that aliens may take and hold any property, real or personal, in this territory, by devise or descent, from any alien or citizen, in the same manner in which citizens of the United States may take and hold real or personal estate, by devise or descent, within the country of such alien." Rev. Stats., sec. 1472. Xdado. — "Resident aliens may take in all cases by succession as citizens; and no person capable of suocepding under the provisions of this title is pre- cluded from such succession by reason of' the alienage of any relative; but no non-resident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession." Rev. Stats, sec. 5715. llontana. — Same as Idaho. Comp. Stats., p. 400, sec. 553. 503 MISCELLANEOUS PROVISIONS. §§ 362-366 §362. [698.] Posthumous Children.— When a future interest is limited to successors, heirs, issue, or children, post- humous children are entitled to take in the same' manner as if living at the death of their parent. I Arizona. — Posthumous children do not inherit. Bev. Stats., sec. 1464. Idaho. — Same as California. Rev. Stats., sec. 2833. Nevada. — Posthumous children inherit. Gen. Stats., sees. 2613, 2614 Oregon. — Posthumous child deemed living at death of parent. Hill's Laws, sec. 3111. XTtah. — Posthumous children inherit. Comp. Laws, sec. 265. § 383. [699.] Qualities of Expectant Estates. — Future interests pass by succession, will, and transfer, in the same manner as present interests. Idaho. — Same. Ber. Stats., sec. 2S34. §364. [700.] Possibility not an Interest. — A mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind. § 365. [1152.] Effect of Will upon Gift. — A gift in view of death is not afifected by a previous will, nor by a sub- sequent will, unless it expresses an intention to revoke the gift. § 366. [1265.] Tenure by Which Homestead is Held. — From and after the time the declaration is filed for record, fhe premises therein described constitute a homestead. If the selection was made by a married person from the com- munity property, the land, on the death of either of the spouses, vests in the survivor, subject to no other liability than such as exists or has been created under the provisions of this title; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the superior court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner, except as provided in this title. See § 274, post; Beck v., Soviard, 76 Cal. 527. 'Arizona. — "If the homestead selected by the husband and wife, or either of them, daring their coverture, and recorded while both were living, was § 366 PROBATE LAW AND PKACTICE. 504 ■elected from the community property, it vests, on the death of the hnsbaad or wiie, absolutely in the survivor; if the homestead was selected from the separate property of either husband or wife, it vests, on the death of the per- son from whose property it was selected, in his or her heirs, subject to the power of the probate court to assign it for a limited period to the family of the decedent. In either case it is not subject to the payment of any debt or liabil- ity contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of such husband or wife, except as pro- vided in this code," Rev. Stats., sec. IIOO. Idaho. — Same as California. Bev. Stats., sec. 3073. IContana. — Same as Arizona. Comp. Stats., p. 307, sec. 140. Washington. — " The husband cannot select a homestead from the sepa- rate property of the wife, nor the wife from the separate property of the hus- band, but either may select and hold a homestead from his or her separate property, and the husband may select a homestead from the community prop- erty. But if the husband neglect or refuse to select such homestead, then the wife may select the same; provided, that but one homestead shall be selected or held by husband or wife, and it must embrace the dwelling-house in which one or both of them reside." Gen. Stq,ts., sec. 1404. 505 EXECUTION ETC. OP WILLS. § 367 CHAPTER XIV. EXECUTION AND REVOCATION OP WILLS. § 367. Who may make a irill. § 368. Will, or part thereof, procured by fraud. S 369. Separate property of married women. § 370. What may pass by will. § 371. Who may take by will. § 372. Written will, how to be executed. § 373. Definition of an olographic will. § 374. Witness to add residence. § 375. Mutual will. § 376. Competency of subscribing witness. § 377. Conditional will. § 378. Gifts to witnesses void — Creditors competent witness. § 379. Witness who is a devisee, § 380. Will made out of state. § 381. Republication by codicil. § 382, Nuncupative will, how to be executed. § 383. Requisites of a valid nuncupative will. § 384. Proof of nuncupative wills: § 385. Probate of nuncupative wills. § 386. Written will, how revoked. § 387. Evidence of revocation. § 388. Revocation of duplicate. § 389. Revocation by subsequent will. § 390. Antecedent not revived by revocation of subsequent will. § 391. Revocation by marriage and birth of issue. § 392. Effect of marriage of a man on his will. § 393. Effect of a marriage of a woman on her wilL § 394. Contract of sale not a revocation. § 395. Mortgage not a revocation of will, § 396. Conveyance, when not a revocation. § 397. When it is a revocation, § 398. Revocation of codicils. ' < § 399. After-born child, unprovided for, to sncceed. § 400. Children or issue of children of testator unprovided for. § 401. Share of after-born child, out of what estate to be paid. § 402. Advancement during lifetime of testator. § 403. Death of devisee, leaving lineal descendants. § 404. Devises of land, how construed. § 405. Will to pass rights acquired after the making thereof. § 406. Charita.ble bequests. § 367 , PROBATE LAW AND PRACTICE. 506 § 367. [1270.] Who may Make a Will. — Every per- son over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such es- tate not disposed of by -vrill is succeeded to as provided for in Title VII. of this part, being chargeable in both cases with the payment of all the decedent's debts, as provided in the Code of Civil Procedure. For Title VII., etc., see Succassion. Arizona. — "Every person aged twenty-one years or upwards, or who may be or may have been lawfully married, being of sound mind, shall have power to make a last will and teataraeut, under the rules and limitations prescribed by law." Rev. Stats., sec. 3232. Idaho. — Same as California. Rev. Stats., sec. 5725. SEontana. — Same as California. Comp, Stats,, p. 380, sec. 432. "A person having an insane delusion is incompetent to make a will." Rev. Stats., sec. 433. Nevada. — Same as California. Gen. Stats., sec. 3000. Oregon. — " Every person of twenty-one years of age and upwards, of sound mind, may, by last will, devise all his estate, real and personal, saving to the widow her dower." Hill's Laws, sec. 3086. " Every person over the age of eighteen years, of sound mind, may, by last will, dispose of his goods and chattels." Hill's Laws, sec. 3067. Utah. — Same as California, except that in lieu of "Title VIL of this part " substitute "Title IL of this act," and instead of " Code of Civil Procedure," insert "an act relating to the procedure of probate courts." (Comp. Laws, sec. 3988.) Comp. Laws, sec. 2647. Washington. — " Every person who shall have attained the age of major- ity, of sound mind, may, by last will, devise all his or her estate, real and per- sonal." Gen. Stats., sec. 1458. Age of Majority: See § .354, ante. Will Includes Codicil: See § 353, ante. Will, Definition of: Jasper v. Jasper, 17 Or. 590. In construing an instrument upon the power of disposition by will: to determine whether it is a will or Norrh v. Harris, 1$ Cal. 226. deed, the intention is to control, as Acceptance of a devise under a collected from the whole instrument: will by a widow, in which her late Faull V. Cooke, 1 9 Or. 455. husband disposes of the entire com- When an instrument conveys munity property, is a confirmation by a present title to the grantee, and her of his action, and she will not be the grantor reserves out of the estate entitled to take any of the community conveyed the right to the use and property in her own right, but can possession during his life, the instru- take only such as she' is given by the ment is a deed, and not a will: Faull will: In re Stewart, 74 Cal. 98. V. Cooke, 19 Or. 455. Though a testator has not the Husband can only dispose of one power to dispose of the property of half of the community property by another person by his will, still, if he will: See § 481, poat, and notes. undertakes to do so, and such person In this state there is no limitation accepts a devise or bequest under the 507 EXECUTION ETC. OF WILLS. §§ 368, 369 will, such acceptance is a confirmation veyance, and takes effect as a deed on of the testamentary disposition of the proof of its execution, unless there be testator: Morrison v. Bowman, 29 Cal. some express statute requiring it to be 337; A^oe v. Sjilivalo, 54 Cal. 207. probated: Cnstro v. Castjv, 6 (.'al. 161. Tho same instrument may oper- A will is not a conveyance ate as the douveyaiice of one piece of within the meaning of the act con- property, and as a will devising an- cerning conveyances which can be other piece: Adams v. Lansing, 17 read in evidence upon the certificate Cal. C29. of proof by a notary public: Carpen- A will is regarded by the courts of tier v. Gardiner, 29 Cal 160. See holla- EnglandandthcUnitedStatesasacou- day v. Hoiladay, 16 Or; 147^ Section 1271, Civil Code, repealed. Stats. 1873-74, p. 232. § 368. [1272.] Will, or Part thereof, Procured by- Fraud.. — A will, or part of a will, procured to be made by duress, menace, fraud, or undue influence may be denied pro- bate; and a revocation procured by the same means may be declared void. » Kontana. — ^ Same. Comp. Stats., p. 380, sec. 434. Utali. — Same. Comp. Laws, sec. 2648. § 369. [1273.] Separate Property of Married Women. — A married woman may dispose of all her separate estate by will, without the consent of her husband, and may alter or revoke the will in like manner as if she were single; her will must be executed and proved in like manner as all other wills. Arizona. — See Rev. Stats. , sec. 3232, under § 367, ante. Idabo. — Same as California. Bev. Stats., sec. 5726. Montana. — "A married woman may make a will in the same manner and with same effect as if she were sole, except that such will shall not, without the written content of her husband, operate to deprive him of more than one third of her real estate or of more than one third of her personal estate." Comp. Stats., p. 380, sec. 433. "That a married woman may make a will in the same manner and with the same effect as if she were sole, except that such will shall not, without the written consent of her husband, operate to deprive him of more than one third of her real estate or of more than one third of her personal estate." Comp. Stats., p. 1046, sec. 1447. Nevada. — Same as California. Gen. Stats., sec. 3001. Oregon. — "A married woman may, by will, dispose of any real estate held in her own right, subject to any rights which her husband may have as tenant by the curtesy." Hill's Laws, sec. 3068. Utah. — Same as California. Comp. Laws, sec. 2649. Washington. — " All laws which impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the husband, are hereby abolished." Gen. Stats., sec. 1409. 370 PBOBATt LAW AND PRACTICE. 508 § 370. [1274.] What may Pass by Will. — Every estate and interest in real or personal property, to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will, except as otherwise provided in sections fourteen hundred and one and fourteen hundred and two. for sections 1401 and 1402, gee §§ 404-106, post. Arizona. — " Every person competent to make a last ivill and testament may thereby devise and bequeath all the estate, right, title, and interest in possession, reversion, or remainder, which he has, or at the time of his death shall have, of, in, or to any lands, tenements, hereditaments, or rents charged upon or issuing out of them, or shall have of, in, or to any personal property or any other property whatever, subject to the limitations prescribed bylaw." Rev. Stats., sec. 32.S3. Uontana. — Same as California. Comp. Stats., p. 381, sec. 436. " Hy estate, " in husband's will,- means estate subject to his testamen- tary disposition: In re Mumford, Myr. Prob. 133. Death-benefits are not Subjects of Bequests. — The San Francisco Stock and Exchange Board, a volun- tary unincorporated society, whose business is the purchase and sale of stock, provides in its constitution that there shall at all times exist a commit- tee of three members or more, to be known as the "Trust Fund Commit- tee," whose duty it shall be to take charge of all moneys which may come into their hands to constitute a trust fund, to be used and applied by such committee as follows: Upon the death of a meml^er, such committee shall pay out of said fund the sum of ten thou- sand dollars to such person or per- sons, object or objects, as may have been designated in writing by such deceased member^ in case there be no such written disposition made, then to the widow' of snch member the sum of ten thousand dollars; in case there be no widow, but there be a child or chil- dren surviving such member, then to such child or children equally, share and share alike; if there be neither widow, child, or children surviving such deceased member, nor any written disposition made of the same, as here- inbefore provided, then there shall be no payment at all made. A member of said society died, leaving neither wife, child, or children, but left a will, in which, after providing for certain legacies, continues: "Should my es- tate be worth more than sixty thou- sand dollars ($60,000), and I now esti- mate it at $80,000, including my seat in the San Francisco Stock and Ex- change Board and the insurance on my life by said board, I give and de- vise to D. L. McDonald of San Fran- cisco, the brother of my late dearly beloved wife, the sum of $5,000. .... The balance of my estate I desire paid over to my mother, Mrs. C. H. Swift, and by her distributed among the poor in any manner she may see proper." It was held that the donation provided for in the said constitution is not a part of the estate of a deceased mem- ber of said society, and his executors are not entitled to receive it as a part of his estate; the decedent has no disposing power over it as part of his estate; the only power exercis- able over it was that defined by the constitution of the society, and that was merely a power of appoint- ment of some person or body to receive it as a thing distinct and separate from his estate. Undoubtedly, the testator might have exercised this power of appointment of a person to receive the fund and apply it to the purposes of his estate in his will, and he could have designated in that way his executors or any other persons; but the will does not name the execu- tors, or creditors, or legatees, jointly or individually, as persons to receive pay- ment of the " donation " for the pur- poses of his estate or otherwise; and for aught that appears in the case itself, the estate of the testator is 509 EXECUTION ETC. OF WILLS. §§ 371, 372 snfficient to meet all the special be- tion of the power of appointment, quests of the will. That being so, the There being no survivors to take and beneficiary fund did not pass, either no persons or objects designated, the by the special bequests pr the residue trustees are not bound to pay at all: ary clause of the will, as part of the Swift v. San Franeiaco Stock and Ex- estate of the testator, and the will it- change Board, 67 Cal. 567. , self did not operate as a valid execu- § 371. [1275.] Who may Take by Will. — A testa- mentary disposition may be made to any person capable by law of taking the property so disposed of, except corporations other than those formed for scientific, literary, or solely educa- tional purposes, cannot take under a will, unless expressly authorized by statute. Kontana. — Same. Comp. Stats., p. 381, sec. 437. Utab. — Same, except that after the word " literary," the following words are inserted: "Religions, charitable, benevolent." Comp. Laws, sec. 2640. See § 406, post. A scliool district may take by is npt affected by the provisions of the will: /n re Su2wer, 59 Cal. 181. above section, as this was a vested A religious corporation which ex- right: In re Eastman, 60 Cal. 308. isted prior to the passage of the code. Bequest to religious corporation is and which had a right to take by will void: In re Wnght, Myr. Prob. 213. under the law as it existed prior to 1873, § 372. [1276.] Written Will, how to be Executed. — Every will, other than a nuncupative will, must be in writ- ing, and every will, other than an olographic will and a nuncu- pative will, must be executed and attested as follows: — 1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto; 2. The subscription must be mlde in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority; 3. The testator must, at the time of subscribing or acknowl- edging the same, declare to the attesting witnesses that the instrument is his will} and 4. There must be two attesting witnesses, each of whom must sign his name as a witness, at; the end of the will, at the testator's request, and in his presence. Arizona. — " Every last will and testament, except where otherwise pro> Tided by law, shall be in writing and signed by the testator or by some other person by his direction and in hia presence, and shall, if not wholly written § 372 PROBATE LAW AND PRACTICB. 510 by himself, be attested by two or more credible witnesses above the age of fourteen years subscribing their names thereto in the presence of the testa- tor." Rev. Stats., sec. 3234. Idaho. — Same as California. Rev. Stats., sec. 5727. Montana. — Same as California. Comp. Stats., p. 381, sec. 438. Nevada. — "No will, except such nuncupative wills as are mentioned in this act, shall be valid unless it be in writing and signed by the testator and sealed with his seal, or by some person in his presence' and by his express direction, and attested by at least two competent witnesses subacribiiig their names to the will in the presence of the testator." Gen. Stats., sec. 3002. Oregon. — ' 'Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses subscribing their' names to the will in the presence of the testator. " Hill's Laws, see. 3069. " Every person who shall sign the testator's name to any will by his direc- tion shall subscribe his own name as a witne.ss io such will, and state that he subscribed the testator's name at his request." Hill's Laws, sec. 3070. TJtali. — " Every will, other than a nuncupative will, must be in writing, and every will, other than an olographic and nuncupative will, must be exe- cuted and attested as follows: 1. It must be subscribed at the end thereof by the testator himself; 2. The subscription must be made in the presence of the attesting witnesses; 3. The testator must, at the time of subscribing the same, declare to the attesting witnesses that the instrument is his will; and 4. There must be two attesting witnesses, each of whom must sign his name as a wit- ness, at the end of the will, at the testator's request, in his presence and in the presence of each other." Comp. Laws, sec. 2651. Washington. — Same as Oregon. Gen. Stats., sees. 1459, 1460. If the statute is complied with so, at the request of the testator; that substantially in the execution of a will, they saw him sign it, heard him ac- it is sufficient: In re Johnson, 57 Cal. knowledge it, or observed acts which 529. unmistakably indicated that he had The testator may direct one of signed it. The acknowledgment, the witnesses to his vvill to subscribe however, cannot be inferred from the testator's name thereto, and if he mere silence: Luper v. Werts, 19 Or. then publishes it as his will it will be 122. valid: In re Toomes, 54 Cal. 509. The proof of a will should not fail If a testator signs his will in because the testimony of the subscrib- the presence of a subscribing witness, ing witnesses thereto is insufficient to who then signed it at his request, and establish its execution, provided it can then the scrivener, being present, be proven by other competent evi- asked the testator if the paper was his denoe, or by circumstances clearly in- will, to which he, in the presence of the dicating its execution; but where such _ witness replied, "Yes"; it was held to proof is not made, courts have no au- be a sufficient declaration to the wit- thority to adjudge the will effective: ness that the paper was thewill of the Luper v. l^ej'^s, 19'0r. 122. testator: In re Johnnon, 57 Cal. 529. Testator mast request wit- WIU, requisites of, to entitle it nesses, in some form, to attest his to be admitted to probate: Lwper v. will, though such request need not bo WerU, 19 Or. 122. in words: In re Fusilier, Myr. Prob. To prove the attestation of a will, 40; In re Crittenden, Myr. Prob. 50. it must be shown that the witnesses 'iCestator should call attention who -subscribed their names to it did of subscribing witnesses to his will to 511 EXECUTION ETC. OF WILLS. §372 the fact that it had beenvsigned by an- other by his authority: In re Taney, Myr. Prob. 210. Signatare to attested will: In re Barker, Myr. Prob. 78; In re Mc- Cullough, Myr. Prob. 76. Of wit- ness: In re Winslow, Myr. Prob. 124. No formal attesting clause is nepessary to will: In re Crittenden, Myr. Prob. 50. A will is valid although ons of the three subscribing witnesses was alcalde of the place: Panand v. Jones, 1 Cal. 505; TevU v. Pilclter, 10 Cal. 403. Where a will was attested by two witnesses, and made before a per- son who was a "sindico," it was held that the fact that such person signed the instrument as "sindico" did not make him ineligible as a witness: Tevia v. Pilcher, 10 Cal. 403. A clause in a will nominating executor is ineffectual if it is inserted after the signature: In re McCullough, Myr. Prob. 76. Though the statute contains a provision that the will should be sealed, it is unnecessary to mention such seal in the instrument; nor is it necessary that the seal should remain, if by the act of sealing the condition imposed by the statute is performed: In re Stichnoth, 7 Nev. 223. The legislature may waive the state's right to insist upon a tech- nical informality in the execution of a will as against the just and equitable claims of the legatee. It may waive an escheat and order that unattested will may be admitted to probate, and there is nothing in the constitutional provision concerning the school fund (art. 11, sec. 31 to prevent it: In re Sticknoth, 7 Nev. 223. Attesting witnesses to a will are not required for the purpose of protecting the contingent or possible right of property in the state by way of escheat, but to prevent the setting up of fictitious wills: In re Sticknoth, 7 Nev. 223. An objection to a will that it is not under seal cannot be urged for the first time in the supreme court, where the record does not purport to contain a copy of the original will, but only a translation thereof: In re Stick- noth, 7 Nev. 223. The testator's mark is sufficient signing of a will: Pool v. Buffum, 3 Or. 438; Mareland v. Brady, 8 Or. 303, 312; and it is not necessary that the witness signing the testator's name to the mark should state that he did so at the testator's request: Pool v. Buffiim, 3 Or. 438; Moreland v. Brady, 8 Or. 303, 312. Undue influence: Sou v. Con- way, 92 Cal. 432. The opinion of the witness upon the question of capacity of testator is not admissible in evidence, upon the hearing before a jury of a petition to annul the probate of a will on the ground of t'le alleged incompetency of the testator: In re Taylor, 92 Cal. 64; but it is competent for a witness to give such opinion, in connection with the facts upon which the opin- ion is based: In re Taylor, 92 Cal. 64. Where a jury finds that the de- ceased is incompetent at the time of the execution of the will, and also that he was induced to execute it be- cause of fraudulent representations of the legatee, and it appears that the court erred in admitting the opinioa of the witness as to the capacity of deceased to make a will, upon the issue of competency, it cannot be said that the jury was not also influ- enced by such testimony upon their finding on the issues as to undue in- fluence of the false representations, and for such error the judgment must be reversed: In re Taylor, 92 Cal. 64. Form No. 239. In the name of God, amen. I, - — , state of , of the age of -Will. — , of the - county of years, and being of sound and disposing mind, and not under any restraint, or the influence or representation of any person whatever, do make, publish, and declare this my last will and testament, in manner follow- ing; that is to say: — , , § 372 J?ROBATE LAW AND PRACTICE. 512 First. I direct that my body be decently buried, without un- due ceremony or ostentation, but with proper regard to my sta- tion and condition in life and the circumstances of my estate. Second. I direct that my executors hereinafter named, as soon as they have sufficient funds in their hands, pay my funeral expenses and the expenses of my last sickness, and the allowance made to my family. Third. I give and bequeath to my wife, , the sum of five thousand dollars, to my son, — — , the sum of five thousand dollars, and to my daughter, , the sum of four thousand five hundred dollars; which said several lega- cies or sums of money I direct and order to be paid to the said respective legatees out of the proceeds of the sales of the personal property owned by me at the time of my death, after first paying and fully satisfying out of said proceeds all my just debts and the expenses of administration, should the bal- ance of said proceeds suffice for that purpose, and if not, then I direct and order said legacies or sums of money to be paid to the said respective legatees pro rata, in like proposition. Fourth. I give and devise to my said son,--" — , his heirs ' and assigns, all that certain lot, piece, or parcel of land situ- ate, lying, and being in the county of , state of , bounded and described as follows, to wit: Commencing at the northeast corner of and streets; running thence northerly along the easterly line of said street fifty (50) feet; thence, at right angles, easterly, fifty (50) feet; thence at right angles, southerly; fifty (50) feet, to the northerly line of said street, and thence along said northerly line of said street, westerly, fifty (50) feet, to said point of commence- ment; together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to have and to hold the premises above described, to the said , his heirs and assigns forever. Fifth. I give and devise all the rest, residue, and remainder of any real estate, of every name and nature whatsoever, owned by me at the time of my death, to my said wife, , and my said daughter, , to be divided equally between them, share and share alike. Sixth. I give and bequeath all the rest, residue, and re- 513 EXECUTION ETC. OF WILLS. § 372 mainder of my personal estate, goods, and chattels, of whatever kind or nature, owned by me at the time of my death, to my said wife, . Lastly. I hereby appoint and , of said county of — '—, the executors of this my last will and testament; hereby revoking all former wills by me made. In witness whereof, I have hereunto set my hand and seal, this day of , in the year of our Lord one thousand eight hundred and . [l. s.] The foregoing instrument, consisting of two pages besides this, was, at the date thereof, by the said , signed and sealed and published as and declared to be his last will and testament, in presence of us, who, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. , residing at . , residing at . Form No. 240. — Short Form of Will. In the name of God, amen. I, , of the county , • state of , being of the age of years, and being of a sound and disposing mind and memory, do make, publish, and declare this to be my last will and testament. 1. I hereby revoke all former wills by me made; 2. I nominate and appoint as the executor of my said will and testament; 3. I give and bequeath, etc. In witness whereof, I have hereunto set my hand and seal this day of , A. D. 18 — . - — ■ [seal] We, the undersigned, hereby certify that we were present and saw , the testator named in the foregoing will, sign, seal, and execute the same at the date thereof, and he thereupon declared to us that said document was his last will and testa- ment, and requested us to subscribe our names thereto as wit- nesses, and thereupon we, in his presence and in the presence of each other, then and there subscribed our names as witnesses to said will. , a Resident of the City of — : — , California. , a Resident of the City of , California. 33 §§ 373, 374 PROBATE LAW AND PEACTICB. 514 § 373. [1277.] Definition of an Olographic Will.— An olographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed. Arizona. — " Where the will is wholly written by the testator, the attesta- tion of the subscribing witnesses, as required by the preceding section, may be dispensed with." Rev. Stats., sec. 3235. Idaho. — Same as California. Kev. Stats., sec. 5728. Montana. — Same as California. Comp. Stats., p. 381, sec. 439. Utali. — Same as California, with these words added: "Such wills may be proven in the same manner as other private writings." Comp. Laws, sec. 2652. Ologrrapliio will made before passag^e of act authorizing it is valid if testator died subsequently to the passage of the act: In re Barker, Myr. Prob. 78; In re McCloud, Myr. Prob. 23. Signature to olographic wills: In re Barker, Myr. Prob. 78; In re Donnho, Myr. Prob. 140; In're John- son, Myr. Prob. 5. Olographic will could not be made prior to adoption of code: In re McGlmtd, Myr. Prob. 23. Letter dictated, but not written, by testator cannot be admitted to probate as a portion of an olographic will: In re Shiltabei; 15 Pac. Rep. 453. Such letter does not form a part of such will so as to invalidate the will: In re Oahill, 74 Cal. 52. What Amounts to an Olo- graphic Will. — Decedent executed a deed of gift to his sister, but did not deliver it. He then wrote to his sister, telling her of the fact of the execution, and inclosing a copy of the deed in his own handwriting. In the letter he said: "We all know life is uncertain, and we don't know the moment we may be called away. I therefore want you to know you are provided for, under any circumstances. My intention is to provide for you while I live, and if it should please God to call me away, you will have your own property to depend on, sufficient to make you independent while you live." The letter and copy of the deed were offered together for probate as the will of decedent. Held, that they constitute a good olographic will when taken together, being wholly written by the testator, and dated and signed by him, and the words above showing the animus testandi; but that when taken separately, neither is suffi-^ cient as a will, nor is the original deed, which was neither written by the tes- tator, nor dated, nor delivered, admis- sible as such : In re Sherritl, 67 Cal. 585. An olographic will must be wholly written, dated, and signed by the testator: In re Martin, 58 Cal. 530; In re Rand, 61 Cal. 468; In re Billings, 64 Cal. 427. A date is essential to its validity. A recital in it that the tes- tator is sixty years of age does not constitute, a date: In re Martin, 58 Cal. 530. A will made and executed by a testator in accordance with the above section is not invalid because made and executed by him anterior to the time when such section became oper- ative, if the testator did not die until the statute referred to had gone into effect: In re Learned, 70 Cal. 140. The following instrument, from the circumstances attending its execu- tion, was held to be testamentary in its character, and therefore entitled to be admitted to probate: "Mayfield Grange, Tuesday, June 23, 1874. Dear Old Nance, — I wish to give you my watch, two shawls, and also five thousand dollars. Your old friend, E. A. Gordon ": Clark v. Bansom, 50 Cal. 595. § 374. [1278.] Witness to Add Residence. — A wit- ness to a written will must write, with his name, his place of 515 EXECUTION ETC. OF WILLS. §§375-378 1 residence; and a person who subscribes the testator's name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will. Idaho. — Same. Rev. Stats., sec. 5729. Montana. —Same. Comp. Stats., p. 381, sec. 440. Utah. — Same as California, except that second clause of the first sentence is omitted. Comp. Laws, see. 2653. No formal attesting clause is A witness may attest the xaarls. necessary to will: In re Crittenden, of his co-witness to a will: In re Myr. Prob. 50. Dearry, Myr. Prob. 202. §375. [1279.] Mutual Will. —A conjoint or mutual will is valid, but it may be revoked by anj' of the testators, in like manner with any other will. Montana. — Same. Comp. Stats., p. 381, sec. 441. Utah. — Same. Comp. Laws, sec. 2654. § 376. [1280.] Competency of Subscribing Wit- ness. — If the subscribing witnesses to a will are competent at the time of attesting its execution, their subsequent incom- petency, from whatever cause it may arise, does not prevent the probate and allowance of the will, if it is otherwise sat- isfactorily proved. Idaho. — Same. Kev. Stats., sec. 5730. Montana. — Same. Comp. Stats., p. 381, sec. 442. Utah. — Same. Comp. Laws, sec. 2655. § 377. [1281.] Conditional Will. — A will the valid- ity of which is made by its own terms conditional may be denied probate, according to the event, with reference to the condition. Montana. — Same. Comp. Stats., p. 382, sec. 443. Utah. — Same. Comp. Laws, sec. 2656. § 378. [1282.] Gifts to Witnesses Void — Cred- itors Competent Witness. — All beneficial devises, lega- cies, and gifts whatever, made or given in any will to a subscribing witness thereto, are void, unless there are two other competent subscribing witnesses to the same; but a mere charge on the estate of the testator for the payment of debts § 378 ' PROBATE LAW AND PRACTICH. 516 does not prevent his creditors from being competent witnesses to his will. Arizona. — " Should any person lie a subscribing witness to a, will, and be also a legatee or devisee therein, if the will cannot be otherwise established, such bequest shall be void, and such witness shall be allowed and compelled to appear and give testimony in like manner as if no such bequest had been made. But if in such case the witness would have been entitled to a share of the estate of the testator or testatrix, had there been no will, be or she shall be entitled to so much of such share as shall not exceed the value of the bequest to him or her in the will." Eev. Stats., sec. 3247. "in the case provided for in the preceding section, such will may be proved by the evidence of the subscribing witnesses, corroborated by the testimony of one or more disinterested and credible persons, to the efifect that the testi- mony of such subscribing witnesses necessary to sustain the will is sub- stantially true, in which event the bequest to such subscribing witnesses shall not be void." Rev. Stats., sec. 3248. Montana. — Same as California. Comp. Stats., p. 382, sec, 444. Nevada. — Same as California. Gen. Stats., sec. 3003. "If any person has attested or shall attest the execution of any will to whom any beneficial devise, legdcy, estate, interest, gift, or appointment of or affecting any real or personal estate, other than or except charges in lands, tenements, or hereditaments for the payment of any debt or debts, shall be thereby given or made, such devise, legacy, estate, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or any person claiming under him, be void, and such person shall be admitted as a witness to the execution of such will." Hill's Laws, sec. 3085. "If the execution of such will be attested by a sufficient number of other competent witnesses, as required by this act, then such devise, legacy, interest, estate, gift, or appointment shall be valid." Hill's Laws, sec. 3087. "If by any will any real estate be charged w;ith any debt, and any creditor whose debt is so charged has attested the execution of such will, every such creditor shall be admitted as a witness to the execution of such will." Hill's Laws, sec. 3088. " If any person has attested or shall attest the execution of any will to whom any legacy or bequest is thereby given, and such person, before giving testi- mony concerning the execution of such will, shall have been paid or have ac- cepted or released, or shall refuse to accept, such bequest or legacy upon tender thereof, such person shall be admitted as a witness to the execution of such will." Hill's Laws, sec. 3089. I- ' " The credit of such witness shall be subject to the consideration of the court or jury." Hill's Laws, sec. 3090. " If any legatee or devisee who has attested or shall attest the execution of any will shall have died or die in the lifetime of the testator, or before he shall have received or released the legacy or bequest so given to him, and before he shall have refused to receive such legacy or bequest on a tender made thereof, snch legatee or devisee shall be deemed a legal witness to the execution of such ■will." Hill's Laws, sec. 3091. 517 EXECUTION ETC. OF WILLS. g§ 379, 380 "No person to whom any estate, gift, or appointment shall be given* or made, which is hereby declared to be null and void, or who shall have refused to receive such legacy or bequest on tender made, and who shall have been ex- amiued as a witness concerning the execution of such will, shall, after he shall have been so examined, demand or receive, except as provided in section 3086 [§ 379, post], any profit or benefit of or from any such estate, interest, gift, or appointment so given or made to him by any such will, or demand, receive, or accept from any person any such legacy qr bequest, or any satisfaction or com- pensation for the same." Hill's Laws, sec. 8092. trtah.. — • Same as California. Comp. Laws, sec. 2657. Washiagton. -pSame as California. Gen. Stats., sec. 1471. A witness to a will ia not dis- has no beneficial interest: Hogan v. qualified thereby from taking under Wyman, 2 Or. 304. the \till a trust estate in which he § 379. [1283.] Witness Who is a Devisee. — If a witness, to whom any beneficial devise, legacy, or gift, void by the preceding action, is made, would have been entitled to any share of the estate of the testator, in case the will should not be established, he succeeds to so much of the, share as would be distributed to him, not exceeding the devise or bequest made to him in the will; and he may recover the same of the other devisees or legatees named in the will, in proportion to and out of theparts devised or bequeathed to them. Arizona. — See Rev. Stats., sec. 3247, under last section. Montana. — Same as CaliForaia. Comp. Stats., p. 3S2, sec. 445. Oregon. — Same as California. Hill's'Laws, sec. 3086. Utah.. — Same as California. Comp. Laws, sec. 2658. Washington. — Same as California. Gen. Stats., sec. 1471. Section 1284, Civil Code, repealed. Stats. 1884, p. 242. § 380. [1285.] What Valid as Will. —No will made out of this state is valid as a will in this state, unless executed according to the provisions of this chapter. Montana. — Same. Comp. Stats., p. 382, sees. 446, 447. Oregon. — Same, except that where personal estate is bequeathed, it may also be executed according to the law of the country "in which the will shall be proved." Hill's Laws, sec. 3082. Utah. — Same as California. Comp. Laws, sec. 2659. Our statute of wills not only ation of the statute altogether, leav- fails to require wills' executed before ing their validity to rest upon the laws its passage to be probated, but an ex- under which they were made: Orimes amination of its different sections v. Norria, 6 Cal. 624. ehows that it was not a casun omissus, A will made in Texas operating and that the legislature actually in- upon property there must be, iqter- tended to exclude them from the oper- preted by the law of that state. To §§ 381-383 PROBATIS LAW AND PRACTICE. 518 that law reference must be had to the powers of alienation vested in the determine the capacity of the^ testa- guardian of his children, appoiated by tor, the extent of his power of dia- the will, is to be exercised: Xforrii v. position, and the conditions upon which Harris, 15 Cal. 22fi. Section 1286, Civil Code, repealed. Stats. 1874, p. 232. §381. [1287.] Republication by Codicil.— The exe- cution of a codicil, referring to a previous will, has the efifect to republish the will as modified by the codicil. See Payne v. Payne, 18 Cal. 291. Montana. — Same. Comp. Stats., p. SS2, sec. 448. Utah. — Same. Comp. Laws, sec. 2660. Codicil must be offered for pro- bate of the original will: In reAdsit, bate within a year after the pro- Myr. Prob. 266. § 382. [1288.] Nuncupative Will, how to be Exe- cuted. — A nuhcupative will is not required to be in writing, nor to be declared or attested with any formalities. Montana. — Same. Comp. Stats., p. 382, sec. 449. Utah. — Same. Comp. Laws, sec. 2661. § 383. [1289.] Requisites of a Valid Nuncupative Will. — To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed : — 1. The estate bequeathed must not exceed in value the sum of one thousand dollars; 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time, to bear witness that such was his Will, or to that effect; 3. The decedent must, at the time, have been in actual mili- tary service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear, or peril of death; or the decedent must have been, at the time, in expectation of immediate death from an injury received the same day. Arizona. — " Any person who is competent to make a last will and testa- ment, under section 1 [Rev. Stats., sec. 3232; § 367, ante], may dispose of his property by a nuncupative will under the conditions and limitations hereinafter prescribed. " Rev. Stats, sec. 3237. " No nuncupative will shall be established unless it be made in the time of the last sickness of the deceased; nor when the value exceeds fifty dollars, unless it be proved by three credible witnesses that the testator called on some per- son to take notice or bear testimony that such is his will, or words of like im- port." Rev. Stats., sec. 3238. 519 EXECUTION ETC. OF WILLS. § 384 Montana. — Same as California. Comp. Stats., p. 382, sec. 450. ' Nevada. — "No nuncupative or verbal will shall be good where the estate bequeathed exceeds the value of one thousand dollars, nor unless the same be proved by two witnesses who were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid some one present to bear witness that such was his will, or words of like im- port, nor unless such nuncupative will was made at the time of the last sick- ness of the deceased." * Gen. Stats., sec. 3004. Oregon. — " Any mariner at sea, or soldier in the military service, may dis- pose of his wages or other personal property as he might have done by common law, or by reducing the same to writing." Hill's Laws, sec. 3079. Utah. — Same to subdivision .3, which is as follows: "3. The decedent must have been at that time in expectation of immediate death from an injury or casualty happening or occurring within twenty-four hours previous to /the making of such nuncupative will." Comp. Laws, sec. 2862. Washington. — " No nuncupative will shall be good when the estate be- queathed exceeds the value of two hundred dollars, unless the same be proved by two witnesses who were present at the making thereof, and it be proven that the testator, at the time of pronouncing the same, did bid some person present to bear witness that such was his will, or to that effect, and such nuncupative will was made at the time of the last sickness and at the dwelling-house of the deceased, or where he had been residing for the space of ten days or more, except where such person was taken sick from home and died before his return. Nothing herein contained shall prevent any mariner at sea or soldier in the military service from disposing of his wages or other personal property by nuncupative will." Gen. Stats., sec. 1469. Probate of Xuncupative Wills: See § 36, ante. §384. [1290.] Proof of Nuncupative Wills. — No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken. Arizona. — "After six months have elapsed from the time of speaking the pretended testamentary words, no testimony shall be received to prove a nun- cupative will, unless the testimony, or the substance thereof, shall have been committed to writing within six days after making the will." Bev. Stats., sec. 3240. Montana. — Same. Comp. Stats., p. 383, sec. 451. Nevada. — "No proof shall be received of any nuncupative will unless it be offered within three months after speaking the testamentary words." Gen. Stats., sec. 3005. Oregon. — Same as California. Hill's Laws, sec. 3080. TTtah. — Same as California. Comp. Laws, sec. 2663. Washington. — Same, except that all after the word "thereof " is omitted, and the following substituted therefor: " Be first committed to writing, and a §§ 385, 386 PROBATE LAW AND PRACTICE. 520 citation issued to the widow or next of kin of the deceased, that they may con- test theate to the will, prevent a revocation of the will, to and determining who has a right to prove the contract, and show by its administer upon the eS'tate. It has no terms that it purports to make pro- jurisdiction to inquire into any facts visions for the wife, and that such affecting the consideration, validity, provisions were intended to take the or operation of a deed of separation place of a testamentary provision for between the testator and his wife: her: Carher v. Oorjcer, 87 Cal. 643. Corker v. Corker, 87 Cal. 643. Upon the contest of an ante- The term " marriage con- nuptial will by a surviving wife, no tract," as used in the above section, evidence can be adduced by the pro- refers to and designates only such a ponent of the will respecting what is contract or settlement between hus- claimed to be a, marriage contract, band and wife as expressly purports other than the instrament itself, with in its terms to be a " marriage con- proof of its execution if denied; and tract, " and to make provisions for the if the instrument does not purport wife in lieu of a testamentary pro- upon its face to be a marriage con- vision for her, and does not include tract, the court cannot receive any a "post-nuptial" agreement, which other evidence that such was the in- mierely purports to settle property tention of the parties: Corker v. rights between them in view of asepa- Corker, 87 Cal. 643. ration: Coi-ker v. Corker, 87 Cal. 643. § 393. [1300.] Effect of a Marriage of a Woman on her Will. — A will, executed by an unmarried woman, is §§ 394, 395 PllOBATB LAW AND PBACTICE. 524 revoked by her subsequent marriage, and is not revived by the death of her husband. Idaho. —Same. Rev. Stats., sec. 5737. Kontana. — Same. Comp. Stats., p. 384, sec. 460. Nevada. — Same. Gen. Stats., sec. 3010. Oregon. — "A will executed by an unmarried woman is revoked by her Bubsequent'marriage.'' Hill's Laws, sec. 3072. § 394. [1301.] Contract of Sale not a Eevocation. — An agreement made by a testator for the sale or transfer of property disposed of by a will previously made does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator's agreement, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession. Idaho. — Same. Eev. Stats., sec. 57.^8. Montana. — Same. Comp. Stats., p. 384, sec. 461. Nevada. — "A bond, covenant, or agreement, made by a testator, to con- vey any property devised or bequeathed in any will previously made, shall not be deemed a revocation of such previous devise or bequest, but such property shall pass by the devise or bequest, subject to the same remedies on such bond, covenant, or agreement, for the specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, if the same had descended to them." Gren. Stats., sec. 3011. Oregon. — Same as Washington, post. Hill's Laws, sec. 3073. Utah.. — Same as California, with these words, in the last clause, omitted: " Ai^ainst the devisees or legatees, as might be had." Comp. Laws, sec. 2671. Washington. — Same as Nevada, except that the words "for a valuable consideration " are interpolated between the words " made " and " by "; and also the words " or his next of kin " are interpolated between the words " testator " and "if." Gen. Stats., sec. 1463. § 395. [1302.] Mortgage not a Revocation of Will. — A charge or encumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devise and legacies therein contained must pass, subject to such charge or encumbrance. Idaho. — Same. Rev. Stats., sec. 57.39. Montana. — Same. Comp. Stats., p. 384, sec. 462. Nevada. — Same. Gen. Stats., sec. 3012, 525 EXECUTION ETC. OF WILLS. §§ 396-399 Oregon. —Same. Hill's Laws, sec. 3074. tJtata. Same, Corap. Laws, sec. 2672. Washmgton. — Same. Gen. Stats., sec. 1464. § 396. [1308.] Conveyance, when not a Revoca- tion. — A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by suc- cession. Idaho. — Same. Rer. Stats., sec. 5740. • Montana. —Same. Comp. Stats., p. 384, sec. 463. Utah. — Sam6. Comp. Laws, sec. 2673. See § 394, ante, §§ 397, 404, 421, post. Ademption of Iiegacies: See § 442, post. The will operates only upon belonged to him at hia death: so much of the land of the tea- Bruek v. Tucker, 32 Cal. 425. tator as legally and equitably § 397. [1804.] What is a Revocation. — If the in- strument by which an alteration is made in the testator's inter- est in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testament- ary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect. Idaho. — Same. Rev. Stats., sec. 6741. Montana. — Same. Comp. Stats., p. 385, sec. 464. Utah. — Comp. Laws, sec. 2674. §398. [1805.] Revocation of Codicils. — Tte revoca- tion of a will revokes all its codicils. Idaho. — Same as California. Rev. Stats., sec. 5742. Montana. — Same. Comp, Stats., p. 385, sec. 465. Uta^i. — Same. Comp. Laws, sec. 2675. § 399. [1806.] After-born Child Unprovided for. — Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither pro- vided for nor in any way mentioned in his willj the child suc- ceeds to the same portion of" the testator's real and personal § 399 PROBATE LAW AND PRACTICE. 626 property that he would have succeeded to if the testator had died intestate. Arizona. — "When a testator shall have children born, and his wife en- ceinte, the posthumous child, if unprovided for by settlement, and pretermit- ted by his last will and testament, shall succeed to the same portion of the father's estate as such child would have been entitled to if the father had died intestate, toward which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by such last will and testament." Rev. Stats., sec. 3242. " If a testator or testatrix, having a child or children born at the time of making his or her last will and testament shall, at his or her death, leave a child or children born after the making of such last will and testament, the child or children so after-born and pretermitted shall, unless provided for by settlement, succeed to the same portion of the father's or mother's estate as they would have been entitled to if the father or mother had died intestate, toward raising which portion the devisees and legatees shall contribute pro- portionately out of the parts devised and bequeathed to them by such last will and testament in the same manner as is provided in sectjon 1 1 [last section, supra.]" Rev. Stats., sec. 3243. "Every last will and testament made when the testator had no child living, wherein any child he might have is not provided for or mentioned, if at the time of his death he shall leave a child, or leave his wife enceinte of a child which shall be born, shall have no effect during the life of such after-born child, and shall be void unless the child die without having been married, and before he or she shall have attained the age of twenty-one." Rev. Stats., sec. 3244. "Under the name of 'children,' as used in this act, are included descend- ants of whatever degree they may be, it being understood they are only counted for the child they represent." Rev. Stats., sec. 3245. "The husband or wife may, by last will and testament, give to the survivor of the marriage the power to keep hia or her separate property together until each of the several heirs shall become of lavfful age, and to manage and con- trol the same under such restrictions as may be imposed by such will; jm-o- vided, the surviving husband or wife is the father or mother, as the case may be, of the minor heirs; and provided furtlier, that any child or heir en- titled to any part of said property shall, at any time upon becoming of age, entitled to be receive his distributive portion of said estate.'' Rev. Stats., sec. 3249. "Should any father or mother, in consequence of the idleness, dissipation, or extravagance of his or her child or children, apprehend that his, her, or their estate will be squandered if left to their management or control, it shall be lawful for such father or mother, by last will and testament, to leave such es- tate in the hands of trustees, to be appointed by said will, which trustees shall have the entire management and control of said estate, the profit of which, after deducting expenses of said management, shall be paid over to the child or children entitled to the same for his, her, or their maintenance and support; and it shall be lawful, at any time, for the court of probate in the oouuty where 527 EXECUTION ETC. OF WILLS. § 399 such estate may be situated, or where such trustee or trustees may reside, to take cognizance of the same, and to remove such trustee or trustees from the management of the same; provided, it shall be made to appear that such estate is being wasted or improperly managed; and to appoint other trustees for the management thereof, taking bond and security from such trustees in a sum at least equal to the value of such estate for the faithful performance of the trust; and if the child or children entitled to such estate, or any part thereof, shall at any time make it appear to the satisfaction of said court that the causes for leaving said estate in trust no longer exist, and that there is no danger of its being squandered by idleness, dissipation, or extravagance, it shall be the duty of said court to dissolve said trust, and place the said estate in the hands of the person or persons who would have been entitled to the same had such trust not been ''created. " Rev. Stats., sec. 3252. Idaho. — Same as California. Rev. Stats., sec. 5743. BEontana. — Same as California Comp. Stats., p. 3S5, sec. 466. , Nevada. — " When any child shall have been born after the making of its parent's will, and no provision shall be made for him or her therein, such child shall have the same share in the estate of the testator as if the testator had died intestate, unless it shall be apparent from the will that it was the inten- tion of the testator that no provision should be made for such child," Gen. Stats., sec. 3013. Oregon. — "If any person make his last will and die, leaving a child or cliildren, or descendants of such child or children, in case of their death, not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, so far as shall regard snch child or children, or their descendants not provided for, shall be deemed to die intestate; and such child or children or their descendants shall be en- titled to such proportion of the estate of the testator, real and personal, as if he had died intestate; and the same shall be assigned to them, and all the other heirs, devisees, and legatees shall refund their proportional part.'' Hill's Laws, sec. 3075. Utah. — Same as California. Comp. Laws, sec. 2676. Washington. — Same as Oregon. Gen. Stats., sec. 1463. A will, providing only for evidence that the testator intended to widow of the deceased, and omitting omit them: Payne v. Payne, 18 Cal. to provide for his children, and failing 291. to show affirmatively that the omis- Posthumous child: In re Bu- siou to provide for them was inten- chanan, 8 Oal. 507. ' tional, does not deprive them of their Under section 3075, Hill's legal ri^ht to inherit the same as if code, supra, a testator is deemed to the father had died intestate, and they have died intestate as to any child or become tenants in common with the children, or the descendants of any widow in all the real property of the de- such child or children, in case of their ceased subject to administration, their death, not named or provided for, al- proportion depending upon whether though born after the making of such the property was communitj' property will or the death of the testator: or the separate property of the dece- Northrop v. Marquam, 16 Or. 173. dent: In re Orider, 81 Cal. 571. Pretermitted Children — Effect Naming heirs of the testate.: of Will. — Under the above and the in his will, without making any be- next sections, providing that where a quest or devise to them, is suJicient testator omits to provide, in his will. 400 PROBATE LAW AND PRACTICE. 528 for any of his children, unless it ap- pears that the omission was inten- tional, the child succeeds to the same portion of the estate of the testator as he would have received if the testator had died intestate, the child succeeds immediately, by operation of law, to the same portion of the real property as if no will had been made, the testa- tor being regarded as dying intestate as to that portion; and everjr provision of the will directly or indirectly at- tempting to dispose of such portion of the estate, except tor the discharge of the decedent's debts or other charges of administration, is inoperative as against the child: Smith v. Olmstead, 88CaU 582. § 400. [1307.] Children or Issue of Children of Testator Unprovided for. —When any testator omits to provide in his will for- any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section. Idah.0. — Same. Rev. Stats., sec. 5744 aiontana. — Same. Comp. Stats., p. 385, see. 467. Nevada. — Same. Gen. Stats., sec. 3014. Oregon. — Hill's Laws, sec. 3075, under last section. TJtah. — Same. Comp. Laws, sec. 2677. See In re Garaud, 35 Cal. 336. If a testator in his will devise his property to his grandson, and he has children living, it does not show, as matter of construction of the will, that he intentionally omitted to proi vide for the latter: Jiush v. Lindsey, 44 Cal. 121. A testator in disposing of bis property ' ' to my children, "and pro- ceeded to name them and the portion devised to each, but omitted any spe- cial mention of a devise to the children of a deceased daughter, it was held that the use of the word "children" did not indicate a deliberate purpose to exclude the children of a deceased daughter, and that they were entitled to a full share of the estate as if the deceased had died intestate: In re Utz, 43 Cal. 200. An illegitimate child uninten- tionally omitted from its mother's will is entitled to share in the estate in like manner as if legitimate: In re Warden, 57 Cal. 484. Where a child has been omitted unintentionally in a will, he inherits the same as if no will had been made, and will take by descent, and not by purchase: Pearson v. Pearson, 46 CaL 609. If a testator leaves no wife nor any issue, except a child for whom he failed to provide in his will^ without showing that this omission wasf inten- tional, the pretermitted child will take the whole estate as if the testa- tor had died intestate: Pearson v. Pearson. 46 Cal. 609. The object of this section is, not to compel parents to make actual beneficial provision for their children, but to prevent the consequences of oversight, and to produce intestacy only when the child is unknown or forgotten, and thus unintentionally omitted. Where a married woman, after her husband's death, makes a will, referring to and making her hus- band's will a part of her own, and the names of all the children appear in the husband's will, this is a compliance with the requisite that the will must mention the names of all the children, etc.: Gerrish v. Gerrish, 8 Or. 351. The will may be valid and efifec- tual as to all the children named or provided for therein, but as to those 529 EXECUTION ETC. OF WILLS. §§ 401, 402 not named or provided for, it is no the child in mind, and must indicate will, and such child or children will directly, or by implication equally as take under the law of descents, in all sti-ong, that he intended to omit such respects as if no will had been made: child from the TviH: In re Stevens, 83 Northrop v. Marquam, 16 Or. 173. Cal. 322. A child in ventre sa mere, not named WherQ a testator intentionally or provided for in its father's will, oniits to prpvid-o in. his will for a takes by inheritance its proportionate daughter, who was alive at the mak- interest ia ita father's estate: Northrop ihg aud publishing of the will, and V. itai qu im, \6 Or. 173. who was disinherited by its terms, the Parol evidence is admissible to children of such daughter, who are show that a testator, in omitting in his not mentioned ip the will, have no will any mention of a child as a bene- rights to the property as heirs, under ficiary under It, did so by design, and section 1307 of the Civil Code, and not by accident: Covlam v. DouU, Sup. obtain none by their mother's death Ct. Utah, Feb. ,6, 1886. before the death of the testator. That Evidence of declarations of tes- section does not protect any grand- tator as to his intention to omit any children from the effects of mere of his children from his will is not ad- omission frqm the will, except those missible. In order to disinherit a who were the issue of a child who child whose name is omitted from the was deceased at the time the will was will, it is not sufficient merely to ^tate m^de, and ^hp were then presumptive that the whole of his property is de- heirs at law of the testator: In re Bar- Tised to his wife, bat tne words of the ter, 86 Cal. 441. Will must show that the testator had § 401. [1308.J Share of Affcer-born Child, out of What Estate to be Paid. — When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees, ip proportion to .the value they may respectively receive under the will, unless the obvious inten- tion of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy, or provision may be exempted from such apportionment, and a dijBFerent apportion- ment, consistent with the intention of the testator, may be adopted. Idaho. — Same. Rev. Stats., sec. 5745. Ilontana. — Same. Comp. Stats., p. 385, sec. 466. Nevada. — Same. Gen. Stat?., sec. 3015. TTtah. — Same. Comp. Laws, sec. 2678. § 402. [1309.] Advancement During Lifetime of Testator. — If such children, or, their descendants, so unpro- vided for, had an equal proportion of the testator's estate §§403,404 PROBATE LAW AND PKACTICS. 530 bestowed on them in the testator's lifetime, by way of advance- ment, they take nothing in virtue of the provisions of the three preceding sections. Idaho. — Same. Bev. Stats., sec, 5746. Montana. — Same. Comp. Stats., p. 385, sec. 469. Nevada. — Same. Gen. Stats., sec. 3016. Oregon. — Same, except that "three preceding sections" is omitted, and "preceding section" is substituted therefor. Hill's Laws, sec. 3076. TTtali. — Same as California. Comp. Laws, sec. 2679. Washington. — Same as California. Geu. Stats., sec. 1466. § 403. [1310.] Death of Devisee. — When any estate is devised to any child, or other relation of the testator, and the devisee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee would have done had he survived the testator. Arizona. — "Where a testator or testatrix shall devise or bequeath an es- tate or interest of any kind, by will, to a child or other descendant of such testator, should such devisee or legatee during the lifetime of the testator or testatrix die leaving a child, or children, or descendants who shall survive such testator or testatrix, such devise or legacy shall not lapse by reason of such death, but the estate so devised or bequeathed shall vest in the children or descendants of such legatee or devisee in the same manner as if he or she had survived the testator or testatrix and had died intestate." Rev. Stats., sec. 3246. Idaho. — Same as California., Eev. Stats., sec. 5747. Montana. — Same as California. Comp. Stats., p. 3S5, sec, 470. Nevada. — Same as California. Gen. Stats., sec. 3017. Oregon. — Same as California. Hill's Laws, sec. 3077. Utah. — Same as California. Comp. Laws, sec. 2680. Washington. — Same as California. Gen. Stats., sec. 1467. The word "relation " as used in the testator if the devisee; leaves lineal the statute, providing that a devise descendants, includes only relations to a relation shall not lapse by the by blood, and not by affinity: In re death of a devisee in the lifetime of Pfuelh, 48 Cal. 643. § 404. [13li.] Devises of Land, how Construed. — Every devise of land in any will conveys all the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate. Idaho. — Same. Kev. Stats., sec. 5748. Montana. — Same. Comp. Stats., p. 386, sec. 471. Nevada. — Same. Geu. Stats., sec. 3018. 531 EXECUTION ETC. OF WILLS. § 405 Oregdn. — "If any person by last will devise any real estate to any per- son for the term of such person's life, and after his death to his or her chil- dren or heirs, or right heirs in fee, such devise shall vest an estate for life only in such devisee, and remainder in fee-simple in such children,'' Hill's Laws, sec. 3093. " A devise of real property shall be deemed and taken as a devise of all the estate or interest of the testator therein, subject to his disposal, unless it clearly appears from the will that he intended to devise a less estate or interest} and any estate or interest in real property acquired by any one after the making of his or her will shall pass thereby, unless it clearly appears therefrom that such was not the intention of the testator; nor shall any conveyance or disposition of real property by any one after the m'i'kiDg of his or her will prevent or affect the operation of such will upon any estate or interest therein subject to the disposal of the testator at hia or her death." Hill's Laws, sec. 3094. Utah. — Same as California. Comp. Laws. sec. 2681. Washington. — Same as California. Gen. Stats., sec. 1472. See § 371, ante, § 421, vast. Under the common law every general and not a specific devise: In devise of real estate was speoiiio, bub re Wood-worth, 31 Cal. 595. under the statute of this state it may be The will operates only upon so much general: In re Woodworth, 31 Cal. 595. of the land of the testator as legally A devise of all the real estate of and equitably belonged to him at his which the testator may die seised is a death: Bruck v. Tucker, 32 Cal. 425. § 405. [1312.] Will to Pass Eights Acquired after the Making thereof. — Any estate, right, or interest in lands acquired by the testator after the making of his will passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms devising, or in any other terms denoting the intent of the testator to devise, all the real estate of such testator passes all the real estate which such testator was entitled to devise at the time of his decease. Idaho. — Same. Rev. Stats., sec. 5749. Montana. — Same. Comp. Laws, p. 386, sec. 472. Nevada. — " Any estate, right, or interest in lands acquired by the testator after the making of his or her will shall pass thereby in like manner as if it passed at the time of making the will, if suuh should manifestly appeir by the will to have been the intention of the testator." Gen. Stats., sec. 3019. Utah. — Same as California. Comp. Laws, sec. 2682. ' Washington. — Same as Nevada. Gen. Stats., sec. 1474. What Realty Passes by Will. — estate. By other provisions of the Charles Hopper made a will contain- will an intention was manifested to ing a devise to, his son of certain real dispose by the will of all the property 406 PROBATE LAW AND PKACTICE. 532 the testator possessed. After making said will, he sold a portion of the land devised to his son, and afterwards re- purchased it. In such case, held, that the portioa so sold and bought baok passed to the son under said devise: In re Hopper, 66 Cal. 80; Wheelen- v. Bolton, 66 Cal. 83. Whore testator devises prop- erty, and afterwards makes a contract of sale of a portion thereof, delivering a deed therefor in escrow to be deliv- ered to the purchaser upon the pay- ment of the purchase price, aud dies before the purchase price is paid, such property passes by the will subject to ajspeoific performance against the devi- sees: Chadwick v. Totem, 9 Mont. 345. §406. [1313.] Charitable Bequests. — No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society, or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the tes- tator; and if so made, at least thirty days prior to such death, such devise or legacy, and each of them, shallbe valid; provided, that no such devises or bequests shall collectively exceed one third of the estate of the testator, leaving legal heirs; and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one third of -such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law. Idaho. — Same. Rev. Stats., sec. 5750. Hontana. — Same. Comp. Stats., p. 386, sec. 473. See § 371, ayite. Boys' Soman Catholic Asylum is a charitable and benevolent society, and is entitled to ta,ke a legacy or de- vise: Tn re Tohin, Myr. Prob. 134. The "one third" mentioned in the abbve section is of the gross value of the estate, not net value: /» re Hinckley, Myr. Prob. 189. A devise to trustees for a char- ity is sufficiently definite as a subject of a trust: In re Hinckley, Myr. Prob. 189. Devise in trust for a church, which does not exist at time of tes- tator's death, is a charitable trust, and is valid against the heirs of tes- tator: Pennoyer v. IVadhams, 20 Or. 274. A grant of land "upon which shall be erected a college free from all sectarian or .political influence " is in its nature a charitable trust, and, as such, it is no objection that the bene- ficiaries are uncertain or unknown: Haley v. County of Umatilla, 15 Or. 172, 533 INTERPRETATION OF WILLS. § 407 CHAPTER XV. INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS PRO- VISIONS. § 407. Testator's intention to he carried out. § 408. Intention to be ascertained from the will. § 409. Rules of interpretation. § 410. Several instruments are to be taken together. §411. Harmonizing various parts. § 412. In what case devise not affected. § 413. When ambiguous or doubtful. § 414. Words taken in ordinary sense. § 41'0. Words to receive an operative construction. § 416. Intestacy to be avoided. § 417. Effect of technical words. § 418. Technical words not necessary. § 419. Certain words not necessary to pass a fee. § 420. Power to devise, how executed by terms of will. § 421. Devise or bequest of all real or all persooal property, or both. § 422. Residuary clause. g 423. Same. § 424. " Heirs," "relatives," "issue," "descendants," etc. § 425. Words of donation and of limitation. § 42(). To what time words refer. § 427. Devise or bequest to a class. § 428. When conversion takes effect. § 429. When child born after testator's death takes under wilL § 430. Mistakes and omissions. § 431. When devises and bequests vest. § 432. When cannot be divested. § 433. Death of devisee or legatee before testator. § 434. Interests in remainder are not affected. § 435. Conditional devises and bequests. § 436. Condition precedent, what. § 437. Effect of condition precedent. § 438. Conditions precedent, when deemed performed. § 439. Conditions subsequent, what. $ 440. Devisees, etc., take as tenants in common. § 441. Advancements, when ademptions. §407. [1317.] Testator's Intention to be Carried out. — A will is to be construed according to the intention of §407 PROBATE LAW AND PRACTICE. 534 the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. Montana. — Same. Comp. Stats., p. 387, sec. 474. Oregon. — " All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator in all matters brought before them." Hill's Laws, sec. 3097. Utah.. — Same as California. Comp. Laws, sec. 2683. Washingfton. — Same as Oregon. Gen. Stats., sec. 1478. Wills are to be liberally con- strued, so as to effectuate the in- tention of the testator: Welch v. Huse, 49 Cal. 506; Kidwell v. Bmm- magim, 32 Cal. 436; In re Woods, 36 Cal. 73; Williams v. McDougall, 39 Cal. 80; In re Miller, 48 Cal. 165; In re Radnvicli, 54 Cal. 540; Morrison v. Bowman, 29 Cal. 337; In re Stewart, 74 Cal. 9S. See also Siddall v. Har- rison, 73 Cal. 560. Pro rata in olographic will: Rosen- berg V. Frank, 58 Cal. 387. Will, construction of — Con- tingent remainder: See Jasper v. Jasper, 17 Or. 590. Testator became a member of a mutual insurance association whose constitution provided that the association would pay a stated sum, upon the death of the member, to the person designated in writing as bene- ficiary, allowing a change of benefi- ciary on application in writing to the secretary, and his deceased wife, with- out his designation, was made bene- ficiary. Subsequently he remarried, and by his will bequeathed the in- surance to his surviving wife, directing the officers of the order to substitute her name in the certificate, and pay her the money. It was held that a judgment awarding the fund to the executor of testator's estate to be dis- tributed as the probate court might direct was proper, as against the heirs of the first wife, she never having been designated as beneficiary: Order cf Mutual Companions v. Orieat, 76 Cal. 494. Such surviving wife is en- titled to the fund as against testator's children: In re Griest, 76 Cal. 497. A trust is created, if the testa- trix, by her will, devised certain real estate in trust, with directions to the trustee to apply the rents, issues, and profits thereof, — 1. To the payment of a certain mortgage; 2. To the pay- ment of certain legacies to her daugh- ters; 3. To the payment of a legacy for a charitable purpose; that after such payments have been made, the whole of the income of the property shall he given to her son, James, dur- ing the term of his natural life, and after his death, the same to vest in - another person in fee; ,and it was held that, under sections 857 and 863 of California Civil Code, a valid express trust was created for the purposes specified therein; that the entire es- tate was vested in the trustee, subject to the execution of the trust; and that the son, James, did not acquire any life estate in the property or right to its possession: I/i re Dolan, 79 Cal. 65. Constructive Trust. — Where a testator, by his will, bequeathed prop- erty in trust to a legatee, without specifying in the will the purposes of the trust, and at the time of the exe- cution of the will, or subsequently, verbally communicates to the legatee the purposes of the trust, and the leg- atee, either expressly or impliedly, promises to perform the trust, or si- lently acquiesces therein, equity will - raise a constructive trust in favor of the beneficiaries intended by the tes- tator, and will charge the legatee as a constructive trustee for them: Curdy V. Berton, 79 Cal. 420. Where will devises testator's estate in trust to be invested, and to pay the income to certain persons named in certain proportions during their lives, and to their snrviving hus- bands or widows until remarriage, and after that event, the same propor- tions in trust in equal shares for their children by the first marriage who shall attain the age of twenty-one years or marry, and during the minor- ity of any legatee, to apply the income 535 INTERPRETATION OF WILLS. §407 of their respective shares toward his or her support or advancement in the world, the life devisees take only the income and no part of the coi-pua of the residuary estate, but the coi-pus of the trust property will pass to the children, to be paid over to them in the proportions specified when they arrive at majority or marry, there being no provision for a continuance of the trust thereafter; Ooldtree v. Thompson, 79 Cal. 613. Such, will does not create a per- petuity, or unlawfully suspend the power of alienation, since,all the per- sons beneficially interested, in the will were living at the death of the testa- tor, save one child, who died a minor and unmarried, and the accumulations were lawful, being only for the benefit of minors, to end with their minority or marriage. Accumulations of in- come on an invested fund are not forbidden because they tend, to a per- petuity. A child born after the death of the testator, who is specified as one of the legatees,, having come into ex- istence during the life of its father, one of the lives in being at the crea- tion of the interest, would take an in- terest under the will, vested in right when born, and in possession contin- gent on attaining majority or mar- riage within twenty-one years after its father's death, which event would not render the interest devised void: Ookliree v. T/umpson, 79 Cal. 613. ,Trust. —A devise of the residue of the personal estate of a testator to certain trustees in trust to be in- vested, and to divide the accumula- tions of iucome thereof In, certain proportions to certain persons named during life, and to the surviving hus- band or widow of each until remar- riage, and to their children daring minority or until marriage, and to pay to such children the residuum of the estate in certain proportions, when attaining age or marrying, creates a valid trust it' accepted by the trustees, under the provisions of sectiotis 2221 and 2222 of the Oalifornia Civil Code: Ooldtree V. Tlwmpson, 79 Cal. 613. In the escposition of a will, the intention of the testator, expressed in his will, must prevail, provided it be consistent with the rules of law. A will devising real property, and ren. ommeudmg the devisee to leave his portion thereof, after his death, and that of his wife, in trust for his son, and the children or descendants of such son, if any be alive at his death, and if there be none so alive, to Uar- vai'd College, does not make such rec- ommendation obligatory, or limit the estate, or create a trust in favor of Harvard College, it appearing that the testator was a lawyer who under- stood fully what was necessary in order to vest a trust estate, and what he desired done with his property, and it further appearing from the whole of the will, taken together^ that when he intended trusts to exist, he said so in plain language, and when be gave persons property and made recommen- dations concerning it, he meant to leave them free to act upon his advice or not, as they saw fit, but did not in- tend in any way to limit the estates be had bequeathed to them: In re Whitcomb, 86 Cal.' 265. A will which declares the testa- tor's lands to be the property of the testator's daughter and the sons of a deceased son, and further states that the widow of a deceased son has a house on a portion of the land called "Chino"; that it is the will of the testator that she be permitted tore- main in permanency in her house, with liberty to raise her cattle and cultivate it, — it was held that under such will the fee passed to the daugh- , ter and grandsons, subject to an estate for life in the widow to the part called "Chino": Bernal v. Wade, 46 Cal. 663. Where a testator made certain specific bequests in coin to sisters of the full-blood, of the half-blood, and children of a deceased sister of the full-blood, and then bequeaths the res- idue of his estate to be divided among said legatees pro rata, it was held that the distribution was to be made in ac- cordance with the rate previously indicated by the testator: Bosenburg v. Frank, 58 Cal. 387. Where a widow with knowl- edge of her rights makes an un- equivocal assumption of ownership of one of two properties between which she has a right to choose, it is an elec- tion; Burroughs v.DeCouts, 70Cal. 361. Testatrix bequeathed to her husband the use and iucome of all her property ua long as he remained a §408 PROBATE LAW AND PRACTICE. 6^6 widower, witftont pow6r to dispose of ot' encumber the same, and *itlt a proviso that, should he niarry again, her share in the coinihon pi'operliy should go to her children. The h\is- band was entitled, under this devise, to the Use arid income of the property as long as he remained A wid'tfwer, and as to the fee, decedent died intestate: In re RdnJidtdt, 74 Cal. 365. Word " chilthren " eonstifued' to be " grandchildren " Whetf: In re Schedel, 73 Cal. 594. A codicil ratifying former will and making other bequests to same legatees was held to bequeath cnma- lative legacies: InreZeile,li(jai. 125. A devise in trust is not a perpe- tuity When coupled with a poWer of larlienation: In re Hinckley, Myr. Prob. 189. If the superior court has juris- diction of an action for the con- struction of a will, it may refuse to exercise it in an action brought to have plaintiff's heirship determined and to declare certain legacies void, where pUintifFs are not mentioned in the will, A,nA no special reason is shown for the intervention of equity or for the adjudication asked prior to final distribution: Siddall v. Harrison, 73 Cal. 560. Construction of wills cannot be made by probate courts; suits for that purpose must be brought in the dis- trict court or the supreme court: Chadwich v. ChadwicJe, Mont. 566. The devisee in a will takes the property devised as absolute owner, and not upon trust, when the devise is as follows: "Having the fullest conSdence in the capacity, judgment, discretion, and affection of my Wife to properly bring np, ednoa^, and pi'ovide for our chiid!ren, arid to m'anigfe and dispose of my said prop- erty iti. the b^t manlier fOr her M- terest ami their oWn, 1 give to her," etc.: Hunt v. Hani, 11 Nev. 442.' Construction of will as to estates granted therein to legatees: Btiehaiidn V. Schulderr^tt, 11 Or. 156. A bequest for and during her natural life to a testator's Wife, so long as she renlaitis dngte, subject to all lawful debts, etc., of the absolute use and control of all the rest arid residue ot testator's pi-operty, for her comfort and support, and the support and edueation of their children, to be equally divided among the latter dt the decease of the wife, gives her the use, but not the consumption, of the money, or principal. of notes, part of testator's estate, and allows her to use only the interest arising from such notes or other investments: Leahj/ v. Oardweli, 14 Or. 171. A power in a will as follows: "It is my further desire that out of the proceeds of my estate, leaving the same to the best judgment and discre- tion of said executor hereinafter men- tioned, to pay " certain sums per month to testator's mother and aunt, — gives to the executors, or an adminis- trator with the will annexed, author- ity to determine how much shall be paid such beneficiaries; but the word "proceeds," in said clause, does not mean income, and the executor or administrator is not confined to the income of the estate in making sdch payments, but he has no power to sell property for that purpose without an order of court: Allen v. Barnes, Sup. Ot. Utah, Feb. 2, 1887. § 408. [1318.] Intention to be Ascertained from the Will. — In case of uncertainty arising upon the face, of a will, as to the application of any of its provisions, the testator's ' intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclu- sive of his oral declarations. Montana. — Same. Comp. Stats., p. 388, sec. 475. TTtah. — Same. COmp. Laws, sec. 2684. A provision in a will requiring not exceeding % , a tract of land the executor to purchase, "at a price at or nuar the residence of said Wil- 537 INTERPRETATION OF WILLS. g§ 409-411 E6iig a,t Santo Barbara, for a cattle of th^ih, Mt Vhicfa tract or land sliall pasture, the free aod exclusive use of at the death of both of them vest in f^e ■which the said Wilsons shall have in their daughter," ia void, for uiicei- during th6ir lifetime and the survivor tainty: In re Trayhr, 81 Cid. 9. §409. [1319.] Bules of Interpretation. — In inter- preting a will, subject to the law of this state, the rules pre- scribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. Montana. — Same. Comp. St^ts., p. 388, sec. 476. Utah.. — Same. Oomp. Laws, see. 2685. In tbe absence of a proof of the estate; that the same should be ap- laws of another state, the courts of plied to the payment of an annuity to this state, in interpreting a will made his mother and to the education of in that state, will presume its laws to certain nephews and nieces, and be- be the same as our laws: 2ferria v. queathed the residue of bis estate to Hari-in, 15 Cal. 226. his nephews and nieces generally.' It B. died leaving property, prin- was held that the money legacies cipally cash, in this state, and also should look first to the California! real property in Nevada. In his will assets for payment, and that the pro- he made certain money legacies; he ceeds of the Nevada property should, also directed his executors to deposit at least for the present, be reserved in some secure place all rents from for the animity and the education of the property in Nevada, and all the the nephews and nieces: In re Jiado' rents and profits derived from bis vkh, 54 Cal. 540. § 410. [1320.] Several instruments are to be Taken Together. — Several testamentary instruments, exe- cuted by the same testator, are to be taken and construed to- gether as one instrument. Kontana. — Same. Comp. Stats., p. 388, sec. 477. TTtali. — Same. Comp. Laws, sec. 2686. Any paper in existence at i^e In re Shilldbet, 74 Cal. 144. But docu- time may be refered to in a will, and if ments merely referred to do not neces- suflSciently identified, it may be made sarily become a part of the will: In re a part of the will by such reference: Myers, Myr. Prob. 205. §411. [1321.] Harmonizing Various Parts. — All the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must pre- vail. Montana. — Same. Comp. Stats., p. 388, sec. 478. trtab.. — Same. Comp. Laws, sec. 2687. If a word in a will is repugnant be regarded as surplusage or be re- to the intention clearly manifested in stricted in its application: InreWood, other parts of the instrument, it may 36 Cal. 75. §§ 412-414 PROBATE LAW AND PRACTICE. 638 I § 41S. [1322.] In What Case Devise not Affected. — A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its con- tents in another part of the will. Kontana. — Same. Comp. Stats., p. 388, sec. 479. TTtah.. — Same. Comp. Laws, sec. 2688. i The following are precatory tection of my mother and sister, and words, and do uot create a trust: "To , request her to make such gift and pro- my beloved wife, Emelie Glass, to have vision for them as, in her judgment, and to hold the same, or any parcel will be best." Upon a consideration thereof, with privilege to dispose of of the effect of the above provision, it the same, or any portion thereof, for was held not to be an absolute gift or her use and interest, or those of our bequest in trust for the mother and beloved children": In re Olaas, Myr. sister of the testator; that there was Frob. 213. So, also, the following: no imperative command to make a "To my beloved wife, the whole of my provision for their support, but only a property, for her own use and benefit, recommendation and request, leaving and to maintain and support my said the matter to the judgment and dis- children with the same, to be, hers ab- cretion of the widow. Words of Bolutely": In re Molk, Myr. "Proh. i^2. recommendation are never construed The will of testator contains as trusts, unless the subject be certain. this provision: "I give and be- The will in question fails in this con- queath to my wife all of the estate, dition of certainty as to the subject, real and personal, of which I shall die even under the English rule most seised or possessed, or entitled to. I favorable to such trusts: CoUonv.Col- recommend to her the care and pro- ton, 127 U. S. 300. §413. [1323.] When Ambiguous or Doubtful.— Where the meaning of any part of a will is ambiguous or doubt- ful, it may be explained by any reference thereto, or recital thereof in another part of the will. KContana. — Same. Comp. Stats., p. 388, sec. 480. Utah. — Same. Comp. Laws, sec. 2689. § 414. [1324.] Words Taken in Ordinary Sense. — The words of a will are to be taken in their ordinary and gram- matical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained. SContana. —Same. Comp. Stats., p. 388, sec. 481. XJtah. — Same. Comp. Laws, sec. 2690. See CoUon v. Colton, 127 U. S. 300. See § 430, post. Where a testator had but one — it was held that the language was flour-mill, and made a devise in these sufiBciently accurate in expression and words: "To my daughter, Lolita, the certain in its application to the subject flour-mill, with the land appertaining of devise: Bmck v. Tudcer, 42 Cal. thereto, — a half -league more or less," 346. 639 INTERPRETATION bP WILLS. §§415-419 § 415. [1325.] Words to Beceive an Operative Construction. — The words of a will are to receive an inter- pretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. Montana, — Same. Comp. Stats., p. 388, sec. 482. Utah. — Same. Comp. Laws, sec. 2691. §416. [1326.] Intestacy to be Avoided. — Of two modes of interpreting a will, that is to be preferred wliich will prevent a total intestacy. Montana. — Same. Comp. Stats., p. 388, sec. 483. TTtab.. — Same. Comp. Laws, sec. 2692. An olographic will should be ad- as she shall choose to take"; the word mitted to probate, wtere it is inoom- " ornaments " includes articles of jew- plete in a slight degree concerning the elry, although, as following the words disposition to be made of certain per- "books" and "jiictures," it might be Konal property, which forms a small construed as intending articles ejus- part of the estate, as intestacy is to be dem generis; yet this presumption is avoided, if possible, under the above overcome by the fact that nearly all section: In re Shi llaber, 7 i Cal. IM. the articles specifically bequeathed Decedent bequeathed, to her which could be included as ornaments niece ilnger-rings, " and so many of are in fact jewelry: In re Traylm; 75 my books, pictures, and ornaments Cal. 189. (not otherwise bequeathed specifically) § 417. [1327.] Effect of Technical Words. — Tech- nical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention. Montana. — Same. Comp. Stats., p. 388, sec. 484. Utah. — Same. Comp. Laws, sec. 2693. A general guardian must be appointed to contest a will for a minor; In re Cameto, Myr. Prob. 75. §418. [1328.] Technical Words not Necessary. — Technical words are not necessary to give efifect to any species of disposition by a will. Montana. — Same. Comp. Stats., p. 388, sec. 485. Utah. — Same. Comp. Laws, sec. 2694. § 419. [1329.] Certain Words not Necessary to Pass a Fee. — The term " heirs " or other words of inheri- tance are not requisite to devise a fee, and a devise of real prop- erty passes all the estate of the testator, unless otherwise limited. |§ 420-423 pkObate lav^ and practice. 640 Montana. — Same. Comp. Stats., p. 3S8, sec. 486. Oregon. — See Hill's Laws, sec. 3094, under § 52, ante. Utah. — Same. Comp. Laws, sec. 2695. See §§ 370, 396, 404, ante. If, by the terms of a will, the es- follow, if the word is used in a special tate is devised to A, to have aacl to hold or restrictive sense to designate cer- during his lifetime, and then go to his tain particular persons: Norrig v. heirs, the whole fee-simple estate will Hensley, 27 Cal. 439. vest in A, if the word "heirs" is used " Issue of her body " is not synon- in a general sense, indicating those to omous with " heirs": In re McDonniel, whom by law the property would pass Myr. Prob. 94; Norrii v. Hensley, 27 by descent, but this result will not Cal. 439, §4S0. [1330.] Power to Devise — How Executed by Terms of Will. — Real or personal property embraced in a power to devise passes by a will purporting to devise all the real or personal property of the testator, BTontana. — Same. Comp. Stats., p. 389, sec. 487. Utah. —Same. Comp. Laws, sec. 2606. § 431. [1331.] Devise or Bequest of All Real or All Personal Property, or Both. — A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms denoting his intent to dispose of all his real or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. Montana. — Same. Comp. Stats., p. 389, sec. 488. Utah. — Same, except that "and" is substituted for "or, "after the words "D.il his real." Coinp. Laws, sec. 2697. "Devise " includes personalty, signification: In re Pfuelh, Myr. Prob. notwithstanding its original original 38; affirmed 48 Cal. 643. §432. [1332.] Residuary Clause. — A devise of the residue of the testator's real property passes all the real prop- erty which he was entitled to devise at the time of his death, not otherwise effectually devised by his will. Montana.— Same. Comp. Stats., p. 389, sec. 489. Utah. — Same. Comp. Laws, sec. 26>J8. § 433. [1338.] Same. — A bequest of the residue of the testator's personal property passes all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will. Montana. — Same. Comp. Stats., p. 389, sec. 490. Utah. — Same. Comp. Laws, sec. 2699, 541 INTERPRETATION Off WILLS. §§ 424-427 § 424. [1334.] « Heirs," " Rolatives," " Issue," " De- scendants," Etc.— A testamentary disposition to "heirs," " relations," " nearest relatione," " representaitives," " legal rep- ' resentatives," or " personal representatives," or " family," " is- sue," " descendants," " nearest," or " next of kin " of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the prop- erty in those who would be entitled to eucceed to the property of such person, according to the provisions of the title on succes- sion, in this code. Montana — Same. Comp. Stats., p. 389, sec. 491. Utah. — Same. Comp. Laws, sec. 2700. " Issue of her body " is not synony- Myr. Prob. 94; Norrls v. Sensley,Z7 mou3 with "heirs": In re McDonmk, Cal. 439. § 425. [1835.] Words of Donation and of Limita- tion. — The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated directly, and not as a qualifi- cation of an estate given to the ancestor of such person. JBIontana. — Same. Comp. Stats., p. 389, sec. 492, XTtah,. — Same. Comp. Laws, sec. 2701. § 426. [1336.] To What Time Words Refer. —Words in a will referring to death or survivorship, simply, relate to the time of the testaftor's death, unless possession is actually postponed, when they must he referred to the time of posses- sion. IContana. — Same. Comp. Stats, p. 389, sec. 493. TTtah. — Same. Comp. Laws, sec. 2702. § 427. [1337.] Devise or Bequest to a Class. — A testamentary disposition to a class includes every person an- swering the description at the testator's death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. Montana. — Same. Comp. Stata., p. 389, sec. 494. TItali. — Same. -Coiap. Laws, sec. 2703. In will "to those of the above- held to apply only to those who ■wrere mentioned children who hare at- of that nge at death of testatoc: /» re tained the age o£ twenty-one years," Orooh, Myr. Prob. 247. §§ 428-431 PKOBATB LAW AND PKACTICE. 542 § 428. [1338.] "Wlien Conversion Takes Effect. — "When a will directs the conversion of real property, into money, Buch property and all its proceeds must be deemed personal property from the time of the testator's death. Montana. — Same. Coinp. Stata., p. 389, sec. 495. Utah. — Same. Comp. Laws, sec. 2704. § 429. [1339.] "When Child Born after Testator's Death Takes under Will. — A child conceived before, but not born until after, a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. Montana. — Same. Comp. Stats., p. 389, seo. 496, Utah.. — Same. Comp. Laws, seo. 2705. §430. [1340.] Mistakes and Omissions. — When, applying a will, it is found that there is an imperfect descrip- tion, or that no person or property exactly answers the descrip- tion, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the test3,tor as to his inten- tions cannot be received. Montana. — Same. Comp. Stats., p. 390, sec. 497. Utah. — Same. Comp. Laws, sec. 2706. See § 414, ante. Proof extrinsic to a will may be to nominate as executor: In re Colette, made to show who testator intended Myr. Prob. 116. § 431. [1341.] When Devises and Bequests Vest. — Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. Montana. -^Same. Comp. Stats., p. 390, sec. 498. Utah. — Same. Comp. Laws, sec. 2707. A will only becomes executed the subject of sale under the provision upon the death of a testator: Orime's of the statute. Such sale would Estate V. Norris, 6 Cal. 625. transfer to the purchaser whatever A will by which real estate was rights the infants would have in such devised to certain infants provided property: Fitch v. Miller, 20 Cal. 352. that they each might " take out " one ^ A devise to a person "abso- half of his share when he should come lutely," to be "distributed" to him of age, and the other half not until all at the expiration of three years, is a the other children should come of age; vested interest in fee, postponed it was held that the title to the prop- i merely in enjoyment: WilUama v, erty vested in the infants upon the Williams, 73 Cal. 99. testator's death, and this estate was 643 INTERPRETATION OF WILLS. §§ 482-435 §433. [1342.] When cannot be Divested. — A tes- tamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. Montana. — Same. Comp. Stats., p. 390, sec. 499. Utah. — Same. Comp. Laws, sec. 2708. § 433. [1343.] Death of Devisee or Legatee. — If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him, fails, unless an intention ap- pears to substitute some other in his place, except as provided in section thirteen hundred and ten. Arizona. — See Rev. Stats., sec. 3246, under § 403, ante. Montana. — Same. Comp. Stats., p. 390, sec. 500. TTtalt. — Same, except that "section 37, chapter 1, of this act" (Comp. Laws, sec. 2682), is substituted for "section 1310." Comp. Laws, sec. 2709. For Comp. Laws, sec. 2682, see § 405, ante, § 434. [1344.] Interests in Bemainder are not Affected. — The death of a devisee or legatee of a limited in- terest before the testator's death does not defeat the interests of persons in remainder who survive the testator. Montana. — Same. Comp. Stats., p. 390, sec. 501.' Utah.. — Same. Comp. Laws, sec. 2710. §436. [1345^ Conditional Devises and Bequests. — A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. Montana. — Same. Comp. Stats., p. 390, sec. 502. Utah. — Same. Comp. Laws, sec. 2711. A bequest to an association on distribution: In re Cronin, Tslyi. Prob. condition that it is in existence at 252. testator's death lapses if said associa- In the construction of a will, tion ceases to exist prior to such death, due regard must be had to the direc- and a new association, organized for tions contained therein, and to the the same purposes as the old, and true interests and meaning of the tes- composed of the same persons, cannot tator in all matters relating thereto; take the bequest: In re Neil, Myr. and when a clause in the will provides, Prob. 79. in general terms, for the limitation Assigrnee takes nothing, if his over of the devise to a second taker assignor is one of two devisees, where upon a contingent event, the intention . the will provides that the whole estate of the testator, as indicated by, all the shall go to them and to the survivor parts of the will, must determine when of them if his assignor dies prior to and under what particular circum- : §§ 436-439 PROBATA J,AW AND PKACTICK. 544 stances the contingency arises: Shad- separated from her husband, one fifth den V. Hembree, 17 Or. 14. part shall go to such daughter, the When a will provides that the children of a married daughter have incoiue of the estate is to .be paid an interest in the property, s^nd i^re to the children of the testator during entitled to have it remain undisposed their natural lives, and in the event of hy their mother until the eondi- of the death of any of them, one fifth tions of the will are complied with, part of the residue of the estate shall and to inherit the same upon the go to the lawful issue of such child, death of the mother before such cou- and in the event of a daughter becom- dition shall happen: Born v. Horst- ing a widow, or ptherwisje lawfully mann, 80 Oe^I. 4$2. § 4S6. [1346.] Condition Precedent, What. — A con- dition precedent in a will is one whioh is required to be fulfilled before a particular dieposition takes effect. Montana. — Same. Comp. Stats., p. 390, sec. 503. Utah. — Same. Comp. Laws, sec. 2712. Wife of a felon unc^er sentence in the event of l)ecoming a ?ridow or of imprisonment ^or life is a widow otherwise becoming lajrfuUy separated 80 as to take property iinder the will from her husband, is not void as of another, which is to vest npon her against public policy,' or as holding becoming a widow: In re Stott, Myr. out an inducement for an unlawful Prob. 168. separation of the daughter from her A condition in a will that each husband, bat will be enforced as law- of the daughters of the testator shall nContana. — Same. Comp: Stats., p. 393, sec. 521 T7tall. — Same. Comp. Laws, sec. 2730. § 455. [1370.] Construction of These Rules. — The four preceding sections are in all cases to be controlled by a testator's expfess intention. Montana. — Same. Comp. Stats., p. 393, sec. 522. Utah. — Same. Comp. Laws, sec. 2731, § 456. [1371.] Executor According to the Tenor, — '■ Where it appears, by the terms of a will, that it was the in- tention of the testator to commit the execution thereof and the administration of his estate to any person as executor, such person, although not named executor, is entitled to letters tes- tamentary in like manner as if he had been named executor. Montana. — Same. Comp. Stats., p. 393, sec. 523. Utah. — Same. Comp. Laws, sec. 2732. The appointment of an execu- Proof extrinsic to a will may be tor is not essential to the valid- made to show who testator intended ity of a will: In re Barton, 52 Gal. to nominate as executor: In re Colette, 538; Clarke v. Sansom, 50 Gal. 595. Myr. Prob. 116. § 457. [1372.] Power to Appoint is Invalid. — An authority to an executor to appoint an executor is void. Montana. — Same. Comp. Stats., p. 394, sec. 524. Utah. — Same. Comp. Laws, sec. 2733. § 458. [1373.] Executor not to Act till Qualified. — No person has any power, as an executor, until he qualifies, except that, before letters have been issued, he may pay funeral 553 GENERAL PROVISIONS. §§ 459-462. charges and take necessary measures for the preservation of the estate. I Idaho. — Same. Rev. Stats., sec. 5757. XEontaiia. — Same. Comp. Stats., p. 394, sec. 525. Utah. — Same. Comp. Laws, sec. 2734. § 459. [1374.] Provisions as to Revocations. — The provisions of this title in relation to the revocation of wills applj' to all wills made by any testator living at the expiration of one year from the time it takes effect. Idaho. — Same. Kev. Stats., sec. 5758. Kontana. — Same. Comp. Stats., p. 394, sec. 626. Utah. — Same. Comp. Laws, sec. 2735. § 460. [1375.] Execution and Construction of Prior Wills not Affected. — The provisions of this title do no impair the validity of the execution of ^ny will made before it takes effect, or affect the construction of any such will, Idaho. — Same. Rev. Stats., sec. 5759. Montana. — Same. Comp. Stats., p. 394, sec. 527. Utah. — Same. Comp. Laws, sec. 2736. A will is to be construed under the statute in force at the time it was made: In re PfueW, 48 Cal. 643. §461. [1376.] The Law of What Place Applies. — The validity and interpretation of wills, wherever made, are governed, when relating to property within this state, by the law of this state. Idaho. — Same. Rev. Stats., sec. 5760. Montana. — Same. Comp. Stats., p. 394, sees. 528, 529. Utah. — Same. Comp. Laws, sec. 2737. § 462. [1377.] Liability of Beneficiaries for Tes- tator's Obligations. — Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the Code of Civil Procedure. Montana. — Same. Comp. Stats., p. 394, sec. 530. ' Utah. — Same. Comp. Laws, sec. 2738. " Those who succeed to the property of a decedent are liable for all his obli- gations ia the cases and to the extent prescribed by the act relating to pro- cedures of probate courts in the settlement of estates. " Comp. Laws, sec. 2760. § 463 PROBATE LAW AND PRACTICE. 554 CHAPTER XVII. SUCCESSION AND ESCHEAT. ARTICLE L SUCCESSION. § 463. Succession defined. § 464. Who first succeeds to possession of estates not devised, and for wbat purpose. § 465. Succession to and distribution of property. § 466. Illegitimate children to inherit in certain events, § 467. The mother is successor to illegitimate child. § 468. Degrees of kindred, how computed. § 469. Same. § 470. Same. §471. Same. § 472. Same. § 473. Relatives of the half-blood. § 474. Advancements constitute part of distributive share. § 475. Advancements, when too much or not enough. § 476. What are advancements. § 477. Value of advancements, how determined. § 478. When heir advanced to dies before decedent. § 479. Inheritance of husband and wife from each other. § 480. Distribution of the common property in case of death of the wife. § 481. Distribution of common property on death of the husband. § 482. Inheritance by representation. § 483. Aliens may inherit, when and how. § 484. Succession not claimed — Duty of attorney-general. § 485. When the property and estate escheat to the state, § 486. Property escheated subject to charges as other property, § 487. Successor liable for decedent's obligations. § 463. [1383.] Succession Defined. — Succession is the coming in of another to take the property of one who dies without disposing of it by will. Idaho. — Same. Rev. Stats., sec. 5700. Kontana. — Same. Comp. Stats., p. 395, sec. 531. TTtah. — Same. Comp. Laws, sec. 2739. 555 SUCCESSION AND ESCHEAT. §464 The inheritance is regulated by the law in force at the time of the death: £ich v. Tubbs, 41 Cal. 34. An estate acquired by inheri- tance is one that descends upon the heir and is cast upon him by the opera- tion of law. A devisee does not in- herit, but takes by purchase; In re Donahue, 36 Cal. 329. As to vesting^ of title to personal property, see Jahns v. Nolting, 29 Oal, 507. When both husband and wife perish in the same calamity, no pre- sumption of survivorship of the wife arises from the fact that the order of court granting letters of administra- tion upon her estate recites that she was "the surviving wife " of her hus- band. In a proceeding by her admin- istrator to set aside the probate of her husband's will, it is error to refuse evidence aliunde, upon the question of survivorship: Sanders v. &'8?nric/t, ' 65 Oal. 50. See also Cal. Code Civ. Proc, sec. 1963, subd. 40, for presumptions in regard to survivorship. Descent and distribution: See EversdoH V. Maylicw, 57 Cal. 144. §464. [1384.] Who First Succeeds to Possession of Estates not Devised, and for What Purpose. — The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, sub- ject to the control of the probate [superior] court, and to the possession of any administrator appointed by that court, for the purposes of administration. Idaho. —Same. Rev. Stats.^ sec. 5701., Montana. — Same. Comp. Stats., p. 395, sec. 532. Oregon. — " The real property of the deceased is the property of those to whom it descends by law or is devised by will, subject to the possession of the executor or administrator, and to be applied to the satisfaction of claims against the estate, as by this chapter provided; but upon the settlement of the estate and the termination of the administration thereof, so much of such real property as remains unsold or unappropriated is discharged from such possession and liability without any order or decree therefor. But if there be any surplus of the proceeds of the sale of such real property, or any part thereof, the court, or judge thereof, shall order ;and direct a distribution of such surplus among those who would have been entitled to such land if the same had not been sold." Hill's Laws, sec. 1192. Xrtah. — Same as California. Comp. Laws, sec. 2740. The interest of a deceased in mining ground can only pass by deed or will; and in the absence of both of these, it vests in the heirs of the deceased: Hardetibergh v. Bacon, 33 Cal. 356. A possessory interest in pubUc land may descend among the ef- fects of a deceased person to his exec- utor or administrator, and may be conveyed by a regular sale to another: Grover v. Hawley, 5 Cal. 486. The right of possession which a person held in the pueblo lands of San Section 1385, Civil Code, repealed March 30, 1874, Francisco prior to the passage of the Van Ness ordinance descended to his heirs, and could be distributed by the court: McLeran v. Benton, 43 Cal. 467. Future contingent interests vests in beneficiary, so as to be the subject of succession: In re Selna, Myr. Prob. 233. Quartz lodes descend and are dis- tributed as other real property; Gar- liart V. Mont. Mineral Co., \ Mont. 245. Stats. 1873-74, p. 236. I § 465 PEOBATB LAW AND I'KACTICE. 556 § 465. [1886.] Succession tQ and Distribution of Property. — When any person, having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the Code of Civil Procedure, subject to the payment of his debts, in the following manner: — 1. If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the Surviving husband or wife and child, or issue of such child. If the decedent leave a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one third to the surviv- ing husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child by right of representation; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation. If the decedent leave no surviv- ing husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or .one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the de- ceased child or children by right of representationj , 2. If the decedent leave no issue, the estate goes, one half to the surviving husband or wife, and the other half to the dece- dent's father and mother, in equal shares, and if either be dead, the whole of said half goes to the other; if there be no father or mother, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation. If the decedent leave no issue, nor husband nor wife, the estate must go to his father and mother, in equal shares, or if either be dead, then to the other. 3. If there be neither issue, husband, wife, father, nor mother, then in equal shares to the brothers and sisters of the decedent. 557 SUCCESSION AND ESCHEAT, § 465 and to the children of any deceased brother or sister by right of representation. 4. If the decedent leave a surviving husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife. 5. If the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming though diflfer- ent ancestors, those who claimed through the nearest ances- tors must be preferred to those claiming through an ancestor more remote. 6. If the decedent leave several children, or one child, and the issue of one or more children, and any such surviving cbild dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation. 7. If at the death of such child, who dies under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance froqi his parents descends to the issue of all other children of the same parent; and if allithe issue are in the same degree of kindred to the child, they share the' estate equally, otherwise they take according to the right of representation. 8. If the decedent be a widow or widower, and leave no kindred, and the estate, or any portion thereof, was common property of such decedent, and his or her deceased spouse, while such spouse was living, such common property shall go to the father of such deceased spouse, or if he be dead, to the mother. If there be no father nor mother, then such prop- erty shall goto the brothers and sisters of such deceased spouse, . in equal shares, and to the lawful issue of any deceased brother or sister of such deceased spouse, by right of representation. 9. If the decedent leave no husband, wife, or kindred, and there be no heirs to take his estate, or any portion thereof. § 465 PROBATE LAW AND PRACTICE. 558 under subdivision eight of this section, the same escheats to the state for the support of common schools. "A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent aud'ohild, and have all the rights and be subject to all the duties of that relation." Cal. Civ. Code, sec. 228. " All property, real and personal, within the limits of this state which does not belong to any person, belongs to the people. Whenever the title to any property fails for want of heirs or next of kin, it reverts to the people." Cal. Pol. Code, sec. 41. Arizona. — "Where any person, having title to any estate of inheritance, real, personal, Or mixed, shall die intestate as to such estate, and shall leave no surviving husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course; that is to say: 1. To hia children and their descendants. 2. If there be no children nor their descend- ants, then tjo his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none siich, then the whole estate shall be inherited by the surviving father or mother. 3. If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants. 4. If there be none of the kindred aforesaid, then the inheri- tance sh^ll be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred in the following course, that is to say, to the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to the survivor, and the other shall go to the descendant, or descend- ants of such deceased grandfather or grandmother. If there be no such de- scendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants." Rev. Stats., sec. 1459. " Where any person, having title to any estate of inheritance, real, personal, or mixed, shall die intestate aa to such estate, and shall leave a surviving hus- band or wife, the estate of such intestate shall descend and pass as follows: 1. If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased, and their descendants. The surviving husband or wife shall also be entitled to an estate for lite in one third of the land of the intestate, with remainder to the child or children of the intestate and their descendants. 2. If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate and to one half of the lands of the intestate, without remainder to any person, and the other half shall pass arid 559 SUCCESSION AND ESCHEAT. § 465 be inherited according to the rules of descent and distribution; provided, Iu)w et«r, that if the deceased have neither Surviving father or mother, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.'' Rev. Stats., see. 1460. "There shall be no distinction in regulating the descent and distribution of the estate of a person dying intestate between property iBrhich may have been derived by gift, devise, or descent from the father and that which may have been derived by gift, devise, or descent from the mother, and all the estate to which such intestate may have had title at the time of death stiall descend and vest in the heirs of such person in the same manner as if he had been the original purchaser thereof; provided, however, that if such intestate was the legally adopted heir of another, and dies, leaving no surviving husband or wife, and no children, then so much of his estate as was obtained by gift; devise, or descent from the person adopting him shall descend to the person and heirs of the person who adopted such intestate." Rev. Stats., sec. 1461. "Where the children of the intestate's bi^others a^d sisters, uncles and aunts, or any other relations of the deceased, standing in the same degree, come into partition, they shall take per capita, that .is to say, by persons, and where a part of them being dead and a part living, the issue of those dead have right to partition, such issue, shall take per stirpes, or by stocks, that is to say, the shares of their deceased parents." Rev. Stats., sec. 1466. "No conviction shall work corruption of blood or forfeiture of estate, nor shall there be any forfeiture by reason of death by casualty, and the estates of those who destroy their own lives shall descend or vest as in case of natural death." Rev. Stats., sec. 1463. " Where two or more persons hold an estate, real, personal, or mixed, jointly, and one joint owner dies befdre severance, his interest in said joint estate shall not survive to the remaining joint ownisrs, but shall descend to and be vested in the heirs and legal representatives of such deceased joint owner, in the same manner as if his interest had been severed and ascertained. " Rev. Stats., sec. 1469. Same as section 228 of California Civil Code, sup^'a. Rev. Stats., sec. 1390. Idaho. — Same as Ctdifornia. Rev. Stats., sec. 5702. Same as section 228 of California Civil Code, supra. Rev. Stats., sec. 2552. itContana. — "When any person, having ti^le to any e.=!tate hot otherwise limited by marriage contract, dies without disposing pf the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the Code of Civil Procedure, subject to the payment of his debts, in the following manner: 1, If the decedent leave a, surviving husband or wife, and only one child, or the Istwful issue of one child, in equal shares to the surviving husband, or wife aind child, or isstie of such child. If the dece- dent leave a surviving husband or wife, and more ihan one child living, or one child living, and the lawful issue of one or more deceased children, one tihird to the husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of his representation; biit if there be no child of the decedent living at his death, the remainder goes to all, his lineal d'esdend'ants; and if all of the descendants are in the same decree § 465 PROBATE LAW AND PRACTICE. 560 of kindred to the decedent, they share equally, otherwise they take according to the right of representation. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living, and the lawful issue of one or more decfaased children, then the estate goes in equal shares to the children living, or to the child living, and to the issue of the deceased child or children, by right of representation. 2. If the decedent leave no issue, then the estate goes in equal shares to the surviving husband or wife, and to the decedent's father. If there be no father, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If he leave a mother also, she takes in equal share with the brothers and sisters. If the decedent leave no issue, nor husband nor wife, the estate must go to the father. 3. If there be no issue, nor husband nor wife, nor father, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If a mother survive, she takes in equal share with the brothers and sisters; 4, If the decedent leave no issue, nor husband nor wife, nor father, and no brother nor sister is living at the time of his death, the estate goes to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters. 5. If the decedent leave a surviving husband or wife, and no issue, and no father nor mother, nor brother nor sister, the whole goes to the surviving husband or wife. 6. If the decedent have no issue, nor husband nor wife, and no father nor mother, nor brother nor sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through differ- ent ancestors, those who claim through the nearest ancestors must be preferred to those claiming through an ancestor more remote; however, 7. If the decedent leave several children, or one child, and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the es- tate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation. 8. If, at the death of such child who dies under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his .parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, other- wise they take according to the right of representation." Comp. Stats., p. 395, sec. 534. "If the decedent leave no husband, wife, or kindred, the estate escheats to the territory." Comp. Stats., p. 397, sec. 535. Same as section 228 of California Civil Code, twpra. Comp. Stats., p. 588, sec. 8. ITevada. — "When any person, having title to any estate not otherwise limited by marriage contract, shall die intestate as to such estate, it shall descend and be distributed, subject to the payment of his or her debts, in the following manner: 1. If there be a surviving husband or wife, and only one 561 SUCCESSION AND ESCHEAT. § 465 child, or the lawful issue of one child, in equal shares to the snmving hus> band or wile, and child, or issue of such child. If there be a surviving hnsband or wife, and more than one child living, or one child living, and the lawful issue of one or more deceased children, one third to the surviving husband or wife, and the remainder in equal shares to his or her children, and to the law- ful issue of any deceased child, by right of representation. If there be no tihild of the intestate living at his or her death, the remainder shall go to all of his or her lineal descendants; and if all the said descendants are in the same de- gree of kindred to the intestate, they shall share equally, otherwise they shall take according to the right of representation. 2. If he or she shall leave no issue, the estate shall go in equal shares to the surviving husband or wife, and to the intestate's father. If he or she shall leave no issue, or husband or wife, the estate shall go to his or her father. 3. If there be no issue, nor husband nor wife, nor father, then in equal shares to the brothers and sisters of the intestate, and to the children of any , deceased brother or sister, by right of representation; provided, that if he or she shall leave a mother also, she shall take an equal share with the brothers and sisters. 4. If the intestate shall leave no issue, nor husband nor wife, nor father, and no brother or sister living at his or her death, the estate shall go to bis or her mother, to the ex- clusion of the issue, if any, of deceased brothers or sisters. 5. If the intestate shall leave a surviving husband or wife, and no issue, and no father, mother, brother, or sister, the whole estate shall go to the surviving husband or wife. 6. If the intestate shall leave no issue, nor husband nor wife, and no father, mother, brother, nor sister, the estate shall go to the next of kin in equal de- gree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors shall be preferred to those claiming through an ancestor more remote; provided, however, 7. If any person shall die, leaving several children, or leaving one child, and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased child by inheritance from such de- ceased parent shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation. 8. If, at the death of snch child, who shall die under age, and not having been married, all the other children of his said parent shall also be dead, and any of them shall have left issue, the estate that came to such child by inheritance from his said parent shall descend to all the issue of other children of the same parent; and if all the said issue are in the same degree of kindred to said child, they shall share the said estate equally, otherwise they shall take according to the right of representation. 9, If the intestate shall leave no husband or wife, nor kindred, the estate shall escheat to the territory for the support of common schools." Gen. Stats., sec. 2981. p 4,v •Same as section 228 of California Civil Code, supra. Cren. Stats., sec. 606. Oregon. — " When any person shall die seised of any real property, or any right thereto, or entitled to any interest therein, in fee-simple, or for the life of another, not having lawfully devised the same, such real property shall de- scend, subject to hia debts, as follows: 1. In equal shares to his or her children, § 465 PROBATE LAW AND PEACTICB. 56 and to the issue of any deceased child by right of representation; and if the be no child of the intestate living at the time of his or her death, such re properijy shall descend to all his or her other lineal descendants; and if a such descendants are in the same degree of kindred to the intestate, they shs take such real property equally, or otherwise they shall take according to'tl right of representation. 2. If the intestate shall leave no lineal descendant such real property shall descend to his wife; or if the intestate be a marric woman and leave no lineal descendants, then such real property shall descei to her husband; and if the intestate leave no wife nor husband, then such re property shall descend to his or her father. 3. If the intestate shall leave i lineal descendants, neither husband nor wife, nor father, such real properl shall descend in equal shares to the brother and sister of the intestate, and : the issue of any deceased brother or sister by right of representation; but the intestate shall leave a mother also, she shall take an equal share with sue brother and sisters. 4. If the intestate shall leave no lineal descendants, neithi husband nor wife, nor father, brother, nor sister, living at his or her death, sue real property shall descend to his mother, to the exclusion of the issue of tl deceased brothers or sisters of the intestate. 5. If the intestate shall leave r lineal descendants, neither husband nor wife, nor father, mother, brother n( sister, such real property shall descend to his or her next uf kin in equal di gree, excepting that when there are two or more collateral kindred in equi degree, but claiming through different ancestors, those who claim through tli nearest ancestor shall be preferred to those claiming through a more remol ancestor. 6. If the intestate shall leave one or more children, and the issue < one or more deceased children, and any of such surviving children shall die ui der age without having been married, all such real property that came to sue deceased child by inheritance from such intestate shall descend in equal share to the other children of such intestate and to the issue of any other children < such intestate who shall have died, by right of representation; but if all tli other children of such intestate shall be also dead, and any of them shall ha-v left issue, such real property so inherited by such deceased child shall descen to all the issue of such other children of the intestate in equal shares, if the are in the same degree of kindred to such deceased child, otherwise they sha take by right of representation. 7. If the intestate shall leave no lineal di scendants or kindred, such real property shall escheat to the state of Oregon, Hill's Laws, sec. 3098. *' When any person shall die possessed of any personal property, or of an right to or interest therein, not having lawfully bequeathed the same, sue personal property shall be applied and distributed as follows: 1. If the intei tate shall leave a widow, she shall be allowed all articles of her apparel an ornament, according to the degree and estate of the intestate, and such pro] erty and provisions, for the use and support of herself and minor children, i shall be allowed and ordered in pursuance of title 4 of chapter 15 of tl Code of CSvil Procedure; and this allowance shall be made as well when tl ■widow waives the provision made for her in the will of her husband as whe he dies intestate. 2. The personal property of the intestate remaining aft( such allovance shall be applied to the payment of the debts of the deceasee 563 SUCCESSION AND ESCHEAT. § 465 and the charges and expenses of administration as provided by law. 3. The residue, if any, of the personal property shall be distributed among the per- sons who would be entitled to the real property of the intestate, as provided in this act, and in the like proportion or share, except as is herein otherwise provided, 4, If the intestate shall leave a husband, such husband shall be en- titled to receive the whole of such residue of the personal property. 5. If the intestate leave a widow and issue, such widow shall be entitled to receive one half of such residue of the personal property; but if the intestate leave a widow and no issue, such widow shall be entitled to receive the whole of such resi- due of the personal property. 6. If there be no husband, widow, or kindred of the intestate, the whole of such residue shall escheat to the state of Oregon." Hill's Laws, sec. 3099. " A child so adopted shall be deemed, for the purposes of inheritance of such child, and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them by lawful wedlock, except that he shall not be capable of taking property expressly limited to heirs of the body or bodies of the parent by adoption, nor property from the lineal or collateral kindred of such parents by right of representation. " Hill's L^ws, sec. 2943. "If, in a petition for the adoption of a child, a change of the child's name is requested, the court, upon decreeing the adoption, may also decree such change of name, and grant a certificate thereof. " Hill's Laws, sec. 2949. Utah. — Same, except that the word "lawful" is omitted from subdivision 1, and in subdivision 9, after the word "section," read as follows: "The same shall be disposed of in the manner provided in section 22 of this title for the disposal of estates of non-resident foreigners." Comp. Laws, sec. 2741. "Whenever it shall be desirable, the party adopting such child may, .by stipulations to that effect in such statement, adopt such child and bestow upon him or her equal rights, privileges, and immunities of children born in lawful wedlock." Comp. Laws, sec. 2576. Washington. — "When any person shall die seised of any lands, tene- ments, or hereditaments, or any right thereto, or entitled to any interest therein in fee-simple or for the life of another, not having devised the same, they shall descend, subject to the debts, as follows: 1. If the decedent leaves a surviving husband or wife and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more de- ceased children, one third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child by right of representation. If there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the de- scendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation. 2. If the dece- dent leaves no issue, the estate goes in equal shares to the surviving husband or wife, and to the decedent's father and pother, if both survive. If there be no father nor mother, then one half goes in equal shares to the brothers and 5 465 PROBATK LAW AND PRACTICE. 564 listers of the decedent, aa'd to the children of any deceaMd brothers or sisters >y right of representation. If decedent leaves no issue, nor husband nor wife, ;he estate must go to his father and mother. 3. If there be no issue, nor hus- >and nor wife, nor father and mother, nor either, then in equal shares to the >rothers and sisters of the decedent, and to the children of any deceased irother or sister by right of representation. 4. If the decedent leaves a sur- riving husband or wife, and no issue, and no father nor mother, nor brother nor lister, the whole estase goes to the surviving husband or wife. 5. If the decedent leaves no issue, nor husband nor wife, and no father nor mother, nor brother lor sister, the estate must go to the next of kin, in equal degree, excepting that nrhen there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestor must be preferred to those claiming through an ancestor more remote; how- aver, 6. If the decedent leaves several children, or one child and the issue of gne or more other children, and any such surviving child dies under age, and not having been married, all the estate that comes to the deceased child by inheritance from such decedent descends in equal shares to the other children if the same parent, and to the issue of any such other children Who are deada t>y right of representation. 7. If, at the death of such child who dies under ige, not having been married, all the other children of his parents are also Head, and any of them have left issue, the estate that came to such child by Inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally; otherwise they take according to the right of representation. 8. If the decedent leaves no husband, wife, or kindred, the estate escheats to the state, for the support of common schools in the county in which the decedent resided during lifetime, or where the estate may be situ- ated." Gen. Stats., sec. 1480. " When any person shall die possessed of any separate personal estate, or of any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows: 1. The widow, if any, shall be allowed all articles of her apparel or ornament, according to the degree and estate of her husband, and such provisions and other necessaries, for the use of herself and family under her care, as shall be allowed and ordered in pursuance of the provisions of any law; and this allowance shall be made as well when the widow receives the provision made for her in the will of her husband as when he dies intestate. 2. The personal estate remaining after such allowance shall be applied to the payment of the debts of the deceased, with the charges for the funeral and the settling of the estate. 3. The residue, if any, of the personal estate shall be distributed among the same persons as would be entitled to the real estate by section 1480 of this volume of General Stat- utes [supra], and in the same proportion as provided, excepting as herein further provided. 4. If the intestate leave a husband and issue, the hus- band shall be entitled to one half the residue. 5. If there be no issue, the husband shall be entitled to the whole of the residue. 6. If the intestate leave a widow and issue, the widow shall be entitled to one half of said resi- due. 7. If there be no issue, the widow shall be entitled to the whole of the 565 SUCCESSION AND ESCHEAT. § 466 reeidue. 8. If there be no hnsband, widow, or kindred of the intestate, th« said personal estate shall escheat to the st^ite, for the use of common schools in the piixtipulAr connt; in which the intestate shall have resided at time of 4eath." Gen. Stats., sec. U93. " If partition be not made between joint tenants, the parts of those who die first shall not accrae to the survivors, but descend or pass by devise, and shall be subject to debts s^nd other legal charges, or transmissible to executors or ad> niinistrators, and be considered to every intent and purpose in the same vievr ;w if such deceased joint tenants had been tenants in common; promded, that commnnitjr property shall not be affected by this section." Gen. Stats., sec. 1483. "If any person, by last will, devise iany real estate to any person for the term of such person's life, such devise vests in the devisee an estate for life, and without the remainder is specially devised to the heirs of said devised, it shall revert to the heirs at law of the testator." Gen. Stats., sec. 1473. "The word 'issue^'as used in this chapter, includes all the lawful lineal descendants of the ancestor. " Gen, Stats., sec. 1493, See Bech v. Soward, 76 Cal. 527. The 'w^ord "issue," in the above occurs in the third subdivision of sec- section, is used in the same sense aa tion 1 of the statute of descents and "child"; and sections 227 and 228, distributions, does not include ^rand- wheu construed with this section, en- children, but is confined to the imme- title an adopted child to succeed to diate offspring of a deceased brother the estate of the adopting parent: In or sister: In re Curry, 39 Cal. 529. re Newman, 75 Cal. 213. The term "children," when to Occupancy of public lands under be construed grandchildren: In re the pre-emption laws creates no in- Schedel, 73 Cal. 594. heritable title: Buxton v. Traver, 67 The wife dies leaving a hus- ' Cal. 171. band' and their two infant children; When an intestate has no issue, one died unmarried and without issu«, nor wife, nor father, mother, brother, — in such case the father inherits one nor sister; held, that his grandfather third of the wife's separate estate, and took the estate in preference to his the share of the deceased child is in- nncle, as next of kin: Smallman v. herited by the other child, and not by Powell, 18 Or. 367. . the father: In re De Castro, 18 Cal. 96, descendants of a person are If a person dies intestate, own- children, grandchildren, and their ing property acquired by inheritance, children to the remotest degree: Jevj' the surviving mother will not inherit f// V. Jewell, 28 Cal. 232, such property: In re Donahue, 36 Cal, The word "children," where it 329. §466. [1387.] Illegitimate Children. — Every ille- gitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may he, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kin- dred, either lineal or collateral, unless, before his death, hia § 466 PROBATE LAW AND PRACTICE. 566 parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in wliich case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others in- herit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. Arizona. — "Where a man having, by a woman, a child or children, and afterward intermarry with such woman, such child or children, if recognized by him, shall thereby be legitimatized and made capable of inheriting his estate. The issue, also, of marriages deemed null in law shall nevertheless be legitimate." Rev. Stats., sec. 1470. " Bastards shall be capable of inheriting from and through their mothers, and of transmitting estates, and shall also be entitled to distributive shares of the personal estate of any of their kindred, on the part of their inother, in like manner as if they had been lawfully begotten of such mother." Rev. Stata., sec. 1471. Idaho. — Same. Rev. Stats., sec. 5703. Kontana. — Same. Comp. Stats., p. 397, sec. 536. ■ Nevada. — " Every illegitimate child shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child; and shall in all cases be considered as heir of his mother; and shall inherit his or her estate, in whole or in part, as the case may be, in the same manner as if he had been bom in lawful wedlock; but he shall not be allowed to claim, as representing his father or mother, any part of the estate of his or her kindred, either lineal or collat- eral, unless, before his death, his parents shall have intermarried, abd his father, after such marriage, shall have acknowledged him as aforesaid, or adopted him into his family, in which case such child and all the legitimate children shall be considered as brothers and sisters, and on the death of either of them, intestate, and without issue, the others shall inherit his estate, and be heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the said children, as provided hereinbefore, in like manner as if all had been legitimate. The issue of all marriages deemed null in law, or dissolved by divorce, shall be legitimate." Gen. Stats., ?eo. 2982. /Oregon. — " An illegitimate child shall be considered an heir of its mother, and shall inherit or receive her property, real or personal, in whole or in part, as the case may be, in like manner as if such child had been born in lawful wedlock; but such child shall not be entitled to inherit or receive, as repre- senting his mother, any property, real or personal, of the kindred, either 667 SUCCKSSION AND ESCHEAT. § 467 lineal or collateral, of such motber; provided, that when the parents of such child have formally married, and' lived and cohabited as husband and wife, such child shall not be regarded as illegitimate within the meaning of this act, although such formal marriage shall be adjudged to be void," Hill's Laws, sec. 3101. "If an illegitimate child shall die intestate, without leaving a widow, hus- band, or lawful issue, the property, real and personal, of such intestate shall descend to or be received by his mother; bnt if, after the birth of an illegiti- mate child, the parents thereof shall intermarry, such child shall be considered legitimate to all intents and purposes." Hill's Laws, sec. 3102. XTtah. — " Every illegitimate child is an heir of the person who acknowl- edges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock. The issue of all marriages null in law, or dissolved by divorce, are legitimate." Comp. Laws, see. 2742. Washington. — Same as California, except that the last sentence is omitted; also, the word "and" is substituted for the word "or," between the worda "child" and "adopts." Gen. Stats., sec. 1484. Sabra Kagee had two legiti- those who are legitimate, nnlesa a mate daughters, — Eliza and Susan, different intention is manifest: /» re- Eliza's descendants wei-e all legitimate. Magee, 63 Cal. 414. Susan had two illegitimate daughters, As to legitimization of children Elizabeth and Suez. Elizabeth died of marriages null in < law or dissolved after her mother, leaving one legiti- by divorce, see Oraluxm v. Sennett, 2 mate child, Albert. Suez died subse- Cal. 503. qnently, intestate, and without issue. Illegitimate half-brother by the Eliza's descendants claim her estate aa father's side cannot be an heir; ille- against Albert. It was held, upon a gitibiate half-sisters by the mother's constructionof sections 1386, 1387, and side inherit: In re Harrison, Myr. 1388 of the California Civil Code (§§465 Prob. 121. -467), that Albert is entitled to succeed , Acts of paramour in recognition to the estate of Snez as an heir of of his paternity of the spurious off- Susan, the mother of Elizabeth and spring of an adulterous wife cannot be Suez: In re Magee, 63 Cal. 414. deemed an adoption,' so as to entitle Every illegitimate child inher- such child to inherit from him: In re its from its mother, the same as if born iS'iarioro, Myr. Frob. 255. in lawful wedlock: In re Magee, 63 Statutes concerning adoption of Cal. 414. illegitimate children are to be strictly Terms of kindred include only construed: In re Jessup, 81 Cal. 408. § 467. [1388.] The Mother is Successor to Illegit- imate Child. — If an illegitimate child; who has not been acknowledged or adopted by his father, djes intestate, without lawful issue, his estate goes to his mother, or in case of her decease, to her heirs at law. Arizona. — See Rev. Stats., see. 1471, nnder last section. Idaho. — Same as California. Bev. Stats., sec. 5704. Uoutana. — Same as California. Comp. Stats., p. 397, sec. 537. Nevada. — "If any illegitimate child shall die intestate, without lawfnl §§ 468-470 PROBATE LAW AND PRACTICE. " 568 igsne, his estate shall descend' to his mother, or, incase of her decease, to her heirs at law." Gen. Stats., sec. 2983. Oregon. — See Hill's Laws, sec. 3102, under last section. TTtah. — Same as California, with the following omitted: "Who has not been acknowledged or adopted by his father." Comp. Laws, sec. 2743. WaBhington. — Same as California. Gen. Stats., sec. 1485. § 468. [1889.] Degrees of Kindred, how Com- puted. — The degree of kindred is established by the number of generations, and each generation is called a degree. Idabo. — " The degrees of kindred are computed according to the rules of the civil law. Kindred of the half-blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of snch ancestors must be excluded from such in- beritance." Rev. Stats., sec. 5705. Iffontana. — Same. Con\p. Stats., p. 397, sec. 538. Nevada. — " The degrees of kindred shall be computed according to the rules of the civil law, and kindred of the half-blood shall inherit equally with those of the whole blood, in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors shall be excluded from snch inheritance." Gen. Stats., sec. 2984. Oreigon. — " The degrees of kindred shall be computed according to the rules of the civil law, and the kindred of the half-blood shall inherit or receive equally with those of the whole blood in the same degree." Hill's Laws, sec. 3103. Utah. — Same as California. Comp. Laws, sec. 2744. Washington. — Same as California. Gen. Stats., sec. 1486. The common law is the rule of where the civil-law rnle of computa- decision in this state in computing the tion applies: People v. De la Overra, degrees of consanguinity, except in 24 Cal. 73. relation to descent and distribution, § 469. [1390.] Same. — The series of degrees forms the line; the series of degrees between persons who descend from one another is called direct or lineal consanguinity; and the series of degrees between persons who do not descend from one another, but spring from a common ancestor, is called the cot lateral line or collateral consa:nguinity. Montana. —Same. Comp. Stats., p. 398, sec. 539. Utah. — Same. Comp. Laws, sec. 2745. § 470. [1391.] Same. —The direct line is divided into a direct line descending and a direct line ascending. The first is that which connects the ancestors with thosfe who descend 669 SUCCESSION AND ESCHEAT. §§ 471-473 from faim. The second is that which connects a person with those from whom he descends. Montana. — Same. Comp. Stats., p. 390, sec. 540. Vtah. — Same. Comp. Laws, sec. 2746. § 471. [1392.] Sanije. — In the direct line there are a,s many, degrees as there are generations. Thus the son is, with regard to the father, in the first degree; the grandson in the second, and vice versa with regard to the father and grand,- father toward the sons and grandsons. Montana. — Same. Comp. Stats., p. 398, sec. 541. Utah. — Same. Comp. Laws, sec. 2747. The grandfather is one degree pnted by the civil law: Smallman v, nearer of kin than the uncle, as com- Poii/ell, 18 Or. 367. § 473. [1393.] Same. — In the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative included, and the ancestor counted but once. Thus brothers are related in the second degree; uncle and nephew in the third degree; cousins-german in the fourth, and so on. Montana. — Same. Comp. Stats., p. 398, sec, 542. Utah. — Same. Comp. Laws, sec. 2748. § 473. [1394.] Relatives of the Half-blood. — Kin- dred of the ha,lf-blood inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift of some of his ancestors, in ^hich case all those who are not of the blood of such Ancestors must be excluded from such inheritance. Arizona. — "In cases before mentioned, where the inheritance is directed to pass to the collateral kindred of the intestate, if part of such cpllateral kin- dred be of the whole blood, and the other part of the half-blood only of the intestate, tJTose of the half-blood shall inherit only half so much as those of the whole blood, but if all be of the half-blood, they shall have whole portions. Rev. Stats., sec. 1462. Montana. — Same as California. Comp. Stats,, p. 398, sec. 543. Nevada. — SeeOen. Stats., sec. 2984, under § 468, ante, . Oregon. — See Hill's Laws, sec. 3103, under § 468, ante, Utah. — Same as California. Comp. Laws, sec. 2749. Illegitimate half-brother by the mate half-sisters by the mother's side father'sside cannot be an heir; illegiti- inherit: 7n re ,^a>-)-t»on, Myr. Prob.121. §§ 474, 475 PROBATE LAW AND PRACTICE. 570 § 474. [1395.] Advancements Constitute Part of Distributive Share. — Any estate, real or personal, given by the decedent in his lifetime, as an advancement to any child, or other lineal descendant, is a part of the estate of the decedent, for the purposes of division and distribution thereof among his issue, and must be taken by such child, or other lineal descendant, toward his share of the estate of the decedent. Arizona. — "When any of the children of a person dying intestate, or their issue, shall have received from such intestate in his lifetime any real, personal, or mixed estate by way of advancement, and shall choose to come into partition and distribution of the estate with the other distributees, such advancement shall be brought into hotchpot with the whole estate, and such party returning such advancement shall thereupon be entitled to his proper portion of the whole estate; provided, that it shall be sufficient to account for the value of the property so brought into hotchpot at the time it was ad- vanced." Bev. Stats., sec. 1165. Idaho. — Same as California. Rev. Stats., sec. 5706. KContana. — Same as California. Comp. Stats., p. 398, sec. 544. Nevada. — Same as California, except that " intestate " is substituted for "decedent" wherever it occurs. Gen. Stats., sec. 2985. Oregon. — Same as California. Hill's Laws, sec. 3104. "If the intestate leave a widow and issue, and any of such issue shall have received an advancement from the intestate in his lifetime, the value of such advancement shall not be taken into consideration in computing the part to be given to the widow, but such widow shall only be entitled to receive the one half of such residue, after deducting the value of such advancement." Hill's Laws, sec. 3100. Utah.. — Same as California. Comp. Laws, sec. 2750. Washington. — Same as California. Gen. Stats., sec. 1487. § 475. [1396.] Advancements, when Too Much or not Enough. — If the amount of such advancement ex- ceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribu- tion of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. Arizona. — See Rev. Stats., sec. 1465, under last section. Idaho. — Same. Rev. Stats., sec. 5707. Kontana. — Same. Comp. Stats., p. 398, sec. 545. Nevada. — Same. Gen. Stats., sec. 2986. Oregon. — Same. Hill's Laws, sec. 3105. 571 SUCCESSION AND ESCHEAT. § 476 " If any such advancement is made in real property, the value thereof shall, for the purposes of the last section, be considered as part of the real property to be divided; and if the advancement be either in real or personal property, and shall in either case not exceed the share or portion of such real or personal property that would come to the heir so advanced, such heir shall not refund any part of it, but shall take or receive so much less out of the whole part of the estate, as the case may be, as will make the whole share equal to those of the other heirs who are in the same degree with the heir so advanced." Hill's Laws, sec. 3106. ' Utah. — Same as California. Comp. Laws, sec. 2451. Washington. — Same as California. Gen. Stats., sec. 1488. " If any such advancement shall have been made in real estate, the value thereof shall, for the purposes of the preceding section, be considered as part of the real estate to be divided, and if it be in personal estate, and if in either case it shall exceed the share of real or personal estate respectively that would have co.me to the heii so advanced, he shall not refund any part of it, but shall receive so much less out of the other part of the estate as will make the whole share equal to those of the other heirs who are in the same degree with him." Gen. Stats., sec. 1489. "If the intestate leave a widow and issue, and any relation have received an advancement from the intestate in his lifetime, the value of such advance- ment shall not be taken into consideration in computing the one-half part to be assigned to the widow, but she shall be entitled to the one-half part only of the said residue, after deducting the value of the advancement." Gen. Stats., sec. 1496. § 476. [1397.] What are Advancements. — All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the de- cedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir. Idaho. — Same. Rev. Stats., sec. 5703. BContana. — Same. Comp. Laws, p. 399, sec. 546. ITavada. — Same, except that "descendant" is substituted for "successor or heir." Gen. Stats., sec. 2987. Oregon. — Same as California. Hill's Laws, sec. 3107. Utah. — Same. Comp. Laws, sec. 2752. Washington. — Same. Gen. Stats., sec. 1490. Advances to heir in lifetime: In in amount to the sum so advanced," re Low, Myr. Prob. 143. if afterwards, in a codicil, he makes The legacies are cumulative other devises to the same legatees, when, in a will, testator, after mak- and adds: " All bequests which I have ing certain devises, says, "And I made, or which I shall make, by this hereby declare that any advancements last testamentary disposition, is ex- that I may hereafter personally make pressly confirmed, whether these be- to the above-i^entioned legatees, or to quests are given to relatives, strangers, either of them, shall be deemed a par- or for charitable purposes and institu- tial satisfaotion of said legacy, equal tions. Likewise any testamentary §§ 477-479 PROBATE LAW AND PRACTICE. 572 papers written or subBcribed by me thp same name, decided November 12, shall have the same effect as if they 1887, on the authority of said case (not were here incorporated ": In re Zeile, reportisd). 74 Cal. 12$; alsp two other ca3e» of § 477. [1398.] Value of Advancements, how Der termined. — If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the dece- dent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise it must be estimated according to its value when given, as nearly as the same can be ascertained. Idaho. — Same. Rev. Stats., sec. 5709. Xontana. — Same. Comp. Stats., p. 399, sec. 547. Nevada. — Same. Gen. Stats., sec. 2988. Oregon. — Same. Hill's Laws, sec. 310$. trtah. — Same. Comp. Laws, sec. 2753. Washington. — Same. Gen. Stats., sec, 1491. § 478. [1899.] When Heir Advanced to Dies be- fore Decedent. — If any child, or other lineal descendant, receiving advancement, dies before the decedent, leaving issue, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereoi must be allowed accordingly by the representatives of the hem receiving the advancement, in like manner as if the advance- ment had been made directly to them. Idaho. — Same, Rev. Stats., sec. 5710. IXontana. — Same. Comp. Stats., p. 399, sec. 648. Nevada. — Same. 6en, Stats., sec. 2989. Oregon. . — Same. Hill'^ Laws, sec 3109. Utah. — Same. Comp. Laws, sec. 2754. " If the decedent leave no issue, nor husband nor wife, and the mother b( living, the estate goes to the mother. If the decedent leave an estate whict came to him as an advancement from his f9.ther, and he be living, anch eatab goes to the father." Comp. Laws, sec. 2756. Washington. — Sam« as Ciilifornia. Gen. Stats., sec. 1492. § 479. [1400.] Inheritance of Husband and Wiff trona. Each Other. — The provisions of the preceding sec tions of this title, as to the inheritance of the husband anc wife from each other, apply only to the separate property o the decedents. 573 SUCCESSION AND KSOHBAT. § 480 Idaho. — Same. Rer. Stata., sec. 5711. Uontana. —Same. Comp. Stats., p. 399, seo. 549. Nevada. —Same. Gen. Stats., sec. 2990. Oregon. — "Nothing contained in this chapter shall affect or impair tha estate of a husband as tenant by the curtesy, nor that of a widow as tenant in dower." Hill's Laws, sec. 3110. Utah. — Same as California. Comp. Laws^ sec. 2755. Washington. — "The provisions of section 1480 [§ 465, ante] of this Tolume of General Statutes, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents, and take the place of tenancy in dower and tenancy by curtesy, which axe hereby abolished." Gen. Stats., sec. 1482. For section 1480, see § 477, ante. i § 480. [1401.] Distribution of Common Property on Death of Wife. — Upon the death of the wife, the entire community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her, by judicial decree, for her support and maintenance, which portion is subject to her testamentary dis- position, and in the absence of such disposition goes to her descendants, or heirs, exclusive of her husband. Arizona. — "Upon the dissolution of the marriage relation by death, all the common property belonging to the community estate of the husband and wife shall go to the survivor, if the deceased have no child or children; but if the deceased have a child or children, his survivors shall be entitled to one half of said property, and tUe other half shall pass to the child or children of the deceased." Rev. Stats., sec. 1467. "In every case the community estate passes charged with the debts against it." Rev. Stats., sec. 1468. Idaho. — Same as California. Rev. Stats., sec. 5712. Montana. — Same as California. Comp. Stats., p. 399, sec. 550. Nevada. — "Upon the death of the wife, the entire community property belongs, without administration, to the surviving husband, except that in case the husband shall have abandoned his wife and lived separate and apart from her without such cause as would have Entitled him to a divorce, the half of the community property, subject to the payment of its equal share of the debts chargeable to the estate owned in community by the husband and wife, is at her testamentary disposition in the same manner as her separate prop- erty, and in the absence of such disposition goes to her descendants equally, if such descendants are in the same degree of kindred to the decedent; other- wise according to the right of representation; and in the absence of both such disposition and such descendants, goes to her other heirs at law, exclusive of her husband." Gen. Stats., seo. 508. Washington. — " Upon the death of either husband or wife, one half of §481 PKOBATB LAW AND PEACTICB. 57< the comnnunity property shall go to the survivor, subject to the oommuniti debts, and the other half shall be subject to the testamentary disposition o the deceased husband or wife, subject, also, to the community debts. In casi no testamentary disposition shall have been made by the deceased husband o wife of his or her half of the community property, it shall descend equally t( the legitimate issue of his, her, or their bodies. If there be no issue of sail deceased living, or none of their representatives living, then the said com munity property shall all pass to the survivor, to the exclusion of collatera heirs, subject to the community debts, the family allowance, and the chargei and expenses of, administration." Gen. Stats., sec. 1481. Ijand the title to which, is taken in a wife's name, but which is paid for with community funds, is community property, and after the death of the wife belongs to the sur- viving husband, without administra- tion, and the estate of the wife takes no title or interest in it which can be conveyed to any person: Dean v. Parker, 88 Cal. 283. If, under the statute, the title of the husband is divested upon the death of the wife as to any portion of the common property, such title passes directly to the descendants of the wife, and they take it subject to be absorbed in the payment of com- munity debts: Pochard v. Areillanes, 17 Cal. 525. Community funds expended upon separate estate do not make it community property, but consti- tutes a charge upon such separate es- tate: In re Patton, Myr. Prob. 241. Where premiums paid upon an endowment life policy are part sepa- rate and part community funds, the Eroceeds received from the policy must e considered of a like character, in proportion to the funds used: in re Webb, Myr. Prob. 93. An insurance policy paid for out of husband's earnings is community property: In re Staus, Myr. Prob. 5. The estate in expectancy of the wife in the community property ii dependent upon her survivorship, anc in the event of her death before hei husband, it is deemed never to have existed. The husband does not, upoc the death of his wife, as to the com< munity 'property, take by descent oi succession, but holds the communitj property as though acquired by him- self, and as if his deceased wife had never existed: In re BowlUnd, 74 Cal. 523. Demand of husband to have property in the hands of deceased wife's executor declared community property and delivered to him amounts to a claim against her estate, and should be presented as such: In re Rowland, 74 Cal. 523. The wife's interest in the commu- nity property is not subject to admin- istration under the laws of this state: In re PacJieco, 23 Cal. 476. The male will be presumed to have survived under the California Code of Civil Procedure, section 1963, subdivision 40, where husband and wife were both murdered, and theii house, in which their bodies were left, set on fire and burned, and there was no proof as to which had actually ex- pired first, and the trial court prop,erly adjudged that the entire community properij/ belonged to tJie heirs of the hus- band; HolUster\. Cordero, 76 Cal. 649. § 481. [1402.] Distribution of Common Proper,ty on Death of the Husband. — Upon the death of the hus- band, one half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposi- tion of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherwise according 575 SUCCESSION AND ESCHEAT. § 481 to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration. "All other propeity acquired after marriage by either husband or wife, or both, is community property; but whenever any property is conveyed to a married woman by an instrument in writing, the presumption is, that the title is thereby vested in her as her separate property. And in case the convey- ance be to such married woman and her husband, or to her and any other per- son, the presumption is, that the married woman takes the part conveyed to her as tenant in common, unless a different intention is expressed in the in- strument; and the presumption in this section mentioned is conclusive in favor of a purchaser or encumbrancer in good faith and for a valuable consideration." Cal. Civ. Code, sec. 164, 'Arizona. — See sections 1467, 1468, under preceding section. Idaho. — Same as California, sec. 1402, eupra, Kev. Stats., sec. S713. Montana. — Same as California, sec, 1402, supra, Comp, Laws, p. 399, sec. 551, Nevada. — "Upon the death of the husband, one half of the community property goes to the surviving wife, and the other half is subject to the testa- mentary disposition of the husband, and in the absence of such disposition goes to his surviving children equally, and in the absence of both such dispo- sition and surviving children, the entire community property belongs, without administration, to the sarviving wife, except as hereinafter provided, subject, however, to all debts contracted by the husband during his life that were not barredby the statute of limitation at the time of his death; .... in case of the dissolution of the community by the death of the husband, the entire commu- nity property is equally subject to his debts, the family allowance, and charges and expense of administration; provided, however, that if, in the absence of said testamentary disposition, the surviving wife and children, and in the ab- sence of such children the wife, shall pay, or cause to be paid, all indebtedness legally due from said estate, .... then and in such case the said community property shall not be subject to administration," Gen, Stats., sec, 509. "Ky estate, "in husband's will, A widow is not estopped to means estate subject to his testa- make an election by causing a will mentary disposition. A renunciation which devises the entire community of "all claim to my estate except un- property to be probated and becoming der this will " is not a renunciation of the executrix thereof: In re Gfwin, 77 widow's share of community property: Cal, 313, in re Mumford, Myr. Prob. 133. One half of community prop- A husband's will, as against his erty goes to wife upon death of her widow, can pass title to only one half husba.nd, and one half to~the suryiv- of the community property: In re ing children: Oage v. Downey, 79 Cal. &uii», 77 Cal. 313. 140. §481 PKOBATB LAW AND PBACTICB. 676 A g;eneral devise of all thB pjrdpertjr of «hich th^ testaior iaif die pAss^saedj %^itliout namii^ any specilic property, applies only to his moiety of the communit]^ property: In r« Oilmore, SI Cal. 240. It is only where there is such a clear zaanifestation of intent to devise the whole community property as to overcome the presumptions against a general devise of all the tes- tator's property, that the widow can be put to her election to take under the will, or to take whsit she is en- titled to by law. Where ther6 is no such manifest intent, the widow may claim and take both what the law gives her in the community property, and alsoi what the will of the husband gives her in the portion thereof sub- ject to his testamentary disposition: In re Oilmore, 81 Cal. 240. A widow who has taken, by virtue of the will, more than one half of the whole estate cannot claim any part of the other half, under section 551 of the Probate Practice Act of Montana, providing that upon the death of the husband, one half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the hus- band: Chadwkh v. TcUem, 9 Mont. 354. The widow inherits one half of the common property if the hus- band dies leaving descendants: Jewell V. Jewell, 28 Cal. 232; Scott v. Ward, 13 Cal. 458; Morrison v. Bovmian, 29 Cal. 337; Payne v. Payne, 18 Cal. 291. And the other half goes to the descendants of the deceased hnsband; that is, to a particular class of his heirs: Payne v. Payne, 18 Cal. 291. He can dispose of the latter half by will, but the former half not: Payne v. Payne, 18 Cal. 291; In re Sil- ver/, 42 Cal. 210; Morrison v. Bowman, 29 Cal. 337. The wife is entitled to her own share of the common property, and to the legacy out of the share of her husband: Bea7-d v. Knox, 5 Cal. 252., Real property conveyed to the wife during coverture for a valuable consideration is the community prop- erty of herself and husband, and upon his death she owns only an undivided half interest therein as tenant in com- mon with the heirs to whom the other half descends: Hart r. Sdbertaott, 21 Cal. 346. If there are no descendants of a deceased husband, the wife is ea> titled to the vl^hole of the conmuuity property: Cuinmingi V, Chefier, 10 Cai. 519. Prior to April, 1864, if the hna- hand died leaving a widdw and de- scendants, the descendants inherited one half of the cobimon property, and it was not subject to his testamentary disposition, but if he died leaving a widow and no descendents, one half of the common property was subject to his testamentary disposition: JeweU v. Jewell, 28 tal. 232. Upon the death of the husband leaving no descendants, the widow and father of the husband inherit each one half of the common property: JetoeU V. Jeioell, 28 Cal. 232. The heirs of a divorced wife succeed to her interest in the com- munity property upon her death, where the decree of divorce gave her one half thereof: McLeran v. Benton, 31 Cal. 29. Woman living with a married man as his wife is not entitled to succeed to his property as a wife: In re Winters, Myr. Prob. 131. If the widow accepts a devise , under a will disposing of the entire community property, she confirms the will, and cannot claim one half of such property in her own right: In re Stewart, 74 Cal. 98. A devise of all testator's prop- erty to his wife entitles her, where it is comtaiunity property, to one half in her own right, and also one half under the devise: Payne v. Payne, 18 Cal, 291. A devise of all testator's property is a devise of one half the community property only: In re Deldmy, 49 Cal. 76. A purpose by a husband to at- tempt the disposition by will of the wife's half of the common property is not to be readily inferred, and espe- cially not where the words employed may have their fair and natural im- port by applying them to that moiety of which he has the testamentary dis- position: In re Silvey, 42 Cal. 210. Where a husband, having only common property, left a will devis- ing all his estate to hia wife for life. 577 SUCCESSION AND ESCHEAT. §§ 482, 483 and after her death to be equally di- vided between the children, it was held that she owned absolutely one half of the common property and was entitled to a life estate in the other half: In re Silvey, 42 Cal. 210. If a testator by will devises his real estate to his wife, and the same is community property, and there is nothing on the face of the will to show that he intended to devise more than the undivided one halt, which is sub- ject to his testamentary disposition, and the executor, under a power of sale in the will, and in ignorance of the law which allows the wife to in- herit one half of the community prop- erty, sells and conveys the right of the testator to all the land, and the purchaser, also in ignorance of the law, supposes he is buying the entire property, and the wife, also in igno- rance of the law, receives the purchase- money, she does not thereby waive her rights to the common property. She is not required to elect whether she will take under the will or repu- diate it. The essence of election or ratification is, that it was done with full knowledge of the party's rights: King v. Lagrange, 50 Cal. 328. A widow, by acting as executrix, and by claiming and taking under a will of her husband, by which he gave her one half of all his property, and the other half to the children of his brother, will not be deemed to have renounced her rights to the one half of the prop- erty in her own right, it all being com- munity property: In re frey, 52 Cal. 661. A. distribution of common prop- erty of a decedent should be made as follows: one half to the widow, and the other half to brothers and sisters of intestate: Clarh v. Clark, 17 Nev. 124. No conveyance to distributees. is required from the administrator of the community property of deceased and his widow. Such property vests in the administrator for purposes of administration only: Wright v. Smith, 19 Nev. 143. An order setting apart a home- stead in the community property pending administration relieves it from administration and excludes it from distribution, but does not affect the title to the homestead; and if no homestead was declared during the existence of the community, the com- munity property vesis according to section 1402 of the California Civil Code {% 481, supra), regulating succes- sion thereto, subject, however, to its temporary use as a homestead under the order of the court setting it apart for that purpose: in re OUmore, 81 CaL 240. § 483. [1403.] Inheritance by Representation. — Inheritance or succession " by right of representation " takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous children are consid- ered as living at the death of their parents. Idaho. — Same. Kev. Stats., sec. 5714. Montana. — Same. Comp. Stats., p. 400, sec. 552. Nevada. — Same. Gen. Stats., sec. 2991. Oregon. — Same. Hill's Laws, sec. Bill. Utah. — Same. Comp. Laws, see. 2757. Washington. — Same. Gen. Stats., see. 1494. § 483.. [1404.] Aliens may Inherit, when and how. — Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the pro- 87 § 483 PKOBATE LAW AND PBACTICB. ' 578 visions of this title is precluded from such succession by reason of the alienage of any relative; but no. non-resident foreigner can take by succession unless he appears and claims such suc- cession within five years after the death of the decedent to whom he claims succession. ' Arizona. — "In making title to land by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intes- tate is or hath been an alien; and every alien to whom any land may be devised or may descend shall have five years to become a citizen of the territory and take possession of such land, or shall have five years to sell the same, before it shall be declared forfeited or shall escheat to the government; provided, that the treaties of the United States with the nation to which such alien may be- long do not otherwise direct; and provided further, that aliehs may take and hold any property, real or personal, in this territory, by devise or descent, from any alien or citizen in the same manner in which citizens of the United States may take and hold real or personal estate by devise or descent within the country of such alien." Rev. Stats., sec. 1472. "If any person dies seised of any real estate or possessed of any personal estate without any devise thereof, and having no heirs, or while the owner of any real or personal estate shall be absent for the term of seven years, and is not known to exist, such estate shall escheat to and vest in the territory." Rev. Stats., sec. 1783. , Idaho. — Same as California. Rev. Stats., sec. 5715. Montana, — Same as California. Corap. Stats., p. 400, sec. 553. Nevada. — "Any non-resident alien, person, or corporation, except sub- jects of the Chinese empire, may take, hold, and enjoy aqy real property or any interest in lands, tenements, or hereditaments within the state of Nevada, as fully, freely, and upon the same terms and conditions, as any resident citi- zen, person, or domestic corporation." Gen. Stats., sec. 2655. Oregon. — Same as California. Hill's Laws, sec. 2988. Utali. — Same as California. Comp. Laws, sec. 2758. . Washing^ton. — " Any alien, except such as by' the laws of the United States are incapable of becoming citizens of the United States,, may acquire and hold lands, or any right thereto or interest therein, by purchase, devise, or descent, and he may convey, mortgage, and devise the same, and if he shall die intestate, the same shall descend to his heirs; and in all cases such lauds shall be held, conveyed, mortgaged, or devised, or shall descend in like man- ner and with like effect, as if such alien were a citizen of this state or of the United States." Gen. Stats., sec. 2955. This section has been modified by article 2, section 33, constitution of Wasli« ington. See §§ 360, 361, ante, and notes. As to inheritable qualities of 18 Cal. 217; People v. Folsom, 5 CaL aliens, see Const. Cal., art. 9, sec. 17; 373. Farrell v. Enright, 12 Cal. 450; Siems- In tMs state, property left by a ten V. Bofer, 6 CaL 250; N orris v. Hoyt, foreigner dying here must be dis- 57'9 SUCCESSION AND ESCHEAT. §§ 48i, 485 tributed according to t'he law of this A proceeding brought by the state: In re Baublchim, 49 Cal. 18. attorney-general under the Code of The law permitting non-resi- Civil Procedure, title 8, part 3, to se- dent aliens to inherit real property cure as an escheat to the school fund is constitutional: Stale v. Rogers, 13 the property of an intestate who has Cal. 159; State v. Smith, 70 Cal. 153. no resident heirs, is premature when Non-resident alien loses right to brought withiu five years after the petitionforrevocationof probate of will death of such intestate: People v, when: In re Broderkk, Myr. Prob. 19. Roach, 76 Cal. 294. § 484. [1405.] Succession not Claimed — Duty of Attorney-General. — When succession is not claimed as provided in the preceding section, the district court, on infor- mation, must direct the attorney-general to reduce the property to his or the possession of the state, or to cause the same to be sold, and the same, or the proceeds thereof, to be deposited in the state treasury for the benefit of such non-resident foreigner, or his legal representative, to be paid to him whenever, within five years after such deposit, proof to the satisfaction of the state controller and treasurer is produced that he is entitled to succeed thereto. Note. — In 1880 the legislature failed to amend this section, as it did others, by substituting the word "superior" for "district."' See Peoph v. Roacli, 76 Cal. 294. Idaho. — Same. Rev. Stats., sec. 5716. Btontana. — Same, with these exceptioos, to wit: " District attorney of the district in which the property is situated" instead of "attorney-general,'* "territory" instead of "state," "territorial treasury " instead of "state treasury," and " territorial auditor and treasurer " instead of "state controller and treasurer." Comp. Stats.j p. 400, sec. 554. Utah. — "When succession is not claimed as provided in the preceding section, the probate court must proceed as provided in chapter 11 of the "act relating to procedure of probate courts in the settlement of estates." Comp. Laws, sec. 2759. § 485. [1406.] When the Property and Estate Escheat to the State. — When so claimed, the evidence and the joint order of the controller and treasurer must be filed by the treasurer as his voucher, and the property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein pro- vided, the property of the decedent devolves and escheats to the people of the state, and is placed by the state treasurer to the credit of the school fund. § 485 PliOBATS LAW AND PKACTICK. 580 See People v. Boacli, 66 Cal. 294. " VVheuever any person has received moneys, or haa money or other per' aonal property which belongs to the state by escheatment or otherwise, or has been intrusted with the collection, management, or disbursement of any mon- eys, bonds, or interest accruing therefrom, belonging to or held in trust by the state, and fails to render au account thereof to, and make settlement with, the controller within the time prescribed by law, or, when no particular time is specitied, fails to render such account and make settlement, or who fails to pay into the state treasury any moneys belonging to the state, upon being required so to do by the controller within twenty days aftpr such requisition, the con- troller must state an account with such person, charging twenty-five per cent damages, and interest at the rate of ten per cent per annum from the time of failure; a copy of which account in any suit therein is prima fade evidence of the things therein stated. But in case the controller cannot, for want of infor- mation, state au account, he may, in any action' bronght by him, aver that fact, and allege generally the amount of money or other property which is due to or which belongs to the state. '' Cal. Pol. Code, sec. 437. Arizona. — See Rev. Stats., sec. 1783, under § 131, avte. "The court shall examine the claim and the allegations and proof, and if it shall find that such person is an heir, devisee, legatee, or legal representative, whether citizen or foreigner, such court shall make an order directing the ter- ritorial auditor to issue his warrant on the treasury for the payment of the same, but without interest or costs, a copy of which order, under the seal of the court, shall be a sufficient voucher for issuing such warrant, and the Stime proceedings shall be instituted for the recover^ of any money or property here- tofore dcJposited with the treasurer, in accordance with the laws heretofore existing." Rev. Stats., sec. 1797. " The proceeds of all property escheated in accordance with the provisions of this act shall be paid to the treasurer of the territory, and become part of the territorial school fund." Rev. Stats., sec. 1798. Idalio. — Same. Rev. Stats., sec. 5717. Montana. — Same. Corap. Stats., p. 400, sec. 555. Nevada. — "If any person shall die, or any person who may have died within the limits of what is now the territory of Nevada, seised of any real or personal estate, and leaving no heirs, representatives, or devisees capable of inheriting or holding the same, and in all cases when there is no owner of such real estate capable of holding the same, such estate shall escheat to and be vested in this territory." Gren. Stats., sec. 2992. Oregon. — " When any person shall die without heirs, leaving any real or personal property in this state, the same shall escheat to and become the prop- erty of this state." Hill's Laws, see. 3135. Iiands escheat to the state un- The constitution does not in der section 3302 of the Washington terms vest the title to escheated code, and the title vests immediately estates in the school fund; it enjoins i^ the state on the death of the owner, their application to and prohibits their, without the aid or intervention of the diversion from such, fund, but the probate court, where the owner dies in- legislature may determine what es- testate, leaving no husband or v*ife or tales shall escheat: In re Sticlmolh, 7 kiaired: Territory v.Klee,lVf3shAS3. Nev. 223. 581 SUCCESSION AND ESCHEAT. §§ 486-488 § 486. [1407.] Property Escheated Subject to Charges as Other Property. — Real property passing to the state under the last section, whether held by the state or its officers, is subject to the same charges and trusts to which it would have been subject if it had passed by succession, and is also subject to all the provisions of Title VIII., Part III., of the Code of Civil Procedure. Montana. — Same. Comp. Stats., p. 400, sec. 556. I 487. [1408.] Successor Liable for Decedent's Ob- ligations. — Those who succeed to the property of a decedent are liable for his obligations in the cases and to the extent pre- scribed by the Code of Civil Procedure. Montana. — Same. Comp. Stats., p. 400, sec. 557. Oregon. — "Whereas the chapter regulating the descent of real property and the distribution of personal property of deceased persons was repealed, by inadvertence, at the last session of the legislative assembly, the rule of distri- bution of personal property herein established and provided is hereby declared to have been the law of this state since the repeal of such act; provided, that nothing in this section shall be so construed as to disturb the settlement of any estate whereof administration is complete and distribntion made." Hill'a Laws, sec. 3112. ARTICLE n. OV ESCHEATED ESTATES. § 488, Manner of commencing proceedings. § 489. Receiver of rents and profits may be appointed. § 490. Appearance, pleadings, and trial. § 491. Proceedings by persons claiming escheated estates. §488. [1269.] Manner of Commencing Proceedings. — When the attorney-general is informed that any real estate has escheated to this state, he must file an information in be- half of this state, in the superior court of the county in which such 'estate, or any part thereof, is situated, setting forth a de- scription of the estate, the name of the person last seised, the name of the occupant and person claiming such estate, if known, and the facts and circumstances in consequence of which the estate is claimed to have been escheated, with an allegation that, by reason thereof, the state of California has right by law to such estate. Upon such information a summons must issue to such g 488 PKO:^ATE LAW AND PRACTICE. 582 person, requiring him to appear and answer the information within the time allowed by law in civil actions; and the court must make an order setting forth briefly the contents of the information, and requiring all persons interested in the estate to appear and show cause, if any they have, within forty days from the date of the order, why the same should not vest in this state; which order must be published for at least one month from the date thereof, in a newspaper published in the county, if one be published therein, and in case no newspaper is published in the county, in some other newspaper in this state. "It shall be the duty of the attorney-general to institute inrestigation for the discovery of all real and personal property which may have or should escheat to the state, and for that purpose shall have full power and authority to cite any and all persons before any of the superior courts of this state, to answer investigations and render accounts concerning said property, real or personal, and to examine all books and papers of any and all corporations. When any real or personal property shall be discovered, which should escheat to the state, the attorney-general must institute suit in the superior court of the county where said property shall be situated, for the recovery, to escheat the same to the state. The proceedings in all such actions shall be those pro- vided for in title 8, part 3, Code of Civil Procedure. The attorney-general may, for the purposes and objects of this section, employ counsel to act in his place and stead for the discovery and recovery of both personal and real property; and in such proceedings, both in investigation for discovery or proceedings for recovery, such counsel so employed shall have the power and authority of the attorney-general. The compensation for services of such coun- sel shall be determined by the board of examiners, and paid out of the sums so found to be escheated and recovered to the state, and not otherwise; provided, that the state of California shall in no case be responsible for any charges for attorney fees for suits prosecuted under this act, but tbe attorney-general is hereby authorized to pay to the person or persona discovering the same the costs and charges of prosecuting any suit or suits nnder this act, a sum not in any case exceeding ten per cent of the sums actually received as provided in this act." Cal. Pol. Code, sec. 47-t. For title 8, etc., see §§488-491. Arizona. — "When the district attorney of any county shall be informed or has reason to believe that an executor under the will of any person who has died without heirs, and without having devised his estate, has not accepted the trust, and that no administrator with the will annexed has been appointed, or where said attorney shall discover that no letters of administration on the estate of an intestate, who has died without heirs, have been granted, he shall file a complaint in behalf of the territory, in the district court of the county where such succession is required to be opened, according to the law regulat- ing the place of opening successions, which complaint shall set forth a descrip-' 583 SUCCESSION AND ESCHEAT. § 488 tion of the estate, the name of the person last lawfully seised or possessed of the same, the names of the tenants or persons in actnal possession, if any, and the names of the persons claiming th^ estate, if any such are known to claim the same, and the facts and circumstances in consequence of which such estate is claimed to have escheated, praying for a writ of possession for the same in behalf of the territory." Rev. Stats., sec. 1784. "Such court shall award and issue a, sci)-e facias against such persons as shall be alleged in such complaint to hold possession or claim such estate, requir- ing them to appear and show cause why such estate shall not be vested in the territory at the next term of the court." Kev. Stats., sec. 1785. " Such scire facias shall be served ten days before the day of trial, and the y court shall make an order setting forth briefly contents of such complajnt, and requiring all persons interested in the estate to appear and show cause why the same should not be vested in the territory, which order shall be pub- lished as required by section 64 of the Code of Procedure in civil suits." Rev. Stats., sec. 1786. "If it appear that the territory has no title in such estate, the defendant ahall recover his costs, to be taxed and certified by the clerk, and the terri- torial auditor shall, on such certificates being filed in his office^ issue a warrant therefor on the treasurer, which shall be paid as other demands on the treas:- ury are paid." Rev. Stats., sec. 1791. " Any party who shall have appeared to any such proceedings, and the district attorney on behalf of the territory, shall have the right to prosecute an appeal or writ of error upon such judgment." Rev. Stats., sec. 1794. "The treasurer shall keep just accounts of all moneys paid into the treas- ury, and of all lands vested in the territory under the provisions of thia act." Rev. Stats., sec. 1793. " Any decree of the probate court finally closing any estate may be re- vised and corrected in the district court of the county in which the letters were granted to such executor or administrator, upon the ground that there was error, fraud, or mistake of law or fact in such final account and settle- ment, upon the application of the territory, by bill of rev;iew, in the same manner as is now provided by law for the revision and correction of any such account and settlement by any individual interested in an estate." Rev. Stats., sec. 1799. " In any case in which the governor has reason to believe that there has been fraud, error, or mistake of law or fact in any such final account and aet,- tlement, he is authorized to retain counsel and have proceedings instituted, in accordance with the provisions of this act and the laws, to have such final account and settlement revised and corrected for the protection of the rights of the territory, and for such services the counsel so retained shall be allowed « reasonable compensation. " Rev. Stats. , see. 1800. "All suits brought for the collection of the assets turned over to the treas^- nrer nnder this act ahall be brought in the name of the territory of Arizona." Eev. Stats., sec. 1801. Section 1802 of the Revised Statutes repeals chapter 71, Compiled Laws of Arizona, and all acts and porta of acts ameudatory and supplementary theretq. § 488 PROBATE LAW AND PRACTICE. 684 and provides that this act shall not affect suits pending when this act took effect. Nevada. — "That whenever the attorney-general shall be informed, or shall have reason to believe, that any real estate hath escheated to this terri- tory by reason that any, person hath died seised thereof, and hath left no heirs capable of inheriting the same, or by reason of the incapacity of the devisees to hold the same, or when he shall be informed, or have reason to believe, that any sach estate hath otherwise escheated to the territory, it shall be his duty to file an information in behalf of the territory in the district court of the ju- dicial district in which such estate, or any part thereof, is situated, setting forth a description of the estate, the name of the person last lawfully seised, the name of the terre-tenant and persons claiming such estate, if known, and the facts and circumstances in consequence of which said estate is claimed to have escheated, and alleging that by reason thereof the territory of Nevada hath right by law to such estate; whereupon such court shall award and issue a summons against such person or persons, bodies politic or corporate, alleged in such information to hold, possess, or claim such estate, requiring theih to appear and sho^v cause why such estate should not be vested in the territory^ within the time allowed by law in other civil cases, and the court shall make an order setting forth briefly the contents of said information, and requiring all persons interested in the estate to appear and show cause, if any they have^ within thirty days from the date of said order, why the same should not vest in this territory, which order shall be published at least one month from the date thereof in a, newspEiper published in said district (if one be published therein), and in case no newspaper should be published in said district, by direction of the jildge, in some other newspaper in this territory," Gen. SUts., sec. 2993. "Any person furnishing original information to the attorney-general of the escheating of any property to the territory, together with the necessary evi- dence to sustain the action of the territory in such behalf, shall be entitled to receive, upon the final recovery of such property, five per centum of the prop- erty so recovered; provided, that the amount so received by the person or per- sons furnishing such information shall not, in the aggregate, exceed the sum of twenty thousand dollars in any one case; and provided, that only one person shall be entitled to compensation for such services." Gen. Stats., sec. 2998. Oregon. — "The state may maintain any action, suit, or proceeding neces- sary to recover .the possession of any such property, or for the enforcement or protection of its rights thereto, or on account thereof, in like manner and with like effect as any natural person. Such actions, suit, or proceeding shall be prosecuted by the proper district attorney by the leave and under the di- rection of the governor, and not otherwise." Hill's Laws, sec. 3136. " When the governor is informed, or has reason to believe, that any real or personal property has escheated to this state, he shall direct the district at- torney of the judicial district in which such property may be to file an infor- mation in behalf of the state of Oregon, and in the name- of the state, in the eirciiit court of the county in which such estate or any part thereof is situated, setting forth a description of the estate, the name of the person last seised, the 686 SUCCESSION AND ESCHEAT. § 488 name of the occupant or the person in possession and claiming snch estate, if known, and the facts and circumstances in consequence of which the estate is claimed to have been escheated, with an allegation that by reason thereof the state of Oregon has right by law to such estate. Upun such information, a. summons must issue to such person, requiring heirs to appear and answer the information within the time allowed by law in civil actions, and the court must make an order setting forth briefly the contents of the information, i.nd requiring all persons interested in the estate to appear and show cause, if any they have, within such time as the court making such order may fix, why the title should not vest in this state, which order must be published for at least six consecutive weeks from the date thereof in a newspaper published in the county, if one be published therein, and in case no newspaper is published in the county, then in such newspaper as the court by order may direct.'' Hill's Laws, sec. 3137. " When the governor is informed, or has reason to believe, that any bank, banker, or banking institution in this state now has or holds on deposit or pthierwise, any fund, funds, or other property of any kind or nature which'has escheated to this state,' he shall direct the district attorney in the district where such bank or banking institution is located to file in the circuit court an information or bill of discovery, with proper interrogatories to be answered by the owner, agent, or manager of such bank or banking institution, and upon the filing of such information or bill, the court shall order and direct, at a time to be designated in said bill, that said owner, agent, or manager of such bank or banking institution shall, under oath, file an answer to said information and interrogatories, and shall specially answer each and every interrogatory contained in such information or bill. If it appears to the court from such answer that said bank, banker, or banking institution has any property in its possession which has or may escheat to this state, it shall direct th^ said bank, banker, or banking institution forthwith to bring the same into such court,, and the court shall proceed to dispose of said property as provided elsewhere in this act." Hill's Laws, sec. 3143. See § 361, ante; Cal. Const., art. 1, sec. 17; People v. Rodout of the proceeds arising from such proceeding. And the gov- ernor is hereby authorized and empowered to employ additional counsel in all cases in which he deems it for the best interest of the state." Hill's Laws, sec. 3144. If tlie non-resident heir shall main until claimed by the owner or; fail to appear and claim it within a in case of his death, by his represent- year, the money should be paid into atives: PyaU v. Brochnan, 6 Cal. the state treasury, where it must re- 418. Form No. 244. — Judgment in Escheat Proceedings. [Title of Court and Cause.] Now, on this day of , A. D. 18 — , this cause com- ing on regularly for hearing upon the information of the at- torney-general on hehalf of the state of , and no person having appeared or answered herein within the time allowed by law, and it appearing that James Smith died intestate in this state on or about the day of , A. D. 18 — , and that at the time of his death he was seised in fee of the following de- scribed real property (here insert description); that he left no heirs surviving him, nor did he devise his property by will; — It is therefore ordered, adjudged, and decreed that by reason of said facts the state Of has right by law to said real projlerty, and it is further adjudged that said state be seised I 491 PROBATE LAW AND FKACTICE. 692: thereof, and the sheriff of the county of , in said state that being the county in which said real property is situate, be and he is hereby directed to sell said real property at public auction, for gold coin, and that he give such notice of the time and place of said sale as is required by law to be given of sales under execution, and make due return of his proceedings to this court. , Judge of the Court. Dated , 18—. Note. — A certified copy of the above decree is the sheriff's authority to sell. Form No. 245.— Report of Sale by Sheriff in Es- cheat Proceedings. (This form is the same as return of sale by sheriff under a judgment foreclosing a mortgage.) Form No. 246.- Order Confirming Sale by Sheriff in Escheat Proceedings. (For form of this, see order confirming sale of real estate by administrator.) § 491. [1272.] Proceedings by Persons Claiming Escheated Estates. — Within twenty years after judgment in any proceeding had under this title, a person not a party or privy to such proceeding may file a petition in the superior court of the county of Sacramento^ showing his claim or right to the property, or the proceeds thereof. A copy of such peti- tion must be served on the attorney-general at least twenty days before the hearing of the petition, who must answer the same; and the court thereupon must try the issue as issues are tried in civil actions, and if it be determined that such person is entitled to the property, or the proceeds thereof, it must order the property, if it has not been sold, to be delivered to him, or if it has been sold and the proceeds paid into the state treasury, then it must order the controller to draw his warrant on the treasury for the payment of the same, but without interest or cost to the state, a copy of which order, under the seal of the court, shall be a sufl&cient voucher for drawing such warrant. All persons who fail to appear and file their petitions within, 5©3 SUCCESSION AND ESCHEAT. § 491 the time limited are forever barred, sa^ng, however, to infants, married women, and persons of unsound minds, or persons be- yond the limits of the United 'States, the right to appear and file their petitions at any time within the time limited, or five years after their respective disabilities cease. Arizona. — "If any person appear after the death of the testator or intes- tate, and claim any money paid into the treasury nnder this act, as heir, or devisee, or legatee thereof, he may file a complaint in the district court for the county where the estate was sold, stating the nature of his claim, and praying that such money be paid to him, a copy of which complaint shall be served on the district attorney as in other civil cases, who shall pat in an answer to the same." Rev. Stats., sec. 1796. "The court shall examine the claim and the allegations and proof, and if it shall find that such person is an heir, devisee, legatee, or legal representative, whether citizen or foreigner, such court shall make an order directing the territorial auditor to issue his warrant on the treasury for the payment of the same, but without interest or costs, a copy of which order, the under seal of the court, shall be a sufficient voucher for issuing such warrant, and the same proceedings shall be instituted for the recovery of any money or property heretofore deposited with the treasurer, in accordance with the laws hereto- fore existing. " Rev. Stats., sec. 1797. Nevada. — " The auditor of the territory shall keep just and true accounts of all moneys paid into the treasury, all lands vested in the territory as afore- said; and if any person shall appear within ten years after the death of the intestate, and claim any moneys paid into the treasury, as aforesaid, as heir or legal representative, such person may present a petition to the district court at the seat of government, stating the nature of his claim, and praying such money may be paid him; a copy of such petition shall be served on the attor- ney-general at least twenty days before the hearing of said petition, who shall pnt in answer to the same, and the court thereupon shall examine said claim, and the allegations and proofs; and if the court shall find that such person is entitled to any money paid into the territorial treasury, he shall, by an ord6r, direct the territorial auditor to issue his warrant on the treasury for the pay- ment of the same, but without interest or cost to the territory; a copy of which order under the seal of the court shall be a sufficient voucher for issuing such warrant; and if any person shall appear and claim land vested in the territory, as aforesaid, within five years after the judgment was rendered, it shall be lawful for such person (other than such as was served with a summons, or appeared to the proceeding, their heirs or assigns) to file in the said dis- trict court in which the lands claimed lie a petition setting forth the nature of- his claim, and praying that the said lands may be relinquished to him; a copy of which petition shall be served on the attorney-general, who shall put in an answer, and the court thereupon shall examine said claim, allegations, and proofs, and if it shall appear that such person is entitled to such land claimed, the court shall decree accordingly, which shall be effectual for divest- ing the interest of the territory in or to the lands; but no costs shall be charged § 491 PROBATB LAW AND PRACTICE. 594 to the territory; and all persons who shall fail to appear and file their petition within the time limited as aforesaid shall be forever barred; saving, however, infants, married women, and persons of unsound mind, or persons beyond the limits of the United States, the right to appear and file their petition, as afore- said, at any time within five years after their respective disabilities are re- moved; provided, however, that the legislature may cause such lands to be sold at any time after seizure, in such manner as may be provided by law, in which case the claimants shall be entitled to the proceeds, in lieu of such lands, upon obtaining a decree or order, as aforesaid." Gen. Stats., s^c. 2996. Oregon. — Same as California, with the following verbal changes: For "superior court of the county of Sacramento," substitute "circuit court of the county where such information was filed"; for "attorney-general," sub- stitute "district attorney"; for "controller, "substitute "secretary of state"; for "five," substitute "one." Hill's Laws, sec. 3141. 595 GUARDIANSHIP. §§ 492-494 CHAPTER XVIII. GUARDIANSHIP OF INFANTS AND INSANE PERSONS. § 492. Guardian, what. § 493. Ward, what. § 494. Kinds of guardians. § 495. General guardian, what. § 496. Special guardian, what. § 497. Appointment by parent. § 498. No person guardian of estate without appointment. § 499. Appointment by court. § 500. Same. § 501. Jurisdiction, § 502. Rules for awarding custody of minor. § 503. Powers of guardian appointed by court. § 504. Duties of guardian of the person. § 505. Duties of guardian of estate. § 506. Relation confidential. § 507. Guardian under direction of court, § 508. Death of a joint guardian. § 509. Removal of guardian. § 510., Guardian appointed by parent, how superseded. , § 511. Guardian appointed by court, how superseded. § 512. Release by ward. § 513. Guardian's discharge. § 514. Insane persons. § 492. [236.] Guardian, What. — A guardian is a per- Bon appointed to take care of the person or property of another. Koixtana. — Same. Comp. Stats., p. .376, sec. 409. Utah. — Same. Comp. Laws, sec. 2536. § 493. [237.] Ward, What. — The person over whom or over whose property a guardian is appointed is calljed his ward. Uontana. — Same. Comp. Stats., p. 376, sec 410. Utall. — Same. Comp. Laws, sec. 2537. §494. [238.] Kinds of Guardians. — Guardians are either, — 1. General; or 2. Special. BContana. — Same. Comp. Stats., p. 376, sec. 411. .tJtali. — Sam^ Comp. Laws, sec. 2538, §§ 495-497 PKOBATB LAW AND PKACTICB. 596 See Lord v. Howl, 37 Cal. 660; Cal. Code Civl Proc, sees. 372, 373. One wrongfully intermeddling not acquire any of the rights of a guar- with the property of an infant doea dian: Aldiich v. Willia, 55 Cal. 81. § 495. [239.] General Guardian, What. — A general guardian is a guardian of the person or of all the property of the ward within this state, or of both. Arizona. — Same. Ker. Stats., sec. 1318. Montana. — Same. Comp. Stats., p. 376, sec. 412. Utah. — Same. Comp. Laws, sec. 2539. § 496. [240.] Special Guardian, What. — Every other is a special guardian. Arizona. — Same. Rev. Stats., sec. 1319. Montana. — Same. Comp. Stats., p. 376, sec. 413. XTtah.. — Same. Comp. Laws, sec. 2540. §497. [241.] Appointment by Parent. — A guardian of the person or estate, or of both, of a child bbrn, or likely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing, — 1. If the child be legitimate, by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent; 2. If the child be illegitimate, by the mother. Arizona. — Same. Rev. Stats., sec. 1320. Idaho. — Same. Rev. Stats., sec. 5781. Montana. — Same. Comp. Stats., p. 376, sec. 414. Nevada. — The father may appoint guardian by will, and if he be dead, then the mother may appoint. No provision in reference to illegitimate child. Gen. Stats., sec. 558. ' Oregon. — "Every father may, by his last will, in writing, appoint a guar- dian, or guardians, for any of his children, whether born at the time of making the will, or afterwards, to continue during the minority of the child, or for a less time, and every mother may, by her last will, in writing, appoint a guardian or guardians for any of her children, to continue during the mi. nority of the child, or for a less time; provided, that the father of such child or children is dead and has not appointed a guardian, or whenever, by decree of divorce between such father and mother, the custody of such child or chil- dren has been awarded to the mother; and every such testamentary guardian shall have the same powers and perform the same duties with regard to the person and estate of the ward as a guardian appointed by the county court; •provided, that nothing in this section shall be constrned to deprive either the surviving father or mother of the custody of the person of his or her children, such surviving parent being competent to transact hb or her own business." Hill's Laws, sec. 2885. 597 GUARDIANSHIP. §§ 498, 499 XTtall. — "A guardian of the person or estate, or of both, of a ehiM born, or lik«ly to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing; such appointment may be made by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent." Comp. Laws, sec. 2541. Washington. — "The father of every legitimate child who is a minor, ™^y> l>y Iiis l^t will, in writing, appoint a gnardian or guardians for his minor children', whether bom at the time of making such will or afterwards, to continue during the minority of such child, or for any less time." Code Froc, sec. 1142. See § 530, post. Bond of: See § 541, poa. Testamentary g^uardian — Con- them, is not entitled to their custody struction of statutes relating* to: and guardianship as against such Ingatts v. Campbell, 18 Or. 461. grandmother. In such case the resi- The common law did not rec- dence of the grandmother is the resi- ognize the right of either parent dence of the child, for the purpose of to appoint a testamentary guardian: jnrisdiction of the court in a matter of Ingalls v. Campbell, 18 Or. 461. guardianship: In re Vance, 92 Cal. 195. Where a father has left his chil- Testamentary Guardian. — For dren, under fourteen years of age, to sketch of origin, see Lord v. Howe, 37 be supported and cared for by their Cal. 657. Cannot act until he re- grandmother, recognizing her rights ceives letters: Aldrich v. WiUis, 55 to their custody, and at various times Cal. 81; but see Morris v. Han-is, 15 declared his intent never to reclaim Cal. 226. § 498. [242.] No Person Guardian of Estate with- out Appointment. — No person, whether a parent or other- wise, has any power as guardian of property, except by appointment, as hereinafter provided. " The parent, as such, baa no control over the property of the child: Cal. Civ. Code, sec. 202. Arizona. — Same. . Rev. Stats., sec. 1321. Hontana. — Same. Comp. Stats., p. 376, sec. 415. Utah. — Same. Comp. Laws, sec. 2543. " That guardians faay be appointed by the courts in this territory in the manner provided for in and pursuant to this act." Comp. Laws, sec, 2535. See KendaU v. Miller, 9 Cal. 591; McNeU y. First Cong. Soc., 66 Cal. 105. Uinors will not be permitted shall be given, and in pursuance of to adopt that part of an entire con- this agreement a mortgage is given in tract which is beneficial to themselves the name of the minor, the minors will and reject the balance. Where a be bound, although it is not shown father purchases real property in the that the father had authority to eze- name of his minor diild, and agrees cute the ino<herefor, shall at once investigate the grounds thereof. For this purpose, he may require that the person for whom such admission is sought be brought before him, and the judge may i6sue his warrant therefor to the sheriff or any constable of the county, which shall be in form as follows: — "Territory of Utah, ) , County of . f'^* "To , greeting. " You are hereby commanded to forthwith arrest , alleged to be an in- ijane person, and bring him before me, and make due returns hereof. "Witness my hand and seal of the probate court of County, this day of , A. D. 18— r, , Probate Judge. "He may provide for the, suitable custody of such person until the investi- gation shall be concluded. If he shall be of the opinion from such preliminary inquiries that he may make, that the presence of the accused would probably be injurious to such person, or attended with no advantage, he may dispense with such presence. Li the examination he shall hear testimony for and against such application. Any citizen of the county, or any relative of the person alleged to be insane, may appear and resist the application, and the parties may appear by counsel if they so elect. The probate judges shall cause to appear before him two practicing physicians in medicine, before whom the juilge shall examine the charge, and if, after a careful hearing of the case, and after a personal exaniination of the alleged insane person, the said physi- cians shall certify on oath that the persou examined is insane, and the case ia 617 GUARDIANSHIP. § 514 of a recent or curable cbaracter, or that the said insane person is of a homi- cidal, suicidal, or incendiary disposition, or that from any other violent symp- toms the said insane person would be dangerous to his or her own life or to the lives or property of the community in which he or she may live, and in connection with their examinatipn the said physicians shall endeavor to obtain from the relatives or others who know the facts correct answers, so far as may be, to the interrogations hereinafter required to be propounded in such cases, which interrogatories shall be attached to their cerjbificates. " The physician's certificate herein provided for shall be in form as follows: — "PHTSICIAKS' CEBTirlCATE. "Territory of Utah, ) County of . \^ " and , being duly sworn, both certify, each for himself, that he is a practicing physician in medicine; that at the request and in the presence of Hon. , judge of , he has heard the testimony and personally examined the said in reference to the charge of insanity, and both find that is insane, and so far disordered in his mind as to endanger health, person, or property, and that said insanity is not a case of idiocy, imbecility, or sim- ple feebleness of mind; the further facts appertaining to said case as nearly as can be ascertained are set forth in the answer of the following questions: — "1. Name. "2. Age. "3. Nativity. "4. Married or single. "5. If children, how many, their names, ages, and residences. "6. If female and married, maiden name and name of husband. " 7. What state last from, and how long in Utah. "8. What occupation. "9. What evidence have you of the presence of insanity ? "10. Is there a homicidal, suicidal, or incendiary disposition ? "11. Is the case a recent one, having occurred within twelve months last past ? "12. When did this attack first appear? " 13. Is this the first attack ? if not, when did others occur ? and what their duration ? " 14. Is the disease increasing, decreasing, or stationary 7 " IS. Are there rational intervals ? If so, do they occur periodically t " 16. Is there any permanent hallucination ? If so, what is it ? " 17. In what way is the accused dangerous to be at large ? "18. Is there a disposition to injure others 7 If so, is it directed especially to relatives 7 Is it from sudden passion or premeditated 7 " 19. If suicidal, is the propensity now active 7 and in what way 7 "20. Is there a disposition to filthy habits, destruction of clothing, furniture, etc.? "21. Have any relatives, inclnding grandparents and cousins, been insane? "22. Any peculiarity of habits, temper, disposition, etc., or pursuits or reli« gious impr«i8ioiu 7 § 514 PROBATE LAW AND PRACTICB. 618 "23. Been intemperate in the use of udent spirits, wine, opinm, or tobacco^ in any form ? "24. Suffered from epilepsy, suppressed secretions, eruptions, discharges^ or sores, or injured in the head ! " 25. Any change in the physical health since the attack t "26. The supposed canse of insanity. "27. Of what class of insanity t "28, What treatment has been pursued? and with what effect? "29. Post-office address, street, and number of hoose of relative or friend. " , M. D. " , M. D. " Subscribed and sworn to before me this day of , A. D. 18 — . " ^, Probate Judge." — Comp. Laws, sec. 1963. " On the return of the physicians' certificate, the probate judge shall, as soon as practicable, conclude his investigations; and shall find whether the person alleged to be insane is insane; whether, if insane, a fit snbject for treatment and custody in the asylum; whether the residence of such person is in such county; and if not in such county, where it is, if ascertained. If he find such person is not insane, he shall order his immediate discharge, if in custody. If he find such person insane, and a fit subject for custody and treatment in the asylum, he shall order said person to be committed to the asylum, except as in section 25 ' of this act provided, and unless said person so found to be insane (or soma one in his or her behaU) shall appeal from the finding of said judge to the dis- trict court of the judicial district in which such judge resides, the judge shall forthwith issue his warrant with duplicate thereof, stating such findings, with the residence of the person, if found, which warrant shall be in the following form, viz. : — "WAKRANT OV COMMITMENT. "Territory of Utah, ) County of \^- " I , probate judge of the county of — — , territory of Utah, upon affidavit of , caused to be brought before me for examination on a charge of insanity, and having heard the testimony of and , witnesses who have been acquainted with the accused daring the alleged insanity, and Drs. and , practicing physicians, after hearing the testimony of witnesses and after a personal exarainatioh of the accused, and having made the certificate by law required, find that the said is insane, and is a fit subject for custody and treatment in the asylum, that the residence of is'in county, territory of Utah, aad is indigent and is able to bear the actual charges and expenses for the time may remain in the asylum, — I therefore order the said , a male, aged years, to be confined in the territorial insane asylum at Provo City, and is charged with the execution of this order. "Witness my hand this day of , A. D. 18 — . " , Judge of the Probate Court." — Comp. Laws, sec. 1969. ' "Section 25 of this act" is section 1964 of Utah Complied Laws, and treats only of financial transactions. 619 GUARDIANSHIP. §514 "The probate judge shall transmit to the medical superintendent all money or other properjby found on the person of any insane person at the time of arrest, and certify thereto in form as follows: — "Territory of Utah, ) County of . f"* " I. , probate judge of county, certify that the sum of $ and property was found on the person of said at the time of his arrest, which the said is ordered to deliver to the medical superintendent of the territorial insane asylum; that I have appointed a guardian for said , and directed a quarterly payment, in advance, together with a fund to be for- warded to the said asylum with the said , as by law required of paying patients. "Witness my hand this day of , A. D. 18 — . " , Probate Judge. " The medical superintendent shall, upon receipt of such money or other prop- erty, as herein provided, deliver the same to the treasurer, to be applied to the payment of the expenses of said patient while in the asylum, but upon re- covery of such insane person, all sums remaining unexpended, or other prop- erty, shall be returned to him when he is discharged from the asylum." ^Comp. Laws, sec. 1970. " The probate judge shall deliver to the sheriff of the county, or other per- son appointed to execute the warrant, certified copies of the affidavit, warrant of commitment, and a certificate of property found on the person, and appoint- ment of guardian, and the sheriff or other person appointed shall execute the aforesaid warrant by conveying such person to the asylum and delivering him, with such affidavit, commitment, and certificates, to the medical superintend- ent thereof. The medical superintendent shall acknowledge such delivery on the original warrant, which the sheriff shall return to the clerk of the probate court with his costs and expenses indorsed thereon. The sheriff shall be al- lowed for his personal service in conveying a patient to the asylum and returning therefrom, at the rate of three dollars for the necessary time ac- tually employed, and mileage at the rate of seven cents per mile for the dis- tance actually and necessarily traveled. In the absence of the sheriff or bis deputy, or their inability to act, the probate judge may appoint some suitable person to execute the warrant, who shall take and subscribe an oath to dis- charge the duties thereof; he shall be entitled to the same fees as the sheriff or other persons so appointed; may, by consent of the probate judge, take to his aid such assistance as he may need to execute said warrant; provided, that no female shall be thus taken to the asylum without the attendance of soma other female or some relative. The medical superintendent shall in his acknowledgment of delivery state whether there was such person in attend- ance, and give the name and names, if any, but if any relative or immediate friend of the patient who is a suitable person shall so request, he shall have the privilege of executing such warrant in preference to the sheriff or any other person taking such oath, and for so doing he shall be entitled to his necessary expenses, but no fees." Comp. Laws, sec. 1971. . "In ca^ an insane person committed to the asylum under the provisions of § 5.14 PKOBATK LAW AND PRACTICE. 620 this act shall be possessed of real or personal property sn£Bcient to pay such charges and expenses, the judge shall appoint a guardian fof such person, who shall be subject to all the provisions of the general lavrs of this territory in relation to guardians as far as the same are applicable, and when there is not sufficient money in the hands of the guardian, the judge may order a sale of the property of such insane person, or so much thereof as may be necessary, and from the proceeds of such sale the guardian shall pay to the board of directors the sum fixed upon by them, quarterly, in advance, for the care and keeping of such ward, and he shall, out of the proceeds of such sale or such other funds as he may have belonging to his ward, pay for such clothing as the medical superintendent shall from time to time furnish such patient; pro- vided, that if such insane person have a family in this territory, no such order of sale shall be had of any property exempt from execution and forced sale." CJomp. Laws, sec. 1972. "The guardian shall give a bond, with good and sufficient sureties, payable to the treasurer of the asylum, and approved by the probate judge, for the faithful performance of the duties required of him by this act, so long as the property of his insane ward is sufficient for the purpose. The form of such bond shall be as follows: — » " BOND. "Know all men by these presents, that whereas , of , in the county of , an insane person, has been admitted as a patient in the territorial in- sane asylum for Utah Territory, situated at Provo City, in said territory, in consideration of the following agreement, ^ "Now, therefore, we, the undersigned, in consideration thereof, jointly and severally bind ourselves to , treasurer of said asylum, to pay to him and his successors in office the sum of dollars and cents per week for the care and board of said insane person, so long as shall continue in said asylnm, and his property is sufficient for that purpose, with such extra charges as may be occasioned by requiring more than ordinary care and atten- tion, and to provide with suitable clothing, and also to pay all expenses incurred by sending said patient to friends, in case one or either of us shall fail to remove said patient when required to do so as aforesaid; and if shall be removed at the request of friends before the expiration of three calendar months after reception, then to pay board for thirteen weeks, unless shall be sooner cured, and also to pay not exceeding fifty dollars for all damages ; may do to the furiiiture or other property of the asylum, and for reasonable funeral expenses in-case of death. Such payments for board and clothing to be made quarterly, on the first days of in each year, and at the time of removal, with interest on each bill from and after the time it becomes due. "In witness whereof, we have hereunto set our names this day of , in the year . "Name , P. O. . "Name , P. O. . "Territory of Utah, ), Connty of . r'" " , being duly sworn, deposes and says that he is a resident in this ter- ritory and a freeholder therein, and is worth the sum of one tbousaiid dollars 621 aUAKDIANSHIP. § 514 over and above all his debta and liabilities, excIutiV'e of property exempt from execution. " Subscribed and sworn to before me this day of 18 — w " [seal] [The game oath to be taken on separate jurats by each surety, — Ed.] " This will certify that I am personally acquainted with and , the signers of the above bond, and consider each of them fully responsible for the prompt discharge of its obligations. Name , Office , P. O. , " Provided, that when the property in the hands of the guardian subject to sale shall be exhausted, the probate judge shall give notice thereof to the board of directors, and thereafter the territory shall be liable for the costs of care and keeping of the indigent insane," — Comp. Laws, sec. 1973. "Upon the commitment of any person to the territorial insane asylum, the probate judge who committed such person shall immediately transmit a copy of the affidavit, physicians' certificate, and warrant of commitment to the' par- ties liable for the cost of commitment, and care and keeping of such insane person in the asylum. If, at any time subsequent to the commitment of an insane person in the asylum, it shall come to the knowledge of the probate judge committing such person that he has a residence in some other county of the territory, or that any person is liable for the cost of commitment or care and keeping of the person committed, he shall forthwith transmit to such county or person a copy of the affidavit, warrant of commitment, and certificate aforesaid, as also the amount of costs for which the person or county is liable," Comp. Laws, sec. 1974. "The kindred or friends of an inmate of the asylum may receive such in- mate therefrom upon giving satisfactory evidence to the probate judge issuing the commitment that they are capable and suitable to take charge of and give proper care to such insane person, and upon giving a bond to said court in the following form: — , ' ' Territory of Utah, ) County of . f ' "Know all men by these presents, that we, as principal, and and as sureties, are held and firmly bound unto the people of the territory of Utah in the sum of dollars, lawful money of the United States of America, to be paid to the treasurer of the territorial insane asylum, for which payment well and truly to be made we bind ourselves, our executors and administrators, jointly and severally, firmly by these presents. " Sealed with our seals and dated this — '— day of , A. D. 18 — . - "The condition of the above obligation is such, that whereas an order was made by the probate judge of County, territory of Utah, directing the medical superintendent of the territorial insane asylum to deliver the person of , an insane person, to , the of said insane person, the said order being that the said will take charge of and properly care tor the said , that he will obey all orders of the said judge of the probate court relating to the proper care and custody of said patient, and that he will return said to § 514 PROBATE LAW AND PRACTICE. 622 the asylum when so ordered by the aaid judge, and will oljey the laws of the territory relating to insane persons, — "Now, therefore, if the said shall faithfully perform the duties and comply with the requirements therein set forth, then this obligation ahiAl be void and of no effect; else to remain in full force and virtue. " [seal] " [seal] " [seal] " [seal] "Signed, sealed, and delivered in the presence of . «t "Territory of Utah, ) County of . P'" " and , being duly sworn, each deposes and says that he is a resident of this territory and a freeholder therein, and is worth the sum of dollars over and above all his debts and liabilities, exclusive of property exempt from execution. " It " Subscribed and sworn to before me this day of , A. D. 18 — . "- , Probate Judge. " On filing the foregoing bond and making proof as herein required^ the pro- bate judge shall issue his order to the medical superintendent directing him to deliver said insane person to the party making the application for the custody of said insane person, which order shall be in the following form: — ■ "Territory of Utah, ) County of . r'' " To the Medical Superintendent of the Territorial Insane Asylum. "Whereas has made application for the custody of , an insane per- son who was by me committed to the territorial insane asylum on the day of , 18 — , and he having complied with the provisions of the law in such cases made and provided, you are hereby directed to deliver the said , an insane person, to . , Probate Judge. "And if, after such removal, it is brought to the knowledge of the judge that the person thus removed is not cared for properly, or is dangerous to persons or property by reason of such want of care, he may order such person returned to the asylum; provided, no patient who may be under a criminal charge or conviction shall be discharged from the asylum without the order of the court having jurisdiction of such case. " — Comp. Laws, sec. 1975. "When it shall appear, upon affidavit filed, or other evidence, that any per- son is not insane, and is unjustly deprived of his liberty, the board of directors shall order an immediate inquiry into the merits of the case by the probata judge of the county in which such insane person is held; and for the purpose of such inquiry, said judge is hereby invested with authority to make all or- ders necessary for the proper discharge of said duty. "If, on such examination, it shall appear to said judge that the said person ia not insane, he shall order his immediate discharge, by using the following order, to wit: — 623 GUARDIANSHIP. § 514 "Territory of Utah, ) County of . P^" "To the Medical Superintendent of Territorial Insane Asylnm, greeting. "Having this day examined , a person heretofore committed to the in- sane asylum, and having adjudged the said as being now sane and restored to reason, you are therefore directed to return said to the county of , at the expense of said county. , Probate Judge. "If found to be insane, they shall order his continued detention, and may order the parties demanding such inquiry to pay the costs of the examination." — Comp. Laws, sec. 1976. "The provisions herein made for the support of the insane at public charge shall not release the estate of such persons from liability for their support, and the territorial auditor of public accounts is authorized and empowered to collect from the estate of such persons any sums paid by the territory in their behalf." Comp. Laws, sec. 1978. " Upon receipt of the copy of a£Bdavit and warrant of commitment from the probate judge, the parties therein charged with the cost of commitment and of care and keeping, or any other persons acting in behalf of such persons com- mitted, may appeal from any order made in such commitment to the district court for the district wherein such patient may reside, by filing with the pro- bate judge committing such patient, within ten days thereafter, a notice setting forth the order from which such appeal is taken; if such notice be not given within the time herein prescribed, such parties shall be deemed to have waived such right of appeal, and shall be bound by all orders made in such warrant of commitment." Comp. Laws, sec. 1981. " Any insane person found at large, and not in care of some proper person, shall be arrested by any peace-officer, and shall be immediately taken before the probate judge of the county in which such arrest Is made." Comp. Laws, sec. 1983. "No person supposed to be insane shall be restrained of his liberty by any other person, otherwise than in pursuance of authority obtained as herein pro- vided, excepting for such brief period as may be necessary for the safety of persons and property, and until such authority can be obtained." Comp. Laws, sec. 1984. "On information laid before the probate judge of any county that a cer- tain insane person in the county [is] suffering for want of proper care, the said judge shall forthwith inquire into the matter, and if he find the information well founded, he shall make all needful provision for the care of said person." Comp. Laws, see. 1987. " On receipt of notice from the board of directors that any person committed to the asylum is refused admission therein for want of room, the probate judge shall require that such patient be suitably provided for until such admission can be had or until the occasion therefor no longer exists. If such person is indigent, the county shall be entitled to receive from the territory a sum equal to the amount allowed by the territory for costs of care and keeping of indigent patients in the insane asylum." Comp. Laws, sec. 1988. Washington. — "The superior court of any county in this state, or the judge thereof, upon the application of any person under oath, setting forth § 514 PROBATE LAW AND PRACTICB. 624 that any person, by reason of insanity, is unsafe to be at lai'ge, shall cause' such person to be brought before him, and he s^all summon to appear at the same time and place two or more witnesses, who shall testify, under oath, as to con- versation, manners, and general conduct upon which said charge of insanity is based; and shall also cause to appear before him, at the same time and place, two reputable physicians, before whom the judge shall examine the charge, unless the accused, or any one in his or her behalf, shall demand a jury to de- cide upon the question of insanity. If such demand be made, the trial shall be by jury. If no -jury be demanded, and the said physicians, after a careful hearing of the case and a personal examination of the alleged insane person, shall certify under oath that the person examined is insane, and the case is of a recent or curable character, or that the said insane person is of a homicidal. Suicidal, or incendiary disposition, or that from any other violent symptoms the said insane persoVi would be dangerous to his or her own life, or the Uvea and property of the community in which he or she may live; and if said physicians shall also certify to the name, age, nativity, residence, occupation, length of time in this state, state last from, previous habits, premonitory symptoms, apparent cause and class of insanity, duration of the disease, and present con- dition, as nearly as can be ascertained by inquiry and examination; and if the judge shall be satisfied that the facts revealed in the examination establish the existence of the insanity of the person accused, and that it is of a recent or curable nature, or of a homicidal, suicidal, or incendiary character, or that from the violence of the symptoms the said insane person would be dangerous to his or her own life, or to the lives and property of others, if at large, he shall order such insane person sent to the hospital for the insane. If the trial has been by jury, and the accused declared insane by said jury, and the in- sanity be of the character above described, the said insane person shall be ordered by the judges to be sent to the hospital for the insane. " Gen. Stats., sec. 1248. " Whenever the superior judge shall order an insane person sent to the hospi- tal for the insane, he shall issue a warrant directed to the sheriff, command- ing him to convey such insane person to the hospital for the insane, and place such insane person in charge of the superintendent of the hospital for the in- sane to which the order is directed, and he shall transmit a copy of the com- plaint and commitment, and physician's certificate, which shall always fee in the form as furnished to the courts by the superintendent of the hospital for the insane; provided, the superior judge, at his discretion, or superintendent, on application of the relatives or friends, may send him or her to either hos- pital for the insane.'' Gen. Stats., sec. 1249. "Whenever the superior judge of any county shall, by reason of sickness or other cause, be unable to attend at his office and perform the duties required by this act, said duties shall be performed by any judge of the superior court of any adjacent county, upon the applicant filing an affidavit setting forth the inability of the proper superior judge to attend to the duties of his office." Gen. Stats., sec. 1250. "The superior courts of the state shall have power to commit to the hospi- tal for the insane any person who, having been arraigned for an indictable 625 GUAKMANSHIP. g 514 ofienae, shall be found by the jury to be insauie at the time of such arraign- ment." Gen. Stats., seu. 1252. "No case of idiocy, imbecility, harmless chronie mental unsoundness, or acute mania a potu shaU be committed to the hospital for the insane." Oen. Stats., sec. 1254. "Non-residents of this state conveyed or coming herein while insane shall not be committed to nor 8i^>pprted in the hospital for the insane; but this pro- hibition shall not prevent the oommitmeut to and temporary care in said hos- pital of persons stricken with insanity while traveling or temporarily sojourning in the state, or sailors attacked with insanity npon the high seas, and first arriving thereafter in some port within this state." Gen. Stats., sec. 1255^ "No person laboring under any contagious or infectious disease shall be admitted into the hospitals for the insane." Gen. Stats., sec. 1256. " If any patient shall escape from the hospital, the superintendent shall cause immediate search to be made for him, and if he cannot soon be found, shall cause notice of such escape to be forthwith given to the superior judge of the county where the patient belongs; and if such patient is found in his county, the superior judge shall cause him to be returned, and shall issue his warrant therefor as in other cases, unless he does not consider his return neces- sary, of which fact he shall notify the superintendent." Gen. Stats., sec. 1259. "The relatives or friends of any person charged with insanity, or who shall be found to be insane under this act, shall in all cases have the right to take charge of and keep said insane person, if they shall desire so to do; but the superior judge may require a bond of such relatives or friends, conditioned for the proper and safe keeping of such person." Gen. Stats., sec. 1265. "The relatives or friends of an inmate of the hospital for the insane may receive such inmate therefrom on their giving a bond or other satisfactory evi- dence to the superior judge issuing the commitment that they, or any of them, are capable and suited to take care of and give proper care to such insane per- son, and give protection against any of his acts as an insane person. If such satisfactory evidence appear to the judge, he may issue an order directed to the superintendent of the hospital for the insane for the removal of such per- son. If, after such removal, it is brought to the knowledge of the judge, by verified statement, that the person thus removed is not oared for properly, or is dangerous to persons or property by reason of such want of care, he may order such person returned to the hospital:" Gen. Stats., sec. 1266. Wyoming. "The determination of the insanity or incompetency of any person shall be by a jury, as in civil actions. When it is in vacation to deter- mine the fact of insanity or incompetency of any person, it shall be done by tlje judge or court commissioner or clerk, who shall issue an order to call an open venire to the sheriff, who shall summon six men to act as a jmry, who shall possess the qualifications of jurors, and the proceedings thereafter shall be in all respects as near as may be in civil actions in term time." Laws 1890-91, p. 307, sec. 2. "The jury, in addition to finding upon the question of the sanity or insanity of the person, shall find the value of his estate, if any, or whether he is a pauper. If he has an estate, the judge, commissioner, or clerk presiding over the pro- 40 § 514 PROBATE LAW AND PKACTICK. 626 ceeding shall appoint a guardian of the person and estate of snch person, and such gnardian shall take charge of the estate of such insane person in the man- ner provided by lawin relation to guardianship. " Laws 1890-91, p. 307, seel 3. " The estate of an insane person shall be entitled to the same exemptions as to his creditors, and for the expense of his care while insane, as are provided by law in case of the estates of decedents. Property and money to cover such exemptions shall be sequestered and set apart by the judge by the iinding of the jury aforesaid, for the private use of the faiuUy, or for the person himself. The balance of his estate, if any, may be used under the direction of the court or judge for the care of such insane person or his family, if he have one, in Each proportions as may be ordered, until the same is exhausted. After that he shall be supported and cared for at public expense, as provided by law for insane persons, nntil his death, or disability is removed." Laws 1890-91, p. 307, sec. 4. "The verdict of the jnry shall be entered upon the journals, and have the same effect as if the verdict has been rendered during a term thereof." Laws 1890-91, p. 307, sec. 5. "Whenever a person has been declared insane or incompetent by a jury as aforesaid, the expense of the proceedings to determine such fact shall be charged against the estate of such person. If he has no estate, snch expense shall be charged against and borne by the county in which the proceeding is had. If the complaint that any person be insane or incompetent be made by any person other than a county officer, i^nd the jury, upon submission of such question to them, declare that such person is not insane or is not incompetent, then the person making snch complaint shall pay the expense of such proceed- ing." Laws 1890-91, p. 307, sec. 6. " Every guardian appointed as provided in the preceding section has the care and custody of the person of his ward, and the management of all his estate, until such guardian is legally discharged; and he must give bond to such ward in like manner and with like conditions as before prescribed with respect to the giiardian of a minor.'' Laws 1890-91, p. 308, sec. 7. " If any insane person be admitted into the state insane asylum as a patient, the guardian shall pay for his support and expenses at such asylum, out of the estate of such ward; and if such insane person shall, at any time, come under the class of 'insane poor persons,' as specified in the law for the government of the state insane asylum and the care of the insane, such person shall be supported and maintained at such asylum." Laws 1890-91, p. 308, sec. 8. "For the purposes of this chapter, whenever the words 'person of unsound mind' or 'insane person' occur therein, said words shall be construed to mean either an idiot, or a lunatic, or a person of unsound mind, and incapable of managing his own affairs, as the case may be, upon proof as aforesaid." Laws 1890-91, p. 308, sec. 10. "If any guardian shall publish for four weeks in some newspaper published in the county where the proceedings are had, if there be one, and if not, in the nearest newspaper to such county, a notice of his intention to apply to the court or judge to resign his guardianship, and the court or judge, on proof of such publication, shall believe that he should be permitted to rSsign, the court 627 GUARDIANSHIP. § 514 or judge shall so order, and appoint other guardians, who may assume the maintenance of the patient at the state insane asylum; in the event of the patient being at the time an inmate of said asylum, the court shall have an> thority to provide for the safe-keeping and medical treatment, in the stata insane asylnm, of such lunatic, idiot, or person of unsound mind, in the man- ner provided by law in relation to such like persons residents of the several counties." Laws 1890-91, p. 308, sec. 11. "If any person shall allege, in writing, verified by oath or afiirmation, that any person declared to be of unsound mind has been restored to his right mind, the court or judge by which the proceedings were bad shall cause the facts to be inquired into by a jury.'' Laws 1890-91, p. 308, sec. 12. "The court shall cause notice of the trial to be given to the guardian of the person so declared insane or incompetent, if there be a guardian, and to his or her husband or wife, if there be one, or to his or her father or mother, if living in the county. Onthe trial, the guardian or relative of the person so declared insane or incompetent, and, in the discretion of the court, any other person, may contest the right to the relief demanded. Witnesses may be required to appear and testify, as in civil cases, and may be called and examined by the court on its own motion. If it be found that the person be of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, and the guardian of such person, if snch person be not a minor, shall cease." Laws 1890-91, pp. 308, 309, sec. 13. Aprpointment of guardian is petition or on notice to the insane per* valid though not made on verified son: Sprigg v. Stwm/p, 7 Saw. 280. I 515 PKOBATB LAW AKI> PllACTICB. 628 CHAPTER XIX. GUARDIAN AND WARD. ARTICLB L GuABDIAirSl 01) MlXOBS. II. G0ABDIAII3 or Insani: anb iNcoMPBXEm FcnsoHU. m. SpENDTHKirra and Drunkards. rV. ThK F»WEBa A»D DwTIHS Oi» GnABDIAKS. V. Ths Sals of Propebxx and Tasroamant cm FftooanDS. VI. NON-BBSIDBNT GUARDIANS AND WaRD* VIL GeNBBAI, AKD MlaC£LLANE0U3 FbOV'ISHUIB. VUL Appeals. ARTICLE L aUAKDIANS or MIDOBS. § 515: Judge to appoint guardians. § 516. When minor may nominate guardian — When not; § 517. Appointment, made bjr judge — Minor aver fonrteen. § 51S. Nomination bj; minora after arriving ati fourteen. § 519. Father or mother entitled to gnardianship. § 520. Minor having no father or mother. § 521. Powers and duties of guardian. § 522. Bond of gnardian, conditions of. § 523. Judge may insert conditions in order. § 524. Iietters of guardianship and l)ond to be recorded. § 525. Maintenance of minor out of income of property. § 526. Guardian to give bond — Powers limited. § 527. Power of courts to appoint guardians and next friend. §515. [1747.] Judge^o Appoint Guardians. — The superior court of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates, or either of them, of minors who have no guardian legally ap- pointed by will or deed, and who are inhabitants or residents of the county, or who reside without the state and have estate within the county. Such appointment may be made on the petition of a relative or other person on behalf of the minor, or on the petition of the minor, if fourteen years of age. Before mak- ing such appointment, the court must cause such notice as such court deems reasonable to be given to any person having the 629 GUARDIAN ANt) WAKD. § 515 Care of such minor, and to such relatives of the minor residing in the county as the court may deem proper. Arizona. —Same. Rev. Stats., sees. 1307, 1308. Idabo. — Same. Rev. Stats., sec. 5770. Montana. — Same. Comp. Stats., p. 362, sec. 351; p. 365, sec. 352. * Granting Iietters, etc.: See Mont. Laws 1S91, p. 219, under § 10, ante. Nevada. — Same. Gen. Stats., sees. 548, 549. Oregon. — Same as first sentence. Hill's Laws, sec. 2880. " Whenever it becomes the dnty of the county court to appoint a guardian for a minor, the relations of such minor, whether male or female, npon appli- cation to the proper county court, shall in all cases be appointed, the nearest relative having precedence; provided, that said applicant shall be of good moral diaracter, and be otherwise competent to discharge the duties of guar- dian to such ward. " Hill's Laws, sec. 2879. Utall. — Same as California. Comp. Laws, sec. 4305. Wasliingfton. — " The superior court of each county, when it shall become necessary, may appoint guardians to minors resident in said county who have no guardian appointed by will, or who may reside out of the state, having estate within the county." Code Froc, sec. 1123. Wyoming. — Same as California, except that "superior" is changed to "district," and after "county " the words "or the judge thereof in vacation'' are inserted. After the words "the court," in last sentence, the words "or judge " are added, and all words after "in the county," in last sentence, are omitted. Laws 1890-91, p. 304, sec. 1. Slinors. r— Section 25 of the California Civil Code defines minors to be, — 1. Males under twenty-one years of age; and 2. Females under eighteen years of age. Ages are to be compnted from the first minute of the day on which persona are bom to the same minute of the corresponding day completing the period of minority: Cal. Civ. Code, sec. 26. Authority of a Parent Ceases, — 1. Upon the appointment by a court of a guardian of the person of the child; 2. Upon the marriage of the child; •3. Upon its attaining majority: Cal. Civ. Code, sec. 204. Bemedy for Parental Abuse: Cal. Civ. Code, sec. 203. Gruardian when Infont is Party to Action: Cal. Civ. Code, sees. 372, 373. See § 332, ante, and § 548, post. The power of appointing guardians appoint guardian: In re Saynor, 74 is vested in this state, — 1. In the Cal. 421. lather; 2. In thfe mother; 3. In Application for letters of guar- the court of probate: Lord v. ffoug/t, dianship should be made in the 37 Cal. 657, where will be found a county where the proposed ward re- discussion of the various classes of sides: In re TUtel, _Myr. Prob. 97. guardians at common law, and the Where a petition for letters of statutory changes. guardianship over the person of a Residence of minor, what con- minor is presented and filed in tb* atitutes, to give court jurisdiction to superior court of one county, and §515 PROBATE , LAW AND PRACTICE. 630 citatioa is issued and served on the parties interested, such court has jurisdiction to hear and determine whether the minor is a resident of that county, and whether the , peti- tioner is a proper person to be ap- pointed guardian. Its jurisdiction so to proceed is not ousted by the fact that, subsequent to the service of the citation, one of the parties served ob- tained the issuance of letters of guar- dianship to himself in the superior court of another county: In re Dan- tieha; 67 Oal. 643. A gpiardian is estopped from denying the jurisdiction of the court which appointed him or the legality of his appointment, if he has qualified under the order of said court as guar- dian: Fox V. Minor, 32 Cal. 111. In this state, courts of chancery have the same control as similar courts in England over the persons and es- t7.tes of minors: Const. 1850, art. 6, pec. 6. This jurisdiction cannot be divested by the legislature. Probate courts have not exclusive original jurisdiction over these matters: Wit- aon Vi Roach, 4 Cal. 362. In the appointment of a guar- dian, the parental request is entitled to great weight, and ought to prevail, unless good reason to the contrary be shown: BadeiAoofv. JohnsoHi 11 Nev. 87. An appointment of guardian of the person or estate of a minor is invalid except upon petition filed and after notice of the appliication: Badenlu>of y. Johnson, 11 Nev'. 87. It is a grave irregularity to appoint a stranger as guardian of the person and estate of an infant within three days after petition filed, and without notice to the infant's relatives and its custodian: In re Winkleman, 9 Nev^ 303. The superior court has general jurisdiction of the matter of the ap- pointment of guardians, and, as an incident to its jurisdiction, it has the power to hear 3ind determine whether a testamentary guardian has been legally appointed or not; but if the fact of the appointment of a guardian by will or deed were established, the superior court has no jurisdiction tn appoint a guardian, and its order ap- pointing a guardian would be a nullity: Murphy v. Superior Court, 84 Cal. 592. An order appointing a guar- dian for a minor under fourteen years is not void for want of formal notice to the person having custody of the minor, and to resident relatives of the minor, if all persons entitled to such notice appear and consent to the ap- pointment: Smith V. Biscaibiz, 83 Cal. 344. An appointment of a guardian without giving any notice whatever is void: Seavers v. Ocrke, 3 Saw. 353. In appointing a guardian, the record must affirmatively show that every act essential to give jurisdiction' to the court has been performed:. Seavert v. Gerke, 3 Saw. 353. Where the appointment of a guar- dian is void, all subsequent proceed- ings in that matter, including sales of realty, are void: Seavem v. Gerke, 3 Saw. 353. See Walker v. Goldsmith, 14 Or. 125. The appointment of guardians is an exercise of jurisdiction pertaining to probate courts: Monaetea v. Catlin, 6 Or. 119. Form No. 252. — Petition for * ' Guardian. Appointment of [Title of Court.] In the matter of the guardianship of , a minor. The petition of respectfully shows that is a minor of the age of years, residing in the county of ■ , state of ; That said minor is the owner of certain real and personal property situated in this county, which is described as follows, to wit (here insert description); 631 Guardian and waiid. § 515 That said property is of the value of about $: , and the annual rents and profits thereof amount to the sura of $ — — ; that said property needs the attention and care of a guardian; That said minor has no guardian legally appointed by will, deed, or otherwise; That petitioner is the father of said minor; that the relatives of said minor residing in this county are — — , , and '-; that said minor is at present residing with and under the care of , residing in the county of , state of ; — Wherefore your petitioner prays that he be appointed guar- dian of the estate of said minor. , Petitioner. , Attorney for Petitioner. Form No. 253. — Order Directing Notice of Appli- cation for Letters of Guardianship. [Title of Court and Guardianship.] The petition of to be appointed guardian of the (per- son and) estate of , a minor, having been heretofore filed in this court, it is ordered that personal notice of said applica- tion be issued by the clerk of this court, directed to , , and , relatives of said minor, residing in this county, and to , the person who has the care of such minor, and that said notice be served on said parties personally at least five days prior to the time fixed herein for the hearing of said petition. The hearing of said petition is hereby set for the day of , A. D. 18 — , at the hour of o'clock, — m., at the court- room of this court. , Judge of the Court. Dated — -, 18—. Form No. 254. — Notice to Belatives of Application for Letters of Guardianship. [Title of Court and Guardianship.] To , , and . Take notice that has heretofore filed in the above- entitled court his petition to be appointed guardian of the (per- son and) estate of ' , a minor; that said petition has been set for hearing by said court on the da;y of , A. D. 18 — , at the hour of o'clock, — m., at the court-room of §516 PROBATE LAW AN0 PEACTICB. 63.2 6aid court, at which time and place jom maf appear and show cause, if any you can, why said — — should not be appointed pueh guardian. In witness whererf!, I, William B. Hamilton, clerk of said superior court, have hereunto set my hand this day of , A. D. 18— . Clerk. By -, Deputy Clerk. Form No. 256. — Consent of Relatives. [Title of Coart and Gaardiaiiship.] The undersigned, relatives of , a minor, hereby consent that may be appointed guardian of the (person and) es- tate of said minor. Dated , 18 — Form No. 266. — Order Appointing Guardian. [Title of Conrt and Guardianship.] The matter of the appointment of a guardian of the (person and) estate of , a minor, coming on regularly for hearing this day, and it appearing that said minor is a resident of the county of , state of , and has property in the — — county of , state of , — It is ordered that be and he is hereby appointed guar- dian of the (person and) estate of said -, a minor, upon his filing a bond in the penal sum of dollars, conditioned according to law. , Judge of the Court. Dated ■ , 18—. §616. [1748.] When Minor may Nominate Guar- dian — When not. — If the minor is under the age of four- teen years, the court may nominate and appoint his guardian. If he is fourteen years of age, he may nominate his own guar- dian, who, if approved by the court, must be appointed accord- ingly. Arizona.^- Same. B.ev. Stats., sec. 130S. Idaho. — Same. Rev. Stats., sec. 6771. Montana. — Same, Comp. Stats., p. 363, sec. 352. Nevada. — Same. Gen. Stats., see. 549. Oregon. — Same. Hill's Laws, sec.. 2881. Utall. — Same. Comp. Laws, sec. 4;j06. ^3 GUAKDIAN AND WARD. § 517 Waahingfton " If the minor u tinder fourteen years of age, the judge ma^ nominate and appoint his guardian; if said minor he over fourteen- years of age, he or she may nominate the guardian, who, if slpproved by the superior court, shall be appointed accordingly; pr&vided, that no judicial officer, except- ing justice of the peace, no person of unsound mind, or a party convicted of felony, or a misdemeanor involving moral turpitude, shall be appointed guar- dian, and when a guardian shall incur either of the foregoing disabilities, he shall be displaced. If a guardian becomes superior judge, the superipr court of the proper county shall appoint hi& successor." Code Froc, sec. 1129. Wyoming. — Same as California, except that after "court" the worda " or judge " are added each time it occurs. Laws 1890-91, p. 304, sec. 2. Form No. 257. — Nomination of Guardian by Minor. [Title of Court and Guardianship.] The undersigned, a minor, being of the age of fourteen years, nominates as the guardian of his (person and) estate , and respectfully requests the court to appoint him as such guardian. Dated , 18—. § 517. [1749.] When Appointment may be Made by Judge when Minor is over Fourteen. — If the guardian nominated by the minor is not approved by the court, or if the minor resides out of the state, or if, aifter being duly cited by the court, he neglects for ten days to nominate a suit- able person, the court or judge may nominate and appoint a guardian in the same manner as if the minor were under the age of fourteen years. Arizona. — Same. Rev. Stats., sec. 1309. Idah.0. — Same. Rev. Stats., sec. 6772. Montana. — Same. Comp. Stats., p. 363, sec. 353. Nevada. — Same. Gen. Stats., sec. 550. Oregon. — Same, except phrase "for ten days" omitted. Hill's Laws, sec. 2881. " When such minor, being above the age of fourteen years, shall reside more than ten miles from the place of holding the county court, his nomination of a guardian may be certified to the judge thereof by a justice of the peace, fvhich shall have the same effect as if made in the presence of the court or judge." Hill's Laws, sec. 2882. Utah. — Same as California. Comp. Laws, sec. 4307. Washington. — Same as California. Code Proc, sec. 1130. Wyominp. — Same as California, except that the words "or judge" fol- lows " court " every time it occurs. Laws 1890-91, p. 304, sec. 3. §§518,519 PKOBATK LAW AND PEACTICB. , 634 § 518. [1750.] Nomination by Minors after Arriv- ing at Fourteen. — When a guardian has been appointed by the court for a minor under the age of fourteen years, the minor, at any time after he attains that age, may appoint his own guardian, subject to the approval of the court. Arizona. — Same. Rev. Stats., sec. 1310. Idabo. — Same. Rev. Stats., sec. 5773. Kontana. — Same. Comp. Stats., p. 363, sec. 351. Nevada. — Same. Gen. Stats., sec. 551. Utah. — Same. Comp. Laws, sec. 4308. Washington. — " When a guardian has been appointed for any minor , nnder the age of fourteen, such guardian shall not be removed when such minor arrives at the age of fourteen, except for good cause shown." Code Proc, sec. 1131. Wyoming. — Same as California, except that the words " or judge " follow "court" every time it appears. Laws 1890-91, p. 305, sec. 4. § 619. [1751.] Who may be Guardian. — The father or the mother of a minor child under the age of fourteen years, if found by the court competent to discharge the duties of guardianship, is entitled to be appointed a guardian of such minor child, in preference to any other person. The person nominated by a minor of the age of fourteen years as his guar- dian, whether married or unmarried, may, if found by the court competent to discharge the duties of guardianship, be appointed as such guardian. The authority of a guardian is not extinguished nor affected by the marriage of the guardian. [Amendment approved March 31, 1891; took effect in sixty days.] Cal. Stats. 1891, p. 136. Arizona. — "The father of the minor, if living, and in case of his decease the mother, while she remains unmarried, being themselves respectively com- petent to transact their own business, and not otherwise unsuitable, must be entitled to the guardianship of the minor." Rev. Stats., sec. 1311. Idaho. — Same as Arizona. Rev. Stats., sec. 5774. Montana. — Same as Arizona. Comp. Stats., p. 363, sec. 355. Nevada. — Same as Arizona. Gen. Stats., sec. 552. Oregon. — Same as Arizona to and including the word " entitled "; then OS follows: "To the custody of the person of the minor, and to the care of his education." Hill's Laws, sec. 2883. See also Hill's Laws, sec. 2879, under g 630, ante. Utah. — Same as Arizona, except that the words "while she remains un- married " are omitted. Comp. Laws, sec. 4309. 635 GUARDIAN A&D WARD. §§ 520, 521 Washington. — "The father of the minor, if living, and in oaae of his da- cease the mother, being themselves respectively competent to transact their own business, shall be entitled to the guardianship of a minor." Code Froc, sec. U32. Wyoming. — Same as Washington, except that after the word "mother " these v^ords are added, " while she remains unmarried," and in lieu of " shall " these words are inserted, "and not otherwise unsuitable, must." Laws 1890- 91, p. 305, sec. 5. Corporations may be Guardians, etc. : See § 76, ante. Appointment of Guardian by will or by deed, when to take effect and by whom made: See § 497, ante. Guardianship of girls should be trator even though an attorney be given to mother who is divorced from appointed by the court to represent father, when his competency is ques- his ward: /n re Rose, 66 Cal. 241; see tionable, if she is competent: In re note to § 542, post. Auaterlumdt, Myr. Prob. 18. The parent, as such, has no control Order appointing a father as over the property of the child: Cal. guardian may make directions con- Civ. Code, sec. 202. A parent has no cerning the custody of the person of power as guardian of property of a ward: /» re Linden, Myr. Prob. 215. minor, except by the appointment of A general guardian may con- a court: Kendall v. Miller, 9 Cal. 591; test the account of an adininia- § 498, amte. § 530. [1752.] Minor having No Father or Mother. — If the minor has no father or mother living, competent to have the custody and care of his education, the guardian ap- pointed shall have the same. Arizona. — Same. Rev. Stats.,, sec. 1312. Idaho. — Same. Bev. Stats., sec. 5775. Montana. — Same. Comp. Stats., p. 363, sec. 356. Nevada. — Same. Gen. Stats., sec. 553. Utah. — Same. Comp. Laws, sec. 4310. Washingfton. — Same. Code Proc, sec. 1133. Wyoming. — Same. Laws 1890-91, p. 305, sec. 6. §521. [1753.] Powers and Duties of Guardian.— Every guardian appointed shall have the custody and care of the education of the minor, and the care and management of his estate, until such minor arrives at the age of majority or mar- ries, or until the guardian is legally discharged. Arizona. — Same. Rev. Stats., sec. 1313. Idaho. — Same. Rev. Stats., sec. 6776. Kontana. — Same. Comp. Stats., p. 353, sec. 357. Nevada. — Same. Gen. Stats., sec. 554. Oregon. — Same, except that guardianship continues until minor reaches twenty-one years, or guardian is legally discharged. Hill's Laws, sec. 2883. Utah. — Same as California. Couip. Laws, sec. 4311. § 622 PROBA.TB LAW AND PBACTlCB. 636 Washington. — Same a« California,, exeiept that thie phrase "ot tintil the guardian is legally discharged " is omitted. Code Froc, sfec. 1134. Wyoming. — Same as Californii, except that in lien of the words "Or marries," after the word " majority," these words are inserted, " and in case Of a girl, nntil she marries or arrives at the age of majority." Laws 1890-91, p. 305, sec. 7. Griardians are not entitled to long as parent is living and wortliy: the custody and tuition of war J so Loi'd v. Hough, 37 Cal. 657. § 623. [1754.] Bond of Guardian, Conditions of.— Before the order appointing any person guardian under tins chapter takes effect, and before letters issue, the court must re- quire of such person a bond to the minor, with sufficient sure- ties, to be approved by the judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust according to law, and the following conditions shall form a part of such bond, without being expressed therein: — 1. To mate an inventory of all the estate, real and personal, of his ward, that comes to his possession or knowledge, and to return the same within such time as the court may order; 2. To dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward; 3. To render an account, on oath, of the propterty, estate, and moneys of the ward in his hands, and all proceeds or interests derived therefrom, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court directs; and at the expiration of his trust to settle his accounts with the court, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled thereto. Upon filing the bond, duly approved, letters of guardianship must issue to the person appointed. In form, the letters of guardianship must be substantially the same as letters of ad- ministration; and the oath of the guardian must be indorsed thereon that he will perform the duties of bis office as such guardian according to law. 637 GUABDIAJI AND WARD. § 522 Ariaoaa. — Same. Bev. Stota., aeo. 1314. Idaho. —Same. Rev. Stata., sec. 5777. Montana. —Same. Coinp. Stata., p. 363, sec. 358. Nevada. — Same, except that after "aa he shall order," the following i» interpolated: "And when the penal sum of the bond exceeds two thousand dollars, each of the sureties may become liable for portions thereof, making in the aggregate the whole penal sum; and said bond shall be." Gen. Stats., sec. £55. Oregon. — Same as California, except last two sentences, which are omitted, and the acconnt is to be rendered within-one year after appointment, and the bond is to be given to the state of Oregon. Hill's Laws, sec. 2S84. Utah. — Same as California. Comp. Laws, sec. 4312. Washington. — "The court shall take of each guardian appointed nnjer this act bond, with approved security, payable to the state of Washington, in a sum double the amount of the minor's estate, real and personal, conditioned as follows: The condition of this obligation is such, that if the above-bound A B, who has been appointed guardian for C D, shall faithfully discharge the office and trust of such, guardian according to law, and shall render a fair and just account of his said guardianship to the superior court for the county of , from time to time, as he shall thereto be required by said court, and comply with all orders of said court, lawfully made, relative to the goods, chattels, and moneys of such minor, and render and pay to such minor all moneys, goods and chattels, title papers and effects, which may come into the hands or possession of such guardian, belonging to such minor, when such minor shall thereto be entitled, or to any subsequent guardian, should such court so direct, this obli- gation shall be void, or otherwise to remain in full force and virtue, whieh bond shall be for the use of such minor, and shall not become void upon the first recovery, but may be put in suit from time to time against all or any one or more of the obligors, in the name and [for] the use and benefit of any per- son entitled by a breach thereof, until the whole penalty shall be recovered thereon." Code Proc, sec. 1136. " It shall be the duty of every guardian of any minor, — 1. To make out and file, within three months after his appointment, a full inventory, verified by oath, of the real and personal estate of his ward, with the value of the same; and failing so to do, it shall be the duty of the court to remove him and appoint a successor; 2. To manage the estate for the best interest of his ward; 3. To render on oath to the proper court an account of his receipts and expen- ditures as such guardian, verified by [such] vouchers or proof, at least once in every two years, or whenever cited so to do; he shall receive no allowance for services, and be liable to said ward on his bond for ten per cent in damages on the whole amount of estate, both real and personal, in his hands belonging to such ward; 4. At the expiration of his trust, fully to account for and pay over to the proper person all the estate of said ward remaining in his hands; 5. To pay all just debts due from such ward out of the estate in his hands, and col- lect all debts due such ward, and in case of doubtful debts, to compound the same, and appear for and defend, or cause to be defended, all suits againqt such ward; 6. When any ward has no father or mother, or such father or mother is unable or fails to educate such ward, it shall be the duty of his guar- § 522 PROBATE LAW AND PRACTICE. 638 dian to prbyide for him such education as the amount of his estate may jaa- tify." Code Proc, sec. 1138. Wyomingf. — Same as California, except that the judge may act as well as the court. Laws 1890-91, p. 305, sec. 8. There is no estoppel to deny the minor children, appointed by the fact of guardianship by reason of ne- court, does not become a guardian gleet to give the bond required by unless he gives the bond required by law, if no money or property appears section 1754 of the Code of Civil Pro- to have been received by virtue of the cedure; and the court has no power in appointment: Murphy v. Superior its order of appointment to dispense Comt, 84 Cal. 592. with bonds: Murphy v. Superi&r Court, A guardian of the property of 84 Cal. 592. Form No. 258. — Bond of Guardian. Know all men by these presents, that we, , principal, and and , sureties, are held and firmly bound to , a minor, in the sum of dollars, lawful rnoney of the United States, to be paid to the said , for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated t^is ■ — r- day of , A. D. 18—. The condition of the above obligation is such, that whereas by an order of the — — court of the county of , in said state, duly made and entered on the day of , A. D. 18 — , the above-bounden was appointed guardian of the, (person and) estate of said minor, upon executing a bond ac- cording to law, in said sum of dollars, ■ — Now, therefore, if the said , as such guardian, shall faithfully execute the duties of the trust according to law, then this obligation to be void, otherwise to remain in full force and efifect. [seal] [seal] Sealed and delivered in presence of . [seal] State of , } County of . \ , being duly sworn, each for himself says th^t he is a holder and resident within said state, and is worth the said sum of ■ dollars over and above all his just debts and liabilities, exclusive of property exempt from execution. Subscribed and sworn to before me this dav of , A. D. 18—. 639 GUARDIAN AND WARD. § 523 Form No. 269. — Letters of Guardianship. [Title of Court and Guardianship.] State of , County of - BS. is hereby appointed guardian of the (person and) estate of , a minor. Witness, , clerk of the court of the county of , with the seal thereof affixed, the day of , A. D. 18 — . By order of the court. [seal] , Clerk. Oath of Office of Guardian: See Form No. 52, S 70, anie. It is a breach of the bond if the her co-tenant and ward, is valid, al- guardian fails to render an account, though signed and delivered as her etc., when his office of guardian ceases: individual deed: Whyler\, Van Tiger, In re Allgier, 65 Cal. 228. See also Cal. Sup. Ct., Aug. 31, 1887 (Ho. § 553, poet, and notes. 11931), not reported. Where a mother was appointed A ward, upon attaining his guardian of the person and estate of majority, sued his guardian and her minor son, and on the same day the sureties on the general bond, to presented her bond, which was ap- recover moneys received by the guar- proved, a lease made by her of the dian on sale of the ward's realty, and ward's property on the following day not accounted for. It was held that the was held valid, though no letters of suit coixld not.be maintained, because guardianship had been issued to her; the sale of real estate was n6t of the and she had not taken the oath of general duties of a guardian: Bender- office: Whyler v. Van Tiger, Cal. Sup. son v. Coover, i Nev. 429. Ot., Aug. 31, 1887 (No. 11931), not Act of guardian is ratified by reported. ward unless the latter expressly dis- A lease purporting to be made affirms it within a reasonable time by one tenant in common in her own after attaining majority: Brazee v. right, and as guardian of the estate of Schdfield, 2 Wash. Ter. 209. § 523. [1755.] Judge may Insert - Conditions in Order Appointing Guardian. — When any person is ap- pointed guardian of a minor, the court imay, with the consent of such person, insert in the order of appointment conditions not otherwise obligatory, providing for the care, treatment, education, and welfare of the minor. The performance of such conditions shall be a part of the duties of the guardian, for the faithful performance of which he and his sureties on his bond shall be responsible. Arizona. — Same. Rev. Stats., sec. 1315. Idaho. — Same. Rev. Stats., sep. 5778. SEontana. — Same. Comp. Stats., p. 364, sec. 359. TTtah. — Same. Comp. Laws, sec. 4313. Wyoming. — Same as California, except that "or judge" is inserted after "court" wherever that word occurs. Laws 1890-91, p. 306, aeo. 9. §1 524, 525 PROBATB EAW AND PRAOTICB. Guardians mast send w^rd to school, nnder penalty of conviction o{ a mis- demeanor: Cal. Stats. 1890, p. 135, sees. 130, 131. Order appointing a father as ceming the custody of the person o{ ^ardlan may make directions con- waird: In re Liitden,^Myi, Prob, 215. § 624. [1756.] Letters of Guardianship and Bond of Guardian to be Recorded. — AH letters of guardian- ship issued, and all guardians' bonds executed under the pro- visions of this chapter, with the affidavits and certificates thereon, must be recorded by the clerk of the court having jurisdiction of the persons and estates of the wards. Arizona. — Same. Rev. Stats., sec. 1316, Idaho. — Same. Kev. Stata., sec. 5779. Montana. — Same. Comp. Stats., p. 364, sec. 360. TTtall. — Same. Comp. Laws, sec. 4314. Wyoming. —Same. Laws 1890-91, p. 306, sec. 10. § 635. [1757.] Maintenance of Minor out of In- come of his Own Property. — If any minor, having a father living, has property, the income of which is sufficient for his niaintenance and education in a manner more expens- ive than his father can reasonably afford, regard being had to the situation of the father's family and to all the circum- stances of the case, the expenses of the education and mainte- nance of such minor may be defrayed out of the income of his own property, in whole or in part, as judged reasonable, and must be directed by the courtj and the charges therefor may be allowed accordingly in the settlement of the accounts of his guardian. Arizona. — Same. Rev. Stats., sec. 1317. Idaho. — Same. Rev. Stats., sec. 5780. Montana. — Same. Comp. Stats., p. 364, sec. 361. Nevada. — Same. Gen. Stats., sec. 557. Oregon. —Same, Hill's Laws, sec. 2876. Utah. — Saine. Comp. Laws, sec. 4315. 1 Washington. — See § 537, ante. Wyoming. — Same, except that for "father" " parent" is naed, and after "court " the words "or judge" are inserted. Laws 1890-91, p. 306, sec. 11. When a guardian marries his the maintenance of the ward should ward's mother, the step-father, be a charge upon all three: In re mother, and ward each having estate, Mohlenhauer, Myr. Prob. 162. 6*1 .eUARDIAN AND WARD. § 526 Form No. 260. — Petition for Allowance out of Income of Minor to Defray Expenses of Educa- tion, etc. [Title of Court and Guardianship.] , the guardian of the person and estate of , a minor, respectfully represents that the said minor has an income, derived from his estate, of about $ per annum, which is amply sufficient to maintain and educate said minor; that , the father of said minor, is not able financially to expend the sums require4 to maintain and educate said minor in a suitable manner; that it is for the best interest of said minor that he be sent to attend the State University at Berkeley, California, and that the sum of $ per annum will be re- quired to pay for his tuition, maintenance, necessary school books, etc., while he is attending said university; — Wherefore petitioner asks an order of this court authorizing him to expend said sum of $ annually, for the purposes hereinbefore mentioned. , Petitioner. , Attorney for Petitioner. Form No. 261. — Order of Allowance out of Income of Minor to Defray Expenses of Education, etc. [Title of Court and Guardianship.] It appearing that , a minor, has a sufficient annual ih- come to maintain and educate him, and that his father is not able to maintain and educate him in a suitable manner, — It is ordered that , the guardian of the (person and) estate of said minor, be and he is hereby authorized to expend the sum of $ annually, out of the income of said estate, for the purpose of maintaining and educating said minor. Dated , 18 — . , Judge of the Court. §536. [1758.] Guardian to Give Bond — Powers Limited. — Every testamentary guardian must give bond and qualify, and has the same powers and must perform the same duties with regard to the person and estate of his ward as guardians appointed by the court, except so far as their powers and duties are legally modified, enlarged, or changed by the will by which such guardian was appointed. 41 § 527 PROBATE LAW AND PBACTICB. 642 Arizona. — Same. Kev. Stats., sec. 1335. Idaho. — Same. Rev. Stats. , sec. 5782. IContana. — Same. Comp. Stats., p. 365, sec. 362, ITevada. — Same. Gen. Stats., sec. 558. Oregon. — Same. Hill's Laws, sees. 2885, 2886. TTtab.. — Same. Comp. Laws, sec. 4316. Washington. — The part of section beginning with the word " except " if omitted; otherwise same. Code Froc, sec. 1142. Wyoming. — Same, except that "by the court " is omitted. Laws 1890-91, p. 306, sec. 12, Powers and Duties of guardians: See § 536, ante, and notes. A testamentary guardian can- not take effect until the death of the not act as such until be qualifies and parent; and in order to become a guar- letters are issued to him: Aldrich v. dian by deed, it is not enough that hei Willis, 55 Cal. 81. See also NorrU v. be named in the deed as guardian, but Harris, 15 Cal. 226. he must also qualify by giving bond, A guardian appointed by deed as required by testamentary guardians: must be considered as a testamentary Murphy v. Superior Court, 84 Cal, guardian, since the appointment does 592. § 537. [1759.] Power of Courts to Appoint Guar- dians and Next Friend not Impaired. — Nothing con- tained in this chapter affects or impairs the power of any court to appoint a guardian to defend the interests of any minor in- terested in any suit or matter pending therein. Arizona. — Same. Kev. Stats., sec. 1336. Idaho. — Same. Kev. Stats., sec. 5783. Montana. — Same. Comp. Stats., p. 365, sec. 363. Nevada. — Same, with the following added: "Nor to appoint or allow any person, as the next friend of a minor, to commence and prosecute any suit ia his behalf." Gen. Stats., sec. 559. Oregon. — Same. Hill's Laws, sec. 2887. Utah. — Same. Comp. Laws, sec. 4317. Washington. — Same, with the following added: " Or to commence and prosecute any suit in his behalf." Code Froc, sec. 1143, " Guardians, by virtue of their office, as such, shall be allowed in all cases to prosecute and defend for their wards." Code Froc, sec. 1135, Wyoming. —Same as California. Laws 1890-91, p. 306, sec. 13, It is the duty of the guardian guardian ad litem for that particular of an incompetent to appear for and case: Gronjier v, Puymirol, 19 Cal. defend an action against his ward: 629. Justice V. Oit, 87 Cal. 530. An administrator may also bo A guardian ad litem should be ap- guardian of an infant heir of the pointed to watch the interest of the estate, but in a proceeding in the es- ward: Tovmsend v. TaUant, 33 Cal. 45. tate to sell property to pay debts, he It is the duty of the general is acting in hostility to his ward, and guardian to appear for his ward in should not in such proceeding repre- an action, unless the court appoints a sent the ward. 643 GUARDIAN AND WAKD. § 628 ARTICLE II. G17ARDIAI7S OP IN3ANB AND INCOMPETENT PERSONS. § 528. Guardians of insane and other incompetent persons. § 529. Appointment after hearing. § 530. Powers and duties of sncb guardians. § 531. Kestoration to capacity. § 628. [1763.] Guardians of Insane and Other In- competent Persons. — When it is represented to the supe- rior court, or a judge thereof, upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, such court or judge must cause a notice to be given to the supposed insane or incompetent person of the time and place of hearing the case, not less than five days before the time so appointed, and such person, if able to attend, must be produced on the hearing. Arizona. — Same. Rer. Stats,, sec. 1337. Idaho. — Same. Rev. Stats., sec. 5784. Montana. — ^^Same. Comp. Stats., p. 365, sec. 364. Nevada. — Same. Gen. Stats., sec. 560. Oregon. — Same to and including the word " appointed, " except as to time, which is ten days, and the phrase " or from any cause mentally incompetent to manage his property " is omitted; the balance of section following the word "appointed" is omitted. Hill's Laws, sec. 2879. TTtata.. — Same. Comp. Laws, sec. 4318. Washingrton. — " The several superior courts shall have power to appoint guardians to take the care, custody, and management of all idiots, insane per- sons, and all who are incapable of conducting their own affairs; and of their estates, real and personal; the maintenance of themselves and families, and the education of their children." Code Proc, sec. 1154. Wyoming. — Same, except that "superior "is omitted, as is also the fol- lowing: " Not less than five days before the time so appointed." Laws 1890-91, pp. 306, 307, sec. 1. Guardianship and Commitment of Insane Persons: See § 514, ante, and notes. Corporations may be Guardians, etc. : See § 76, ante. Iiunatic may be Placed in an Asylum: See § 514, ante. Service on Guardian: See § 332, ante. Sale of Komestead where One of Spouses Insane: See § 143, ante. A husband's application for pointment of a guardian is valid, guardianship of insane wife denied though not made on a verified petition when: In re Fegan, Myr. Prob. 10. and on notice to the insane person: After the county court has ad- Sprigg v. Stump, 7 Saw. 280, judged a person insane, the ap- I 528 PROBATE LAW AND PRACTICE. 644 Form No. 262. — Petition for Appointment of Ouar- dian of Incompetent Person. [Title of Courb and Guardianship,} respectfully shows that he is a friend of ; that said has for six months last past been in ill-health to such an extent that his mind has become impaired from the effects thereof, and that he is now incapable of taking care of his property and effects; that he has a large estate, a descrip- tion of which is unknown to petitioner, and it is necessary that a guardian be appointed to collect and preserve his said estate; wherefore petitioner prays that he be appointed such guardian. , Attorney for Petitioner. , Petitioner. (Verification as in Form No. 55, § 80, ante.) Order fixing time and place of hearing the foregoing petition: Sea Form No. 28, § 26, ante. Notice to incompetent: See Form No. 235, § 317, ante. Proof of service: See Form No. 12, § 9 'ante. Form No. 263.— Another Form of Petition for Ap- pointment of Guardian for Incompetent Person. [Title of Court and Guardianship.] , The petition of respectfully shows that she is a relative, to wit, the wife, of , a resident of the county of , California; That the said is the owner and possessed and entitled to the possession of certain real and personal property situated in the county of , California, and described as fol- lows, to wit (here insert description of property owned by alleged incompetent person); That said is now upwards of years of age, and for more than one year last pas.t has been and now is insane, and is wholly incompetent to transact his ordinary business, or to properly care for said property; That he is laboring under delusions which have alienated his affections from his wife and fanjily, which have caused him to threaten to dispose of the community property belonging to him and to your petitioner for the purpose of depriving his family thereof, and which have also created and induced in his mind a desire to kill his said wife and to make threats thereof; — 645 GUAllDIAN ASD WARD. § 529 Wherefore petitioner prays that she be appointed guardian of the person and estate of said . , Petitioner. , Attorney for Petitioner. (Verification as in Form No. 55, § 80, ante.) §520. [1764.] Appointment after Hearing. — If, after a full hearing and examination upon such petition, it appear to the court" that the person in question is incapable of takipg care of himself and managing his property, such court must appoint a guardian of his person and estate, with the powers and duties in this chapter specified. Arizona. — Same. Rev. Stats., sec. 1338. Idaho. — Same. Rev. Stats., sec. 5785. Kontana. — Same. Comp. Stats., p. 365, sec. 365. ITevada. — Same. Gen. Stats., sec. 561. Oregon. — Same. Hill's Laws, sec. 2889. " The several county courts, in their respective counties in this state, shall have power to appoint guardians to take care, custody, and management of the estates, real and personal, of all insane persons, idiots, and all who are incapable of conducting their own affairs, and the maintenance of their families and the. education of their children." Hill's Laws, sec. 2888. "The words 'insane person' are intended to include every idiot, every person not of sound mind, every lunatic and distracted person." Hill's Laws, sec. 2911. Utah.. — Same. Comp. Laws, sec. 4319. Washington. — "If it be found by the court that the person so brought before the court is of unsound mind and incapable of managing his own affairs, the court shall appoint a guardian for the estate of such insane person." Cod« Free, sec, 1155. Form No. 264. — Order Appointing Guardian of Incompetent Person. [Title of Court and Guardianship.] It appearing that has become an incompetent person from the effects of illness, and that it is necessary that a guar- dian of his person and estate should be appointed, — It is ordered that be and he is hereby appointed guar- dian of the person and estate of said , an incompetent per- son, upon filing in this court a bond in the penal sum of dollars, conditioned according to law. Dated , IS—. , Judge of the Court. § 530 PROBATE LAW AND PEACTICB. 646 § 530. [1765.] Powers and Duties of Such Guar- dians.- — Every guardian appointed, as provided in the pre- ceding section, has the care and custody of the person of his ward, and the management of all his estate, until such guar- dian is legally discharged; and he must give bond to such ward, in like manner and with like conditions as before pre- scribed with respect to the guardian of a minor. See §§ 537, 539, and 541, ante. Arizona. — Same. Rev. Stats., sec. 1339. Idaho. — Same. Bev. Stats., sec. 5786. Montana. — Same. Comp. Stats., p. 365, sec. 366. Granting Iietters, etc. See Mont. Laws 1891, p. 219, nnder S 10> on^ Xetrada. — Same. Gen. Stata., sec. 562. Oregon. — Same. Hill's Laws, sec. 2890. Utah.. — Same. Comp. Laws, sec. 4320. Washington. — "Every such guardian so appointed shall, before enter- ing upon the duties assigned him, enter into bond to the board of county com- missioners in such sum and with such security as the court shall approve, conditioned that he will take proper care o{ such insane person, and manage and minister his effects, to the best advantage, according to law; and that he will faithfully discharge all duties as such guardian which may by law, or by the order, sentence, or decree of any court of competent jurisdiction, devolve upon him; which bond shall be filed in the office of the clerk of the superior court; a copy thereof, duly certified, shall be evidence in all respgcts as the original." Code Proc, sec. 1157. " It shall be the duty of every such guardian, within twenty days after his appointment, to cause ^notice thereof to be published in some newspaper printed in this state, or otherwise publish such notice at such time and place and in such manner as the court shall decide." Code Froc, sec. 1158. " It shall be the duty of such guardian to collect and take into his posses- sion the goods, chattels, moneys, effects, and other evidences of debt, and all writings touching the estate, real and personal, of the person under his guar- dianship." Code Froc, sec. 1159. " It shall be the duty of every such guardian to prosecute all actions com- menced at the time of his appointment, or thereafter to be commenced, by or on account of his ward, and to defend all actions which may be brought against such ward." Code Froc, sec. 1162. "Every such guardian is authorized and required to collect all debts due to his ward, and give acquittances and discharges thereof, and adjust, settle, and pay all^ demands diie and becoming due from his ward, so far as his estate and effects will extend." Code Froc, sec. 1163. Power of court — Sale — Mortgage — Lease of realty of insane. " The superior court shall have power to make orders for the restraint, sup- port and safe-keeping of such person, for the management of his estate, and the support and maintenance of his family and education of his children, out 647 GUARDIAN AND WARD, § 530 of the proceeds of his estate; to set apart and reserve, for the use of such fam- ily, all property, real or personal, not necessary to be sold for the payment of debts; and to let, sell, or mortgage any part of such estate, real or personal, when necessary for the payment of debts, the maintenance of such iusane per- son or his family, or the education of his children." Code Proc, sec. 1164. Order directing mortgage, kaae, or sale of reoMy of insane. " Whenever the personal estate of such person shall be found to be insuffi- cient to meet the foregoing requisitions, it shall be the duty of such guardian to lay the same before the superior court by whom he was appointed, setting forth the particulars relative to the estate, real and personal, of such person, and the debts by him owing, accompanied by a correct and true account of his doings therewith; whereupon it shall be the duty of such court to make an order directing the mortgage lease or sale, at his discretion, of the whole or such part of the real estate as may be necessary." Code Proc, sec. 1165. Order, what to contain — Report (^guardian, contents of. " The court making such order shall direct the time and terms of such sale, mortgage, or lease of such estate, and the manner in which the proceeds shall be applied; and shall give due notice thereof, together with a full description of the property to be thus disposed of, at which time and place it shall be the duty of the guardian to execute the order of said court, and to make a full report of his doings therein, which report shall be accompanied by the affi- davit of the guardian verifying the report, and stating that such guardian did not, directly or indirectly, become the purchaser thereof; or if otherwise dis- posed of, that he is not directly or indirectly interested personally in the agreement." Code Froc, sec. 1166. Guardian to maJee deed, etc. "When any such sale, mortgage, or lease is approved by the court ordering the same, as having been performed according to law, and not under such cir- cumstances as to operate prejudicial[ly] to the interests of such ward, it shall be the duty of the guardian to execute a deed, mortgage, or other instrument of writing, which shall be as valid and e£fective in law as if executed by such ward when of sound mind and discretion." Code Proc, sec. 1167. Disapproval of sale, etc — Proceedings after. "If such proceedings be disapproved by said court, the court may set them aside and proceed in like manner as if no sale had been made." Code Proc, sec. 1168. rorm of Deed: See § 200, ante. Form of Mortgage: See § 222, ante. Form of Lease : See § 223, ante. Power to Appoint at chambers: See Cal. Code Civ. Proc, sec 166; also § 1, ante. The guardian of an old man to contest the account. Such a prac- may permit the business affairs of the tice, however, is not to be encouraged, ward to be managed by the ward's rel- and is permissible only m exceptional atives who are conversant with his cases: Racouillat v. Requena, 36 Cal. affairs, if his children and heirs at law 651. See § 499, ante. request it, and if no creditor appears On filing the proper petition for § 531 PROBATE LAW AND PRACTICE. 648 the appointment of a guardian of tb« lunatic regularly isaaed by^e court person and estate of one alleged to he cannotbe questioned in a collateral pro- insane, and on giving the notice re- ceding: Wamei' v, Wibon, 4Cal. 310. , quired by statute, the court acquires The power of the court to appoint jurisdiction to adjudicate the question a guardian for an insane person is not of insanity and to select a guardian, defeated by the fact that such person It is not restricted to the person to be is married. If the person is a wife, appointed, even if the petition asks there is no rule of law which prefers that the petitioner be appointed: HeU- the husband of such guardian if he is ktt V. Pati-ick, 49 Oal. 590. unfit to perform the duties thereof: In Letters of gruardianaliip of a re Pegan, 45 Cal. 176. § 631. [1766.] Proceeding for Hestoratiou of In- sane, etc. — Any person who has been declared insane or incompetent, or the guardian, or any relative of such person within the third degree, or any friend may apply, by petition, to the superior court of the county in which he was declared insane, to have the fact of his restoration to capacity judicially determined. The petition shall be verified, and shall state that such person is then sane or competent. Upon receiving the -petition, the court must appoint a day for a hearing before the court, and if the petitioner request it, shall order an inves- tigation before a jury, which shall be summoned and impaneled in the same manner as juries are summoned and impaneled in civil actions. The court shall cause notice of the trial to be given to the guardian of the person so declared insane or incom- petent, if there be a guardian, and to his or her husband or wife, if there be one, and to his or her father or mother, if living in the county. On the trial, the guardian or relative of the person so declared insane or incompetent, and, in the discretion of the court, any other person, may contest the right to the re- lief demanded. Witnesses may be required to appear and tes- tify, as in civil cases, and may be called and examined by the court on its own motion. If it be found that the person be of sound mind, and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, and the guardian of such person, if such person be not a minor, shall cease. Arizona. — Same, except incompetent persons are not included. Rev. Stats., sec. 1340. Idaho. — Same as California. Rev. Stats., sec. 5787. Montana. —Same as Arizona. Comp. Stats., p. 365, sec. 366. Utah. — Same as California, except that all references to jjiry are omittecU Comp. taws, sec. 4321. 649 GUARDIAN AND WARD. § 531 Waahisgton. — " Whonerer the court »hdi\ receive informatioa that such ward has recovered his reason, he shall immediately inquire into the facts, and if he finds that ench ward is of sound mind, he shall forthwith discharge such person from care and custody; and the guardian shall immediately settle his accounts and restore to such person all things remaining in his hands belong-, ing or appertaining to such ward." Code Proc, sec. 1171. Bestoration to Capacity — Con- writ of habeat corpus: Kellogg v. Coch- structions of Code. — The provis- ran, 87 Cal. 192. ions of section 1766 of the Code of Civil The power to discharge an in: Procedure, authorizing the court to re- mate of an asylum otherwise than store a person adjudged insane or in- upon habeas corpus is vested exolu- competent, is only applicable to those sively in the officers of an asylum, and for whom guardians have been ap- includes the power to determius pointed under section 1764 of the same whether the patient has recovered, and code, and does not apply to persons' the authority to discharge persons who committed to insane asylums under the have sufficiently recovered, and also regnlation of the Political Code: Kel- persons who have been improperly oom- logg V. Cochran, 87 Cal. 192. mitted: Kellogg v. Cochran, SI Cal. 192. Discharge from Insane Asylum The effect of a discharge by — Jurisdiction of Court — Habeas officers of asylum of an insane in- Corpus. — No court in this state ia mate, if no guardian has been ap- authorized to discharge a person who pointed under the act of March 9, has been committed to an insane asy- 1885, is to restore the person dis- lum, or to restore him to capacity, charged to legal capacity to sue: Kel' under any circumstances, except upon' hgg v. Cochran, 87 Cal. 192. Form No. 265. — Petition for Judgment Bestoriug to Capacity. [Title of Court.] In the matter of , an alleged insane person. The petition of respectfully represents, — 1. That heretofore, to wit, on the day of , A. D. 18 — , made a complaint in writing before the Hon. , judge of the court of the county of , state of , of which the following is a copy, to wit (here insert copy of complaint) ; 2. That thereupon said judge issued a warrant for 'the arrest of said , and the same was delivered to a peace-oflBcer for service; 3. That thereupon said was arrested by said peace-offi- cer as directed in said warrant and brought before said judge on the day of , A. D. 18 — , to be dealt with according to law; 4. That thereupon said judge caused an investigation of the sanity of petitioner to be had before him; 5. That thereupon such proceedings were had, that petitioner § 531 PROBATB LAW AND PRACTICE. 650 was duly adjudged to be insane, and by reason thereof danger, ous to be at large; 6. That thereafter, on the day of ^, A. D. 18 — , said judge made an order of commitment as follows, to wit (here insert copy of order); — Now, therefore, your petitioner respectfully protests against the order aforesaid, and avers that he is not ^nsane and is not dan- gerous to be at large; And he further alleges that he is sane and peaceably dis.- posed; 7. That he is entitled to have the question of his sanity or in- sanity determined by a jury, and he therefore demands that an investigation of his mental condition be had before a jury se- lected and impaneled by this court for that purpose; that this court subpoena witnesses to appear before said jury, to the end that the truth may be established and the petitioner restored to his liberty. * , Petitioner. , Attorney for Petitioner. (Verification, Form No. 55, § 80, ante.) Order fixing day for-hearing petition for restoration to capacity; Use Form No. 28, § 26, ante. Notice of petition for restoration, etc. : Use Form No. 235, § 317, ante. Proof of Service: Use Form No. 12, § 9, ante. Form No. 266. — Judgment of Bestoration to Capa- city. [Title of Court and Matter.] Whereas on the day of , A. D. 18 — , a complaint was filed in this court alleging that one — — was insane, and by rea- son thereof was dangerous to be at large, and such proceedings were had thereupon that said was, on the day of , A. D. is — , duly committed to an insane asylum; and whereas there has been heretofore filed in this court a petition praying that a judgment restoring said to capacity be given and made herein, and alleging that said is not now.insane; and whereas such proceedings have been had herein that on the day of , A. D. 18 — , a jury was duly impaneled .to determine the sanity and capacity of said ; and whereas. 651 GUARDIAN AND WARD. §,532 after hearing the evidence, said jury has returned a verdict herein to the effect that said is now of sound mind, and is not now insane and is fully capable of caring for himself and his property; — It is therefore ordered, adjudged, and decreed that the said be and he is hereby restored to capacity. Dated , 18—. , Judge of the Court. ARTICLE m. SPENDTHRIFTS AND DRUNKARDS. § 532. Speadthrifta. S 533. Drunkards. § 532. Spendthrifts.— The Oregon statutes contain the following sections relative to spendthrifts, and there are no cor- responding sections in the laws of the other Pacific states and territories: — " Wljen any person, by excessive drinking, gaming, idleness, or debauchery of any kind, shall so spend, waste, or lessen his estate as to expose himself or his family to want or suffering, or the county to charge and expense, for the support of him- self and family, the county court for such county of which such spendthrift is a resident or an inhabitant shall present a complaint to the county judge setting forth the facts and circumstances of the case, and praying to have a guardian appointed for him." Hill's Laws, sec. 2891. " T^e county judge shall cause notice to be given to such supposed spendthrift of the time and place appointed for hear- ing the case, not less than ten days before the time so appointed ; and if, after a full hearing, it shall appear to the judge that the person complained of comes within the description contained ija the preceding section, he shall appoint a guardian of his person and estate, with the powers and duties hereinafter speci- fied." Hill's Laws, sec. 2892. "After the order of notice has been issued, the complainants shall cause a copy of the complaint with the order of notice to be filed in the office of the county clerk for the county, and if a guardian shall be appointed on such application, all contracts, I 533 PROBATE LAW AND PRACTICB. 652 excepting for necessaries, and all gifts, sales, or transfers of real or personal estate made by such spendthrift, after such filing of the complaint in the county clerk's office, and before the ter- mination of the guardianship, shall be null and void." Hill's Laws, sec. 2893. "When a guardian -shall be appointed for an insane person or spendthrift, the judge shall make an allowance to be paid by the guardian for all reasonable expenses incurred by the ward in defending himself against the complaint." Hill's Laws, sec. 2894. " Every guardian so appointed for a spendthrift shall have the care and custody of the person of the ward, and the manage- ment of all his estate, until the guardian shall be legally dis- charged; and he shall give bond to the state of Oregon in like manner and with like condition as is before directed with re- spect to the guardian of an insane person." Hill's Laws, sec. 2895. " The word ' spendthrift ' is intended to include any one who is liable to be put under guardianship on account of excessive drinking, gaming, idleness, or debauchery, and these words shall be so construed in all the provisions relating to guardians and wards contained in this or any other statute." Hill's Laws, sec. 2911, § 633. Complaint against Drunkards. — " Any per* son may make complaint of any person addicted to the excess- ive use of intoxicating liquors, to the probate judge in the county wherein such person so addicted resides, that the per- son complained of is an habitual drunkard, and that in conse- quence thereof such person is squandering his or her earnings or property, or that he or she neglects his or her business, or that such person abuses or maltreats his or her family, which complaint must be verified by the oath of the complainant to the efieot that the same is true." Wash. Gen. Stats., sec. 2522, Person may he adjudged habitual drunkard. "Any person addicted to the use of intoxicating liquors may, upon complaint thereof, or upon certificate of a justice of the peace, as hereinafter provided, be adjudged an habitual drunk- ard." Wash. Gen. Stats., sec. 2523. 65S GUARDIAN AND WARD. § 533 Proeeedingi relative to habitual drunkarda. " Either the father, husbaad, mother, wife, son, or daughter of any persoa addicted to the excessive use of intoxicating liquors, or any person in the interest of the relative aggrieved, or of the general public, may make complaint to the probate judge of the county wherein such person so addicted resides, that the person complained of is an habitual drunkard, and that in consequence thereof such person is squandering his earnings or property, or that he neglects his business, or that he abuses or maltreats his family, which complaint must be verified by the oath of the complainant, to the effect that the same is true. And every justice of the peace in whose court any person shall have been convicted twice on a charge of be- ing drunk, or drunk and disorderly, shall certify to the probatti judge of the county in which he resides that said person has thus twice been convicted." Wash. Gen. Stats., sec. 2524. Form No. 267. — Complaint against Habitual Drunk- ard. (Title of Conrt.] , Plaintiff, i V. [ , Defendant. ) The plaintiff, , complaining of the defendant, , al- leges as follows: — 1. That plaintiff is the father (or other person interested) of ; that said , defendant herein, is an habitual drunkard, and is addicted to the excessive use of intoxicating liquors; 2. That in consequence thereof said defendant is squander- ing his earnings and property in riotous living, and constantly neglects his ordinary business, and is entirely unable and un- fitted to attend to the same; 3. That by reason of such drunkenness said defendant mal- treats and abuses his family, assaults his wife and children without cause, calls them vile and offensive names and epithets, and uses vulgar and filthy language in their presence (state particular cases of such abuse, etc.); — Wherefore plaintiff prays that a judgment of this court may § 533 PROBATE LAW AND PRACTICE. 654 be given, made, and entered herein declaring said defendant to be an habitual drunkard. , Plaintiflf. , Attorney for PlaintiflF. (Verification as in Form No. 55, § 80, ante.) Note. — The summons to be served on defendant is in form the same as is nsed in civil actions generally. The answer of the defendant will consist of specific denials as in civil cases generally. The judgment will be in the form of a judgment in civil cases generally. Courts to declare persons habitual drunkards. " Upon filing of the complaint, duly verified, the probate judge shall cause a copy thereof to be served upon the accused forth- with, and shall summon him to appear and answer, giving at least ten days' notice; and if upon the hearing of the evidence the allegations of the complaint are sustained, or upon filing a certificate of a justice of the peace, as above provided, such judge shall, in open court, declare the accused to be an habitual drunkard, and shall cause the proceeding to be entered in full upon the records of the court." Wash. Gen. Stats., sec. 2525. Record declaring one habitual drunkard may be vacated, how. " Any person so declared to be an habitual drunkard may, at any time after the expiration of two years from the time he was declared to be such, by petition addressed to the judge of the court in which he was so adjudged, have a hearing in such court, upon a day which shall be by such court set, which day shall not be more than ten days after the filing of such peti- tion in such court, which petition may contain a statement of facts tending to show the improved condition and habits of such petitioner, and to establish his character for sobriety, and a prayer that the order on record so declaring him to be such habitual drunkard be vacated, and he be released from the ef- fects thereof; which petition shall be duly verified by the peti- tioner. And if upon the hearing of such petition, and the evidence in support thereof, it appear to the judge that such petitioner is entitled to have such record vacated and be so released, then he shall make an order so declaring that such record be vacated and annulled, and that the petitioner be thereafter released from the eflfects thereof." Wash. Gen. Stats., sec. 2530. 655 GUARDIAN AND WARD. § 533 Form No. 268. — Petition to Set Aside Eecord De- claring an Habitual Drunkard. (Title of court and cause as in last form.) The petition of respectfully represents to this honorable court as follows: — 1. That heretofore, to wit, on the day of , 18 — , petitioner was, in the above-entitled cause, declared to be an habitual drunkard, by the judgment of this court duly given, made, and entered herein; 2. That two years have fully elapsed since said date; 3. That petitioner has fully reformed in that respect, and is no longer an habitual drunkard, nor does he now use intoxicat- ing liquor in any form as a beverage (or state any other facts showing reformation and the improved condition and habits of petitioner); — , Wherefore petitioner prays that the judgment and order of this court heretofore given, made, and entered herein declaring and adjudging this petitioner to be an habitual drunkard be vacated, and that petitioner be released from the effects thereof. , Petitioner. , Attorney for petitioner. Dated , 18—. To Hon, , Judge of the Above-named Court. (Verification as in Form No. 55, § 80, ante.) "If information in writing be given to the court or judge of any county that any person in its county is so addicted to habitual drunkenness as to be incapable of managing his af- fairs, and praying that an inquiry thereinto be had, the court shall proceed therein in all respects as herein provided in re- spect to an idiot, lunatic, or person of unsound mind; and if a guardian is appointed on such proceedings, he shall have the same powers and be subject to the same control as the guardian mentioned in this act." Wyo. Laws 1890-91, p. 309, sec. 14. §§ 634, 535 PBOBATB LAW AND PRACTICB. 656 ARTICLE iV. FOWEBS AKD DUTIES OF 6l7AKDrAN8. i 534. Guardian to pay debts of ward ont of ward's estate. § 535. To recover debts due ward and to represent htm. § 536. To manage his estate and to maintain ward. S 537. Maintenance, etc., how enforced. § 538. Guardian may assent to partition of real estate. § 539. To return inventory of estate of ward, etc § 540. Acconnts and settlements. § 541. Accounts of joint guardians. § 542. Expenses and compensation. § 534. [1768.] Guardian to Pay Debts of Ward out ofWard's Estate. — Every guardian appointed under the provisions of this chapter, whether for a minor or any other person, must pay all just debts due from the ward out of his personal estate and the income of his real estate, if suflBcient; if not, then out of his real estate, upon obtaining an order for the sale thereof, and disposing of the same in the manner provided in this title for the sale of real estate of decedents. Arizona. — Same. Rev. Stats., sec. 1341. Idalio. —Same. Kev. Stats., sec. 5788. Montana. — Same. Comp. Stats., p. 366, sec. 367. Nevada. — Same. Gen. Stats., sec. 563. Oregon. — " Every guardian appointed under the provisions of this title shall pay all just debts due from his ward out of his personal estate, if suffi- cient; and if not, out of his real estate, upon obtaining a license for the sale thereof, as provided by law." Hill's Laws, sec. 2896. XJtall. — Same as California. Comp. Laws, sec. 4322. Washington. — See Code Proc, sec. 1163, under § 545, ante, Wyoming. — Same as California. Laws 1890-91, p. 309, sec. I. Powers and Duties of G-uardiau: See §§ 536, 545, poet, and notes; also i 673, post. It is not necessary that claims they are paid by the guardian: Jfa- against the ward be verified or ap- cauiUat v. Regiuna, 36 Cal. 651. proved by the probate judge before § 535. [1769.] Guardian to Recover Debts Due his Ward and Represent Him. — Every guardian must settle all accounts of the ward, and demand, sue for, and re- ceive all debts due to him, or may, with the approbation of the court, compound for the same and give discharges to the debtor, on receiving a fair and just dividend of his estate and effects; 657 GUARDIAN AND WARD. § 536 and he must appear for and represent his ward in all legal suit's and proceedings, unless another person be appointed for that purpose. Arizona. —Same. Rev. Stats., sec. 1342. Idaho. —Same. Rev. Stats., sec. 5789. , Montana. — Same. Oomp. Stats., p. 367, sec. 368. Nevada. — Same. Gen. Stats., sec. 584. Oregon. — Same. Hill's Laws, sec. 2896. Utah. — Same. Oomp. Laws, sec. 4323. Washington. — "Guardians, by virtue of their o£Sce, as such, shall be allowed in all cases to prosecute and defend for their wards." Code Froc, sec 1135. Wyoming. — Same as California, except that after " court " the words " or judge " are inserted. Laws 1890-91, p. 309, sec. 2. See § 537, post. The law confers no power on the bate court shows that the matter con- county court to authorize guar- sidered was within its jurisdiction, and dians to mortgage the realty of their that all liecessary parties were before wards: Trulch v. Bunnell, 11 Or. 58. it, the action of the court, however Where guardians act with ju- ii'regular, is proof against collateral dicial authority, they bind their attack: Brcaee t, SckoJUld, 2 Wash, wards; and if the record of the pro- Ter. 209. § 636. [1770.] Guardian to Manage his Estate, Maintain Ward, and Sell Ileal Estate. — Every guar- dian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, as far as may be necessary, for the comfortable and suitable maintenance and support of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell the real estate, upon obtaining an order of the court therefor, as provided, and must apply the proceeds of such sale, as far as may be necessary, for" the maintenance and support of the ward and his family, if there be any. Arizona. — Same. Rev. Stats., sec. 1343. Idaho. — Same. Rev. Stats., sec. 5790. Montana. — Same. Comp. Stats., p. 366, sec. 369. Nevada. — Same. Gen. Stats., sec. 565. Oregon. — " The guardian shall also manage the estate of l\is ward frugally and without waste, and apply the income and profits thereof, so far as may be necessary, for the comfortable and suitable maintenance and support of the ward and his family, if there be any; and if the income and profits be iusufiS- cient for that purpose, the guardian may sell the real estate, upon obtaining a license therefor, as provided by law, and shall apply the proceed^ of such sale, so far as may be necessary, for the maintenance and support of th^ ward and 42 §537 PKOBATE LAW AND PRACTICE. 658 his family; or the guardian may, npon authority granted therefor by the proper county court, mortgage said real estate for such amount as may be necessary for the maintenance and support of the ward and his family, or the care of said property, and shall apply the proceeds from the same to those purposes," Laws 1891, p. 36, amending Hill's Laws, sec. 2897. TTtah. — Same as California section (§ 549), supra. Comp. Laws, sec. 4324. Wyoming. — Same as California, except that in lieu of the word "there- for" the words "or judge thereof" are inserted. Laws 1890-91, p. 309, sec. 3. Sale by Guardian: See §§ 543-557, post. Where a guardian has received money due his wards, which he has kept and used for his own purposes, and rendered no accounting for many years, until cited to appear and ac- count on the petition of his wards, he is properly chargeable with interest npon the money received, compounded annually: OuavdiansMp of Eschrich, 85 Cal. 98. Guardian may employ agent to carry on the business of the guardianship: Racouillat v. Sequena, 36 Cal. 651. If a guardian loans the ward's funds without security, he is liable for any loss that may occur: In re Post, .57 Cal. 273. Where letters of guardianship have been ordered to issue, bat the guardian had not qualified, her act leasing the property of her ward was held to be valid: Whyler v. Van Tiger, Cal. Sup. Ct., Aug. 31, 1887 (No. 11931), not reported. A lease which recites that it is made by a tenant in common in her own right and as guardian of her co-tenant, is valid, although executed by her individually only: Whyler v. Van Tiger, Cal. Sup, Ct., Aug. 31, 1887 (No. 11931), not reported. _ A probate court has no juris- diction of a proceeding to compel a guardian to advance out of the estate of his ward the necessary sums for his support, or to refund money advanced by the guardian of the person of the ward, or others, for that purpose: Swi/t V. Swift, 40 Cal. 456. The statute of this state relative to guardians and the manner of dis- posing of the es);ate left to wards only applies when there is no direction by will as to such disposition: Norris v. BarrU, 15 Cal. 226. Where the same persons were named in the will as executors and guardians of the residuary, legatee, and the will, in a clause giving plain- tiff a monthly allowance during her life, directed the " executors " to ex- pend such further sums for her care and comfort as they should deem ne- cessary, the guardians, after their dis- charge as executors, have power to increase the allowance: Elmer w. Oray, 73 Cal. 283. The county court, as a court of probate, is authorized to order the mortgaging of a minor's realty: Trutch V. Bunnell, 5 Or. 504; but in the same case, on another hearing, the contrary is held: Trutch v. Bunnell, 11 Or. 58. § 537. [1771.] Maintenance, Support, and Educa- tion of Ward, how Enforced. — When a guardian has advanced, for the necessary maintenance, support, or education of his ward, an amount not disproportionate to the value of his estate or his condition of life, and the same is made to appear to the satisfaction of the court, by proper vouchers and proofs, the guardian must be allowed credit therefor,in his settlements. Whenever a guardian fails, neglects, or refuses to furnish suit- able and necessary maintenance, support, or education for his 659 GUARDIAN AND WARD. § 538 ward, the court may order him to do so, and enforce such order by proper process. Whenever any third person, at his request, supplies a ward with such suitable and necessary maintenance, support, or education, and it is shown to have been done after refusal or neglect of the guardian to supply the same, the court may direct the guardian to pay therefor out of the estate, and enforce such payment by due process. Arizona. — Same. Rev. Stats., sec. 1344. Idaho. —Same. Rev. Stats., sec. 5791. Montana. — Same. Comp. Stats., p. 367, sec. 370. Utah.. — Same. Comp. Laws, sec. 4325. Washington. — See § 540, ante. Wyoming. — Same, except that the words "or judge" are inserted after the word "court" wherever it appears. Laws 1890-91, p. 310, sec. 4. Husband is liable for support of is no evidence that any amount was insane wife, notwithstanding the fact agreed to be paid him, or as to what that she has an estate: In re Meyer, their keeping was worth, or whether Myr. Prob. 178. it was worth anything beyond their Items in a g^uardian's account services; it further appearing that the for payment ot board of his wards guardian, without demand or claim while living with their elder brother, against his wards, hunted up the many years before the presentation of brother and proposed to settle for the the account, are properly disallowed, board, and voluntarily gave his note where it appears that the brother made therefor, when cited to account upon no demand for such payment, and did petition of his wards ten years after not claim that he was entitled to com- his appointment: In re Esehrich, 85 pensation for their keeping, and there Cal. 98. §538. [1772.] May Assent to a Partition of Real Estate. — The guardian may join in and assent to a partition of the real estate of the ward, wherever such assent may be given by any person. Arizona. — Same. Rev. Stats., sec. 1345. Idaho. — Same. Rev. Stats., sec. 5792. Montana. — Same. Comp. Stats., p. 367, sec. 371. Nevada. — Same, except that all after "ward" is omitted, and the follow- ing substituted: "In the cases and in the manner provided bylaw." Gen. Stats., sec. 566. Utah. — Same. Comp. Laws, sec. 4326. Washingfton. — Provides that guardian may jpin in and assent under the direction of the court. Code Proc, sec. 1150. Wyoming, r- Same, with this clause added, viz.: "Interested in the real estate." Laws 1890-91, p. 310, sec. 5. A guardian appointed to defend claims of the infants and the quieting infants in a suit for partition cannot of plaintiff's title: Waterman v. Law- consent to a foreclosure of all the rente, 19 Cal. 217. , § 539 PEOBATE LAW AND PRACTICE!. 6S0 § 539. [1773.] Guardian to Return Inventory of Xlstate of Ward, etc. — Every guardian must return to the court an inventory of the estate of his ward within three months after his appointment, and annually thereafter. When the value of the estate exceeds the sum of one hundred thousand dollars, semi-annual returns must he made to the court. The court may, upon application made for'that purpose by any per- son, compel the guardian to render an account to the court of the estate of his ward. The inventories and accounts so to be returned or rendered must be sworn to by the guardian. All the estate of the ward described in the first inventory must be appraised by appraisers appointed, sworn, and acting in the manner provided for regulating the settlement of the estates of decedents. Such inventory, with the appraisement of the prop- erty therein described, must be recorded by the clerk of the court in a proper book kept in his office for that purpose. Whenever any other property of the estate of any ward is discovered, not included in the inventory of the estate already returned, and whenever any other property has been succeeded to or acquired by any ward, or for his benefit, the like proceedings must be had for the return and appraisement thereof that are herein provided in relation to the first inventory and return. Arizona. — Same. Rev. Stats., sec. 1346. Idah.0. — Same, except provision as to semi-annual returns omitted. Kev. Stats., sec. 5793.^ U^ntana. — Same, except semi-annual returns are to be made when estate exceeds twenty thousand dollars. Comp. Stats., p. 367, sec. 372. Nevada. — Same, except that "and at such other times as the probate court may order " is substituted for "and annually thereafter." The provis- ions in reference to semi-annual returns and relating to rendering an account are omitted. The following is added: "If there be no estate, ho shall return the fact under oath.'' Otherwise same. Gen. Stats., sec. 567. Oregon. — See Hill's Laws, sec. 2884, under § 522, supra. In relation to appraisement, same as California. Hill's Laws, sec. 289S. TTtah. — Same as California, except that "twenty" is substituted for "one hundred." Comp. Laws, sec. 4327. Washington. — See § 537, ante. " Within forty days after his appointment, snoh guardian shall make out and file in the ofl&ce of the clerk of the superior court by which he was ap- pointed a just and true inventory of the real and personal estate of his ward, stating the incoi^e and profits thereof, and the debts, credits, and effects, as the same shall have come to his knowledge. And if, after having filed such 661 GUARDIAN AND WARD. § 540 inventory, it shall be found that there is other properly belonging to said es- tate, it shall be the duty of such guardian to make out and file an additional inventory, containing a just and full account of tlie same, from time to time, as the same may be discovered." Code Proc, sec. 1160. " All such inventories shall be made in the presence of and attested by two credible witnesses in the neighborhood, and shall be verified by the oath of the guardian." Code Proc, sec. 1161. The last two sections of Washington Code of Procedure, supia, apply ouly to estates of idiots and insane persons. Wyoming. — Same as California, except that to the end of first sentence these words are added, viz., "account therefor," and the second sentence is omitted. After the word " court, "iu the third sentence, the words "or judge" are inserted. Laws 1890-91, p. 310, sec. 6. Appraisers may be Appointed by tbe Judge at Chambers: See Cal. Code Civ. Proc, sec. 166; also § 1, ante. BEoneys received by guardian in trators, and guardians, and this in- a foreign jurisdiction, and transferred eludes the power to inquire into a case here, must be accounted for here, un- of devastavit, and to charge the delin- less it is shown to have actually been quent with the amount thereof: Steele accounted for in such foreign jurisdio- v. HoUaday, 20 Or, 70. tion: In re Secchi, Myr. Frob. 225. In exceptional cases accounts The county court has exclusive may be verified by persons other than jurisdiction in the first instance to di- the guardian if the latter also swears rect and control the conduct and to he believes the statements to be true: settle accounts of executors, adminis- SacouilkU v. Meqtiena, 36 Cal. 651. § 540. [1774.] Settlements of Guardians. — The guardian must, upon the expiration of a year from the time of his appointment, and as often thereafter as he may be required, present his account to the court for settlement and allowance. Arizona. — Same. Bev. Stats., sec. 1347. Idaho. — Same. Kev. Stats., sec. 5794. Montana. — Same. Comp. Stats., p. 367, sec. 373. Nevada. — Same, with the following added: "All the laws relative to the accounts of executors and administrators shall govern in regard to the accounts of a guardian, so far as they can be made applicable." G-en. Stats., sec. 583, Wyoming. — Same as California. Laws 1890-91, p. 310, sec. 7. Oregon. — See Hill's Laws, sec. 2884, under § 537, ante. TTtah. — Same. Comp. Laws, sec. 4.328. Washington. — "Superior courts shall have power in their respective counties, with or without previous complaint, by an order dnly made and served, to oblige all guardians of minors from time to time to render their respective accounts, upon oath, touching their guardianship to said courts for adjustment." Code Proc, sec. 1137. " It shall be the duty of every guardian of any minor .... 3. To render, on oath, to the proper court, an account of his receipts and expenditures as such guardian, verified by [such] vouchers or proof, at least once in every two years, or whenever cited so to do." Code Proc, sec. 1138. §540 PROBATE LAW AND PRACTICE. 662 "Every such guardian, as often as required by the court appointing him, shall render a true and perfect account of his guardianship." Code Froc, sec. 1169. Items for maintenance of ward should be disallowed when guar- dian had agreed that if appointed he 'Would maintain and educate the wa^d, which agi-eemeut is embodied in the order appointing such guardian: In re Barg, Myr. Prob. 69. Guardian must account for funds of ward received from for- eign jurisdiction; there is no presump- tion that he has already accounted for it: In re Secdii Minors, Myr. Prob. 225. Guardian loaning funds of ward, without sufficient security, imprudently, or depositing them in a bank kliown to be unsafe, will be re- sponsible for iosa: In re Post, Myr. Prob. 230; affirmed 57 Cal. 273. The probate court has exclu- sive authority to settle the ac- counts of guardians either before or after letters are revoked. An action will not lie against a guardian's sure- ties until his account is settled: Allen V. Tifany, 53 Cal. 16; Oraff v. Mes- mer. 52 Cal. 636. The final account of ^ g^uar- dian is properly addressed to the court that has jurisdiction of the es- tate of the ward when presented by the guardian; but where the guardian dies before making a settlement, and long after the ward's majority, that court has no jurisdiction over the matter. The account can only be set- tled in a court of equity: InreAllgier, 65 Cal.^8; Gilman v. Curtis, 65 Cal. 572. SSe note to § 1637, ante. Ward cannot maintain action against administrator of deceased guardian to recover money received by the guardian in trust, unless he first presents his claim to such administra-; tor for allowance, or unless the trust fund has come into the possession of the administrator: Gillespie v. Winn, 65 Cal. 429. The settlement of a. guardian's annual account is only prima facie evidence, of its correctness. Section 1637 of the California Code of Civil Procedure does not apply to a guar- dian's account. It is not made so by section 1789 of the same code: In re Cardwell, 55 Cal. 137. The settlement and allowance of a final account of a guardian by the probate court is conclusive, not only against the guardian himself, but also against his sureties: Brodrib v. Brodrib, 56 Cal. 563. See also § 268, and note. Where the g^uardian acts in good faith, and does not make any use or profit for himself out of the funds of his ward, he is chargeable with legal interest only if he negli- gently fails to keep his ward's money at interest: In re Cardwell, 55 Cal. 137. See In re Post, 57 Call 273, for liability of guardian for loss occasioned by negligently loaning ward's money. The account of a guardian may in exceptional cases be verified by a person other than the guardian, if the latter also swears that he believes the former's statements are true: Racouil- lat V. Kequena, 36 Cal. 651. In equity, sometimes one wrong- fully intermeddling with the property of an infant is held as a guardian for the purpose of an accounting, but he acquires none of the rights of a guar- dian: Aldnch V. Willis, 55 Cal. 81. A guardian who collects money of his ward, uses it, and does not account for it until forced to do so by the court many years later, is entitled to nothing more than the strict letter of the law allows him: In re Bschnrh, 85 Cal. 98^ It is error, where decedent, dur- ing his lifetime, assigned a life insur- ance policy to a creditor, its security for a debt, the assignee being author- ized by the assignment to recover and collect the money thereon, and the assignee, after the death of his insured assignor, collected the full amount of the polioyi and paid it to the executor, less the amount due to himself, if the court refuses to allow the amount re- tained upon a settlement, because such creditor did not present a claim there- for to the executor: In re Galland, 92 Cal. 293. Where an executor paid various auni^ as funeral expenses before knowledge of any limitation in testa- tor's will, and the items of expense were duly presented, and were duly 663 GUARDIAN AND WARD. §§ 541, 542 approved and allowed by the executor taking or retaining possession of prop- acid jadge, and the items are not shown erty of testator's estate, the burden to be unreasonable, the court should of proof is upon complainant to estab- allow to the executor, in his account, liah the negligence and the value of the whole amount paid, notwithstand- the property lost to the estate: Wlteehr ing the fact that testator provided in v. Bolton, 92 Cal. 159. his will that funeral expenses should Compound interest cannot be not exceed a less sum: In re Galland, charged against executor unless he 92 Gal. 293. has been grossly negligent of the prop- If the heir or devisee seeks to charge erty, etc. , of thd estate of his teatator : the executor for negligence in not Wheeler v. BoUon, 92 Cs^il. 159. § 541. [1775.] Allowance of Accounts of Joint Guardians. — When an account is rendered by two or more joint guardians, the court may, in its discretion, allow the same upon the oath of any of them. Arizona. — Same. Rev. Stats., sec. 1348. Idah.0. — Same. B«v. Stats., sec. 5795. Montana. — Same. Comp. Stats., p. 368, sec. 374. Nevada. — Same. Gen. Stats., sec. 597. Oregon. — Same. Hill's Laws, sec. 2910. TTtah. — Same. Comp. Laws, ^ec. 4329. Wyoming. — Same. Laws 1890-91, p. 311, sec. 8. § 542. [1776.] Expenses and Compensation of Guardians. — Every guardian must be allowed the amount of his reasonable expenses incurred in the execution of his trust, and he must also have such compensation for his ser- vices as the court in which his accounts are settled deems just and reasonable. Arizona. — Same. Rev. Stats., sec. 1349. Idaho. — Same. Rev. Stats., sec. 5796. Montana. — Same. Comp. Stats., p. 368, sec. 375. Nevada. — Same. Gen. Stats., sec. 595. Oregon. — Same. Hill's Laws, sec. 2909. Utah. — Same. Comp. Laws, sec. 4330. WasMngton.— Same. Code Proc, sec. 1151. Wyoming. —Same. Laws 1890-91, p. 3^1, sec. 9. A guardian of a minor, and not sary to protect ward's interest, it may the minor, is primarily personally li- be allowed from the ward's estate: able for the professional services of an ffunt v. Maldonado, 89 Cal. 636. attorney employed by the guardian in A guardian wUl not ordinarily the performance of his sdiities: Hunt be allowed for permanent im- T. Maldonado, 89 Cal. 636. provements placed by him on a If guardian pays an attorney's minors property without authority: fee, and it is allowed by the court as Qerber v. Bauerline, 17 Or. 674. a reasonable expenditure, and neces- § 543 PROBATE LAW AND PRACTICE. 664 ARTICLE V. TEE SALE OF FROFEBTT AND DLSFOSITION OF THE FBOOIEDS. i 543. May sell property in certain cases. § 644. Sale of real estate to be made upon order of conrt. § 545. Application of proceeds of sales. § 546. Investment of proceeds of sales. S 547. Order for sale, how obtained. § 548. Kotice to next of kin, how given. § 549. Copy of order to be served, published, or consent filed. § 550. Hearing ot application. § 551. Who may be examined on such hearing. § 552. Costs to be awarded to whom. § 553. Order of sale to specify what. § 554. Bond before selling. § 655. Proceedings for sales of property by guardians. § 556. Limit of order of sale. § 557. Conditions of sales of real estate — Bond and mortgage for deferred payments. § 558. Court may order the investment of money of the ward. § 543. [1777.] May Sell Property in Certain Cases. — When the income of an estate under guardianship is insufficient to maintain the ward and his family, or to main- tain and educate the ward when a minor, his guardian may sell his real or personal estate for that purpose, upon obtaining an order therefor. Arizona. — Same. Kev. Stats., sec. 1360. Idalio. — Same. Bev. Stats., sec. 5797. SEontana. — Same. Comp. Stats., p. 368, sec. 376. Nevada. — After the phrase "ward and his family," as follows: "or to educate his family, or to educate the ward when a minor," in lien of "or to maintain and educate the ward when a minor"; otherwise same as California. Gen. Stats., sec. 568. Oregon. — Same, except that the phrase " or to maintain and educate the ward when a minor " and the words " or personal estate " are omitted. Hill's Laws, sec. 3113. Section 2899 of Hill's Laws provides for the sale of personal property. TTtah. — Same as California. Comp. Laws, sec. 4331. Washington. — "Whenever necessary for the education, support, or pay- ment of the just debts' of any minor, or for the discharge of any liens on the real estate of such minor, or whenever the real estate of sucb minor is suffer- ing unavoidable waste, or a better investment of the value thereof can be made, the court may, on the application of such guardian, order the same, or a part thereof, to be sold." Code Proc, sec. 1144. Wyoming. — Same as California. Laws 1893-91, p. 311, sec. 1. €65 GUARDIAN AND WARD. § 544 ■*■ B«ardian cannot sell any of to dispose of the estate: Lincoln v. the property of his ward without an Alexander, 52 Cal. 482. order of court: Kendall y. Miller, 9 An act of the legislature au- Cal. 591; Schmidt v. Wieland, 35 Cal. thorizing a certain person as guar- 343; De la Montagnie v. Union I. Co., dian of a minor to sell the real *^A '■ ^^^j. property of that minor will not au- A guardian of the person of a thorize that person to make a sale of minor appointed by a foreign court, said property, unless said person has but not appointed guardian of the per- been appointed guardian of said minor son and estate of said minor by the by a court of competent jurisdiction: probate court of this state, has no au- Paty v. Smith, 50 Cal. 153. thority to sell the lands of his ward A sale made by a gruardiau, dtuated in this state: MeNeily. First who is authorized by an act of the legis- "ConM. Soc., 66 Cal. 109. lature to sell his ward's real estate sub- A foreign guardian has no au- ject to approval by the court, is valid: thonty to bind the real estate of his Brenliam v. Davidson, 51 Cal. 352. ward situate in this state, nor will his A petition to sell real estate is consent be sufficient to give the court not a proceeding adverse to the ward, jurisdiction to make an order of sale or to his relatives, but is in rem: of said real estate: Wilson v. Hastings, Oager v. Henry, 5 Saw. 237; Holmes 66 Cal. 243. _ v. Oregon etc. E. R. Co., 7 Saw. 360. The guardian of a minor's es- The proceedings for a sale of tate has an authority coupled with land by a guardian are in the nature an interest in the estate. The legisla- of proceedings in rem: Oagcr v. Henry, ture cannot authorize another party 5 Saw. 237. § 644. [1778.] Sale of Real Estate to be Made upon Order of Coxirt. — When it appears to the satisfaction of the court, upon the petition of the guardian, that for the ben- efit of his ward his real estate, or some part thereof, should be sold, and the proceeds thereof put out at interest, or invested in some productive stock, or in the improvement or security of any other real estate of the ward, his guardian may sell the same for such purpose, upon obtaining an order therefor. Arizona. — Same. Rev. Stats., sec. 1351. Idaho Same. Rev. Stats., sec. 5798. STontana. — Same. Comp. Stats., p. 368, sec. 377. Nevada. — Same. Gen. Stats., sec. 569. Oregon. — The phrase " or in the improvement or security of any other real estate of the ward" is omitted; otherwise same. Hill's Laws, sec. 3114. Utah. — Same, except that "property"is snbstitnted for "stock." Comp. Laws, sec. 4332. Washington. — "The court may, on the application of a guardian or any other person, said guardian having due written notice thereof, order and de- cree any change to be made in the investment of the estate of any ward that may to snoh conrt seem advantageous to such estate." Code Proc, sec. 1139. See also last section. Code Proc.,- sec. 1144. Wyoming. — Same, except that the words " or judge '' are inserted after the word "court." Laws 1890-91, p. 311, sec. 2. §§ 545, 546 PROBATE LAW AND PRACTICE. 666 § 545. [1779.] Application of Proceeds of Sales.— If the estate is sold for the purposes mentioned in this article, the guardian must apply the proceeds of the sale to such pur- poses, as far as necessary, and put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital is wanted for the maintena,nce of the ward and his family, or the education of his children, or for the education of the ward when a minor, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward. Arizona. — Same. Rev. Stats., sec. 13S2. Idaho. — Same. Ker. Stats., sec. 5799. Montana. — Same. Comp. Stilts., p. 368, sec. 378. Nevada. — Same. Gen. Stats., sec. 570. " The probate court, on the application of a guardian, or of any person in- terested in the estate of any ward, after such notice to all persons interested therein as the probate judge shall direct, may authorize and require the guar- dian to invest the proceeds of sales, and also any other money in his hands, in real estate, or in any other manner that shall be most to the interest of all concerned therein; and the said probate court may make such further orders and give such directions as the case may require for managing, investing, and disposing of the estate and effects in the hands of the guardian." Gen. Stats., sec. 584. Oregon. — The following precedes the words "the guardian": "If the es- tate be sold for the maintenance of the wE^rd and his family, as provided in sec- tion 3113." See § 556, ante. The reniainder of the sectipn is the same as California, except that the following is omitted: "Or the education of his chil- dred, or for the education of the ward when a minor." Hill's Laws, sec. 3115. (Ttah. — Same. Oomp. Laws, sec. 4333. Washington. — See § 557, ante. Wyoming. — Sapne as California. Laws 1890-91, p. 311, sec. 3. § 546. [1780.] Investment of Proceeds of Sales. — If the estate is sold for the purpose of putting out or investing , the proceeds, the guardian must make the investment accord- ing to his best judgment, or in pursuance of any order that may be made by the court. Arizona. — Same. Rev. Stats., sec. 1353. Idaho. — Same. Rev. Stats., sec. 5800. Montana, — Same, Comp. Stats., p. 368, sec. 379. Nevada. — Same. Gen. Stats., sec. 571. Oregon. — Same. Hill's Laws, sec. 3116. TTtah. — Same. Comp. Laws, sec. 4334. Washington. — See § 557, ante. 667 GUARDIAN AND WARD. § 547 Wyoming. — game to and including the word " inreglmeat "; balancs emitted, and these words are added after said word, " according to law." Law« 1890-91, p. 311, sec. 4. § 547. [1781.] Order for Sale, how Obtained.— To obtain an order for such sale, the guardian must present to the court in which he was appointed guardian a verified petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale. Arizona. — Same. Kev. Stats., sec. 1354. Idaho. — Same. Rev. Stats., sec. 5801. lOContana. — Same. Comp. Stats, p. 368, sec. 380. Nevada. — Same. Gen. Stats., sec. 572. Oregon. — Same. Hill's Laws, sec. 3118. TTtali. — Same. Comp. Laws, sec. 4335. Washington. — "Such application shall be by petition, verified by the oath of the gnardian, and shall substantially set forth, — 1. The valne and character of all peraonal estate belonging to such ward that has come to the knowledge or possession of such guardian. 2. The disposition made of such personal estate. 3. The amount and condition of the ward's personal estate, if any. dependent npon the settlement of any estate or the execution of any trust, 4. The annual value of the real estate of the ward. 5. The amount of rent received, and the application thereof. 6. The proposed manner of reinvesting the proceeds of the sale, if asked for that purpose. 7. Each item of indebted- ness, or the amount and character of the lien, if the sale is prayed for the liquidation thereof. 8. The age of the ward, where and with whom residing, 9. ^l other facts connected with the estate and condition of the ward neces- sary to enable the court fully to understand the same. If there is no personal estate belonging to such ward in possession or expectancy, and none has come into the hands of such guardian, and no rents have been received, the fact shall be stated in the application." Code Proc, sec. 1145. Wyoming. — Same as California, except that after' the words "appointed gnardian," the words "or judge thereof " are inserted. Laws 1890-91, p. 311, sec. 5. A sale made under order of the personal estate and the income of his probate court, by a guardian of infant real estate; 2. The insufficiency of devisees, under a will of the real estate the income of the estate of the ward devised to his wards, will not be eflfeo- to maintain him and his family, or to tual to confer a valid title, unless the educate his family, or to educate him probate court acquired jurisdiction of when a minor; 3. That it would be the proceeding for sale by the presen- for the benefit of the ward tliat his tatioii of a proper petition by the real estate, or a part thereof, should be guardian. The necessity or expe- sold, and the proceeds put out at in- dienoy of the sale must arise from one terest or invested in some productive or more of these ciroum.itances: 1. stock: fitch v. Miller, 20 Cal. 352. The existence of debts due from the The petition must set forth the ward, which cannot be paid out of his couUitlon of the estate; but it is only §547 PBOBATB LAW AND PRACTICE. 668 necessary to state the conditioii in sach manner to enable the conrt to judge of the existence qf one or more of the circumstances above specified: FUch. V. Miller, 20 Cal. 352. Tlie statute does not directly require, nor is it essential, that the value of the several items and parcels of property of which the estate con- sists should be stated: FUch v. Miller, 20 Oal. 352, Petition for sale of realty of ward, what must contain: Sprague v. Stump, 7 Saw. 280. ■«, If judgment directing sale of ward's estate is fouuded upon a proper peti- tion, it cannot be collaterally attacked: Oager v. Henry, 5 Saw. 287; Walker v. Goldsmith, 14 Or. 125. Sales by guardianii are author- ized either when necessary to main- tain or educate the ward, or when expedient' 'for the purpose of a more profitable investment of the proceeds. If the sale is asked upon the ground of necessity, the petition must state the condition of the ward's whole es- tate, real and personal, as in the ordi- nary case of a sale by an executor or administrator; but if a sale of realty is asked on the ground of expediency for better investment of the proceeds, the petition need only state the oon- ditiou of the estate to be sold, as in the case of sale of mining claims by an executor or administrator; and the omission of the petition to describe and show the condition of the ward's personal estate will not affect the question of jurisdiction: Smith v.- Bis- eailuz, 83 Cal. 344. As aflfecting: question of juris- diction, no just distinction can be made between general and specific allegations of fact which in substance amount to the same thing, and tend to show that the land to be sold is un- productive and expensive: Smith v. Biscaihz, 83 Cal. 344, It seems that general facts showing either the necessity or the expediency of a guardian's sale not set out in the petition may be supplied by proofs at the hearing and stated in the decree, under section 1537 of the Code of Civil Procedure, and that such general facts are merely those ultimate facts showing a contingency, as pre- scribed in sections 1777 and 1778 of the Code of Civil Procedure, as distin- guished from the more explicit facts and circumstances showing the condi-. tion of the estate required by section 1781 to be stated in the petition; and that it must be presumed upon collat- eral attack, where such general facts are stated in the decree, that the court had all the necessary proofs before it. But the petition in this case being held sufficient to show jurisdiction, irre- spective of section 1517 of the Code of Civil Procedure as amended in 1874, ' the question as to its construction and effect is not finally decided: Smith v. Biscailuz^ 83 Cal. 344. Form No, 269,— Petition of Guardian for Order of Sale. [Title of Court and Guardianship.] The petition of , the guardian of the (person and) estate of , a minor, respectfully shows to this honorable court: — That the property of said minor consists of fifty shares of the capital stock of the Cable Railway Company of Florin, and also the following described real property, lots No. 25, 26, and 27 of Kerr's Addition to the town of Elk Grove, Sacramento County, California; That said shares of stock are entirely unproductive; that the rents, issues, and profits of said real estate amount to but one hundred dollars per year, from which the amount of annual 669 GUARDIAN AND WARD. § 548 taxes and the expense of insuring the improvements thereon and repairing the same, amounting in the aggregate to ahout $ , are to be deducted; That the residue of said income is wholly insufficient to main- tain and educate said ward, and he has no other means of sup- port and education; That the real property of said minor is improved, being fenced by a picket fence, and a one-story cottage containing four rooms is situated thereon; That said property has been appraised within one year last past; That it is necessary that all the property of said ward should be sold; — Wherefore petitioner prays that he be authorized to sell said property at public auction. , Petitioner. , Attorney for Petitioner. (Verification as in Form No. 55, § 80, ante.) §548. [1782.] Notice to Next of Kin, how Given.— If it appear to the court, or a judge thereof, from the petition, that it is necessary or would be beneficial to the ward that the real estate, or some part of it, should be sold, or that the real and personal estate should be sold, the court must thereupon make an order directing the next of kin of the ward, and all persons interested in the estate, to appear before the court, at a time and place therein specified, not less th^u four nor more than eight weeks from the time of making such order, to show cause why an order should not be granted for the saile of such estate. If it appear that it is necessary or would be beneficial to the ward, to sell the personal estate or some part of it, the court must order the sale to be made. Arizona. — Same. Rev. Stats., sec. 1355. Xdaho. — Same. Kev. Stats., sec. 5802. Montana. — Same. Comp. Stats,, p. 368, sec. 381. Nevada. — First sentence same. Second sentence as follows: " If it appear that it would be necessary, or would be beneficial to the ward, to sell the per- sonal estate, or some part of it, the same proceedings shall thereupon be had in reference to notice of the application, and to ordering a sale, and making such sales as are provided in relation to sales of personal estate by executora or administrators." Gen. Stats., sec. 573. § 549 PROBATB LAW AND PRACTICE, 670 Oregon. — Same as California, except last sentence, which is omitted. Hill's Laws, sec. 3119. Utah. — Same as California, except that "ten" is substituted for "eight," ,Comp. Laws, sec. 4336. Wyoming. — Same as California, except that the words "or judge" are inserted after the word " court " each time it appears after the first time. Laws 1890-91, p. 311, sec. 6. Form No. 370. — Order to Show Cause on Petition for Order of Sale of Real or Real and Personal Prop- erty. [Title of Court and Guardianship.] It appearing from the petition of , the guardian of the (person and) estate of , a minor, that it is necessary (or ■would be beneficial) that the whole or some part of the real and personal estate of said minor should be sold, — It is therefore ordered that the next of kin of said ward, , to wit, , , and , and all persons interested in said estate, appear before this court on the day of , A. D.. 18 — , to show cause, if any they can, why such sale should not be ordered. , Judge of the Court. Dated , 18—. § 549. [1783.] Copy of Order to be Served, Pub- lished, or Consent Piled. — A copy of the order must be personally served on the next of kin of the ward, and on all persons interested in the estate, at least fourteen days before the hearing of the petition, or must be published at least once a week for three successive weeks in a newspaper printed in the county, or if there be none printed in the county, then in such newspaper as may be specified by the court in the order. If written consent to making the order of sale is subscribed by all persons interested therein and the next of kin, notice need not be served or published. Arizona. — 7Satne, except "once a week for" is omitted. Rev, Stats., sec' 1356. Idaho. — Same as Arizona. Rev. Stats., sec. 5803. IXontaua. — Same as Arizona. Comp. Stats., p. 369, sec. 382. ITevada. — Same as Arizona, except that the last sentence is omitted. Gen. Stats., sec. 574. ' Oregon. — Same as California to the word "fourteen"; then as follows: " Xen days before the hearing of the petition, or shall be published at least 671 GUARDIAN AND WARD. §§ 550-552 three gnccessive weeks in such newspaper circulating in the county as the oonrt shall specify in such order." Hill's Laws, sec. 8120. Xrtah. — Same as California, except that "ten" is substituted for "four* teen "; and last part of the first sentence reads as follows: " Published at least three successire weeks in a newspaper having general circulation in the county, or in such newspaper as may be specified by the court in the order." Comp. Laws, sec. 4337. Wyoming. — "A copy of the order must be personally served on the next of kin of the ward, and on all persons interested in the estate, at least ten days before the hearing of the petition. If written consent to making the order of sale is subscribed by all persons interested therein and the next of kin, notice need not be served." Laws 1890-91, p. 312, sec. 7. §550. [1784.] Hearing of Application. — The court, at the time and place appointed in the order, or such other time to which the hearing is postponed, upon proof of the ser- vice or publication of the order, must hear and examine the proofs and allegations of the petitioner, and of the next of kin, and of all other persons interested in the estate who oppose the application. Arizona. — Same. Rev. Stats., sec. 1357. Idalio. — Same. Rev. Stats., see. 5804. Montana. — Same. Comp. Stats., p. 369, sec. 383. ITevada. — Same. Gen. Stats., sec. 575. Utah.. — Same. Comp. Laws, sec. 4338. Wyomingf. — Same, except that the words "or judge "are inserted after "court." Laws 1890-91, p. 312, sec. 8. § 551. [1785.] Who may be Examined on Such Hearing. — On the hearing, the guardian may be examined on oath, and witnesses may be produced and examined by either party, and process to compel their attendance and testi- mony may be issued by the court, in the same manner and with like effect as in other cases provided for in this title. Arizona. — Same. Rev. Stats., sec. 1358. Idaho. — Same. Rev. Stats., sec. 5805. Montana. —Same. Comp. Stats., p. 369, sec. 384. Nevada. — Same. G-en. Stats., sec. 576. Utah. — Same. Comp. Laws, sec. 4339. Wyoming. — Same, except that after " court " the words "or judge" are inserted. Laws 1890-91, p. 312, sec. 9. § 653. [1786.] Costs to be Awarded to Whom. — If any person appears and objects to the granting of any order § 553 PROBATE LAW AND PBACTICK. 672 prayed for under the provisions of this . article, and it appears to the court that either the petition or the objection thereto is sustained, the court may, in granting or refusing the order, award costs to the party prevailing, and enforce the payment thereof. Arizona. —Same. Rev. Stats., sec. 1359. Idaho. — Same. Rev. Stats., sec. 5806. Montana. —Same. Comp. Stats., p. 369, sec. 385. Nevada. — Same. Gen. Stats., sec. 577. (Jregon. — Same. Hill's Laws, sec. 3130. TTtah.. — Same. Comp. Laws, sec. 4310. Wyoming. — Same, except that after "court " the words " or jndge " are inserted. Laws 1890-91, p. 312, sec. 10. § 553. [1787.] Order of Sale to Specify What.— If, after a full examination, it appears necessary, or for the benefit of the ward, that his real estate, or some part thereof, should be sold, the court may grant an order therefor, specify- ing therein the causes or reasons why the sale is necessary or beneficial, and may, if the same has been prayed for in the petition, order such sale to be made either at public or private Arizona. — Same. Rev. Stats., sec. 1360. Idaho. —Same. Rev. Stats., sec. 5807. Montana. — Same. Comp. Stats., p. 369, sec. 386. Nevada. — Same. Gen. Stats., sec. 578. Oregon. — "No such license shall be granted for the sale of any real estate of a ward, excepting that of a minor, unless the county court of the county of which the ward is an inhabitant shall certify in writing its approbation of the proposed sale." Hill's Laws, sec. 3121. TTtah. — Same. Comp. Laws, sec. 4341. Washington. — "If it shall appear to the court from such petition and from the hearing thereon that it is necessary, or would be beneficial to the ward, that such real estate, or some part of it, should be sold, the court may au- thorize the said guardian to sell the same at public sale, on the same terms and notice required for sales of real estate by executors and administrators." Code Proc, sec. 1146. Wyoming. — Same, except that the words "or judge" are inserted after the word "court." Laws 1890-91, p. 312, sec. 11. The order of sale must be in itself provides that the order of sale must sufficient, and to make it so, the de- describe the lands to be sold, and the scription of the land to be sold must record cannot be helped out by refer- be sufficiently definite and certain, ence to a document not found in it. without reference to any pxtraneous This question was fully considered by matter. Section 1544 (§ 140, ante) of this court in the case of Crosby v. the California Code of Civil Procedure Dowd, 61 Cal. 657, and the reasoning ;673 GUARDIAN AND WARD. § 554 in that caae appnals to this one; there- questioned except in the manner pro- fore, ! n order of gale of real estate vided by statute: Oagtr v. Henry, 6 belonging to minors, wherein the prop- iSaw, 237. erty was described as "tweuty and one Upon a petition for sale, the half acres of the rancho Golita, being court will determine if it is advisable the share of a tract of thirty-one acres to sell part, or the whole, or any, of allotted to said minors by a decree of the ward's estate: Gager v, Ileni'y, 5 the district court of Santa Barbara Baw. 237. County, in a suit in partition wherein The judgment , or order of sale the guardian herein and mother of need not state the conclusions of the said minors was plaintiff and said court as to the advisability of the sale: minors were defendants," is insufS- 0ager v. Henry, 5 Saw. 237. cient, and a sale based thereon is void: ■ A guardian's sale of real estate Hill v. Wall, 66 Cal. 130. is' a judicial sale, and cannot be quea- In a proceeding to sell real es- tioned collaterally for an irregularity tate, judgment of county court when after such sale has been confirmed by acting as a court of probate cannot be the court: Oager y. Henry, 5 Saw. 237. Form Wo. 271.— Order of Sale of Real or Real and Personal Property. [Title of Court and Gaardianship.] The petition of , guardian of the (person and) estate of ; a minor, for an order of sale of the property of said minor, coming on regularly to be heard, and it appearing that the order , to show cause heretofore made and entered herein has been duly served upon the next of kin of said ward and all persons inter- ested in said estate, and it appearing that said sale is necessary (or will be to the best interest of said ward), — It is ordered, adjudged, and decreed that said , guardian, be and he is hereby authorized to sell at public or private sale, as he shall deem to the best interest of his ward, the whole of the property of the estate of his said ward, to wit (here insert ■ description). The reasons why said sale is necessary (or beneficial) are as follows (here state the reasons with particularity). Dated , 18 — . , Judge of the Court. § 554. [1788.] Bond before Selling. — Every guar- dian authorized to sell real estate must, before the sale, give bond to the ward, with sufficient surety, to be approved by the court, or a judge thereof, with condition to sell the same in the manner, and to account for the proceeds of the sale, as pro- vided for in this chapter and chapter VII. of this title. Arizona. — Same, except that the bond is to be given to the probate jiidge. £ev. Stats., sec. 1361. 43 § 655 PROBATE LAW AND PRACTICE. 674 Idaho. — Same as California. Rev. Stats., sec. 5808. Montana. —Same as Arizona. Camp. Stats., p. 370, sec. 387, Nevada. — Same aa Arizona. Gen. Stats., sec. 579. Oregon. — Same as Arizona. Hill's Laws, sco. 3122. Utah. — Same. Comp. Laws, sec. 4342. Wyoming. — Same, except that all after "provided for" is omitted, and in lieu thereof these words are inserted: "In other cases requiring bonds of guardians." Laws 1890-91, p. 312, sec. 12. Where the order of the court filed before the sale, though not marked did not require in terms that the filed until after the sale; and it the af- guardian give a bond or take an oath fidavit to the appraisement;show3 that of office, and neither is found, but the it was sworn to before the confirraa- record does not show that they were tion of the sale, and it appears that the not given, it will be presumed in sup- oaths of the appraisers appointed be- port of a judgment adjudging a sale fore the sale, and their certificate of of the infant's property that the guar- appraisement bear the same date as dian qualified as such: Bradyv. Reese, their appointment, the appraisement 51 Cal. 447. See Goldsmith v. 6Uk- must be held to have been filed before land, 10 Saw. 606. the confirmation, though not marked If the bond required upon a filed. A paper is filed when delivered guardian's sale is referred to in the to the proper officer, and indorsing it decree of sale aa having been duly ex- with the time of filing is no part of ecuted, it must be held to have been the filing: Smith v. BiscaUuz, 83 Cal. delivered to the judge, approved and 344. § 655. [1789.] Proceedings for Sales of Property by Guardians. — All the proceedings under petition of guar- dians for sales of property of their wards, giving notice and the hearing of such petitions, granting or refusing the order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale and application for confirma- tion thereof, notice and hearing of such application, making orders, rejecting or confirming sales and reports of sales, order- ing and making conveyances of property sold, accounting and the settlement of accounts, must be had and made as required by the provisions of this. title concerning estates of decedents, unless otherwise specially provided in this chapter. Sales, etc., enumerated in this section: See §§ 168 et seq., anie. Accounts: See §§ 246 et seq., ante. Arizona. — Same. Rev. Stats., sec. 1362. Idaho. — Same. Rev. Stats., sec. 5809. Montana. — Same. Comp. Stats., p. 370, sec. 388. Nevada. — "He shall also give public notice of the time and place of sale, and shall proceed therein in like manner as prescribed in the case of a sale of land by an executor or administrator; the same proceedings shall be had as to the return of the sale and the confirmation thereof, and the order to execute a conveyance, as is prescribed in regard to sales of land made by executors 675 GUAEDIAN AND WARD. § 556 or administrators, and the confirmation shall have the same force and effect." Gen. Stats., sec. 580. Oregon. — Same as Nevada to the words "the same"; then as follows: "And the evidence of" giving such notice may he perpetuated in the same manner and with the same effect as is provided in the case of sales of real estate by executors and administrators.'' Hill's Laws, sec. 3124. Utah.. — Same. Comp. Laws, sec. 4343. Washington. — "All the provisions of the chapter regulating sales by executors and administrators shall be applicable to sales made by guardians." Code Proc, sec. 1147. " At the term of the court next after such sale, such guardian shall make report thereof to such court, and produce the proceeds of such sale, and the notes or obligations or other securities taken to secure the payment of the pur- chase-money." Code Proc, sec. 1148. "The court, in confirming such sale and directing a conveyance, shall be governed by the law regulating the confirming of sales of real estate made by executors or administrators, and the making of conveyances on such sales." Code Proc, sec. 1149. Wyoming. — Same as California. Laws 1890-91, p. 312, sec. 13. Section 1637 of the Code of Civil the particulars mentioned in this see- Procedure does not apply to a guar- tion. These must appear of record; dian's. account. It is not made appli- otherwise the sale is invalid and void: cable by section 1789 of the same code. Gagcr v. Henry, 5 Saw. 237; Hdbart v. In re Cardweli, 55 Cal. 1.37. Upton, 2 Saw. 302; Walker v. 6old- A sale of real estate of the ward smith, 14 Saw. 125. by a guardian is void unless it appears Probate sale of real estate is in- that the same was held at public auc- valid if the notice is not properly tion after due notice of the time and given: Oager v. Henry, 5 Saw. 237. place thereof: Hobart v. Upton, 2 Saw. A guardian's sale of real estate 302. is a judicial sale, and cannot be ques- Sale is presumed to have been tioned collaterally for an irregularity regular and according to law, ihough after such sale has been confirmed by the^record does not show the particu- the court: Oager v. Henry, 5 Saw. lar proceedings taken, except as to 237. §556. [1790.] Limit of Order of Sale. — No order of sale granted in pursuance of this article continues in force more than one year after granting the same, without a sale being had. Arizona. — Same. Rev. Stats., sec. 1363. Idaho. — Same. Rev. Stats., sec. 5810. Montana. —^ Same. Comp. Stats., p. 370, sec. 389i Nevada. — Same. Gen. Stats., sec. 581, Oregon. — Same. Hill's Laws, sec. 3125. Utah. — Same. Comp. Laws, sec. 4344. Wyoming. — Same, with this clause added; "And said order of sale may be recalled, at any time befpre sale, by the court." Laws 1890-91, p. 313, sec. 14. §§ 557, 558 PROBATE hXW AND PRACTICE. 676 § 567. [1791.] Conditions of Sales of Beal Estate — Bond and Mortgage for Deferred Payments. — All Bales of real estate of wards must be for cash, or for part cash and part deferred payments, the credit in no case to exceed three years from date of sale, as, in the discretion of the court, is most beneficial to the ward. Guardians making sales must demand and receive from the purchasers, in case of deferred paj'ments, notes, and a mortgage on the real estate sold, with such additional security as the court deems necessary and suf- ficient to secure the prompt payment of the amounts so deferred, and the interest thereon. Arizona. —Same. Rev. Stats., see. 1364. Idaho. — Same. Rev. Stats., sec. 5811. Montana. — Same. Comp. Statg., p. 370, sec. 390. Nevada. — Same, except that "bond" b substituted for "notes." Gen. Stats., sec. 598. Utah. — Same. Comp. Laws, sec. 4345. Washington. — See § 568, ante. Wyoming. — Same, except that the Words "or judge '' are inserted after " court " each time it appears. Laws 1890-91, p. 313, sec. 15. A guardian who is authorized by cannot accept anything but money in the legislature to sell his ward's real payment of the purchase price: Breii- estate subject to approval of the court ham v. Davidson, 51 Cal. 852. § 558. [1792.] Court may Order tlie Investment of Money of the Ward. — The court, on the application of a guardian, or any person interested in the estate of any ward, after such notice to persons interested therein as the court shall direct, may authorize and require the guardian to invest the proceeds of sales, and any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all concerned therein; and the court may make such . other orders and give such directions as are needful for the management, investment, and disposition of the estate and effects, as circumstances require. Arizona. — Same. Rev. Stats., sec. 1365. Idaho. — Same. Rev. Stats., sec. 5812. Hontana. — Same. Comp. Stats., p. 370, sec. 391. Oregon. — Same. Hill's Laws, sec. 2899. "In every case of the sale of real estate as provided in this chapter, the resi- due of the proceeds, if any remain upon the final settlement of accounts of the guardianship, shall be considered as real estate of the ward, and shall be 677 GUARDIAN AND WARD. § 558 disposed of among the same persons and in the same manner as the real estate would have been if it had not been sold." Hill's Laws, sec; 3117. "Such guardian shall also, before fixing on the time and place of sale, take and subscribe an oath before the comity judge, or some other officer compe- tent to administer the same, in substance as follows: That in disposing of the estate which he is licensed to sell, he will use fiis best judgment in fixing the time and place of sale, and that he will exert his utmost endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested therein." Hill's Laws, sec. 3123. "When any minor, insane person, or spendthrift residing out of this state shall be put under guardianship in the state or county in which he resides, and shall have no guardian appointed in this state, the foreign guardian may file an authenticated copy of his appointment in the county court of any county in which there may be real estate of the wardj^ after which he may be licensed by the county court for the same county to sell the real estate of the ward in any county in the same manner and upon the same terms and conditions as are prescribed in this chapter in the case of a guardian appointed in this state, except in the particulars hereinafter mentioned." Hill's Laws, sec. 3126. "Every foreign guardian so licensed to sell real estate shall take and sub- scribe the oath in the like case of guardians appointed in this state, and shall give notice of the time and place of sale, and conduct the same in the same manner prescribed for guardians appointed in this state, and may perpetuate the evidence of the notice in the same manner." Hill's Laws, sec. 3127. " All the proceedings required to be had in any county court in this state respecting such sale by a foreign guardian shall be had in the court for the county in which the authenticated copy of his appointment is filed." Hill's Laws, sec. 3128. "Upon every such sale by a foreign guardian, the proceeds of sale, or as much thereof aa may remain upon the final settlement of the accounts of guar- dianship, shall be considered as real estate of the ward, and gha^ be disposed of among the same persons and in the same proportions as the real estate would have been according to the laws of this state if it had not been sold; and the foreign guardian shall, in every qase, before making the sale, give bond to the county judge, with sufficient surety or sureties, with condition to account for and dispose of the same according to law." Hill's Laws, sec. 3129. "In case of an action relating to any estate sold by a guardian under the provisions of this chapter, in which the ward or any person claiming under him shall contest the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings; prodded, it shall appear, — 1. That the guardian was licensed to make the sale by a county court of com- petent jurisdiction;. 2. That he gave a bond that was approved by the county judge; 3. That he took the oath prescribed in this chapter; 4. That he gave notice of the time and place of sale as prescribed by law; and 5. That the premises were sold accordingly at public auction, and are held by one who purchased them in good faith." Hill's Laws, sec. 3132. "If, in relation to such sale, there should be any neglect or misconduct in the proceedings of the guardian, by wliich any person interested in the estate ■hall suffer damage, such aggrieved party may recover such damage in a suit § 559 PROBATE LAW AND PRACTICE. 678 on the bond of such guardian, or otherwise as the case may require." Hill's Laws, sec. 3133. "If the validity of any sale made by a guardian under this chapter shall be drawn in question by any person claiming adversely to the title of the ward, or claiming under any title that is not derived from or through the ward, the sale shall not be held void on account of any irregularity in the proceedings; provided, that the guardian was authorized to make sale by the proper county court, and that he did accordingly execute and ac- knowledge, in legal form, a deed for the conveyance of the premises." Hill's Laws, sec. 3134. ' Wyoming. -^Same as California, except that the words ','or judge " are inserted after " court " each time it appears. Laws 1890-91, p. 313, sec. 16. TTtah.^ Same as California. Comp. Laws, sec. 4346. A guardian may invest moneys section will protect him, even if mis- of his ward without an order of fortune follows the investment; but court, but he does so at his own where he acts upon his own judgment, peril. An order of investment pro- he is held to a more strict accounta- cured from the court under the above bility: In re Cardwell, 55 CaL 137. ARTICLE VI. NON-RESIDENT GUARDIANS AND WARDS. § 559. Guardians of non-resident persons. § 560. Powers and duties of guardians appointed. § 561. Such guardians to give bonds. § 562. To what guardianship shall extend. § 563. Kemoval of non-resident ward's property, § 564. Proceedings on such removal. § 565. Discharge of person in possession. § 559. [1793.] Guardians of Non-resident Persons. — When a person liable to be put under guardianship, accord- ing to the provisions of this chapter, resides without this state and has estate therein, any friend of such person, or any one interested in his estate, in estpectancy or otherwise, may apply to the superior court of any county in which there is any estate of such absentperson, for the appointment of a guardian; and if, after notice given to all interested, in such manner as such court orders, by publication or otherwise, and a full hearing and examination, it appears proper, a guardian for such absent person may be appointed. Arizona. — Same. Rev. Stats., sec. 1366. Idaho. — Same. Rev. Stats., sec. 5813, ' Hontana. — Same. Comp. Stats., p. 371, sec. 392. Nevada.^ — Sam.;. Gen. Stats., sec. 591. 679 GUARDIAN AND WARDi § 560 Oregon — Same. Hill's Laws, sec. 2905. TTtah. — Same. Comp. Laws, sec. 4347. Washington. — " When any minor or person of nnsound mind residing ont of the limits of this state has any real estate, goods, chattels, rights, credits, money, or effects in this state, the superior court having jurisdiction of the county in which such property, or. any part thereof, is situate or may be shall, upon the application of the foreign guardian of such minor or person of unsound mind, appoint a trustee of such minor or person of unsound mind, to manage, collect, lease, and take care of said property." Gen. Stats., sec. 3072. Wyoming. — Same as California, except that the word " superior " is omitted, and the words " or judge " are inserted after the word "court " each time it appears. Laws 1890-91, p. 313, sec. 1. Corporations may be Guardians, etc. : See § 76, ante. Appearance by G-uardian: See § 332, ante. Judge may Appoint Guardians, etc., at chambers: Code Civ. Froc, sec. 166; also § 1, ante. Where a minor resides out of cretionary matters with the judge, the state, the notice to be given Third persons cannot question the va- of the application to be appointed ^uar- lidity of the order upon the ground dian, the manner of giving it, the time that an insufficient notice was given for which it shall be given, subject of the hearing of the application for perhaps to revision on appeal from the appointment under the statute: the order of appointment, are dis- Gronfier v. Puymirol, 19 CaL 629. § 560. [1794.] Powers and Duties of Guardians Appointed under Preceding Section. — Every guardian, appointed under the preceding section, has the same powers and performs the same duties, with respect to the estate of the ward found within this state, and with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed under this chapter. Arizona. — Same. Rev. Stats., sec. 1367. - Idaho. — Same. Rev. Stats., sec. 5814. Uontana. — Same. Comp. Stats., p. 371, sec. 393. Nevada. — Same. Gen. Stats., sec. 592. Oregon. — Same. Hill's Laws, sec. 2906. Utah. — Same. Comp. Laws, sec. 4348. Washington. — "The said trustee shall give bond, with surety to the sat- isfaction of the superior court, and shall taiie upon himself the management of the estate and property of such minor or person of nnsound mind, situate in this state and the collection of debts and other demands due such minor or person of unsound mind from persons residing or being in this state, and shall settle with the court, and be liable to suit or removal, or both, for neglect or misconduct in the performance of his duties, in like manner as is or may by law be provided in the case oi gnardians of minors." Gen. Stats., sec. 3074. §§ 561-563 PROBATE LAW AND PRACTICE. 680 "Real estate belonging to minors and persons of unsound mind residing out of this state may be sold upon the application of the foreign guardian of such minor or person of unsound mind, to the superior court of the county in which such land is situated, upon the same terms aa are or may be provided by law in case of the sale of real estate belonging to minors residing in this state." Gen. Stats., sec. 3071. Wyoming. —Same as California. Laws 1890-91, p. 314, sec. 2. § 661. [1795.] Such Guardians to Give Bonds. Every guardian must give bond to the ward, in the manner and vrith the like conditions as hereinbefore provided for other guardians, except that the provisions respecting the inventory, the disposal of the estate and efiFects, and the account to be rendered by the guardian, must be confined to such estate and effects' as come to his hands in this state. Arizona. — Same. Rev. Stats., sec. 1368. Idaho. — Same. Rev. Stats., sec. 5815. Montana. — Same. Comp. Stats., p. 371, sec. 394. ITevada. — Same. Gen. Stats., sec. 593. Oregon. — Same, except bond is to be given to the state. Hill's Laws, sec, 2907. XTtah. — Same. Comp. Laws, sec. 4349. Wyoming. — Same as California. Laws 1890-91, p. 314, sec. 3. § 568. [1796.] To What Guardianship shall Ex- tend. — The guardianship which is first lawfully granted of any person residing without this state extends to all the estate of the ward within the same, and excludes the jurisdiction of the court of every other county. Arizona. — Same. Rev. Stats., sec. 1369, Idaho. — Same. Rev. Stats., sec. 5816. Uontana. — Same. Comp. Stats., p. 371, sec. 395, Nevada. — Same. Gen. Stats., sec. 594. Oregon. — Same. Hill's Laws, sec. 2908. Utah. — Same. Comp. Laws, sec. 4350. Washington. — "The first appointment of a trustee, lawfully made, shall extend to all the property and effects of the minor in this state, and shall ex- clude the jurisdiction of the superior court of any other county." Gen. Stats., sec. 3073. Wyoming. — Same as California. Laws 1890-91, p, 314, sec. 4. §563. [1797.] Removal of Non-resident Ward's Property. — When the guardian and ward are both non-resi- dents, and the ward is entitled to property in this state, which 681 1 GUARDIAN AND WARD. § 564 may be removed to another state or foreign country without conflict with any restriction or limitation thereupon, or impair- ing the right of the ward thereto, such property may be re- moved to the state or foreign country of the residence of the ward, upon the application of the guardian to the superior court of the county in which the estate of the ward, or the prin- cipal part thereof, is situated. Arizona. —Same. Rev. Stats., sec. 1370. Idaho. — Same. Rev. Stata., sec. 5817. Montana. — Same. Comp. Stats., p. 371, sec. 396. ITevada. — " If a ward be a non-resident of this state, and entitled to prop- erty in this state, and have a guardian by authority of the laws of this state, or territory of the United States, or of a foreign country in which such ward resides, such property may be removed to such state or territory or foreign country in which such ward resides, upon the application of such guardian to the district court of this state in the county in which the property of such ward, or any part of such property, is situated." Stats. 1887, p. 58. XJtall. — Same as California. Comp. Laws, aec. 4351. Washin^on. — "When the guardian and ward are both non-residents, and the ward is entitled to property in this state, which may be removed to another state or territory, without conflict to any restriction or limitation thereupon, or impairing the right of the ward thereto, such property may be removed to the state or territory in which such ward may reside, upon the ap- plication of the guardian to the judge of the superior court of the county in which the estate of the ward, or the principal part thereof, may be, in the manner followmg: The guardian so applying must produce a transcript from the records of a court of competent jurisdiction, certified according to the laws of this state, showing his appointment as guardian of the ward in the state or territory in which he and the said ward reside; that he has qualified as such according to the laws thereof, and given bond, with sureties, for the perform- ance of his trust; and must also give thirty days' notice to the resident ex- ecutor, administrator, guardian, agent, or trustee, if there be 'such, of the applications; thereupon, if no objection be made; or if no good cause be shown to the contrary, the judge of the court shall make an order granting such guar- dian leave to remove the property of said ward to the state or territory in which he or she may reside; which order shall bfe full and complete authority to said guardian to sue for and receive the same, in his own name, for the use and benefit of said ward." Code Proc, sec. 1152. Wyoming. — Same as California. Laws 1890-91, p. 314, sec. 5. § 664. [1798.] Proceedings on Such Removal. The application must be made upon ten days' notice to the resident executor, administrator, or guardian, if there be such, and upon such application the non-resident guardian must produce and file a certificate, under the hand of the clerk and § 564 PROBATE LAW AND PRACTICE. 682 seal of the court, from which his appointment was derived^ showing: — 1. A transcript of the record of his appointment; 2. That he has entered upon the discharge of his duties; 3. That he is entitled, by the laws of the state of his appoint- ment, to the possession of the estate of the ward, or' must pro- duce and file a certificate, under the hand and seal of the clerk of the court having jurisdiction in the country of his residence, of the estates of persons under guardianship, or of the highest court of such country, attested by a minister, consul, or vicer consul of the United States, resident in such country, that, by the laws of such country, the applicant is entitled to the cus- tody of the estate of his ward, without the appointment of any court. Upon such application, unless good cause to the contrary is shown, the court must make an order granting to such guar- dian leave to take and remove the property of his ward to the state or place of his residence, which is authority to him to sue for and receive the same in his own name, for the use and bene- fit of his ward. Arizona. — Same. Ber. Stats., sec. 1371. Idaho. — Same, except that the clause of suUdivision 3 beginning with the words " or must produce" is omitted. Rev. Stats., sec. 5818. SContana. — Same as California, except that the words "or jadge" is in- serted after the word "clerk " wherever it occurs, and the phrase "attested by a minister, consul, or vice-consul of the United States, resident in such country," is omitted, and the following sentence is added: " The said applica- tion shall also contain a description of the property of such ward, together with an estimate of its value," Comp. Stats., p. 371, sec. .397. Nevada. — Same as California, except that after the words " of any court," in seventh line from the bottom of section, the following clause is inserted: "Upon such application, unless good cause to the contrary is shown, the court may, in its discretion, upon satisfactory proof that the interests of such ward are fully protected by sufficient security in the place of residence of such foreign guardian." Stats. 1887, p. 58. Utah.. — Same as California, except that in subdivision 3, after the words " laws of the state, " the following is interpolated, " or foreign country. " Comp Laws, sec. 4352. Washington. — See § 576, ante. "The said trustees shall, under the order of the superior court, deliver up to the foreign guardian of such minor or person of unsound mind all the per- sonal property, rights, and credits belonging to such minor or person of un- sound mind; provided, that the superior court shall make no such order except 683 GUARDIAN AND WARD. § 665 npun application of the foreign guardian, and suflScient proof of his appoint-, ment and qualification in accordance with the laws of the state or place of residence of such guardian." Gen. Stats., sec. 3075. "The said trustee shall have nopower,to apply to the superior court for the sale of the real estate of such minor or person of unsound mind." Gen. Stats., sec. 3076. "The said trustee, unless removed by the court, holds his appointment so long as the services of a trustee may be required, and shall receive such com- pensation for his services as may be stipulated between him and the foreign guardian; and in case no agreement has been made, then such compensation as is or may be by law provided for such guardians." Gen. Stats., sec. 3077. "All moneys due such minor or person of unsound mind, in the hands of such trustee, shall be ^aid over to the foreign guardian so long as he shall remain such guardian, or in case of the decease of such minor or person of unsound mind, then to the administrator or legal representative of such minor or per- son of unsound mind," Gen. Stats., sec. 3078. Wyoming. — Same as California. Laws 1890-91, p. 314, sec. 6. § 665. [1799.] Discliarge of Person in Possession. — Such order is a discharge of the executor, administrator, local guardian, or other person in whose possession the prop- erty may be at the ,time the order is made, on filing with the court the receipt therefor of the foreign guardian of such absent ward. Arizona. — Same. Bev. Stats., sec. 1372. Idaho. — Same. Bev. Stats., sec. 5819. Montana. — Same. Comp. Stats., p. 373, sec. 398. Nevada. — Same, with the following added: "Said receipt shall be re- corded in the records of said court, and the court shall make an order dis- charging said executor, administrator, or local guardian from all further duties and responsibilities as such executor, administrator, or guardian, and that his letters of administration or guardianship are vacated, and that the sureties upon the bond of such executor, administrator, or gaardian are released from any liability thereafter incurred." Stats. 1887, p. 58. Utah.. — Same as California. Comp. Laws, sec. 4353. Wvoming. — Same as California. Laws- 1890-91, p. 315, aeo. 7. ABTICLE VIL SBNERAL AND MISCELLANEOUS PE0VISION3. § 566. Examination of persons suspected of defrauding ward. § 567. Bemoval of guardian and surrender of estate, § 568. Guardianship, how terminated, § 569. New bond, when required. § 570. Guardian's bond to be filed. § 571. Limitation of actions on guardian's bond. §§566,567 PROBATB LAW AND PRACTICB. 684' § 572. Limitation of actions for recovery of property sold. § 573. More than one guardian of a person may be appointed, § 574. Order a decree of court. § 575. Wliat provisions apply to guardians. § 566. [1800.] Examination of Persons Suspected of Defrauding Ward. — Upon complaint made to him by any guardian, ward, creditor, or other person interested in the estate or having a prospective interest therein as heir or other- wise, against any one suspected of having concealed, embezzled, or conveyed away, any of the money, goods, or effects, or an instrument in writing belonging to the ward or to his estate, the superior court, or a judge thereof, may cite such suspected per- son to appear before such court, and may examine and proceed with him on such charge in the manner provided in this title with respect to persons suspected of and charged with conceal- ing or embezzling the effects of a decedent. Arizona. — Same. Rev; Stats., sec. 1373. Idaho. — Same. ' Rev. Stats., sec. 5820. Hontana. — Same. Comp. Stats., p. 373, sec. 399. Nevada. — Same. Gen. Stats., sec. 590. Oregon. — Same. Hill's Laws, see. 2904. TTtali. — Same. Comp. Laws, sec. 4354. , Wyoming. — Same, except that the word " superior " is omitted, and the words "or judge " are inserted after the words " such court." Laws 1890-91, p. 315, sec. 1. § 567. [1801.] Removal and Resignation of Guar- dian and Surrender of Estate. — When a guardian, ap- pointed either by the testator or a court, becomes insane, or otherwise incapable of ' discharging his trust, or uusuitable ' therefor, or has wasted or mismanaged the estate, or failed for thirty days to render an account or make a return, the superior court may, upon such notice to the guardian as the court may require, remove him and compel him to surrender the estate of the ward to the person found to be lawfully entitled thereto. Every guardian may resign, when it appears proper to allow thfe same; "and upon the resignation or removal of a guardian, as herein provided, the court may appoint another in the place of the guardian who resigned or was removed. Arizona. — Same. Rev. Stats., sec. 1374. Idaho. — Same. Rev. Stats., sec. 5821.^ 685 GUAKDIAN AND WARD. § 567 Uoatana. — Same. Comp. Stats., p. 373, sec. 400. Nevada. — The first sentence omits the following: "Or failed, for thirty days, to render an account or make a return." The Efecond sentence adds the following: " And upon the death of any guardian," the court may appoint, etc. Otherwise section is the same. Gen. Stats., sec. 585. Oregon. — " When any guardian, appointed either by a testator or by the county court, shall become insane or otherwise incapable of discharging his trust, or evidently unsuitable therefor, the county court, after notice to such guardian, and to all others interested, may remove him; and every guardian, upon his request, may be allowed to resign his trust when it shall appear to the county court proper to allow the same; and upon every such resignation or removal, and also upon the death of any guardian, the county court may appoint another in his stead." Hill's Laws, sec. 2900. TTtali. — Same as California. Comp. Laws, sec. 4355. Washington, — "The court, in all cases, shall have power to remove guar- dians for good and sufficient reasons, which shall be entered of record, and to appoint others in their place or in the place of those who may die, who shall give bond and security for the faithful discharge of their duties as heretofore prescribed in this act; and when any guardian shall be removed or die, and a successor be appointed, the court shall have power to compel such guardian to deliver up to such successor all goods, chattels, moneys, title papers, or other effects belonging to such minor which may be in the possession of such guar- dian so removed, or of the executors or administrators of a deceased guardian, or of any other person or persons who have the same, and upon failure, to commit the party offending to prison until he, she, or they comply with the order of the court." Code Proc, sec. 1140. " The several superior courts shall have the power to remove any such guar- dian at any time, for neglect of duty, mismanagement, or of disobedience to any lawful order, and appoint another in his place, whereupon such guardian shall immediately settle his account and render to his successor the estate and effects of his ward." Code Proc, sec. 1173. Note. — The above section applies to guardians of estates of idiots and in- sane persons only. Wyoming. — Same as California, except that the words " or judge " are inserted after the word " court " each time it appears, and the following is omitted: "or failed, for thirty days, to render an account or make a return"; and the word "superior" is also omitted. Laws 1890-91, p. 315, sec. 2. i Tho power to discharge a guardian refuses through a period of several may be exercised by the judge at years to provide for their support and chambers, and as the act of the coart. education, is not a suitable person to And this power to finally discharge a have the management of their estate, guardian at chambers necessarily in- and should be removed from hia guar- cludes and implies the power to per- dianship: In re Swift, 47 Cal. 629. form at chambers any act preliminary Where a petition for the re- to this ultimate act of discharge: moval of a guardian presented no Warder v. ELkins, 38 Cal. 439. See fact showing that the guardian had also Cal. "Code Civ; Proc, sec 166. become incapable of discharging his A father who, as guardian of his trust concerning the estate of his minor children, receives an annual wards, or unsuitable therefor, or that income of two thousand dollars, and he had wasted or mismanaged tho §§ 568, 569 PROBATE LAW AND PRACTICE. 686 same, or had failed to render an ac- A newly appointed guardian is count or make a return, but simply a, necessary party on an appeal from contained facts in reference to the an order removing a guardian: In re care and attention bestowed by the ' Med,bury, 48 Cal. 83. guardian on the persons of his wards, The record must show that the or- it was held to be error for the court to der of removal was based on some one revpke the letters of guardianship in of thegroundaennmeratedintheabove such case:, In re Rose, 72 CaL 577. section: In re Eaynor, 74 Cal. 421. § 568. [1802.] Guardianship, how Terminated. — The marriage of a minor ward terminates the guardianship of the person of such ward, but not the estate; and the guardian of an insane or other person may be discharged by the court when it appears, on the application of the ward or otherwise, that the guardianship is no longer necessary. Termination of Guardianship of Insane: See § 546, ante. Arizona. — Same, except that the words "of the person of such ward, but not the estate," are omitted. Rev. Stats., sec. 1375. ' Idabo. — Same as Arizona. Kev. Stats., sec. 5822. Slontana. — Same as Arizona. Comp. Stats., p. 374, see. 401. Nevada. — Same as Arizona. Gen. Stats., sec. 586. Oregon. — " The marriage of any female who is under guardianship as a minor shall operate as a, discharge of her guardian." Provision relating to insane or other person same as California. Hill's Laws, sec. 2901, lltali. — Same as California. Comp. Laws, sec. 4356. Washington. — In case of the death of any such ward while under guar- dianship, the power of the guardian ahajl cease, and the estate descend and be disposed of in the same manner as if said ward had been of sound mind; the guardian shall immediately settle his accounts and deliver the estate and the effects of his ward to his legal representatives." Code Proc, sec. 1172. Wyoming. — Same as California, except that the words," or judge" are inserted after the word " court." Laws 1890-91, p. 315, sec. 3. § 569. [1803.] New Bond, when Required. — The court may require a new bond to be given by a guardian when- ever such court deems it necessary, and may discharge the existing sureties from further liability, after due notice given as such court may direct, when it shall appear that no injury can result therefrom to those interested in the estate, Arizona. — Same. Rev. Stats., sec. 1376. Idaho. —Same. Rev. Stats., sec. 5823. Kontana. — Same. Comp. Stats., p. 374, sec. 402. Nevada. — Same. Gen. Stats., sec. 587. " All the provisions of sections 80 to 89, inclusive, of the ' Act to regulate the settlement of the estates of deceased persons ' are hereby declared to apply to guardians appointed in pursuance of this act, and to the bonds taken 687 GUARDIAN AND WARD. §§ 570, 571' or to be taken from such guardians, and to the sureties on such bonds. '' Gen. Stats., sec. 556. Oregon. — Same as California to the word " after "; then as follows: " In the like case and upon the like terms as are prescribed with regard to execu- tors or administrators.'' Hill's Laws, sec. 2902. TTtah. — Same as California. Comp. Laws, sec. 4357. Washington. — " Sureties in the bond of any guardian may be discharged from liability therein, under the same rule and regulation prescribed for the discharge of the sureties in the bond of executors and administrators, and the provisions of this act regulating the same shall apply to guardians and guar- dians' bonds and sureties." Code Proc, sec. 1153. Wyoming. — Same as California, except that the words "or judge'' are inserted after the word " court " wherever the same occurs. Laws 1890-91, p. 315, sec. 14s The court has the power to take debtors does not extinguish the obli- a new bond and discharge the sureties gations of any of the others, the re? on the bond of a guardian previously lease of one of the sureties on the approved and filed, and the legal effect bond of a guardian, was a release of is, that the sureties on the bond first all; and if the contract of suretyship given are not responsible for emy de- was entered into prior to the enact- faults of the guardian occurring sub- ment of such section, and subsequently sequently to the date of the filing of one of the sureties is released, all are the new bond: Spencer v. HouglUori, released. The right of the co-sureties 6S Cal. 82. to be released under such contract is Prior to the adoption of section a v&sted right of which they could not 1543 of the Civil Code, providing that be deprived by subsequent legislation: the release of one o£ two or more joint Spencer v. HcmgMon, 68 Cal. 82. § 570. [1804.] Guardian's Bond to be Filed. — Every bond given by a guardian must be filed and preserved in the ofiice of the clerk of the superior court of the county; and in case of a breach of a condition thereof, may be prosecuted for the use and benefit of the ward, or of any person interested fti the estate. Arizona. — Same'. Bev. Stats., sec. 1377. Idaho. — Same. Rev. Stats., sec. 5824. Montana. — Same. Comp. Stats., p. 374, sec. 403. Nevada. — Same. Gen. Stats., sec. 588. Utah. — Same. Comp. Laws, sec. 4358. Washington. " All the provisions of chapter 5 of title 12, relative to bonds given by executors and administrators, shall apply to bonds taken of guardians." Code Proc, sec. 1141. .Wyoming. —Same as California, except thatthe word "superior "is omit- ted. Laws 1890-91, p. 316, sec. 5. §571. [1805.] Limitation of Actions on Guardian's Bond. — No action can be maintained against the sureties on any bond given by a guardian, unless it be commenced within § 572 PEOBATB LAW AND PBACTICK. 688 three years from the discharge or removal of the guardian; but if at the time of such discharge the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three years after such dis- ability is removed. Arizona. — Same. Rev. SUts., sec. 1373. Idaho. — Same. 'Rev. Stats., sec. 582.5. Montana. — Same. Comp. Stats., p. 374, sec. 404 Nevada. — Same. Gen. Stats., sec. 589. Oregon. — First part of section same, except phrase " or removal," which is omitted. The remainder of section provides that if at time of discharge the person is out of the state, the action may be commenced at any time within three years after his return to the state. Hill's Laws, sec. 2903. XTtah. — Same as California, except that "one " is substituted for "three " in the last clause. Comp. Laws, sec. 4359. Wyoming. — Same as California, except that "five" is substituted for " three '' wherever it occurs. Laws 1890-91, p. 31S, sec. 6. The court may make a final legal disability. The rights of such decree discharging a guardian and his persons are preserved until two (three sureties from all liabilities incurred or now) years after their disability ceases, to be thereafter incurred, except as to whether so expressed in the decree or liability to persons laboring under a not: RacouiUai v. Requena, 36 Cal. 651. § 572. [1806.] Limitation of Actions for the Recov- ery of Property Sold. — No action for the recovery of any estate, sold by a guardian, can be maintained by the ward, or by any person claiming under him, unless it is commenced within three years next after the termination of the guardian- ship, Jbr when a legal disability to sue exists by reason of minor- ity or otherwise; at the time when the cause of action accrues, within three years next after the removal thereof. Arizona. — Same. Rev. Stats., sec. 1379. Idaho. — Same. Rev. Stats., sec. 5826. Hontana. — Same. Comp. Stats., p. 374, sec. 405. Nevada. — Same. Gen. Stats., sec. 582. Oregon. — Same, except as to time, which is five years. Hill's Laws, sec, 3131. Utah. — Same as California, except that " one " is substituted for " three " in the last clause, Comp. Laws, sec. 4360. Wyoming. — Same as California, except that the word " five " is substi- tuted for the word " three " wherever the same occurs. Laws 1890-91, p. 316, sec. 7, The above section only applies the probate courts of this state: Mo to sales by guardians appointed by Neil v. First Cong.- Soc, 66 Cal. 105. , 689 GUAKDIAN AND WARD. §§ 573-575 § 573. [1807.] More than One Guardian of a Per- son may be Appointed. — The court, in its discretion, whenever necessary, may appoint more than one guardian of any person subject to guardianship, who must give bond and be governed and liable in all respects as a sole guardian. Arizona. — Same. Rev. Stats., sec. 1380. Idaho. — Same. Rev. Stats., sec. 5827. Montana. — Same. Comp. Stats., p. 374, sec. 406. Nevada. —Same. Gren. Stats., sec. 596. XTtall. — Same. Comp. Laws, sec. 4361. Wyoming. — Same, except that the words "or judge "are inserted after the word "court." Laws 1890-91, p. 316,'seo. 8. § 674. [1808.] Order a Decree of Court. — Any order appointing a guardian must be entered as and become a decree of the court. The provisions of this title relative to the estates of decedent, so far as they relate to ike practice in the supe- rior court, apply to proceedings under this chapter. Arizona. — Same. Rev. Stats., sec. 13SI. Idaho. — Same. Rev. Stats., sec. 5828. Montana. — Same. Comp. Stats., p. 375, sec. 407. Utah. — Same. Comp. Laws, sec. 4362. Wyoming. — Same. Laws 1890-91, p. 316, sec. 9, § 575. [1809.] What Provisions Apply to Guar- dians. — The provisions of section 1057 are hereby declared to applv to guardians appointed by the court, and to the bonds taken or to be taken from such guardians,*and to the sureties on such bonds. Arizona. — Same. Rev. Stats., sec. 1382. Idaho. — Same. Rev. Stats., sec. 5829. Montana. — Same. Comp. Stats, j p. 375, sec. 408. TTtah. — Same. Comp. Laws, sec. 4363. Washington. — See § 583, anle. Wyoming. — " All bonds required as provided for by this act may be approved by the clerk of the district court wherein the same are required to be filed." Laws 1890-91, p. 317, sec. 1. Sickness or absence ofjvdge. "Whenever any judge of the district court is absent from the state, sick ori otherwise unable to attend to the duties of his office as by this act provided, from any cause, any other one of the district judges may,/upon application at his residence, examine into all matters, make all orders, and direct the affairs of the administration of estates that are required to be performed by judges 41 § 575 PROBATE LAW AND PRACTICE. fi90 in vacation, aud shall have the same powers as the original judge therein would have." Laws 1890-91, p. 317, sec. 2. Law not retrospective. "V" All probate proceedings now pending in any court shall be carried on to final settlement and determination without change ia form of procedure as to what has heretofore been done, and all such proceedings in such causes here- after done shall be under and according to the existing law," Laws 1890-91, p. 317, sec. 3. Dejinition. ' "Wherever .... the probate judge or probate court is mentioned, the same shall mean and refer to the district court, or judge thereof." Laws 1890-91, p. 317, sec. 4. ' • Gkrh to act as commissioner when. "Until a court commissioner is by law created, the duties of this act pre- scribed for such court commissioner shall be performed by the clerk of the district court." Laws 1890-91, p. 318, sec. 5. 691 APPEALS. § 576 CHAPTER XX. APPEALS, § 576. Appeals, § 577. Appeals, when may be taken. § 578. Executors and administrators need not give bond. § 579. Acts of administrator not invalidated when. §576. [57.] Appeals. — Appeals in probate proceedings shall be given preference in hearing in the supreme court, and be placed on the calendar in the order of their date of issue, next after eases in which the people of the state are parties. Cal. Stats. 1887, p. 82. lloiitana. — "In all cases an appeal may be taken from any order, judg- ment, or decree of the probate courts to the district court." Comp. Stats., p. 42, sec. 1932. "Appeals from the probate court shall be brought to a hearing at the earliest period practicable. For the failure to prosecute an appeal or unneces- sary delay in bringing it to a hearing, the district court may order the appeal to be dismissed." Comp. Stats., p. 181, sec. 447. ' Nevada. — "Appeals shall be cognizable at the next term of the district court which shall be holden after the expiration of twenty-four days after such appeal shall have been perfected." Gen. Stats., sec. 2968. " Upon such appeal being perfected, and upon the clerk of said court bfeing paid the fees allowed him by law for the services herein required of him, he shall immediately transmit to the clerk of the district court, under his official seal, a transcript of the record, proceedings, and all papers relative, to the cause appealed from." Gen. Stats., sec. 2969. " The court above may reverse or affirm, in whole or in part, the sentence or proceeding appealed from, and may make such decree or order thereon as the judge of the private court should have made, and shall remit the case to the court from whence it came for further proceedings, unless such reversal or affirmance be appealed from, as hereinafter provided." Gen. Stats., sec. 2970. " If, upon hearing an appeal' in the district court, any question of fact shall occur that is proper for a jury to try, the court shall, upon application, cause it to be tried by a jury upon such issue of fact, to be formed under the direc- tion of the court.'' Gen. Stats., sec. 2971. " If the decision be affirmed, the district court shall award costs, to be paid by the party appealing, either personally or out of the estate of the deceased, as he shall direct. If the decision be reversed, costs shall, in like manner, be awarded against the party maintaining the decision of the probate judge or § 577 PROBATE LAW AND PRACTICE. 692 court, either personally or out of the estate o£ the deceased." Gen. Stats., ■ec. ^972. "Such alErmanoe, or such reversal, shall be certified to the probate court or judge, whose decision was appealed from, by the district court, with the award of costs made by him. Such probate court or judge shall enforce the payment of the costs so awarded, in the same manner as if such' award had been made by him." Gen. Stats., sec. 2973. " Any person interested in, or affected by, and aggrieved by the decision of the district court, affirming, reversing, or modifying the decision, sentence, or order of the probate court or judge, may, in »11 cases where the amount in- volved exceeds one thousand dollars, exclusive of costs, appeal to the supreme court of this territory." Gen. Stats., sec. 2974. "The appeal provided for in the preceding section maybe taken within twenty days after the order, decree, or judgment is made and entered in the minutes of the court. It shall be made by i&ling with the clerk of the district court a notice, stating the appeal from the order, decree, or judgment, or some specific part thereof, and by executilig an undertaking, or giving surety on such appeal in the same manner and to the same extent as upon other appeals to the supreme court from the district court." Gen, Stats., sec. 297S. "If a party who has a right to appeal to the supreme court wishes a state- ment of the case to be annexed to the record, he shall prepare and file the same within five days after the entry of the order, judgment, or decree." Gen. Stats., sec. 2976. "Upon an appeal from the district court, as hereinbefore provided, the appellate court may reverse, affirm, or modify the judgment, order, or decree appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and shall certify the same to the district court appealed from." Gen. Stats., sec. 2977. Escheat. "Any party who shall have appeared to any proceedings, ^ as aforesaid, [escheats. — Ed.] and the attorney-general, in behalf of the territory, shall, re- spectively, have the same right to prosecute an appeal or writ of error, upon any judgment as aforesaid, as parties in other cases." Gen.' Stats., sec. 2995. §577. [963.] Appeals, when may be Taken. — An appeal may be taken to the supreme court, from a superior court, in the following cases: .... 3. From a judgment or order granting, refusing, or revoking letters testamentary, or of administration, or of guardianship; or admitting or refusing to admit a will to probate; or against or in favor of the validity of a will, or revoking the probate thereof; or against or in favor of setting apart property, or making an allowance for a -widow or child; or against or in favor of directing the partition, sale, or conveyance of real property; or settling an account of an executor, or administrator, or guardian, or refus- 693 APPEALS. ' §67'^ ing, allowing, or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy, or distributive share; or confirming or refusing to con- firm a report of an appraiser setting apart the homestead. Subdivisions 1 and 2 of the above section do not apply to probate cases: See Ja re Calahan, 60 Cal. 232; In re Dean, 62 Cal. 013. For manner of taking appeals, see Cal. Code Civ. Proc, sees. 1402-1451. Arizona. — "Any person who may consider himself aggrieved by any de- cision, order, decree, or judgment of the probate court shall have the right to appeal therefrom to the district court of the county upon complying with the provisions of this chapter." Rev. Stats., sec. 1298. " He shall, within twenty days after such decision, order, judgment, or decree shall have been rendered, file with the clerk of the probate court a bond, with two or more good and sufficient sureties, payable to the territory of Arizona, and to be approved by the clerk, conditioned that the appellant shall prosecute said appeal to effect, and perform the decision, order, decree or judgment which the district court shall make thereon, in case the cause shall be decided against him." Kev. Stats,, sec. 129% Idaho. — Same as California. Rev. Stats. , sec. 4831 . Houtana. — "An appeal may bd taken from a probate court to the dis- trict court of the district in which the probate court is held, in the following cases: 1. From an order or decree admitting a will to probate or refusing the same; 2. From an order setting apart property or making an allowance for the widow or children; 3. From an order granting letters testamentary or of administration, or appointing a guardian of an infant or of an insane person, or of a person incompetent to manage his property, or refusing to grant such letters or to make such appointment, or making such letters of appointment; 4. From an order directing the sale or conv^auce of real property; 5. From an order or decree by which a debt, claim, legacy, or distributive share is allowed, or payment thereof directed, or by which such allowance or dijection is refused; 6. From an order made on the settlement of an executor, admin* istrator, or guardian." Comp. Stats., p. 181, sec. 445. "The appeal shall be taken within thirty days after the order or decree appealed from is entered with the clerk." Comp. Stats., p. 181, sec. 446. "In cases other than those provided for in section 445 [supra], any party feeling aggrieved by the judgment of the probate court in any civil action may appeal therefrom to the district court for the county in which said probate conrt is held, or to which it may be attached tor judicial purposes. The party appealing shall be known as the appellant, and the adverse party as the re- spondent." Comp. Stats., p. 181, sec. 448. "All appeals taken by virtue of the provisions of the last section shall be perfected within thirty days from the rendition of the judgment' appealed from, and shall be tried de novo in said district court." Comp. Stats., p. 181, sec. 449. "The appeal shall be taken by filing with the clerk of the court in which the judgment appealed from is entered, or with the judge of said court if § 577 PROBATE LAW AND PRACTICE. 694 there be no clerk, a notice stating the appeal from the same, and serving a copy of such notice upon the adverse party or his attorney.'' Comp, Stats., p. 181, sec, 450. "The party appealing shall file with the judge or clerk of said court, within five days from the filing of the notice of appeal, as provided in the last sec- tion, an undertaking in double the amonnt of the judgment appealed from, or if the judgment be for the recovery of specific personal property, in double the value of such property, with at Jeast two sufiBoient sureties, and conditioned that the party appealing will pay any judgment that may be rendered against him in the district court, as well as all costs that may be awarded against him, and for the prosecution of such appeal with effect." Comp. Stats., p. 182, sec. 451. "If the party appealing be the party in whose favor judgment was ren- dered, he shall likewise execute and file an undertaking as aforesaid, in a sum equal to double the amount of the costs in the case,_ conditioned to pay all costs that may be adjudged against him, and for the prosecution of such ap- peal with effect." Comp. Stats., p. 182, sec. 452. " The undertaking provided for in the two preceding sections shall be accompanied by the afiSdavit of the sureties that they are residents of the county, and householders or freeholders thereof, and each worth the amount specified in the undertaking over and above their debts, liabilities, and prop- erty by law exempt from execution; but several sureties may state that they are worth less than the amount mentioned in the undertaking besides such exenjptions, if the whole amount equals the amount of two sufficient sureties." Comp. Stats., p. 182, sec. 453. " Within ten: days after filing the notice of appeal and undertaking provided for in the preceding sections, and payment of fees therefor, the said judge or clerk of said court shall make a full and complete transcript from the docket of all proceedings had in said action, and transmit the same, together with the complaint, answers, motions, pleadings, and all other papers pertaining to or belonging to said cause, to the clerk of said district court," Cbmp. Stats., p. 182, sec. 454. "If any execution shall have been issued upon a judgment appealed from, the judge or clerk of said court, upon receiving the notice and undertaking as hereinbefore provided, shall issue an order directing the officer having such execution in his possession, or charged with the executiou of the same, to stay all proceedings thereunder. Such officer, upon the payment of his fees for ser- vices rendered on such execution, shall thereupon retinquish all property levied upon by him, and deliver the same, together with all money collected from aales or otherwise, to the judgment debtor." Comp. Stats., p. 182, sec. 455. "If the party appealing to the district court, as provided in this act, shall fail to reduce or enlarge the judgment appealed from ten dollars or more, or revise the same' in said district court, he shall not recover any of the costs of appeal." Comp. Stats., p. 18.S, sec. 456. "That all appeals taken by virtue of this act shall be tried in the district court upon the papers in the cause as if the same had originally been insti- tuted in said court, unless said court, upon such terms as may be just, allow 695 APPEALS. § 577 other papers to be filed therein, and both appellant and respondent shall have the benefit of objection taken in said probate court.. " Comp. Stats., p. 183, aec 457. "That the sherifis of the different counties of this territory are charged with the execution of process issued from said probate court in like manner as pro- vided for in cases in the district court, for which services they shall receive fees as provided by law." Comp. Stats., p. 183, aec. 458. The above sections, from 445 to 458, inclusive, compose chapter 3 of title 40, Civil Code of Montana, relating to appeals from probate to district courts. Nevada. — "If any person interested in or to be affected by, and who shall be aggrieved by, any order, allowance, sentence, decree, or denial of any pro- bate court or judge, or any other act in his official capacity, may appeal there- from to the district court of the judicial district in which said probate court is held." Gen. Stats., sec. 2966. Oregon. — "The provisions of title 4 of chapter 6, relating to appeals, are in- tended to apply to judgments and decrees of the county court in all cases, but not to its decisions given or made in the transaction of county business. In the latter case, the decisions of the court shall only be reviewed upon the writ of review provided by this code. " Hill's Laws, sec. 902. Utah. — " And from the judgments of the probate courts, an appeal shall lie to the district court of the district embracing the county in which such probate court is held in such cases and in such manner as the supreme court of said territory may by general rules framed for that purpose specify and designate, and such appeal shall vacate the judgment appealed from, and the case shall be tried de novo in the appellate court. Appeals may be taken from .... probate courts to the district court of their respective districts in cases where judgments have been heretofore rendered and remain unexecuted; but this provision shall not enlarge the time for taking an appeal beyond the periods now allowed by the existing laws of said territory for taking appeals, " Ex- tract from U. S. Rev. Stats., sec. 1907. See 1 Comp. Laws, 104. Washington. — " Except as otherwise provided in this section, any party aggrieved may appeal to the supreme court from the superior courts in all ac- tions and proceedings." The exceptions do not apply to probate proceedings. Code Proc, sec. 1402. " In civil actions and prooeedings,\ appeals shall be prosecuted within six months after the rendition of the decision, order, or judgment complained of." Code Proc, sec. 1403. The following orders are ap- Cal. 480; settling a final account and pealable, viz. : Order dismissing a pe- decreeing distribution: Dean v. Su- tition to have an administrator show perior Court, 63 Cal. 473; decreeing cause why an allowed claim should a partial distribution: In re KeUey, not be paid: In re McKinky, 49 Cal. 63 Cal. 106; but an executor who is a 152; an order setting apart a home- legatee cannot, in his capacity of ex- stead: In re Burns, 54 Cal. 223; deny- ecutor, appeal from such decree: In re ing a contestant's motion for a new Marrey, 65 Cal. 287; directing or re- trial in the matter of a contest for the fusing to direct a conveyance of real probate of a will: In re Doyle, 73 Cal. estate by an executor or administrator 564; settling an account: In re Sander- under §§ 235 et seq., ante: In re Conm, eon 74 Cal. 199; In re Couts, 87 61 CaL 160; directing a resale of real §577 PROBATE LAW AND PEACTICH. 696 property: In re Boland, 55 Cal. 310; directing a sale of real estate: In re StuUmeister, 71 Cal. 322; authorizing administrator to mortgage realty: In re McConnell, 74 Cal. 217.; directing the payment of an attorney for services rendered: Stuttmieiater v. Swperior Cmrt, 72 Call 487. An appealable order cannot be reviewed on an appeal from a subse- quent order: In re Burns, 54 Cal. 223. An appeal from order admitting will to probate stays proceedings: In re Cunningham, Myr. Proli. 214. Order appointing ^ardian of minor is appealable. The appellate court will not entertain jnrisdietion of appeal from order refusing to revoke that order: In re Get Young, 90 Cal. 77. ' Order denying a new trial is ap- pealable, where an issue arises upon objections by the legatee to the ap- pointment ,as executor, of one named in the will as such, and a trial is had resulting in a denial of her applica- tion : In re Bavquier, 88 Cal. 302. Appeals can only be taken from such judgments or orders in probate proceedings as are men- tioned in section 963 of the Code of Civil Procedure: In re Moore, 86 Cal. 58. An interlocutory order settling tbe account of an administrator, but not discharging him from his trust, is not a finE^ judgment, within the meaning, of section 939 of the Code of Civil Procedure, although in the form of findings and decree; but such order is appealable, and brings up for re- view all the proceedings leading to it, and the evidence upon which it was based, though the appeal be not taken within sixty days after the signing and filing of the findings and decree: In re Base, 80 Cal. 166. The remedy is by appeal, if a decree for final distribution is errone- ous as to the law or the facts; such error Js not ground for relief in equity against the decree: Daly v, Pennie,'86 Cal. 553. An order requiring one who has been appointed guardian of the estate of a minor, but who has never given bonds, to pay tor the maintenance of the minor, when it is not shown that he has received any property of the minor by virtue of hi« appointment, is erroneous;- but the order is one from which an appeal may be taken; therefore a writ of prohibi- tion will not lie to prevent the court from enforcing the order: Murphy v. Superior Court, 84 Cal. 592. The following orders are not appealable, viz.: Order refusing to remove an administrator, etc.: In re Montgomery, 55 Cal. 210; In re Keane, 56 Cal. 407; In re Moore, 68 Cal. 394; refusing to set aside an ordor of distri- bution and settlement of accounts: In re Lutz, 67 Cal. 457; setting aside an order of distribution: In re Dean, 62 Cal. 613; In re Catahan,eO Cal. 232; setting aside an order allowing an ac- count: In re Calahan, 60 Cal. 232; In re Dunne, 53 Cal. 631; refusing to quash an execution: Blum v. Brown- stone, 50 Cal. 293; refusing to direct clerk to pay to special administrator a sum allowed the latter: In re Poten, 12 Cal. 576; refiisiug to set aside an order of sale: In re Smith, 51 Cal. 563; setting aside a prior judgment of the same court refusing to admit a will to probate: PerqUa v. Castro, 15 Cal. 511; Johnson v. Tyson, 45 Cal. 257; dismissing a petition for revocation bl probate of a will: In re Sbarboro, 70 Cal. 147; denying motions to set aside orders and decrees made in the matter of the probate of a will: In re Sbarboro, 70 Cal. 147. Denying a new trial, made upon a motion to revise or vacate an unappealable order; In re Keane, 56 Cal, 407; appointing special administrator: In re Carpenter, 73 Cal. 202; see § 93, ante; directing executor to proceed and sell real estate in accordance with the original order of sale: In re Martin, 56 Cal. 208; Stuttmeister v. Superior Court, 71 Cal. 322. An appeal from a probate or- der, decree, or judgment, or from some spsciiic part thereof, is taken in the same manner as other appeals to the supreme court: In re Boioen, 34 Cal. 682. The petition and account are a part of the record on an appeal from a decree settling the account, without being made so by a bill of exceptions or a statement: In re Isaacs, 30 Cal. 105. If the final account of an execu- tor or administrator be disapproved by the court, he may either appeal 697 APPEALS. §577 from the decree disallowing the lame, or file another account which shall meet the objections of the court: Ros- ter V. Moral, 19 Or. 181. The provisions of law relating to appeals on a statement or bill of exceptions apply to probate proceed- ings: In re Boyd, 25 Cal. 311. Evidence in a probate proceed- ing will not be reviewed unless it is embodied in a statement on appeal: In re Arnaz, 45 Cal. 259. The heirs, devisees, or legatees of an estate are parties to a pro- ceeding for a distribution, and any of them feeling aggrieved may appeal from the final order; but the executor cannot appeal from such order on the ground that the property was im- properly divided: Bales v. Bybergt 40 (Jal. 463; In re Wrigkt, 49 Cal. 550. On an appeal fron an order removing a guardian, and appoint-- ing another in his place, taken by the guardian removed, the new guardiaa is a necessary party: In re Medbury, 48 Cal. 83. Order compelling administra- trix to allow her name to be used by a creditor of the estate, in a suit to set aside a conveyance of the decedent as having been made to defraud his creditors, is not appealable: In re Ohm, 82 Cal. 160. Final orders in special probate proceedings are not appealable as final judgments entered in a special proceeding, when not included in the enumeration of appeals allowed in pro- bate matters contained in California Code of Civil Procedure, sec. 963, subd. 3 (§ 590, ante): In re Ohm, 82 Cal. 160. Where a testator appointed his widow trustee of his estate, and in case of her death, before certain other trustees, named in the will, be- came of age, then the trust to devolve upon his son, and the widow volun- tarily renounced her trust in court, and consented to the appointment by the court of her son as trustee, and upon the application of the widow and a minor trustee, such order is vacated, no appeal will lie from the order va- cating the order of substitution, such order not being one of those enumer- ated in section 963 of the California Code of Civil Procedure (§ 690, anU): In re Moore, 86 Cal. 58. Order refusing to vacate decree of distribution is not appealable, and such appeal will be dismissed by the supreme court of its, own motion, though the objection be not made by the respondent: In re Wiard, 83 Cal. 619. The wife separated from her husband by agreement is not° a "party aggrieved" by the action of the court in refusing, upon her petition, to arrest all proceedings and to vacate its order of distribution and discharge of the executors, though her petition state under oath that a large part of the deceased husband's estate has been concealed and withheld from adminis- tration, and she has no right to appeal from the order refusing to grant her petition: In re Noah, 88 Cal. 468. An appeal from a decree of dis- tribution will be dismissed, where it appears that the appellants had re- ceived payment in full of the distribu- tive shares allotted to them by the decree: In re Baby, 81 Cal. 200. An appeal wUl not lie from an order of a judge rejecting a claim against au estate: Wilkins v. Wilkina, 1 Wash. 87. XTpon an appeal by claimants of an estate from an order requiring the administrator to pay a family al- lowance to another claimant, who has been declared to be the adopted child and sole heir of the deceased, an un- dertaking in the sum of three hundred dollars, given as required by section 941 of the California Code of Civil Procedure, stays proceeding upon the qrder appealed from: Pennie v. Superior Court, 89 Cal. 31. An order made after apx>eal has been perfected, directing the administrator to make the payment, is beyond the jurisdiction of the court, and will be annulled upon certiorari: Pennie v. Superior Court, 89 Cal. 31; i An appeal from a dbcree refusing to set aside a homestead inust be taken within sixty days after the entry of the decree: In re Harland, 64 Cal. 379; In re Burf^n, 64 Cal. 428. A decree of distribution will not be reviewed on an appeal by an execu- tor or administrator, where he, a^ such, has no interest in the matter sought to be reviewed: Merrijield v. Langmire, 66 Cal. 180. On an appeal by a legatee from a decree of distribution, the execution of the undertaking provided for by §577 PROBATE LiW AND PRACTICE. California Code of Civil Procedure, sec. 941, to the effect that the appel- lant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding three hundred dollars, stays proceedings upon the judgment ap- pealed from: In rs Schedel, 69 Cal, 241. An order from which an appeal can be taken is to be treated as final, and is conclusive of the matter therein determined: In re Stott, 52 Cal. 403. A notice appealing from all orders made by the court in a probate proceed- ing on a certain day is a sufficient ap- peal from any appealable order made on that day: In re Pacheco, 29 Cal. 224. On appeal it will be assumed that the probate court had jurisdiction of a controversy where all the parties are before the court, and themselves so assume the facts to hb: In re Apple, 66 Cal. 432. When an error is made which injures no one the judgment will not be, reversed on appeal: /» re Miner, 46 Cal. 665. If th.e court direct a resale of real property which had been pre- viously sold and confirmed, the pur- chaser is a party aggrieved, and may appeal from the order under the above section and under California Code of Civil Procedure, see. 938: In re Bo- land, 55 Cal. 310. Judgment annulling and revoking the will a9 to contestant, and adjudg- , ing that conteiitant is not bound by the will, and that she shall take the same share as if decedent had died in- testate ia void, and cannot be reviewed on appeal, although, it is stipulated that no exception shall be taken to its form: In re Freud, 73 Cal. 555. All appeals from the probate court must be taken to the dis- trict court: In re Roddick, 1 AxW^ 41 1. An appeal lies to the district court from an order of the probate court settling an account, and brings the whole case for review by the ap- pellate court, and it has power to make any order in the case which the probate court might make: Broad- water V. Siclutrds, 4 Mont. 52. From summary proceedings of a probate court determining charges of waste against an administrator, an appeal is not allowed: Deer Lodge Co. V. Kohrs, 2 Mont. 66. Upon an appeal from an order con- firming a sale of realty, the district court may inquire into any competent matter affecting the acts or authority of the administrator, including the proper constitution of the court itself, and qualification of the judge thereof: Broadwater v. Bichards, 4 Mont. 80. A territorial , law providing for an appeal to the supreme court was in coufiict with sections 1869 of the Revised Statutes of the United States, and is therefore null and void, and be- ing so did not becpme a law under the state government subsequently organ- ized: In re McFarland, 10 Mont. 445. An order of the district court is appealable in probate matters enu- merated in section 445 of the Montank Code of Civil Procedure, if it is a final 'determination of the rights of the par- ties within the meaning of said code relating to appeals in civil actions: In re McF^rlnnd, 10 Mont. 445. Appeals in probate matters from the determination of district courts are now taken under the provisions of subdivision 1 of section 421 of the Montana Code of Civil Procedure, al- - lowing appeals from a final judgment in an action or special proceeding within one year from the entry of judgment: In re McFarland, 10 Mont. 445. An administrator, as such, cannot appeal from an order entering a decree of distribution: In re Dewar, 10 Mont. 422. Special Administrator — Public administrator — Rights of — Prefer- ence: Muiphy V. Judge etc., 10 Mont, 401. An appeal in probate to the terri- torial appellate court, perfected prior to adoption of state constitution, is not ousted by a constitution abolishing probate courts, and transferring mat- ters pending therein to such appellate court for the exercise of original juris- diction: In re Dewar, 10 Mont. 426. An administrator may appeal in the same proceeding from an order of court sustaining objection to a final account, and also from an order enter- ing a decree of distribution. An ob-. jection that thereby two separate ac- tions have been united in one appeal is not tenable, as such orders are not actions in a legal sense : In re Dewar, 10 Mont. 422. 699 APPEALS. § 578 § 678. [965.] Executors and Adxainistrators not to Give Undertaking on Appeal. — When an executor, ad" ministrator, or guardian, who has given an oflBcial bond, appeal^ from a judgment or order of the superior court made in the proceedings had upon the estate of which he is executor, ad- ministrator, or guardian, his oflEicial bond shall stand in the place of an undertaking on appeal; and the sureties thereon shall be liable as on such undertaking. Arizonci- — "When an appea,! is taken by an executor or administrator, no bond shall be required, unless such appeal personally concern him, in which case be must give the bond." Kev. Stats., sec. 1300. " When the party who desires to appeal is unable to give the appeal bond, it shall be sufficient if he file with the probate clerk, within the time prescribed for giving such bond, an affidavit in writing that he has made diligent efforts to give such bon^d, and is unable to do so by reason of his poverty, and such affidavit shall operate a perfection of the appeal in respect to the matter of costs." Rev. Stats., sec. 1301. "Upon such appeal bond or affidavit being filed in the probate clerk's of- fice, it shall be bis duty immediately to make out a certified transcript of the papers and proceedings relating to the decision, order, judgment, or decree, and transmit the same to the clerk of the district court, together with the appeal bond or affidavit that has been made in lieu of such bond, on or be- fore the first day of the next term of such court." Rev. Stats., sec. 1302. " In case the clerk of the probate court shall be unable, for want of time, to make out such transcript before the first day of the next term of the district court of the county after such appeal is taken," then such transcript shall be transmitted to the next succeeding term of such district court.'" Rev. Stats., sec. 1303. "When the transcript and appeal bond or affidavit have been received by the clerk of the district court, he ^lall file and number the same, and enter the case upon the civil docket of such court, to be called and disposed of in its regular order." Rev. Stats., sec. 1304. " All causes removed by appeal to the district court shall be tried anew as if originally brought in such court, and if no appearance is entered upon the docket for the appellee, the cause shall proceed to trial in its regular order upon the docket as if both parties were present." Rev. Stats., sec. 1305. " When the judgment of the district court hafi been rendered, a certified copy thereof shall forthwith be transmitted by the clerk of the district court to the clerk of the probate court from which the case was appealed, for the observance of such court, and the clerk, of the probate court, upon receiving such certified copy of judgment, shall file the same, and record it upon the minutes of the court, and note upon the docket, and the probate judge shall make such order as may be necessary to the enforcement of such judgment." Eev. Stats., sec. 1306. Idabo. — Same. Rev. Stats., sec. 4832. § 579 f EOBATB LAW AND PEACTICB. 700 Nevada. — "The appeal may be taken within twenty dayg after the order, allowance, sentence, decree, denial, or any other official act of the probate court, or judge, is made and entered in the minutes of the court. It shall be made by filing with the clerk of the probate court a notice stating the appeal from the order, decree, judgment, sentence, or allowance, or some specific part thereof, and by executing an undertaking in the same manner and to the same effect as npon appeal from the district court to the supreme court." Gen. Stats., sec. 2967. " The appeal of an executor or administrator to the district court, or to the supreme court, as herein provided for, who has given an official bond, shall be complete and effectual without the undertaking hereinbefore required." Gen. Stats., sec. 2979. XTtali. — " The court below may, in its discretion, dispense with or limit the security required by this chapter, when the appellant is an executor, adminis- trator, " etc. Comp. Laws, sec. 3642. Failiure to file undertaking on An appeal from an order of appeal from order revoking letters of distribSition by an executor of a administration is an omission for which deceased heir does not entitle such ex- the appeal will be dismissed, although ecutor to claim the benefit of section it appears from the transcript that an 965 of the Code of Civil Procedure, as order was made dispensing with the to bonds on appeal, the appeal not security: In re Damelson, 88 Cal. 480. being from an order made in the set- An appeal by an administra- tlement of the estate of which he is tor from order revoking his letters executor. To entitle such executor to is not a proceeding had upon an estate the benefit of section 946 of the same of which he is administrator, nor is he code, an order must be made dispens- acting in the right of another in tak- ing with the bond within the time iiig such appeal: In re Danielson, 88 allowed for filing the bond: In re Cal. 480. SherreU, 80 Cal. 62. § 579. [966.] Acts of Acting Administrator, etc., not Invalidated by Reversal of Order Appointing Him. — When the judgment or order appointing an executor, or administrator, or guardian, is reversed on appeal, for error, and not for want of jurisdiction of the court, all lawful acts in administration upon the estate performed by such executor, or administrator, or guardian, if he have qualified, are as valid as if such judgment or order had been afiBrmed. Idaho. — Same. Rev. Stats., sec. 4833. Nevada. — " When an order or decree appointing an executor or admin- istrator or guardian shall be reversed on appeal, all lawful acts in administra- tion upon the estate performed by such executor, administrator, or guardian, if he shall qualify, shall be as valid as if such order or decree had been affirmed. When any executor or administrator resigns, or is removed, a suc- cessor may be appointed, it a necessity therefor exists, without again prov- ing the death and residence of the testator or intestate." Gen, Stats., sec, 2980. Utah, — Same as California. Comp. Laws, sec. 1003. 701 ADOPTiox. § 580 CHAPTER XXL ADOPTION. § 530. Child may be adopted. § 581. Who may adopt. § 6S2. Consent necessary. § 583. Same. § 584. Consent of child. § 685. Proceedings on adoption. § 586. Order of adoption. § 587. Effect of adoption. § 588. Effect on parents. § 589. Adoption of illegitimate child. § 580. [221.] Child may be Adopted. — Any minor child may be adopted by any adult person in the cases and subject to the rules prescribed in this chapter. Arizona. — Same. Rev. Stats., sec. 1383. Idaho. — Same. Rev. Stats., sec. 2545. montana. — Same. Comp. Stats., p. 587, flee. 1. " Whenever It shall be made to appear to the satisfaction of the probate court of any connty that any minor child has been deserted by its parents, or surviving parent, and that it has no legal guardian, it shall be lawful for any person desirous of adopting the said child to adopt the same according to lave. " Comp. Stats., p. 59t, sec. 20. Nevada. — " Any minor child may be adopted by any adqlt person, or by any husband and wife, in the cases and subject to the provisions prescribed ii this act." Stats. 1885, pp. 29, 30, sec. 1. See also Stats. 1885, sec. 4, nnder § 596, post. Oregon. — " Any inhabitant of this state may petition the county conrt in the connty of his residence for leave to adopt a child not his own, and if de> sired, for a change of the child's name; but the prayer of such petition by a person having a husband or wife shall not be granted unless the husband or wife joins therein.'' Hill's Laws, sec. 2937. "If, in a petition for the adoption of a child, a change of the child's name is req^ueated, the court, upon decreeing the adoption, inay also decree such change of name, and grant a certificate thereof, without the notices req^uired by the preceding section." Hill's Laws, sec. 2949. The preceding section mentioned above is under § 596, post, Washington. — See next section. Wyoming. — See next section; also Rev, Stats., sec. 1274, under § 598, post. §§ 581, 582 PROBATE LAW AND PRACTICE. 702 §581. [222.] Whomay Adopt.— The person adopting a child must be at least ten years older than the person adopted. Arizona. — Same. Rev. Stata., sec. 1384. Idaho. — Same, except that the age is fifteen yeilrs. Rev. Stats., sec. 2546. Montana. — Same as California. Comp. Stats., p. 587, sec. 2. Xevada. — "The person or persons adopting a child must be at least ten years older than the child adopted; provided, that in the case of a husband and wife adopting a child, if only one of them shall be ten years older than the child, it shall be sufficient." Stats. 1885, pp. 29, 30, sec. 1. See also Stats. 1885, p. 30, sec. 3, under next section. "The provisions of this act shall not apply to any Mongolian, either as the adopting or adopted party." Stats. 1885, p. 31, sec. 10. Washington. — " Any inhabitant of this state not married, or any hus- band and wife jointly, may petition the superior court of their proper county for leave to adopt a minor child, not theirs by birth, and for a change of name of said child." Gen. Stats., see. 1418. Wyoming. — " Any person may appear before the judge of probate of the county where he or she resides, and offer to adopt any minor child as his or her own; promded, such minor, and his or her parents, if living, or guardian, if any, or county commissioners, as hereafter provided, shall appear and con- sent to such adoption." Rev. Stats., sec. 2275. § 583. [223.] Consent Necessary. — A married man, not lawfully separated from his wife, cannot adopt a child with- out the consent of his wife; nor can a married woman, not thus separated from her husband, without his consent, provided the husband or wife, not consenting, is capable of giving such con- sent. Managers of orphan asylums may give consent when. Cal. Stats. 1877-78, p. 963, sec. 1. Arizona. — Same. Rev. Stats., sec. 1385. Idaho. — Same. Rev. Stats., sec. 2547. BEontana. — Same. Comp. Stats., p. 587, sec. 3. Nevada. — "A married man not lawfully separated from his wife, or a married woman not thus separated from her husband, cannot adopt a child without the consent of the other spouse; provided, the husband or wife not con- senting is capable of giving such consent. " Stats. 1885, p. 30, sec. 3. Oregon. — Certain corporations may give consent when. Laws 1889, pp. 39-40. Washington. — "If the petition be filed by husband and wife, the court ^hall examine the wife, separate and apart from her husband, and shall refuse leave for such adoption, unless the court shall be satisfied from such exam- ination that the wife, of her own free will smd accord, desires such adoption," Gen. Stats., sec. 1419. Wyoming. — See Rev. Stats., sec. 2275, under § 588, ante. 703 ADOPTION. § 583 An orphan child cannot be adopted, part of the Civil Code, but provides if it has for the fieriod of one year been for the adoption of a class of minor supported wholly at the expense of an children not provided for by the code, orphan asylum, without the consent of The power to adopt minor children is the managers of the asylum, given in a creation of tlie statute, and the mode the same manner that parents are au- prescribed by it is the measure of the thorized to consent to the adoption of power and jurisdiction of the court to their children. The California act of decree an adoption: Ex parte Oham- 1878 does not repeal or amend any bers, 80 pal. 216. § 583. [224.] Consent Necessary. — A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery, or of cruelty, and for either cause divorced, or ad- judged to be an habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. Arizona. — Same; last clause omitted. Rev. Stats., sec. 1386. Idaho. — Same to and including "neglect"; then as follows: "If it can be shown satisfactorily to the judge that the parent or parents have aban- doned, or ceased to provide for its support, then it may be adopted by the written consent of its legal guardian. If no guardian, then its nearest rela- tive. If no relative, then by consent of some person appointed by the judge to act in the proceedings as next friend to such child." Rev. Stats., sec. 2548. Ifflontana. — Same as California; last clause omitted. Comp. Laws, p. 587, sec. 4. Nevada. — "A legitimate child cannot be adopted without the consent of its parents, if they be living and known, nor an illegitimate child without the consent of its mother, if she be living and known, and not without the con- sent of the father of such illegitimate child also, if he be living and known, and if he shall have adopted such illegitimate child as his own, by the acts and in the manner prescribed by section 9 of this act; pi'cmided, that such con- sent shall not be necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery, or cruelty, abandonment, or for either of said causes divorced, or adjudged to be an habitual drunkard, or has been judi- cially deprived of the custody of the child on account of adultery, drunken- ness, cruelty, or neglect; a7id provided further, that no child over the age of twelve years shall be adopted without his or her own consent in writing." Stats. 1885, p. 30, sec. 4. Oregon. — " The parents of the child, or the survivor of them, shall, except as herein provided, consent in, writing to such adoption. If neither parent is aVing, the guardian of the child, or if there is no guardian, the next of kin in this state, may give such consent; or if there is no next of kin, the court ibay § 583 PROBATE LAW AND PRACTICE: 704 appoint some suitable person to act in the proceedings as next friend of the child, and to give or withhold snch consent." Hill's Laws, sec. 29.S8. "If either parent is insane, or imprisoned in the state prison under a sen- tence for a term not less than three years, or has willfully deserted and ne- glected to provide proper care and maintenance for the child for one year next preceding the time of filing the petition, the court shall proceed as if snch parent were dead, and, in its discretion, may appoint some suitable person to act in the proceedings as next friend of the child, and give or withhold the consent aforesaid." Hill's Laws, sec. 2939. " If a parent does not consent to the adoption of his child, the court shall order a copy of the petition and order thereon to be served on him personally, if found in the state, and if not, to be published once a week for three succes- sive weeks in such newspaper printed in the county as the court directs, the last publication to be at least four weeks before the time appointed for the hearing. Like notice shall also be published when a child has no parent liv- ing, and no guardian or next of kin in this state. The court may order such further notice as it deems necessary or propen" Hill's Laws, sec. 2940. Certain corporations may give consent when. Laws 1 889, pp. 39, 40. Wyominif. — " Where both the parents of any minor child are dead, and there are no relatives of such minor known, or being unwilling to take charge of and assume control of such child, the county commissioners of the proper county, upon information or otherwise, may provide for the adoption oC such child in the same manner as the parent, if- living, .could under the provisions of this chapter. In any case of parents abandoning their children without providing for their support and education, the county commissioners shall have the same authority to act as in case of parents' death; provided, that if the residence of the parents is known, the county commissioners shall notify them to take away or provide for their children, and if the parents do not claim such children within three months after such notice is given, the county commis- sioners shall have authority to provide for the children's adoption as in caSe of parents' death, • or to bind them out to suitable persons under a written agreement for a certain number of years, a copy of such agreement to be approved and filed' with the probate judge of the county." Rev. Stats., sec. 2282. " Parents and relatives may reclaim their children after such action has been taken, by appearing before the judge of probate of the county and giving him satisfactory evidence of their ability, or bond for the support of such children in the future, and by paying into the county treasury the amount of expenses incurred by the county in caring for them, and paying the parties hiving adopted or taken them in charge a reasonable compensation for their support while in charge of such parties; provided, that such reclamation shall be made with the consent of the parties having adopted or taken "them in charge, and not otherwise." Rev. Stats., sec. 2283. When th.0 parents are living, of their child must be given, and is a and do not' belong to the excepted prerequisite to. jurisdiction: Furgee»n classes, their consent to the adoption v. Jones, 17 Or. 204. 705 ADOPTION. §§ 584, 585 §584. [225.] Consent of ChUd.— The consent of a child, if over the age of twelve years, is necessary to its adop- tion. Arizona. — Same. Bev. Stats., sec. 13S7. Idaho. — Same. Rev. Stats., sec. 2549. Btontana. — Same. Comp. Laws, p. 587, sec. 5. Oregon. — ^^Same, except that the age o{ child is "foarteen." Hill's Laws, sec. 2941. Washington. — "A written consent must be given to such adoption by the child, if of the age of fourteen years, and by each of his or her living par- ents who is not hopelessly insane or a confirmed drunkard. If there be no such parents, or if the parents be unknown, or shall have abandoned such child, or if such parents, or either of them, are hopelessly insane, or a con- firmed drunkard, then by the legal guardian; if there be no such guardian, then by a discreet and suitable person appointed by said court to act in the proceedings as the next friend of such child; provided, hotoever, that if the parents are living separate and apart, the consent of both is not required, but such consent may be given by the parent having the care, custody, and control of such child." Gen. Stats., sec. 1418. Wyoming. — "In ca.se the parent of any child is a non-resident of this territory, or shall have removed from the county in which his or her child may be at the time it is proposed to adopt the same as aforesaid, the written con- sent of such parent, properly acknowledged, shall be obtained and filed with the said judge of probate, which shall have the same effect as if such parent were personally present and consented to such adoption. And said judge of probate shall note the filings of such written consent in his record of approval, and the like proceedings, shall be had as if such parent were present." Bev. Stats., see. 2279. §685. [226.] Proceedings on Adoption. — The per- son adopting a child, and the child adopted, and the other persons, if within or residents of this state, whose consent is necessary, must appear before the judge of the superior court of the county where the person adopting resides, and the neces- sary consent must thereupon he signed, and afa agreement he executed by the person adopting, to the effect that the child shall be adopted and treated in all respects as his own lawful child should be treated. If the persons whose consent is neces- sary are not within or are not residents of this state, then their written consent, duly proved or acknowledged according to sec- tions eleven hundred and eighty-two and eleven hundred and eighty-three of this code, shall be filed in said superior court at the time of the application for adoption. 45 § 585 PROBATE LAW AND PRACTICE. 706 Arizona. — Same. Rev. Stats., sec. 1S88. Iclalto. — Same to and including the word "treated"; then as follows: "But if the parent or guardian of the child, or either of them, is a non-resident of the county where the application is made, such non-resident parent,or guar- dian may execute his consent in writing, and acknowledge the same before any officer authorized by the laws of this territory to take acknowledgments of deeds, which consent, being filed in court where the application is made, is deemed a sufficient appearance on the part of such nou-resid^nt. Rev. Stats., sec. 2530. Kontana. — Same as California. Comp. Laws, p. 587, sec. 6. Nevada. — "The person or persons adopting a child, and the child adopted, and the other persons, if known, if within or residents of this state, whose consent is necessary, must appear before the district judge of the county where the person or persons adopting reside, and the necessary consent must thereupon be signed, and an agreement be executed by the person or per- sons adopting, to the effect that the child shall be adopted and treated in all respects as his, or her, or their own lawful child should be treated, in- cluding the rights of support, protection, and inheritance." Stats. 18S5, p.' 30, sec. 2. ' ' "If the persons whose consent is necessary to the adoption of a child are not within this state, their consent in writing, if they be known, and their where- abouts can be ascertained, must be obtained and filed with the judge, duly ex- ecuted and acknowledged in like manner aa conveyances of real estate are required to be executed and acknowledged; provided, that if the judge shall find that the person or persons whose consent is required have abandoned such child, or if such persons are unknown, or their whereabouts cannot be as- certained, then, in that case, the judge may, in his discretion, proceed to make the order of adoption without such consent, but in that case it shall be the duty of the judge to cause to appear before him, by citation or otherwise, the persons in whose custody the child is, and may also bring before him, in his discretion, such of the next friends of the child as he may deem proper, and shall examine thein under oath, and if he deem it for the best interests of the child, he shall make the order of adoption." Stats. 1885, p. 31, sec. 7. "The district judge shall file in the office of the county clerk all papers presented before him, or copies thereof, in the matter of the adpption of any child, and shall cause the order of adoption to be entered in the minutes of the district court of the county where the proceeding is had, and a certified copy of such minute entry to be filed and recorded in the ofiice of the county re- corder of said county, and such records shall be notice to the world of such adoption of the child." Stats. 1885, p. 31, sec. 8. ' Wyoming. — "A parent willing to relinquish all right to his or her minor child to any other person willing to adopt the same shall make application to the judge of probate of the county in which such parent resides; and if such jndge of probate, after due investigation, shall be satisfied that the person making such application is entitled to make such relinquishment, and that the person proposing to adopt such child is a suitable person to assume the rela- tion of parent, and that the consent of bo'th parties to such adoption is mutual 707 ADOPTION. § 585 and voluntary, he shall enter of record in the records of his office the fact of such application aud consent, with his approval of such agreement, and adop- tion." Kev. Stats. 18S7, sec. 1274. Form No. 273. — Petition for Leave to Adopt a Minor. In the court of the county of , state of In the matter of the application of and to adopt , the minor child of and . The petition of and — — respectfully represents to this honorable court as follows: — 1. That the petitioners are married and are husband and wife; that said is of the age of years; and that said is of the age of years; 2. That said petitioners are desirous of adopting one , a minor, as their own child; that the age of said minor is — — years; (if said child is of sufficient age, so that the law requires his consent, state as follows:) that said minor child consents to such adoption by petitioners; that said consent is in writing and is filed herewith; 3. That the parents of said minor child are and , and they consent that such adoption be made by petitioners; that such consent is in writing and is filed herewith; (if one parent is dead, insane, etc., state as follows:) that said , the father of said child is dead (insane, etc.); 4. That it is for the best interest of said minor child that it should be adopted by petitioners; — Wherefore petitioners pray that an order of this court be given, rnade, and entered herein that petitioners Lave adopted said , and that hereafter said minor child shall be treated in all respects as their own lawful child should be treated, in- cluding the right of support, protection, and inheritance. , Petitioner. Dated , 18—. -, Petitioner. Form No. 273. — Consent. (Title of court, etc., as in last form.) VVe, the undersigned, hereby consent that , the minor § 586 PROBATE LAW AND PEACTICK. 708 child of -^ — and , may be adopted by and , in accordance with the petition filed herewith. , Father of Said Minor Child. , Mother of Said Minor Child. , Guardian of Said Minor Child. , Said Minor Child. Note. — Tliis may be similarly signed by the wife or husband of the person adopting, when s\ich consent ia re^ilired, as it ia in California. Form No. 273.. — Agreement to Adopt. (Title of court, etc., as in last form.) Whereas, the undersigned have petitioned the above-entitled court for leave to adopt , a minor child of and , and whereas, , , and have filed in said court their consent in writing to such adoption and an order of said court permitting said adoption to be made as prayed for in said peti- tion, — Now, therefore, in consideration of the filing of such< con- sents of said person^, and of the entry of said order by this court, said undersigned hereby agrees with said minor, and with said persons whose consent has been filed as aforesaid, that I (we) adopt said , and that said minor child, ,— shall be treated in all respects as my (our) own lawful child should be treated. In witness whereof, I (we) have hereunto set our hands and seals this day of , 18 — . [seal] * [seal] §586. [227.] Order of Adoption.— The judge must examine all persons appearing before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. Arizona. — Same. Rev. Stata., sec. 1389. ' Idaho. — Same. Rev. Stats., sec. 2551. Montana. — Same. Comp. Stats., p. 5S3, sec. 7. Nevada. — " The judge must examine under oath all persons appearing before him under the provisions of this act, and if satisfied that the interest of the child will be promoted by the adoption, he shall make an order declar< 709 ADOPTibN. § 586 ing that the child shall henceforth be regarded and treated in all respects as ^nd have all rights, including the right of support and of protection and of in l^eritance, of a Ia\yful child of the person or persons so adopting the child." Stats. 1885, p. 30, sec. 5. Oregon. — " If, upon such petition so presented and consented to, the court is satisfied of the identity and relations of the persons, and that the petitioner is of. sufficient ability to bring up the child, and furnish suitable nurture and education, having reference to the degree and condition of the parents, and that it is fit and proper that such adoption should take effect, a decree shall be made setting forth the facts, and ordering that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner." Hill's Laws, sec. 2942. Washington. — "Upon the compliance with the foregoing provisions, if the court shall be satisfied of the ability of the petitioner or petitioners to bring up and educate the child properly, having reference to the degree and condition of the child's parents, and shall be satisfied of the fitness and pro- priety of such adoption, the court shall make an order setting forth the facts, and declaring that from that date such child, to all legal intents and purposes, is the child of the petitioner or petitioners, and that the name of the child is hereby changed." Gen. Stats., sec. 1420. "Wyoming. — "In all cases where an offer is made to adopt any minor, and consent obtained, as provided in the last preceding section [Rev. Stats., sec. 2275, under § 594, ante], the judge of probate, after due investigation, if satis- fied, as provided in section 2274 [under § 598, ante], shall make a like entry of record as therein specified, with his approval of such adoption." Kev. Stata., sec. 2276. ' "If the judge of probate shall be satisfied, after the due investigation, that any person proposing or agreeing to adopt any minor child is not a suitable person to assume the relation of parent to such minor, he shall refuse to ap- prove such adoption, and shall enter such refusal in the records of his office." Rev. Stats., sec. 2278. An appeal lies to the supreme jurisdiction must affirmatively appear court of the state from th^ final decis- by the record as to both subject-nifit- ion of a circuit court rendered in ter and the person, notwithstanding proceedings under the act of the legis- the court is one of general jurisdic- Utive assembly entitled "An act to tion: In re Clark, 87 Cal. 640. confer certain powers upon certain The right of adoption is purely benevolent or charitable corporations statutory, and unknown to the oom- incorporated under the laws of Oregon mou law and repugnant to its princi- in relation to the control and disposi- pies; and the provisions of the statute tion of homeless, neglected, or aban- must be strictly followed, and every andoned children: President Board of condition prescribed therein strictly MUiions V. Ah Won, 18 Or. 338. complied with, else the child by adop- The important matter to be con- tion cannot inherit from the adopting sidered is the best interests of the parent: In re Clark, 87 Oal. 640. child: President Board of Missions v. No transfer of rights of natr Ak Won, 18 Or. 338. nral parents can be acciuired by In cases of adoption, the power adopting parents unless the statute of the court was special and limited, regulating adoption is strictly fol- and not exercised according to the lowed, and all doubts in controversies course of the common law; and its between the natural and the adopting 586 PROBATE LAW AND PRACTICE. 710 parents should be disolved in favor of the former: In re Clark, 87 Cal. 640. Proceedings to amend record of adoption pending the determina- ■ tions, upon writ of lidbeaa carpus, of tile right to a transfer of the child fro^ the custody of the adopting parties to the custody of its natural parents canuot affect the decision of the court upon the writ, which must take the record as it finds it, and detentiiue the rights of the parties accordingly: In re dark, 87 Cal. 640. The legislature lias full power to regulate th.e adoption of chil- dren, and may invest any person, or officer, or court, with the power of receiving, witnessing, and declaring the adoption, and prescribe the form of adoption: In re Stevens, 83 Cal. 3'22. An order of adoption of a child is void, and affords no warrant for the detention of the child from its parents, where it appears that the parents con. citation to, after authority revoked, p. 398, § 260. c^aim paid for less than face value, p. 379, § 251. claims paid without proper vouchers may be allowed when, p. 399, §263. compensation of executor, etc., p. 377, § 250; p. 380, 381, § 252. costs of procuring corporation as surety allowed, p. 116, § 76. costs to be allowed executor or administrator, p. 251, § 163. day of settlement, how ^let, p. 400, § 264. decree settling, what must state, p. 409, § 269. exceptions to, who may file, p. 403, § 266. ezecntor or administrator chargeable with estate, how, p. 374, § 247. executor or administrator not to profit or lose, when, p. 375, § 248. executor, etc., may be examined, p. 398, § 262. executor, etc., not accountable for debts when, p. 377, § 249. executor, etc., not to purchase claims, p. 379, § 251. final, p. 401, § 265. final, failure to render, remedy, p. 421, § 282. final, when to be made, p. 420, § 281. guardian must render, when, p. 660, § 539. guardian must verify, p. 660, § 539. items less than twenty dollars, how proven, p. 399, § 263. letters revoked for failure to, when, p. 398, § 261. notice of settlement, p. 400, § 264. of agent for absent distributee, contents, p. 466, § 309.' of guardianj what allowed in, p. 640, § 525. of trustee, appeal from decree settling, p. 473, § 313 o. of truAee, compensation, p. 473, § 313 b. of trustee, decree settling, conclusive when, p. 473, § 313 o. of trustee under will, p. 472, § 313 a.- penalty for not rendering, p. 392, § 259. persons intrusted with estate must, p. 170, § 128. public administrator to, p. 492, § 343. 718 ^ INDEX. Account, referee, court may appoint, to examine, p. 406, § 267. settlement conclusive when, p. 407, § 268. special administrator to render, p. 135, § 97. supplemental, what to contain, p. 439, § 289. to be rendered, p. 135, § 98. to be rendered after authority revoked, p. 398, § 260. vouchers to be filed in court, p. 398, § 262. what matters may be contested by heirs, p. 406, § 267. whait to contain, p. 392, 393, § 259. Accounts, when to be rendered, p. 392, § 259. Acknowledgment of illegitimate child publicly, effect of, p. 713, 11A, § 589. trritten, of illegitimate children, effect of, p. 565, § 466. Action pending at time of decease, procedure, p. 245, § 156. Ademption, "^hat is not considered an, p. 546, § 441, Administration on estate of live person void, p. 10, § 1. on partnership property, p. 86, 87, § 51. summary, p. 184-190, § 134, 135. when not necessary, p. 439, § 289. • Administrator, acts prior to revocation of letters valid, p. 141, § 103. absconding, notice to, how given, p. 152, § 112. appeal by, undertaking, p. 699, § 578. appointment, evidence of, p. 141, § 104. bonds of, to be recorded, p. 105, § 70. citation to, when bond insufficient, p. 122, § 81. clerk of court to act as, when, p. 489, § 334. contents of bond of, p. 106, § 71. corporation maybe, p. 114, 117, § 76. court may compel attendance, etc., p. 153, § 113. court may restrain, penditig application to establish lost or destroyed will, p. 65, § 35. de bonis turn, p. 78, § 44. discharge of, p. 416, § 276. entitled to possession of estate, p. 346, § 224. final discharge of, p. 469, § 31?. grounds of opposition to appointment of, p. 96, § 60. may answer petition claiming prior right, p. 102, § 67. may bring action on bond when, p. 355, § 229. may sue and be sued when, p. 349, 350, § 225-227. may sue for embezzled estate, p. 165, § 125. non-resident not to be appointed, p. 86, § 51. not bound for debts of decedent, p. 373, § 246. notice of suspension to be given to, p. 149, § 110. oath of, p. 105, § 70. of partnership, powers, duties, and liabilities, p. 86, 87, § 61. or executor, removal of, interested party may appear at hearing, p. 151, §111. IKDBX. 719 AdminiBtrator, puUie, duties of, p. 488, § 334. public, to take charge of estate, p. 489, § 335. public, when to administer, p. 86, § 51. lemoved, or becoming incompetent, remaining administrators act, p. 136, §100. resignation of, p. 138-140, § 102. right ta adniinister ceases when, p. 119, § 78. special, bond and oath, p. 132, § 94. special, duties and powers, p. 133, § 95. special, may be appointed at any time, p. 131, § 92. special, powers cease when, p. 134, § 96. special, preference given in appointment of, p. 132, § 93k special, to render account, p. 135, § 97. special, when to be appointed, p. 129, § 91. siirviving partner not to be appointed, p. 85, § 51. suspension of powers when, p. 147, 148, § 109. to complete contract of decedent when, p. 362, § 235. to deliver property to heir when, p. 425, § 286. to give additional bond when, p. 109, § 72. to give security when, p. 123, § 82. to give separate bond when, p. Ill, § 74. to sue for property fraudulently disposed of when, p. 358, S 2331 with will annexed, power of, p. 81, § 47; p. 136, § 99. who incompetent to serve, p. 90, § 55. who may file opposition to appointment of, p. 96, § 60, Administratrix, married woman as, p. 91, § 56. Adopt, agreement to, form, p. 708, § 585. married person may, when, p. 702, § 582. petition for leave to, form of, p. 707, § 585, who may, p. 702, § 581. Adopted child, inheritance by, p. 711, 712, § 587, 588. children may be reclaimed when, p. 704, § 583. Adoption, p. 701-714, § 580-589. agreement of, legalized, p. 713, § 589. agreement of, terms of, p. 713, § 589. consent necessary, p. 702-705, § 582-584. consent of child necessary, p. 705, § 584. consent, when not necessary, p. 703, § 583. county commissioners, duty of, p. 704, § 583. duty of judge, p. 708-710, § 586. effect of, p. 711, 712, § 587, 588. of child, consent, form of, p. 707, § 585, of illegitimate child, p. 713, § 589. ■of illegitimate child, consent necessary, p. 703, § 683, of legitimate child, p. 703, § 583. of minor child, form of order, p. 710, g 586. order of, p. 708-710, § 586. 720 INDEX. Adoption, petition for, by hnsband and wife, p. 702, f 58S. procedure on, p. 705, 706, § 585. rights of parents, want of notice, p. 712, S 58S. who may appeal on, p. 712, § 588. Advancement, definition, p. 571, § 576. heir dying before decedent, p. 572, § 478. inequality in comparison to share of estate, p. S70| S 116^ is part of distributive share, p. .570, § 474. to be deducted in partition, p. 461, § 305. to heirs, p. 461, § 305. value of, how determined, p. 572, § 477. Affidavits, ex parte, when evidence of identity, p. 99, S ^< of posting notice, form of, p. 23, § 8. of publication of notice, p. 23, § 8. to be filed with petition for letters of administration, p. 03, § 67> Agent for absent distributee, p. 462, § 306. for absent distributee, account of, p. 466, § 309. for absent distributee, liability on bond, p. 467, § 310. for absent distributee, to give bond, p. 463, § 307. Agreement of adoption, p. 713, § 589. to adopt, form, p. 708, § 585. Alien heirs to claim property when, p. 502, § 361. incapable of citizenship does not inherit, p. 502, § 360. may inherit, when and how, p. 577, § 483. may take, etc., property, p. 501, § 360. to become citizen before taking land, p. 502, § 361. white resident takes as citizen, p. 502, § 360. Allowance, extra, for family, p. 179, ISO, § 131. family, preferred, p. 182, sec. 132. family, provisions for, p. 171, 174, § 129, 130; p. 179. 180, § 13L family, when to be paid, p. 415, § 175. family, when to take effect, p. 182, § 132. of accounts, p. 409, § 269. of accounts of joint guardians, p. 663, § 541. Annuity, p. 547, §-442. commences when, p. 651, § 453. Answer of administrator to petition claiming prior right, p. 102, § 67« to contest of will, p. 29, § 15. ^ Appeal, p. 691-700, § 576-579. oases on, how disposed of, p. 699, 700, § 578. in probate proceedings, given preference, p. 691, 692, § 576. none, from order appointing special administrator, p. 132, § 93. order reversing, effect of, p. 700, § 599. practice on, p. 480, § 324. taken in sixty days when, p. 480, § 325. undertaking on, by administrators, p. 699, § 578. when may be taken, p. 692-698, § 577. INDEX. 721 Appeal, who may, in adoption, p. 712, § 588. Appealable order, what is, p. 692-698, § 577. Appointment of administrator, grounds of opposition to, p. 96, § 80. who may file opposition to, p. 96, § 60. Appraisement, p. 154-159, § 114-117. none, when, p. 159, 160, § 117. Appraisers, appointment of, p. 155, § 115. compensation of, p. 155, 156, § 115. dissenting report, p. 196, § 139. duty of, p. 155, 156, § 115. duty of, may be discharged by two, p. 196, § 139. oath and duty of, p. 156, 157, § 116. of ward's estate, p. 660, § 53S. report of,aqtion on, p. 196, § 139, 140. Attesting witnesses to -will, p. 509, § 371, 372. Attorney, county, duty of, p. 489, § 334. for minor heirs, appointment of, p. 482, § 328. for minor heirs, authority and compensation of, p, 482, § 323. for minor heirs, effect of non-appointment, p. 482, § 328. Authority to appoint executor void, p. 552, § 457. Bequest, charitable, void, unless will made thirty days prior to death, p. 532, § 406. charitable, void, when, p. 532, § 406. conditional, definition, p. 643, § 435. not affected by what, p. 538, § 412. of interest on certain money, p. 651, § 461. to a class, p. 541, §427. vests when, p. 542, § 431. Bid for real estate may be made in court, when and'how, p. 301, S 197. Bond, additional, conditions of, p. 110, § 73. additional, when and how required, p. 118, 119, § 77. additional, when required, p. 109, § 72. agent for absent distributee to give, p. 463, § 307. approved by judge, p. 112, § 76. corporation not to give, p. 115, § 76. defective, p. 107, § 71. failure to give, Tight to administer ceases, p. 119, § 78. hearing as to snffibiency, heard, any time, p. 129, § 89. heir to give, on receiving partial distribution, p. 425, § 286. insufScient, citation to principal, p. 122, § SI. inau£Scient, farther security required, p. 123, § 82. joint executors to give separate, p. Ill, § 74. justification of sureties, p. 112, § 76. new, may be ordered, p. 123, § 82. new, when required of'guardian, p. 686, § 569. of administrator or executor, contents of, p. 106, § 71. of agent for absent distributee, liability, p. 467, § 310. 46 I Zii INDEX. Bond of executor may be dispensed 1^101 when, p. 120, § 79. of executots, etc., to be recorded, p. 105, § 70. of guardian, action on, p. 687, § 570. of guardian, to be filed, p. 687, § 570. of guardian, limitation of action on, p, 687, § 571. of special administrator, p. 132, § 94, separate, to be given, when, p. Ill, § 74. several recoveries on, may be had, p. 111, § 75. sureties on, liabili]ty of, p. 129, § 90. to be given on partial distribution, p. 422, § 283. when penalty over two thousand dollars, p. 116, § 76. when may be reduced, p. 115, § 76. Capacity, petition for restoration to, jury trial, p. 648, § 531. restoration to, p. 497, § 354. Caption, form of, p. 15, § 5. Certificate of lost will, contents, p. 62, § 34. of probate, to be attached to will, p. 41, § 20. to absent distributee, authenticating claim to property, p. 468, §' 311. Chamtoers, powers of judge at, p. 3, 7, 8, § 1; p. 24, 25, § 10; p. 129, § 89, Charitable bequests, p. 532, § 406. Child, abandoning, penalty for, p. 713, 714,^§ 589. adoption of, consent to, form, p. 707, § 585. adoption of illegitimate, p. 713, § 589. adoption of' illegitin:iate, what consent necessary, p. 703, § 583, adoption of legitimate, p. 703, § 583. form of order of adoption of minor, p. 710, § 586. inheritance by adopted, p. 711, 712, § 587,, 588. may be adopted, how, 701, § 580. posthumous, takes under will, when p. 542, § 429. public acknowledgment of illegitimate, p. 713, 714, § 589. when consent necessary to adoption, p. 705, § 584. Children, adopted, may be reclaimed when, p. 704, § 583. illegitimate, heir to Whom, p. 565, § 466. legitimacy of, who may dispute, how proved, p. 501, § 359. of annulled marriage, p. 497, § 355. posthumous, entitled when, p. 503, § 362, when property, goes to, p. 190, § 135. Citation, contents of, p. 476, § 317. court may comper obedience to, when, p. 153, § 113. how issued, p. 477, § 318. how served, p. 478, § 319. personal notice given by, p. 478, § 320. refusal to obey, p. 168, 169, § 127. time in which to be served, p. 479, § 321. time of service, and how served, p. 122, § 81. to executor, etc., to render exhibit, p. 389, § 254. to person embezzling estate, p. 166, 169, § 126. INDEX. 723 Citation to persons failing to apply for letters of administration, p. 86, § 51. to whom directed, p. 476, 477, § 317. to whom issued on contest after probate of will, p. 54, § 26. wlien petiti«>n for letters of administration, by person having prior right, p. 102, S 67. Claim, affidavit to be atta«hed, p. 231, § 147. against estate, p. 221-284, § 144-167. allowed, how ranked, and when paid, p. 236, § ISI. allowance of, in part, p. 246, § 157. allowance or rejection, p. 234, 233„ § 150.' allowed, not affected by statute of limitations, p. 327, § 213. barred by statute of limitations not to be allowed, p. 241, 242, § 153. bearing interest, payment of, p. 253, § 167. contingent or disputed, payment of, p. 417, § 277. creditor refusing partial allowance recovers no costs when, p. 246, §157. doubtful, action on, p. 249, § 161. doubtful, trial by referee, p. 250, § 162. executor, etc., personally liable for, when, p. 418, § 278. executor or administrator may prese&t, p. 251, § 164. instrument upon which founded, copy of, must accompany, p. 236, 237, §151. interest on, p. 231, 232, § 148. judge may present, p. 234, § 149. judgment on, effect of, p. 246, § 158. judgment on, transcript to be filed, p. 246, § 158. judgment on, what to contain, p. 246, § 158. limitation on, what time not included, p. 245, § 155. must be presented before suit when, p. 242, § 154. not included in order for payment of debts, procedure on, p. 419, § 279. not presented in time, barred, exception, p. 225, 226, § 147. of executor or administrator, rejected, action on, p. 251, § 164, of executor or administrator must be presented, p. 251, § 164. I rejected, when suit must be brought, p. 239, 240, § 152. statement of, to be returned when, p. 253, § 166. time for presentment of, p. 224, 225, § 145, 147. to be filed, p. 236, § 151. ^ to be presented, if action pending at time of decease, p. 245, § 156. verification of, p. 231, § 148. who may be examined as to validity of, p. 241, § 153. Class, devise or bequest to, p. 541, § 427. Clerk, duty of, p. 8, § 1. duty of, when judge sick or disqualified, p. 3, §1. duty of, when petition for letters of administration filed in vacation, p. 95, § 59. power of, p. 25, 26, § 10. to sign all writs and processes, p. 3, § 1. 724 INDEX. Codicil, how revotcd, p. 524, 525, § 398. republialies will, p. 518, § 381. will includes, p. 49t5, § 352. Commissioner, clerk to act as, when, p. 690, § 575. duty of, p. 8, § 1. may grant letters, when, p. 95, § 59. must report finding, p. 8, § 1, power of, p. 7, 8, § 1. to partition estate, duties, oath, etc., p. 449, § 294, Commitmeiit on failure to produce will, p. 19, § 7. Community property, p. 499, § 356 b. disposition of, on death of spouses, p. 573, 574, § 480, 481. Compensation, corporation allowed, same as natural person, p. 114, § 76. of trustee under will, p. 473, § 313 b. Competency of subscribing witnesses to will, p. 515, 517, § 376, 378. Complaint against habitual drunkard, contents, p. 653, § 533. against spendthrift, p. 651, § 532. Condition precedent, definition, p. 544, § 436. effect of, p. 544, § 437. Conditional bequest, definition, p. 543, § 435. devise, definition, p. 543, § 435. Confirmation of sale of partnership property, p. 264, § 174. of sale of real estate, objections to, p. 307, § 198. of sale of realty, when description need not be published, p. 479, § 32a Consent to adoption of child, form, p. 707, § 585. to adoption of illegitimate child, p. 703, § 583. of child necessary to adoption when, p. 705, § 584. when not necessary to adoption, p. 703, § 583. Construction of will, p. 11, § 1; p. 533-537, § 407-411. words of will to receive operative, p. 539, § 415. Contempt, letters revoked for, p. 485, § 331. Contest of probate of nuncupative will, how conduptedy p. 67, S 38. of will after probate, p. 51, § 25. of will after probate, trial of, p. 56, § 27. of will, answer to, p. 29, § 15. of will, demurrer to, p. 29, f 15. . of will, further, may be made when, p. 27, § 12. of will, grounfls of, to be filed, p. 29, § 15, of wUl, to be filed, p. 29, § 15. of will, who may make, p. 27, § 12. who may file, to petition for restoration to capacity, p. 648, § 531. Contingent claims, payment of, p. 417, § 277. Contract for purchase of land, sale of, p. 324, 325, § 210, 211. Contribution among legatees and devisees, p. 323, § 208. from legatees or devisees, p. 529, § 401. Conveyance by heir conclusive, unless will proved within four years, p. 551, §449. INDEX. 725 Conveyance of real estate, contenta and execution thereof, p. 314, § 200. of real estate, efifect of, p. 314, sec. 200. ' Corporation, accepting appointment, duty of, p. 115, § 76. • may be administrator, p. 117, § 76. may be executors, p. 68, § 39; p. 112-117, § 76, may be guardian, p. 117, § 76. may be surety, p. 112-117, § 76. may be trustee, p. 117, § 76. not to give bond, p. 115, § 76. oath of oflSce, how taken by, p. 114-118, §-76. public administrator may deposit funds with, p. 114, § 76. surety, how to justify, p. 112, 113, § 76. surety, solvency of, p. 117, § 76. what may take by will, p. 509, § 371. when to pay interest, p. 1 15, § 76. . Costs and expenses of revoking probate of will, p. 58, § 30. execution for, p. 484, § 330. in application to sell ward's estate, p. 671, § 552. liability of executor or administrator, p. 251, § 163. of homestead proceedings, p. 200, § 141. when paid out of estate, p. 484, § 330. Court, acts of, nugatory, when, p. 9, § 1. duty of, on petition for sale, p. 258, § 171. how it exercises power, p. 5, § 1. may order sale, mortgage, or lease of property of ward, p. 646, § 530. no jurisdiction, appella.te court cannot acquire any, p. 9, § I. Credit, sale of property of decedent on, p. 300, § 196. sale of ward's property on, p. 676, § 557. Creditors, notice to, p. 221-223, § 144. Custodian of will, citation tp, p. 18, § 7. duty of, p. 13, § a Dead, felon not civilly, when, p. 10, § I. Debts due estate may be compounded when, p. 356, § 231. of decedent, who not bound for, p. 373, § 246. order for payment of, when to be made, p. 416, § 276. order of payment, p. 412, 413, § 272. payment of, p. 319, § 204; p. 322, § 206. payment of, what property chargeable with, p. 548, § 443. property for payment of, resorted to, in what order, p. 548, § 444. Declarations of testator not evidence of intentions, p. 542, § 430. Decree of distribution, contents, p. 430, § 287 a; p. 439, § 289; p. 443, § 29a of distribution, effect of, p. 461, § 305. of partition to be recorded, p. 458, § .S03. recitals in, not necessary when, p. 474, § 314. record of, effect of, p. 476, § 316. settling account, what must state, p. 409, § 269. terminating life estate, p. 4S6, § 333. 726 INDEX. Decree terminating life estate, effect of record, p. 486, § 333. terminating life estate to be recorded, p. 486, § 333. that notice to creditors has been given, p. 224, § 146. Decrees aud orders to be entered in minutes, p. 474, § 314. Deed, lease, mortgage of guardian, disapproval of, p. 647, § 530. Defendant, who is, p. 481, § 326. Definition of advancement, p. 571, § 476. of conditional bequest, p. 543, § 435. of conditional devise, p. 543, § 435. of condition precedent, p. 544, § 436. of condition subsequent, p. 544, § 439. of guardian, p. 595, § 492; p. 596, § 496. of olographic will, p. 514, § 373. of probate judge, p. 690, § 575, of spendthrift, p. 652, § 532. of succession, p. 554, § 463. of ward, p. 595, § 493. Degrees of kindred computed, how, p. 568, 569, § 468-472. Demurrer to contest will, p. 29, § 15. Deposition, cross-interrogatories, when necessary, p. 4, $ I. how taken, p. 3, § 1. on probate of will, p. 40, § 18. Description in will, imperfect, p. 542, § 430. Destroyed will, proof of, p. 59, § 32. Devise, conditional,, definition, p. 543, § 435. effect of heir'p conveyance upon, p. 551, § 449. for life, effect of, p. 531, § 404. of land is a conveyance, p. 530, § 404. of real property deemed what, p. 531, § 404. of real property, effect of conveyance on, p. 531, § 401. of real property, what passes by, p. 531, § 404. in fee, words, what not requisite, p. 539, § 419. in trn?t, power of court, p. 9, § 1. not affected by what, p. 538, § 412. or bequest, when vests, p. 542, § 431. to a class, p. 541, § 427. to more than one, effect of, p. 545, § 440. when does not lapse, p. 530, § 403. Devisee, contribution among, p. 323, § 208. death of, p. 530, § 403. death of, does not affect interest of remainderman, p. 543, § 434. exempt from liabilities to pay debts, p. 323, § 207. may bring what action, p. 346, § 224. may sue for possession of realty, etc., p. 163, § 123. witness to will who is, how affected, p. 517, § 379. Discharge, final, of administrator or executor, p. 469, § 312. of administrator, p. 416, § 276. INDEX. 727 Discharge of executor, estc, p, 446, § 291. Disputed claims, paymeat of, p. 417, § 277. Distribution and partition of estate, p. 402, § 265. bond on, dispensed with when, p. 430, § 287 a. bond to be given on, when, p. 430, § 287 a. deceased minor's share, disposition of, p. 439, § 289. decree of, contents, p. 430, § 287 a; p. 439, § 289; p. 443, § 29fl. decree of, eflfect of, p. 443, § 290; p. 461, § 305. decree of, to be recorded, p. 484, § 329. decree of, what to contain, p. 430, § 287 a; p. 439, g 289; p. 443}, I aSjfl). how and to whom made, p. 439, § 289. none, until taxes paid, p. 448, § 293. notice of application for, p. 447, § 292. of estate of stranger to heirs, p. 489, § 334. of property of decedents, p. 556-565, § 465. partial, decree, partition, costs, p. 424, § 286. partial, may be had when, p. 422, § 283. power of court, p. 430, § 287 a. proceedings to determine parties entitled, p. 431, 1 283. dale on, p. 446, § 291. to foreign executor, when may be made, p. 446, § 29i. when may be made, p. 429, § 287 a. who may contest petition for, p. 430, § 287 a. who may petition for, p. 439* § 289; p. 447, § 292. Distributive share, advancements to be deducted from, p. 570, § 474. District court, power, wholly appellate, p. 10, U, § 1. Docket, when made and what to contain, p. 8, sec. 1. Donation, words of, in will, p. 541, § 425. Dower, assignment of, p. 209, § 143 a. of insane wife, proceedings to bar, p. 215-217, § 143 a. Drunkard, complaint against, contents, verification, p. 652, S 533. complaint against, who may make, p. 653, §. 533. duty of justice of the peace, p. 653, § 533. Duty of clerk, p. 8, § 1. of judge in adoption, p. 708-710, § 586. Eamingfs of wife and minor children, separate property of whom, p. 500, § 356. Effect of adoption, p. 711, 712, § 507, 508. of condition precedent, p. 544, § 437. Embezzlement, duty of judge, p. 492, § 341. examination of person charged with, p. 168, li59, § 127. interrogatories, etc., to be in writing and flledj, p. 492, § 342. order of court in matter of, p. 168, 169, § 127. person charged with, interrogatories and answers to be in lyriting, p. 168, 169, § 127. persons cited for, refusing to attend, p. 492, §, 342. witnesses may be produced, etc., p. 168, 169, §, 127. Embezzling estate, p. 165, § 125. 728 IXDEX. liquity, conrt of, may set aside probate proceedings when, p. 10, $ 1. Escheat, p. 579-594, § 184-491. decree of, void, when, p. 12, § 2, manner of commencing proceedings in, p. 681, § 488. proceedings, appearance, pleading, and trial, p. 587, § 490. receiver of rents and profits appointed when, p. 687, § 489. sale of property, p. 588, § 490. when property does, p. 501, § 360. when property will, p. 502, § 361. Escheated property subject to what charges, p. 581, § 486; Estate, funds of, duty of treasurer, p. 493, 494, § 345. funds of, deposited when, p. 114, § 76; p. 493, § 345; p. 495, § 347. insufficient to pay debts, procedure, p. 415, § 274. of embezzlement, order is prima facie evidence, p. 168, 169, § 127. possession of, p. 163, § 123. property of, how chargeable with debts, etc., p. 255, § 168. subject to debts, p. 322, 323, § 206, 207. Evidence of identity, what is, p. 99, § 55. of revocation of will, p. 521, § 387. Exceptions to account, who may file, p. 403, § 266. to report of commissioners, p. 8, § 1. Execution actually levied at death of decedent, disposition of, p. 247, § 159. none to issue against estate, p. 246, 247, § 158, 159. property exempt from, set apart for family use, p. 171-174, § 129, 130. Executor, absconding, notice to, how given, p. 152, § 112. , absent or a minor, administration of estate, p. 79, 80, § 45. accounting, power of court, p. 10, § 1. acts of portion of, valid, p. 81, § 46. acts prior to revocation of letters valid, p. 141, § 103. administrator, liability for costs, p. 251, § 163. appeal by, undertaking, p. 699, § 578. appointment, evidence of, p. 141, § 104. becoming insane, etc., remedy, p. 138, § 101. bond of, may be dispensed with when, p. 120, § 79. bonds of, to be recorded, p. 105, § 70. citation to, when bond insufficient, p. 122, § 81. clerk to act as, when, p. 489, 5 334. contents of bond of, p. 106, § 71. 'corporation may be, p. 68, § 39; p. 114-117, § 76. conrt may compel attendance, etc., p. 153^ § 113. court may restrain, pending application to establish lost or destroyed will, p. 65, § 35. de son tort, p. 141, § 103. entitled to possession of estate, p. 346, § 224. final discharge of, p. 469, § 312. foreign, estate may be delivered to, when, p. 446, § 291. forfeits right to letters when, p. 17, § 6. INDEX. 729 Executor, joint, all dying, remedy, p, 137, § 101. joint, powers of, p. 136, § 100. ' liability for coste, p. 251, § 163. may sue and be sned when, p. 349, 350, § 225, 227. may sne for embezzled estate, p. 165, § 125. naming debtor as, effect of, p. 160, § 118. not bound for debts of decedent, p. 373, § 246. not to act till qualified, p. 552, § 458. notice of suspension to be given to, p. 149, § 110. oath of, p. 105, § 70. of executor, power of, p. 78, § 44. or administrator, removal of, interested party may appear at hearing, p. 151, § 111. personal liability, how enforced, p. 418, § 278. powers of, p. 136, § 99. release of debt due from, effect of, p. 160, § 119. removal of, p. 70, § 40. removed or becoming incompetent, remaining executors act, p. 136, § 100. rennnciation of, p. 15, § 5. resignation of, p. 138-140, § 102. right to administer ceases when, p. 119, § 78. suspension of powers when, p. 147, 148, § 109. , testator's intention to control, p. 552, § 456. to deliver property to heir when, p. 425, § 286. to give additional bond when, p. 109, § 72. to give security when, p. 123, § 82. to give separate bond when, p. Ill, § 74. to sue for property fraudulently disposed of when, p. 353, § 233, wasting property of estate, powers suspended, p. 125, § 84. . who incompetent, p. 73, § 41. ■who may be, p. 68, 69, § 39, 40; p. 77, § 43. who need not be joined in actions against, p. 355, § 230. Executrix, married woman appointed, when, p. 77, § 43. Exhibit, doty of court as to, p. 392, § 257. penalty for not obeying citation to render, p. 392, § 258. to be rendered when, p. 383, § 253. what to contain, p. 383, § 253. Exi>eiises and compensation of guardians, p. 663, § 542. of administration, preferred, p. 182, § 132. of ward, allowance for payment of, p. 640, § 525. Fact, issues of, court may try, p. 10, § 1. Failure to produce will, commitment on, p. 19, § 7. Family allowance, preferred, p. 182, § 132. allowance, when to be paid, p. 415, § 275. allowance, when to take effect, p. 182, § 132. extra allowance for, p. 179, § 131. 730 4 INDEX. Family, provisions for snpportot, p. 171, 174, § 129, 130j p. 179> 180, §. 131. Forei^ guardian, what must show in removal o| property of ward, p. 682, § 564. will valid wheif, p. 517, § 380. Form, account, affidavit to, p. 396, | 259. account and report, p. 395, § 259. account, exceptions to, p. 404, § 266. ' account of agent for absent distributee, p. 466, § 309. affidavit of administrator or executor that he has no knowledge of will, p. 70,' §40. affidavit of auctioneer, p. 269, § 176; p. 305, § 197. affidavit of posting notice, p. 23, § 3. affidavit of posting notice of sale of real estate, p. 304, § 197. eiffidavit of publication, p. 476, § 315. affidavit of publication of notice, p. 23, § 8; p. 304, § 197. agreement to adopt, p. 708, § 585. allegations showing cause for removal of administrator or executor, p. 152, §111. answer in matter of heirship, p. 438, § 288. answer to contest of probate of wi^I, p. 35, § 15. application of creditors for executor to recover property fraHd,ulently disposed of by decedent, p. 359, § 233. appointment of guardian in admeasurement of dower, p. 211, § 143 &. appointment of referee to examine account, p. 406, § 267. authority of attorney in matter of heirship, p. 437, § 2SS. bond, additional, p. 109, § 72. bond given on partial distribution, p. 427; -§ 286. bond of administrator or executor, p. 108, § 71. bond of gQardiao^, p. 638, §, 522. bond of guardian of insane person, p. 620, §. 514. bond of kindred upon receiving insane person from asylum, p. 621, § 514. bond to be given on sale of contract for purchase of land, p. 325, § 211. caption, p. 15, § 5. certificate entitling absent distributee to unclaimed property, p. 469, §311. certificate establishing lost or destroyed will, p. 63, § 34. certificate of appointment and oath of appraisers, p. 194, § 138. certificate of judge concerning property of insane person, p. 619, §,514. ' certificate of notary of presentment of claim, p. 236, § 150. certificate of probate of will, p. 41, § 20. certificate of rejection of will, p. 42, § 20. citation, p. 55, § 26; p. 477, § 317. citation to executor, etc., when sureties insufficient, p. 123, § 81. commitment of insane person, p. 610, § 514. complaint against habitual drunkard, p. 653, § 533. complaint for commitment to insane asylum, p. 609,^ § 514. INDEX. 731 Form, commitment for contempt, p. 169, § 127. Qomplaint in matter of heirship, p. 437, § 283. consent to adoption of child, p. 707, § 585. consent to appointment of guardian, p. 612, § 515. contest of vpill, p. 33, § 15. conveyance of homestead of insane person, p. 205, §..143, creditor's claim against estate, p. 230, § 147. decree directing specific performance, p. 367, § 238. decree directing summary administration, p. 18S, § 134. decree establishing notice to creditors, p. 225, § 146. decree in matter of heirship, p. 438, § 2SSl decree of distribution, p. 445, § 290. decree of final discharge, p. 471, § 312. decree of partial distribution, p. 426, § 286. decree settling account, p. 409, § 269. decree terminating life est^^te, p. 487, § 333. deed of administrator, etc., p. 315-318, § 200. demand for jury trial, p. 36, § 15. exhibit, p. 388, § 253. guardian, nomination of, by minor, p. 63.% § 516. information in escheat proceedings, p. 586, § 488. inventory and appraisement, p.' 158, § 116. judgment in escheat proceedings, p. 591, § 490. judgment of restoration to capacity, p. 650, § 531 lease, p. 344, § 223. letters of administration, p. 84, § 50. letters of administration with will annexed, p. 83, 84, § 49. letters of gu,ardiansh.ip, p. JS39, § 522. letters testamentary, p. 82, 83, § 48. mortgage of homestead of insane person, p. 206, § 143. mortgage of realty of estate, p. 339, § 222. notice of application for guardianship, p. 631, § 515. notice of application to sell, convey, or mortgage homestead of insana person, p. 204, § 143. notice of hearing petition for distribution, p. 448, § 292. notice of hearing petition for letters of administration, p. 96, § 60. notice of hearing petition for order to invest funds, p. 411, § 271. notice of hearing petition for settlement, and distribution of final ac- count, p. 402, § 265. notice of hearing return of sale of real estate, p. 300, § 197. notice of intention to resign, p. 140, § 102. notice of petition for admeasurement of dower, p. 212, § 143 a. notice of petition for probate of will, p. 22, § 8. notice of petition to sell personal property, p. 263, § 173. notice of petition to set aside entire estate to family, p. 189, §, 134. notice of sale of personal property, p. 267, § 176. notice of sale of real estate, p. 297, § 192; p. 299, § 194. 732 INDEX. Form, notice of settlement of account, p. 401, § 264. notice to appear before commissioners in partition, p. 458, § 302. notice to creditors, p. 223, § 144. i notice to creditors and of summary administration, p. 188, § 134. notice to purchaser of motion to vacate sale, and for resale of real es- tate, p. 313, § 199. oath of commissioners in admeasurement of dower, p. 213, § 143 a. oath of commissioners in partition, p. 450, § 294, objections to confirmation of sale of real estate, p. 308, § 198. objections to granting order for specific performance, p. 366, § 237. objections to granting order of sale of real estate, p. 289, § 186. objections to issuance of letters of administration, p. 97, § 60. objections to issuance of letters testamentary, p. 76, § 42. objections to partial distribution, p. 424, § 285. offer of ten per cent advance on sale of real estate, p. 307, § 197. opposition to confirmation of report of appraisers, p. 197, § 140. opposition to probate of will, p. 33, § 15. opposition to sale of personal property, p. 263, § 17.3. order admitting foreign will to probate, p. 50, § 24, order admitting will to probate, p. 44, § 21. order appointing administrator, p. 98, § 61. order appointing administrator with will annexed, p. 75, § 41. order appointing administrator with will annexed upon estate de bonis non, p. 79, § 44. order appointing agent to take possession for absent distributees, p. 462, § 306. order appointing appraisers, p. 156, § 115, order appointing appraisers to appraise and admeasure homestead, p. 194, § 138. order appointing attorney for minor heirs, p. 484, § 328. order appointing commissioners to make partition, p, 450, § 294. order appointing executor, p. 44, § 21. order appointing guardian, p, 632, g 515, order appointing guardian, in admeasurement of dower, p. 211, § 143 a. order appointing guardian of insane or incompetent person, p. 645, §529. order appointing special administrator, p. 131, § 92. order appointing time for hearing petition, p. 48, § 23. order assigning whole estate to family, p. 189, § 134. order authorizing sale, conveyance, or mortgage of homestead of insane person, p. 205, § 143. order confirming report of appraisers, p. 198, § 140. order confirming report of appraisers and directing homestead to be sold, p. 199, § 140. order confirming report of commissioners in admeasurement of dower, p. 214, § 143 a. order confirming report of commissioners in partition, p. 456, § 299, INDEX. 733 Form, order confirming report of commiaaionersin partition and directing sals to be made, p. 455, § 299. order confirming aale by sheriff, in eacheat proceedings, p. 592, § 490. order confirming sale of peraonal property, p. 269, § 176. order confirming sale of property by agent for absentee, p. 467, S 309. order confirming sale of real estate, p. 310, § 199. order confirming sale of real estate to bidder in open court, p. 311, § 199. order confirming sale of real estate, under authority given in will> p. 212, § 199. order directing investment of funds, p. 411, § 271. ' order directing notice of application for letters of guardianship, p. 631. §515. order directing notice of hearing petition for distribution, p. 447, § 292, order directing notice of petition for partition, p. 452, § 295. order directing notice to creditors, p. 223, § 144. order directing publication of notice of petition to invest funds, p. 411, §271. order directing suit for property fraudulently disposed of by decedent, p. 360, § 233. order dismissing petition for specific performance, p. 369, § 240. order eatablisbing service of citation, p. 436, § 288. order fixing day for hearing petition for settlement of final account and distribution, p. 402, § 265. order fixing day for hearing report of appraisers, p. 197, § 140. order fixing day of hearing return of sale of real estate, p. 306, § 197. order fixing day of settlement of account, p. 401, § 264. order fixing time for hearing petition, p. 22, § 8. order fixing time for hearing petition for specific performance, p. 365, §236. order for accounting, p. 397, § 259. order for admeasurement of dower, p. 212, § 143 a. , order for adoption of minor child, p. 710, § 586. order for citation, p. 54, § 26. order for citation on release of surety, p. 127, § 86. order for citation to render exhibit, p. 331, § 256. order for citation, when sureties insufficient, p. 122, § 81. order for family allowance and setting apart exempt property, p. 181, § 131. order for resale on neglect of purchaser to comply with terms of sale, p. 313„§ 199. order of allowance for expenses of ward, p. 641, § 525. order of court adjudging insane person Restored to capacity, p. 623, § 514. order of judge for delivery of insane person to relatives, p. 622, § 514. order of notice of petition for admeasurement of dower, p. 210, § 143 a. order of sale, by agent for absentee, of unclaimed property, p. 467, § 309. 734 INDEX. Form, order of gale of mines, p. 275, § 180. order of sale of perishable property, p. 260, § 172. order of sale of personal property, p. 265, § 175. order of sale of perspnal property by agent for absent distributee, p. 465, , §308. . ' order of sale of property of ward, p. 673, § 553. order of sale of real estate, p. 294, § 190. order providing for support of family, p. 172, § 1.30. order reinstating administrator or executor, p. 149, § 109. order rejecting report of appraisers, p. 199, § 140. order releasing surety, p. 127, § 87. order removing executor, p. 72, § 40. order requiring further security, p. 124, § 82. order requiring legatee to refund money to pay debts, p. 429, § 287. order requiring production of will, p. 19, § 7. order requiring surviving partner to account, p. 355, § 228. order retransferring proceedings, p. 146, § 108. order revoking letters, p. 130, § 110. order revoking letters for failure to give further security, p. 125, § 83. order revoking letters of administration on claim of prior right, etc., p. 103, § 68. order revoking letters on failure to give new sureties, p. 128, § 88. order, revoking probate of will, p. 55, § 26. order setting apart homestead, p. 179, § 130. order setting petition to bar dower of insane person for hearing, p. 220, § 143 a. order suspending administrator or executor, p. 148, § 109. order to compromise a debt, p. 357, § 231. order to lease, p. 344, § 223. order to mortgage realty, p. 339, § 222. order to show cause in escheat proceeding, p. 586, § 488. order to show cause in matter of heirship, p. 435, § 288. order to show cause on sale of mines, p. 273, § 179. order to show cause wliy order of sale of real estate should not be made, p. 286, § 184. order to show cause why realty should not be mortgaged or leased, p. 338, § 222. order to show cause why ward's estate should not be sold, p. 670, § 548. order to show cause why whole estate should not be assigned to family, p. 189, § 134. order transferring proceedings, p. 144, § 106. petition charging embezzlement of estate, p. 167, § 126. petition for accounting by surviving partner, p. 354, § 228. petition for admeasurement of dower, p. 210, § 143 a. petition lo'r allowance to defray expenses of ward, p. 641, § 525. petition for an account, p. 397, § 259. petition for appointment of guardian, p. 630, § 515. INDEX. 735 Form, petition for appointment of guardian of insane or incompetent per- son, p. 644, S 528. petition for appointment of special administrator, p. 130, § 91. petition for decree terminating life estate, p. 486, § 333. petition for distribution, p. 442, § 389. petition for exhibit, p. 390, § 255. petition for family allowance, p. 181, § 131. petition for final discharge, p. 470, § 312. petition for further security, p. 121; § 80. petition f6r issuance of letters of administration to others than those entitled, p. 94, § 58. petition for judgment restoring to capacity, p. 649, § 531. petition for leave to adopt minor, p. 707, § 585. petition for leave to lease, p. 343, § 223. petition for leave to mortgage real estate, p. 337, § 222. petition for letters of administration, p. 93, § 57. petition for letters of administration and opposition to probate of will, p. 34, § 15. petition for letters of administration by person having prior right, p. 102, §66. petition for letters of administration with will annexed, P- 74, § 41. petition for letters of administration with will annexed upon estate de bonis rum, p. 78, § 44. petition for order directing investment of funds, p. 410, § 271. petition for order directing specific performance, p. 364, § 236. petition for order of sale of personal property, p. 262, § 173. petition for order of sale of real estate, p. 283, § 183. petition for order of sale of ward's estate, p. 668, § 547. petition for order requiring refunding of money to pay debts, p. 428, §287. petition for order retransferring proceedings, p. 145, § 107. petition for order setting apart personal property for use of family, p. 177, § 130. petition for order to sell, convey, or mortgage homestead of insane per- son, p. 203, § 143. petition for order to sell perishabU property, p. 260, § 172. petition, for partial distribution, p. 423, § 283. petition for partition, p. 451, § 295. petition for probate of will, p. 16, § 5. petition for probate of foreign will, p. 48, § 23. petition for probate of nuncupative will, p. 66, § 36. petition for production of will, p. 18, § 7. petition for removal of executor, p. 71, § 40. petition for sale of mines, p. 271-273, § 178. petition for sale of personal property in possession of agent for absent distributee, p. 464, § .308. petition in matter of lieirship,. p. 435, § 288. 736 INDEX. Form, petition of claimant for nnclaimed property, p. 468, § 311.' petition of surety to be released, p. 126, § 86. petition to bar dower rights of insane wife, p. 217-219, § 143 a> ' petition to compromise a debt, p. 356, S 231. petition to establish lost or destroyed will, p. 60, § .S2. petition to establish lost or destroyed will and to revoke letters of ad* ministration, p. 60, § 32. petition to establish lost or destroyed will, to revoke probate of prior will, and that letters testamentary be issued thereunder,, p. 61, § 32. petition to revoke probate of will, p. 62, § 25. petition to revoke probate of will and probate of later will, p. 53, § 2S. petition to set apart homestead, p. 178, § 130. petition to set aside record against habitual drunkard, p. 655^ § 533. physicians' certificate of insanity, p. 611, 612, § 514; p. 617, § 514. proof of giving notice of sale of real estate, p. 304, § 197. proof of personal service, p. 25, § 9. i proof of service by mail, p. 25, § 9. receipt on distribution, p. 470, § 312. . receipt to be given to agent for absent distributee, p. 465, § 308. renunciation of compensation by executor, p. 383, § 252. renunciation of executor, p. 17, § 5. report accompanying account, p. 395, § 259. .^ report of appraisers, p. 195, § 138. report of commissioners in admeasurement of dower, p, 214, § 143 tk, report of commisioners in partition, p. 459, 460, § 303, report of referee, p. 407, § 267. report of sale by sheriff in escheat proceeding, p. 592, § 490. request for the appointment of another as administrator, p. 100, § 65. resignation of administrator or executor, p. 140, § 102. return of sale of personal property, and petition for confirmation, p^ 26.8, § 176. return of sale of real estate, etc., p. ^03, § 197. summons in eScheat proceedings, p. 586, § 488. sureties, justification of, p. 108, § 71. i testimony of subscribing witness on probate of will, p. 38, § 17> verification to pleading, p. 122, § 80. Warrant for admeasurement of dower, p. 213, § 143 a. warrant of arrest of insane person, p. 609, § ,514; p. 616, § 514. warrant of commitment of insane person, p. 618, § 514. will, p. 611-513, § 372. Fraud, will procured by, denied probate, p. 507, § 368. Funds,, court may order deposit of, p. 114, § 76. order to invest, made after publication of notice, p. 410, § 271. public administrator may deposit with corporation, p. 114, § 7& to be deposited when, p. 493, § 345; p. 495, § 347. Funeral charges, preferred, p. 182, § 132. expenses, when to be paid, p. 415, § 275. INDEX. 737 General legacy, p. 54S, § 442. Oift in contemplation of death, when may be satisfied, p. 651, S 452. Grant, of letters of administration, preference, p. 89, § 52, 53. Grounds for contest of will, p. 29, § 15. of oppoaitioa to appointment of administrator, p. 96, § 60l Guardian, accounts of, filed when, p. 661, § 540, account of, what to be allowed in, p. 640, § 525. and ward, p. 595-602, § 492-513. and ward, relation confidential, p. 600, § 506. appointment by court, p. 597, 598, § 499, 500. appointed by court, how suspended, p. 601, § 511. appointed by court, minor over fourteen, when, p. 633, § 517. appointed by parent, how superseded, p. 601, § 510. appointment by parent, p. 596, § 497. appointment of, notice given to whom, p. 628, § 515. appointment of, rules for, p> 598, §502. bond of, p. 646, § 530. bond of, conditions, p. 636, § 522. control by court, p. 600, § 507. corporation may be, p. 114-117, § 76. definition, p. 595, § 492. discharge of, p. 602, § 513. duty of, p. 485, § 332; p. 639, § 523. failure to support, educate, and maintain ward, p. 658, § 537. for insane person or spendthrift, to pay expenses of defending ward, p. 652, § 532. for spendthrift, p. 651, § 532. general, definition, p. 596, § 495. joint, death of, p. 600, § 508. judge may insert conditions in order appointing, p. 639, § 523. judge to appoint, when, p. 628, § 515. jurisdiction of court over, p. 598, § 501. kinds of, p. 595, § 494. may assent to partition of ward's real estate, p. 659, § 538. may be examined on hearing of petition for sale, p. 671, § 551. may sell property of ward in certain cases, p. 664, § 543. minor may nominate, when, when not, p. 632, § 516. more than one may be appointed when, p. 689, § 573. must verify inventory, p. 660, § 539. new bond, when required, p. 686, § 569. nomination by minor, approval by court, p. 633, § 517. nomination by minor, effect of, p. 634, § 518. non-resident, p. 678, § 559. no one, of estate, without appointment, p. 597, § 498, of estate, duties of, p. 599, § 505. of insane and incompetent persons, p. 643-655, § 52S-532. of insane or incompetent person, powers and duties, p. 646, § 530. 47 738 INDEX. Ghiardian, of non-resident ward, to give bonos, p. 6S0, | 561. of person, duties of, p. 699, § 504. of spendthrift, powers of, p. 652, § 532. power of, p. 599, § 503. release by ward, p. 602, § 512. removal, causes for, p. 600, § 509. removal, resignation, surrender of estate, p. 684, § 567. sale bjr, all proceedings same as in estates of decedents, p. 674, § 665. service of process on, p. 485, § 332. special, deiinitiou, p. 596, § 496. sureties on bond, liability, p. 639, § 523, testamentary, to give bond, powers limited, p. 641, § 526. to defend interest, power of court not impaired to appoint, p. 642, § 527. to maintain ward, p. 657, § 536, to maintain ward, how, p. 640, § 525. to manage estate of ward, p. 657, § 536. to pay debts of ward, how, p. 656, § 535. to recover debts of ward and represent him, p. 656, § 535. to return inventory of ward's estate, p. 660, § 539. ■what sections apply to, p. 689, § 574, 5T6. who may be, p. 634, § 619. OuardiansMp, how terminated, p. 686, § 568. letters and bond to be recorded, p. 640, § 524. of non-resident wards, extends to what, p 680, § 562. order of court entered as decree, p. .689, § 574, terminates when, p. 686, § 568. Habitual drunkard, court to declare persons, when, p, 664, § 533. guardian for, p. 655, § 533. information against, p. 655, § 533. may appear and answer when, p. 654, § 533, person may be adjudged, p. 652, § 533. record against, may be vacated when, p. 654, § 533. to be summoned when, p. 654, § 533. Half-blood, relatives of, inherit, how, p. 569, § 473. Handwriting, when may be proven, on probating will, p. 39, § 18. Heir, advancement to, p. 461, § 305. alien, when must sell inherited property, p. 501, § 360. and devisees may sue for possession ^f realty, etc., p, 163, § 123. conveyance by conclusive, when, p. 551, § 449. deceased minor, share of, how disposed of, p. 439, § 289. illegitimate child is, to whom, p. 565, § 466. may bring what action, p. 346, § 224. minor', attorney for, p. 482, § 328. or devisees, realty delivered to, when, p. 164-165, § 124, order requiring, to refund money to pay debts, p, 427, § 287. property set apart for use of family vests in, when, p. 182, 183, § 133. incceed to property of intestate when, p, 555, § 464, INDEX. 789 Heir, take share of deceased devisee, p. 530, § 403. Heirsllip, prpoeedings to determine, p. 431, § 288. ' Homestead, court of law cannot set aside, p. 10, § 1. decree, etc., to be recorded, p. 484, § 329. duty of appraisers, p. 193, § 138. family to remain in, p. 171, § 129. of insane persons, p. 201-209, § 143. orders concerning, to be recorded where, p. 201, § 142. power of court over, p. 503, 504, § 366. purchasers, rights of, p. 200, § 14). rights of survivor to, p. 191, § 136. sale of, p. 193, § 138. subsisting liens to be paid, p. 192, § 137. tenure of, p. 503, 504, § 366. title vests in survivor, p. 503, 504, ,§ 366. to be included in inventory, p. 154, § 114. to be set apart to family, p. 172-174, § 130. when value exceeds five thousand dollars, procedure, p. 193, § 138. Husband and wife, inheritance of, applies to what, p. 572, § 479. consent of, not necessary to will of wife, p. 507, § 369. Illegitimate child, adoption of, p. 713, § 589. heir to whom, p. 565, § 466. public acknowledgment of, p. 713, 714, § 589. what consent necessary to adoption, p. 705, § 583. Incapable person, powers of, p. 497, § 354. Incompetent person, guardian of, p. 643-655, §§ 528-532. Index, to what books, p. 6, 8, § 1. ^ Information, against habitaal drunkard, p. 655, § 533. in escheat, p. 581, ^ 488. Inlieritance by adopted child, p. 711, 712, §§ 587, 588. by relative of the half-blood, p. 569, § 473. by right of representation, p. 541, § 424; p. 577, § 482. through alien, p. 502, § 3G1. Insane person, how committed to asylum, p. 602-627, § 514. restoration to capacity, procedure, p. 648, § 531. Insolvent estate, all property sold under one order, p. 258, § 171. Intendments in favor of record, p. 6, § 1. Intention of testator to be ascertained how, p. 536, § 408. to be 'followed out, p. 552, § 456. Interest, claim bearing, p. 231, 232, § 148. claims beafing, payment of, p. 253, § 1-67. corporation to pay, when, p. 115, § 76. legacies bear, from what time, p, 552, § 454. Interest or income from certain money accrues when, p. 551, § 461. Interpretation of will, p. 533-537, §§ 407-411.; Intestacy to be avoided in construing will, p. 539, § 416. Issues, how tried, p. 481, § 326, 327. 740 INDEX. Intestate, property of, heirs succeed to, p. 555, § 464 Inventory by legatee, p. 551, § 450. neglect to file, penalty, p. 161, § 121. oath to, p. 161, § 120. of after-discovered property, p. 162, § 122. of estate of stranger, p. 489, § 334. of ward's estate, p. 660, § 539. partnership property included in, p. 351, § 228. what to contain, p. 154, § 114; p. 156, 157, § 116; p. 159, S 117; p. 160, § 118, 119. when to be returned, p. 154, § 114. Joint administrators or executors, who to act, p. 136, $ 100. Judge, disqualification of, p. 142, § 105. duty of, in adoption, p. 708-710, § 586. may hold court in others counti^ than his own, p.' 3, 9 1- powers of, at chambers, p. 3, § 1. sick or absent, who to act, p. 689, § 575. venue, change of, p. 142-146, § 106-108. J when disqualified or sick, who to act, p. 3, § 1. Judgment against decedent must be presented as claim, p. 247, i 159t. against embezzler, p. 168, 169, § 127. against habitual drunkard, p. 654, § 533. creditor may redeem when, p. 248, § 159. how enforced, p. 481, § 326. ' not a lien when, p. 249, § 160. of reversal on appeal, effect, p. 700, § 599. on petition for restoration to capacity, p. 648, § 531. revoking probate of will, p. 57, § 28. ♦ to be rendered on verdict probating or refusing probate, p. 37, S 17. will and proofs recorded when, p. 37, § 17. Jurisdiction, first application decides, when, p. 11, 12, § 2. not acquired without statutory notice, p. 24, § 9. of courts of probate over estates, p. 1, § 1. of county court, p. 4, § 1. <^f district court, p. 7, § I. of probate court, p. 6, § 1. of superior court in probate, p. 6, S 1< Jurisdictional fact, residence is, p. 10, § I. matters need not be recited in order when, p. 474, § 314. Jury trial, p. 481, § 327. how conducted, p. 37, § 16. I on contest of will, p. 29, § 15. on contest of will after probate, p. 57, § 2Sk on petition for restoration to capacity, p. 648, § 531. Justification of sureties, p. 116, § 76; p. 118, § 76. Kindred, degrees of, how computed, p. 568, 569, § 468-472. Iiast sickness, expenses of, when to be paid, p. 415, § 275. INDEX. 741 I«ase, effect of, p. 343, § 223. of guardian, p. 647, § 530. or mortgage of real estate, p. 333, § 221. order to, how obtained, p. 341, § 223. I 318, § 201. of settlement of account must be proven,' p. 409, § 269. of summary administration, p. 184-187, § 134. of suspension to be given to executor or administrator, p. 149, § 110. of trial, of petition for restoration to capacity, p. 648, § 531, order may be made without, when, p. 259, § 172. proof of, when and how to, be made, p. 26, § 11. record is, of what, p. 476, § 316. to absconding executor or administrator, how given, p. 152, § 112. to creditors, p. 221-223, § 144. to creditors, neglecting to give, letters to be revoked, p. 252, § 165. to spendthrift, p. 651, § 532. want of, in adoption, right of parents, p. 712, § 588. JTimcupative will, additional requirements, p. 67, § 37. contest of probate of, how conducted, p. 67, § 38. petition for probate of, contents of, p. 65, § 36. requisites of, p. 518, § 383. testamentary words to be written when, p. 65, § 36. when may be admitted to probate, p. 65, § 36; p. 67, § 37. Oath of appraisers, p. 156, 157, § 116. . of appraisers of ward's estate, p. 660, § 539. of executor or administrator, p. 105, § 70. of guardian before sale, p. 118, § 76; p. 677, § 558. of ofSce, how taken by corporation, p. 114, § 76. of special administrator, p. 132, § 94. public administrator may administer, when, p. 495, § 350. to inventory, p. 161, § 120. Objections to confirmation of sale of real estate, p. 307, § 198. to exhibit, who may file, p. 391, § 257. < to probate of will, p. 21, § 8. who may file, to issuance of letters testamentary, p. 76, § 42. Olographic will, definition of, p. 514, § 373. how proved, p. 28, § 14. Opposition to appointment of administrator, grounds of, p. 96, § 60. Index. 745 Opposition to appointment of administrator, wlio may file, p. 96, S 60. to probate of will, p. 29, § 15. Orders and decrees to be entered in minutes, p. 474, § 314. appealable, what is, p. 692-698, § 577. appointing attorney for minor heirs, contents, p. 482, § 328. appointing guardian, conditions inserted in, p. 639, § 523. appointing guardian for spendthrifts, effect of, on contract, p. 651, S532. appointing guardian of insane or incompetent person made when, p. 645, § 529. concerning homesteads, to be recorded, where, p. 201, § 142, confirming sale of real estate, contents, p. 318, § 201. confirming sale of'real estate to be recorded, where, p. 309, § 199. confirming sale, when description of realty need not be published, p. 479, § 322. confirming sale of real estate, when to be made, p. 308, § 199. fixing time for hearing petition, form of, p. 22, § 8. for citation to render exhibit, p. 391, § 256. for further security, neglect to obey, p. 124, § 83. for payment of debts, when to be made, p. 416, § 276. for specific performance, to be recorded, etc., p. 367, 368, § 238, 239. granting license to remove property of ward, p. 682, § 564. i granting right to remove property of ward, effect of, p. 683, § 665. of adoption, p. 708-710, § 586. of adoption of minor child, form, p. 710, § 586. of court entered as decree in guardianship, p. 689, § 574. of court on charge of embezzling estate, p. 168, 169, § 127. of distribution, p. 425, § 286. of distribntion, contents of, p. 4.30, § 287 a; p. 439, § 289; p. 443, § 29a of sale of homestead of insane person, p. 202, § 143. of sale of mines, p. 274, § 180. of sale of property of ward, expires when, p. 675, § 556. of lale of real estate, contents, p. 292, j§ 190. of sale of real estate to be made when, p. 291, § 189. of sale of real estate, who may apply for, p. 295, § 191. of sale of ward's estate, p. 669, § 548. of sale of ward's estate, to specify what, p. 672, § 553. of sale of ward's property, how obtained, p. 667, § 547. recitals in, not necessary when, p. 474,i § 314. record of, effect of, p. 476, § 316. releasing sureties, p. 127, § 87. requiring heir to refund money to pay debts, p. 427, § 287. requiring production of will, p. 19, § 7. reversing judgment on appeal, effect, p. 700, § 599. revoking letters for contempt, contents, p. 485, § 331. to deposit funds, p. 493, § 345. ■y" to lease realty, how to obtain, p. 341, § 223^ 746 INDEX. Orderx to sell all property of estate, when may be, made, p. 233, S 171. to sell persoaal property, p. 261, § 173. to sell ward's estate, p. 657, § 536. to show cause on petition' for sale of real estate, p. 286, § IS4. to show cause on petition to mortgage or lease real estate, p. 33S, S 222. what may be granted without notice, p. 21, § 8. Parent, authority ceases on appointment of guardian, p. 629, $ 515. of adopted child, effect of adoption on, p. 71% § 588. rights of, when not notiiied of adoption, p. 712, § 588. Partial distribution may be had when, p. 422, § 283. Partition, advancement to be deducted, p. 461, § 305. after distribution, p. 447, § 292. and distribution, who may resist application for, partial, p. 434, % 285. commissioners for, p. 452, § 296. commissioners not necessary when, p. 461, § 304. decree to be recorded, p. 458, § 303. estate may be sold when, p. 457, § 301. grantee of heir, p. 453, § 297. notice of, p. 451, § 295. notice of, to whom given, p. 458, § 302. of estate, in different counties, p. 452, § 296. procedure on, p. 449, § 294. report of commissioners, p. 465, § 299; p. 458, § 30^. share, how set out, p. 454, § 298. to be made after distribution, p. 451, § 295. tracts assigned, of different value, procedure, p. 456, § 300. whole estate assigned to one when, p. 454, § 299. who may petition for, p. 451, § 295. Partner, surviving, not to be appointed administrator, p. 85, S $1. surviving, rights and duties of, p. 351-354, § 228. surviving, to render account when, p. 351-354, § 228. Partnersliip estate, p. 10, § 1. administrator of, powers, duties, and liabilities^ p. 86, 87, S 51. estate, where it exists, p. 331, § 228. property, administration on, p. 86, 87, § 51. property, disposition of, p. 86, § 51. property, how sold, p. 264, § 174. Payment of debts, order of resort to property, p. 548, § 441, of money, how enforced, p. 6, § 1. Penalty for abandoning child,, p. 713, 714, § 389. Perishable property, sale of, p. 259, § 172. Personal property, how chargeable with debts, etc., p. 265, § 169. must be present at sale, p. 266, § 176. order for sale of, p. 7, 8, § 1. sale of, p. 261, § 173; p. 277, § 182. bale of, when ordered first, p. 409, § 270. where and how sold, p. 266, S 176. INDEX 7^-^ Petitions, claiming prior right, admini^rator may answer, p. 102, § 67. contesting will atter probate, when and where filed, p. 51, § 25. for appointment of guardian of insane or incompetent 'person, p. 643, §528. for appointment of gnardian, who may, p. 628, § 515. for citation to render account, p. 3S9, § 255. for distribntion, who may file, p. 429( § 287 a. for investment of funds, p. 410, § 271. for leave to adopt minor, form, p. 707, § 585. for letters of administration, affidavit to be filed with, p. 93, § 57. for letters of administration, conflicting, p. 96, § 60. for letters of administration, contents of, p. 92, § 57. for letters of administration, filed in vacation, duty of clerk, p. 95, § 59. for letters of administration, notice of, p. 95, § 59. for letters of adn)inistrati(*i, proof of notice of hearing, p. 98, § 62. for order of sale, contents, p. 257, § 170. for probate of will, p. 14, § 4; p. 16, § 5. for probate of will, contents, p. 14, 15, § 5. for probate of nuncupative will, contents of, p. 65, § 36. for probate of will, notice of, p. 20-22, § 8. for production of will, form of, p. 18, § 7. for restoration to capacity, verification, p. 648, § 531. for sale, defect in, how supplied, p. 257, § 170. for sale of homestead of insane person, p. 202, § 143. for sale of mines, p. 270, § 178. for sale of real estate, eonteuta of, p. 278, § 183. for sale of real estate must be verified, p. 278, § 183. for Sale of real estate, who may be examined at hearing, p. 290, § 187. for sale of ward's estate, contents, p. 667, § 547. for sale of ward's estate, hearing of, how, p. 671, § 550. for specific performance, contents, p. 362, § 235. for specific performance, to be verified, p. 362, § 235. order fixing time for hearing of, p. 22, § 8. to mortgage or lease real estate, contents, p. 334, § 222. to mortgage or lease real estate must be verified, p. 334, § 222. to sell all property of estate, when may be filed, p. 258, § 171. to terminate life estate, contents of, p. 486, § 333. to terminate life estate must be verified, p. 486, § 333. KaintifE; who is, p. 481, § 326. Pleadings, na particular form of, p. 5, § I. Possession of estate, executor or administrator entitled to, p. 346, § 224. Possibility not an interest, p. 503, § 364. Posthumous child takes under will when, p. 542, § 429. Postponement, notice, p. 319, § 203. Powers, duties, and liabilities of administrator of partnership, p. 86, ^7, § 51. granted in will to devise, executed how, p. 540, § 420. of administrator or executor suspended when, p. 147, 148, § 109. 748 INDEX. Powers of administrators with will annexed, p. 81, § 47; p. 136, S 99. of clerks, p. 25, 26, § 10. of court, wholly statutory, p. 5, § I. of executor, p. 136, § 99. of incapable persons, p. 497, § 354. of joint executors, p. 81, § 46. of judge in chambers, p. 3, 8, § 1; p. 24, 25, § 10; p. 129, S 89. of special administrator, p. 133, § 95. of special administrator cease when, p. 134, § 96. of special administiator to be specified in minutes of court, p. 131, § 92. Practice, rules of, p. 479, § 323. Preference in awarding custody of minor and appointing guardian, p. 598| §502. Presumptions in favor of jurisdiction, p. 9, § 1. in favor of records of probate courts, pk 1-3, § 1. of legitimacy, p. 501, § 357, 358. Probate court a court of record, p. 1, § 1. court, jurisdiction, general, p. 9, § 1. court, jurisdiction limited, p. 9, § 1. court, power to set its own judgment aside, p. 9, § I. court shall have clerk, p. 1, 2, § 1. court shall have seal, p. 1, § 1. court, terms of, p. 6, § 1. courts always open, p. 6, § I. courts, genei-al and special terms of, p. 2, § 1. courts have jurisdiction to do what, p. 2, § 1. ' courts to be held, where, p. 2, § 1. judge, definition of, p. 690, § 575. jndge may act as clerk of his own court, p. 2, § 1. judge not to be interested in attorney's fee, p. 2, § 1. judge not to have partner, p. 2, § 1. judge, powers of, at chambers, p. 3, § 1. judge responsible on bond for default of clerk, p. 2, § 1, jurisdiction, distinct from other jnrisdiction of court, p. 10, 11, § 1. of will, petition for, p. 14, § 4. of will, when conclusive, p. 58, § 31. of will, when no contest, p. 28, § 13. Procedure on adoption, p. 705, 706, § 585. Proceedings, after order of sale of mines, p. 275, § 181. by persons claiming escheated estates, p. 492-494, § 591, collateral attack, p. 10, § 1. for removal of property of non-resident ward, p. 681, 683, § 564, 565. bow construed, p. 6, § 1. how transferred, p. 142, § 106. in nature of equity suit, p. 6, § L not invalidated when, p. 257, § 170. of court, pnrely statutory, p. 9, §1. INDEX. 749 Proceedings of probate courts oonatraed same as courts of general jurisdic- tion, p. 1, 2, § 1. returned to original court, when, p. 144-146, S 107, 108. to be recorded, how, p. 8, § 1. Process, service on guardian, p. 485, § 332. to run in name of state, p. 5, § 1. Production of will, judge may receive petition for, when, p. 25, § 10. order for, p. 19, § 7. Proof of lost will, p. 59, § 32. notice of hearing petition for letters of administration, p. 98, S 62. of notice, when and how to be made, p. 26, § 11. of nuncupative will, limitation on, p. 519, S 384. of olographic will, p. 28, § 14. of personal service, p. 25, § 9. of posting notice, p. 23, § 8. of publication of notice, p. 23, § 8. of service by mail, p. 25^ § 9. of will, how taken, p. 4, § 1. of will recorded when, p. 37, § 17. what must be made before granting letters of administration, p. 99, §64. what required on contest for letters of administration, p. 97, § 61. Property, discovered after final settlement, p. 471, § 313. community, disposition of, on death of spouses, p. 573, 574, § 480, 481. fraudulently disposed of, disposition of, when recovered, p. 361, § 234. fraudulently disposed of, recovery of, p. 357, § 232. of decedents, succession and distribution of, p. 556-565, § 465. of estate, executor wasting, powers suspended, p. 125, § 84. of ward, deed, lease, mortgage of, p. 647, § 530. of ward, limitation of action to recover, p. 688, § 572. of ward, limit of credit on sale of, p. 676, § 557. of ward, order of sale of, expires when, p. 675, § 556. partnership, administration on, p. 86, 87, § 51. partnership, disposition of, p. 86, § 51. perishable, sale of, p. 259, § 172. personal, sale of, when ordered first, p. 409, § 270. set apart for use of family, how apportioned, p. 182, 183, § 133. title to, does not pass when, p. 236, § 169. unlawfully bequeathed to charitable institutions, disposition of, p. 532, §406. what chargeable with payment of debts, p. 548, § 443. what passes by will, p. 508, § 370. what to be sold first, p. 265, § 175. when escheats to state, p. 579, § 485. who may hold, etc., p. 501, § 360. Publication of notice, affidavit of, p. 23, § 8, 750 INDEX. Publication of notice to creditors, p. 221-223, § 144. to be made, how often, p. 475, § 315. number of, judge may regulate, p. 22, § 8; p. 475, § 315. Public acknowledgment of illegititnate child, effect of, p. 713, 714, § 589, administrator, affidavit to semi-annnal report, p. 494, § 346. administrator, bond of, p. 490, § 335. administrator, civil ofiicers to assist, p. 491, § 339. administrator, complaint by, of embezzlenient, p. 492, § 341, administrator, disposition of funds of estate, p. 493, § 345. administrator, duties of, p. 48S, § 334. , administrator, duty of, concerning homestead of insane persons, p. 201, 202, § 143. administrator, duty of informing, p. 490, § 336. administrator, failure to inform, penalty for, p. 490, § 336. administrator, failure to pay money, proceedings, p. 495, § 348, administrator, how to administer estate, p. 491 , § 337, administrator may deposit funds with corporation, p. 114, § 76. administrator, sections made applicable, p. 496, § 351, administrator to account, p. 492, § 343. administrator to account with county clerk when, p. 495, § 347, administrator to deliver up estate when, p. 491, § 338, administrator to deposit money, when and where, p. 1 15, § 76. administrator to pay funds to county treasurer when, p. 495, § 347. administrator to pay what fees^ and when, p. 495, § 347. administrator to publish condition of estates semi-annually, p. 493, §344. administrator to sue to recover estate, p. 492, § 340. administrator to take charge of estate, p. 489, § 335. administrator, when to administer, p. 86, § 51, Purchaser, delinquent, liability of, p. 309, § 199, Qualification and justification of sureties, p. 118, § 76. Seal estate, contract of decedent to convey, to be completed, when, p. 362, §235. estate delivered to heirs or devisees when, p. 164, 165, § 124. estate, mortgage or lease of, p. 333, § 221. estate, sale of, p. 277, § 182. estate, sale of, additional bond required, p. 109, § 72. estate, title to, court of probate cannot try, p. 9, § I. property, conversion of, to money, effect of, p. 542, § 428. property, how charged with debts, etc., p. 255, § 168. property of decadent, to whom descends, p. 555, § 464, Recitals in orders not necessary when, p. 474, § 314. Record, authentication of, as evidence, p. 3, § 1, 18 notice of what, p. 476, § 316. recitals in, presumption, p. 10, § 1. to be kept in what books, p. 5, § 1, p. 7, § 1. Keferee, compensation of, p. 406, § 267. INDEX. 751 Beferee, power of eonrt over, p. 250, § 162. Belatives of decedent, prior righis of, p. 104, § 69. of the half-blood inherit how, p. 569, § 473. Semaiuderman., interest of, not affected by death of devisee, p. 543, § 434. Semoval of administrator or executor on becoming incompetent, remaining may act, p. 136, § 100. of exeontor, p. 70, § 40. of executor, iuterested party may appear at hearing, p. 151, § 111. of guardian, p. 684, § 567. of property of non-resident ward, p. 680, 681, § 563, 564. Kenunciation of executor, p. 15, § 5. of executor, form of, p. 17, § 5. of right to administer, what deemed, p. 86, § 51; p. 98, 99, § 63. Representation, inheritance by right of, p. 541, § 424. Bequest in writing for the appointment of another as administrator, p. 99, §6S. Besale may be ordered when, p. 300, § 197. of real estate, when to be ordered, p. 309, § 199. Besidence of decedent, p. 10, § 1. Besiduary clause in will, p. 540, § 422, 423. legacy, p. 548, § 442. Besignation of executor or administrator, p. 138-140, § 102. of guardian, p. 684, § 567. Bestoration to capacity, p. 497, § 354. to capacity, petition for, contents, p. 648, § 331. Betrospective, law is not, p. 690, § 575. Betum of sale of real estate, hearing, duty of court, p. 300, § 197. , proceedings thereon, p. 300, § 197. Bevocation of letters of administration, p. 101, § 66. of letters of administration, acts prior to, valid, p. 141, § 103. of letters of administration on claim of prior right, p. 103, § 68. of letters on failure to give new securities, p. 128, § 88. of mutual will, p. 515, § 375. of will, effect of contract of sale as, p. 524, § 394. of will executed in duplicate, p. 521, § 388. of will, mortgage not, p. 524, § 395. of will, what is, p. 525, § 397. of will, what is not, p. 525, § 396. of written will, p. 521, § 387. Bevoking probate of will, effect of, p. 57, § 29. Bight of representation, inheritance by, p. 541, § 424. to administer, what deemed renunciation of, p. 86, § 51j p. 98, 99, §63. Bules of interpretation of wills, p. 537-546, § 409-441. Sale, account of, neglect to return, penalty, p. 332, § 2l9. account of, to be returned when, p. 331, § 219. account of, to be verified, p. 531, 332, § 219. . 752 IKDEX. Sale by guardian, p. 657, § 536; p. 664-678, § 543-558. by guardian, to be by order of court, p. 66S, § 544. contracts for, to be completed, p. 362, § 35. fraudulent, liability for, p. 330, § 216. misconduct in, liability for, p. 329, § 215. must be confirmed by court, p. 256, § 169. must be reported under oatb, p. 256, § 169. none valid, except by order of court, p. 256, § 169. of contract for purchase of land, p. 324, § 209. of contract for purchase of land, conditions of, 324, § 210. of contract for purchase of land| conveyance, p. 326, § 212. of contract for purchase of land, purchaser to give bond, p. 324^ § 2IL of estate of wards, conditions of, p. 676, § 557. of homestead^ p. 193, § 138. of homestead of insane person, p. 201, § 143. of land subject to mortgage, application of purchase-money, p, 326, §213. of mines, p. 270, § 177. of mines, notice, p. 273, § 179. of mines, order to show cause, p. 273, § 179. of mines, order to show cause, how served, p. 273, § 179. of perishable property, p. 259, § 172. of perishable property, to be approved, p. 259, § 172. of personal property, p. 259, § 172-176. , of personal property, when ordered first, p. 409, § 270. of property of ward, bond of guardian before, p. 673, § 654. of real and personal property, p. 277, § 182. of real estate, additional bond required, p. 109, § 72. of real estate, action to recover property, limitation on, p. 330, § 217. of real estate, bearing of petition for, p. 288,' § 186. of real estate, lien-holder may purchase at, p. 329, § 214, of real estate may be postponed, p. 319, § 202. '' of real estate, notice, p. 286, § 184. of real estate, objections to confirmation of, p. 307, § 198. of real estate on credit, purchase-money secured how, p. 300, § 196. of real estate, order to show cause, how, on whom, and when served, p. 287, § 185. of real estate, petition for, contents and verification, p. 273, § 183. of real estate, petition for, notice waived by written assent^ p. 287, § 185. of real estate, private, p. 297, § 194. of real estate, private, appraisers to be appointed when, p. 299, § 195, of real estate, private, not confirmed when, p. 299, § 195. of real estate, private, notice of, how given, p. 298, § 194. of real estate, receipt of lien-holder valid when, p. 329, § 214. of real est?ite, return of notice of, p. 300, § 197. of real estate, time and place of, p. 297, § 193. INDEX. 75S Sole of real estats, when description need not be pnblished, p. 4'79, 8 322. of residue of estate may be made when, p. 290, § 188, of nnclaimed estate by agent for absentee, p. 466, § 309. of ward's estate, notice of, p. 669, § 548. of ward's property, irregularities in, p. 677, 678, § 538. order confirming, to be recorded, p. 434, § 329. order of, who may object, p. 257, § 170. private, of real estate must be Made when, p. 298, § 194. < private, bids received, where, p. 298, § 194. without order, p. 320, § 205. who cannot purchase at, p. 332, § 220. Seal, letters of adminiatration with will annexed must be issued under, p. 81, §47. must be affixed when, p. 3, § I, of court, p. 4, § 1. Security, further, may be ordered, p. 123, § 82. insufficient, duty of judge without application, p. 125, § 85. order for further, neglect to obey, p. 124, § 83. Separate property of husband, p. 499, § 356 a. property of married woman, will as to, p. 507, § 369. property of wife, p. 498, § 356; p. 500, § 356 o. Service "by mail, proof of, p. 23, § 9. Settlement of account conclusive when, p. 407, § 268. Special administrator, appointment of, preference given, p. 132, § 93. administrator, bond and oath, p. 132, § 94. .administrator, duties and powers, p. 133, § 95. administrator may be appointed at any time, p. 131, § 92. administrator, powers cease when, p. 134, § 96. administrator, powers of, to be specified in minutes of court, p. 131, §92. administrator to render account, p. 133, § 97. administrator, when to be appointed, p. 129, § 91. letters of administration, when to be issued, p. 131, § 92. terms of probate courts, p. 2, § 1. Specific devise, etc., may be sold when, p. 550, § 448. legacy, p. 547, § 442. performance, appeal, p. 368, §239. performance, commissioner appointed when, p. 363, § 236. performance, conveyance, effect of, pi 370, § 241. performance, conveyance, how executed, p. 368, § 239. performance, decree for, to direct possession to be given, p. 371, § 245. performance, depositions used on hearing, p. 266, § 237. performance, doubtful rights of petitioner, procedure, p. 369, § 240. performance, effect of decree, p. 368, § 239. performance, effect of recording, p. 370, 371, § 242, 243. performance, notice of hearing must be proved, p. 365, § 237. performance of contract to convey realty,, p. 362, § 235. 754 INDEX. Specific performance of contract, where decedent non-resident of state, p. '363^ §236. performance, order for conveyance, p. 367, § 238. performance, party entitled dead, procedure, p. 371, § 244. performance, when foreign administrator may object, p. 363, § 236. performance, who may contest, p. 365^ § 237. Spendthrifts, p. 652, § 532. Succession and distribution of property of decedents, p. 5S6-565, S iSS, definition, p. 554, § 463. future interest passes by, p. 503, § 363. not claimed, duty of attorney-general, p. 579, § 484. Successor of decedent liable for his obligations, p. 681, S 487. Summary administration, p. 184-190, S 134, 135. SuminonB in escheat proceedings, form of, p. 586, § 488. Superior court, power of, p. 9, § 1. Sureties, corporation may be, p. 112-117, S 76. justification of, p. 116, § 76. liability of, p. 138, § 102. may be released, how, p. 126, § 86. order releasing, p. 127, § 87. on bond, liability of, p. 129, § 90. qualificatiou and justification of, p. 118, S 76. who shall not be, p. 107, § 71. Surviving partner not to be appointed administrator, p. 85, § 51. to be administrator of partnership when, p. 86, 87, § 51. Suspension of executor or administrator, notice of, to be given, p. 149, §110. of powers of administrator or executor, p. 147, 148, § 109. Taxes to be paid before distribution, p. 448, § 293. Technical words, effect of, in will, p. 539, § 418, 419. Terms of probate courts, p. 2, § 1. Testamentary disposition fails when, p. 543, § 433. disposition, when does not divest, p. 543, § 432. guardian, bond of, powers limited, p. 641, § 526. words of nuncupative will, when to be written, p. 65, § 36. Testator's declarations not evidence of intentions, p. 642, § 430. Testimony of subscribing witnesses reduced to writing, p. 37, § 17; p. 40, §19. of subscribing witness to will, p. 28, § 13. on probate of lost will, how authenticated, p. 62, § 34. written, may be used in subsequent proceedings, after probate, p. 40, § 19. Title does not pass until sale confirmed, p. 256, § 169. Transfer of proceedings, effect of, p. 144, § 107. Trial by jury, p. 29, § 15; p. 481, § 327. by jury of contest of will after probate, p. 57, § 28. of contest after probate, p. 56, § 27. INDEX. 755 Trust, jurisdiction not lost after distribution, p. 472, § 313 a. ' order to show cause, how served, p. 472, § 313 a. probate court cannot enforce, p. 10, § 1. Trustee, corporation may be, p. 114-117, § 76. created by will, p. 472, § 313 a. under will, citation to account, p. 472, § 313 a. TTnclaimed estate, how disposed of by agent, p. 464, § 308. sale of, by agent for absent distributee, p. 466, § 309. Undertaking on appeal by executors and administrators, p. 699, § 578. TTnniarried woman marrying, effect of, on authority as executrix or ad- ministratrix, p. 77, § 43. Vacation, court open in, when, p. 7, § 1. Verdict to be special, p. 37, § 17. Vouclier withdrawn when, p. 399, § 262. Ward, deed, lease, mortgage of property, petition for, p. 647, § 530. definition, p. 595, § 493. funds of, how invested, p. G65, 666, § 544-546. guardian may appear for, when, p. 485, § 332. guardian to maintain, p. 657, § 536. marriage terminates guardianship, p. 686, § 563. >^ newly acquired property must be inventoried, p. 660, § 539. non-resident, p. 678, § 559. non-resident, power and duties of guardians, p. 679, § 560. person defrauding, examination of, p. 684, § 566. property of, deed, lease, mortgage of guardian, p. 647, § 530. property of, order to mortgage, lease, or sell, contents, p. 647, § 530. stranger may maintain, when, p. 659, § 537. Ward's estate, action to recover, p. 677, § 558. estate, bond and mortgage given for deferred payments for, p. 676, §557. money, court may order investment of, p. 676, § 558. estate, nature of, p. 677, § 558. estate, petition for sale of, to be verified, p. 667, § 547. estate, proceeds of, how- applied, p. 666, § 545. estate, sale of, order to show cause to be served on whom, p. 670, § 548. property, limit of credit on sale of, p. 676, § 557. Will, all witnesses to, must be examined when, p. 39, § 18. ambiguity, of, how explained,, p. 538, § 413. answer to contest of, p. 29, § 15. antecedent, not revived by revoking subsequent will, p. 522, § 390. attesting witnesses, how must sign, p. 509, § 372. certificate and proof to be filed and recorded, p. 42, 43, § 21. certificate of lost, contents, p. 62, § 34. certificate of probate to be attached to, p. 41, § 20. charitable bequest, p. 532, § 406. children, or issue of children, unprovided for, p. 528, § 400, condition precedent, definition, p. 544, § 436. 756 INDEX. Will, oondition precedent, when deemed performed, p. 544, § 438, condition subsequent, definition, p. 544, § 439. conditional, denied probate when, p. 515, § 377. construction of, p.. 11, § 3. contest after probate of, p. 51, § 25. contest of, form, p. 33, § 15. cnotest of, further, may be made when, p. 27, S 12. contest of, who may make, p. 27, § 12. conversion of real property into money, effect of, p. 542, § 428. costs and expenses of revolting probate of, p. 58, § 30. creditors, competent witnesses, p. 515-517, § 378. custodian of, duty of, p. 13, § 3. death of devisee does not affect interest of remainderman, p. 543, § 434. declarations of testator not evidence of intentions, p. 542, § 430. demurrer to contest of, p. 29, § 15. depositions on probate of, p. 40, § 18. destroyed, provisions of, to be proved by two witnesses, p. 62, § 33, devise or bequest to a class, p. 541, § 427. devise to more than one, effect of, p. 544, § 440. disposition i^ to heirs, etc., without qualifying words, effect of, p. 541, § 424. effect of after-born issue on, p. 525-527, § 399. • effect of codicil on, p. 518, § 381. effect of condition precedent, p. 544, § 437. effect of contract of sale dn, p. 524, § 394, effect of, on gift, p. 503, § 365. effect of revoking probate of, p. 57, § 29. effect of technical words in, p. 539, § 417. executed in duplicate, revocation of, p. 521, § 388. foreign, proceedings on, p. 47, 48, § 2.3. foreign, probate, etc., p. 45-47, § 22. foreign, proofs for probate of, p. 49, § 24. foreign, valid, when, p. §17, § 3S0. form of, p. 511-513, § 372. found, letters of administration revoked, p. 135, § 98. fraudulent destruction of, must be proven, p. 62, § 33. future interest passes by, p. 503, § 363. gift to witness void, p. 515-:517, § 378. grounds of contest of, to be filed, p. 29, § 15. handwriting may be proven on probating of, p. 39, § 18. harmonizing various parts, p. 537, § 411. imperfect description in, p. 542, § 430. ' includes codicils, p. 496, § 352. intention of testator, how ascertained, p. 536, § 408. intention, testator's, to control, p. 552, § 445, 446. interpretation of, p. 533-537, § 407-411. intestacy to be avoided in construing, p. 539, p. 416. INDEX. 787 Will, judgment revoking probate of, p. 57, § 28. jnry trial o{ contest of, after probaiie, p. S7, % SSS. limitation of conteat of, »fter probate, p. 61, § 25. lost or destroyed, must exist at time of death of testator, p. 62, § 33. lost, proof of, p. 59, § 32. mortgage not a revocation ctf, p. 524, § 395. must be subscribed how, p. 509, § 372. mutual, how revokedj p. 515, § 375. not aSectted by what, p. 553, § i€0. notice of petition for probate of, p. 20-22, g 8. notice of probata of, to whom and haw given by mail, p. 23-25, § 9, nuncupative, additional requirements, p. 67, § 37. nuncupative, contest of probate of, how conducted, p. 67, § 38. nuncupative, how executed, requisites of, p. 518, § 382, 383. nuncupative, petition for probatiB of, contents of, p. 66^ § 36. nuncupative, probate of, limitation on, p. 520, § 385. nuncupative, proof of, p. 519, § 384. nuncupative, testamentary words to be written when, p. 66, § 36; p. 67, §37. nuncupative, when may be admitted to probate, p. 65, § 36; p. 67, § 37> objections to probate of, p. 21, § 8. olographic, how proved, p. 28, § 14. petition contesting, after probate, when and where filed, p. 51, § 26. power granted in, to devise, how executed, p. 540, § 420. presentation prayed for, ^. 17, 18, § 7. probate of, when conclusive, p. 58, § 31. probate of, when no contest, p. 28, § 13. prior, when not revoked by subsequent, p. 621, 522, § 389. probate of, who may petition, p. 14, § 4. production of, judge may receive petition when, p. 25, g 10. proof of, how taken, p. 4, § 1. recorded when, p. 37, § 17. residuary clause, p. 540, § 422, 423. revocation by marriage and birth of issue, p. 522, 523, § 391, 39%. revocation of, provisions for, p. 553, § 469. revocation, void, if procured by fraud, p. 507, § 368. revoked by birth of issue when, p. 525-527, § 399. several testamentary instruments are, p. 537, § 410. share of after-bom child, how paid, p. 529, § 401. subscribing witness, competency of, p. 615, § 376. technical words not necessary, p. 539, § 418. testator's debts, who liable for, p. 553, § 462. testator's intentions to be carried out, p. 552, 553, § 445, 446. testamentary disposition fails when, p. 543, § 433. testamentary disposition, when does not divest, p. 543, § 432, testimony of subscribing witness to, p. 28, § 13. to accompany petition for probate, p. 17, § 7. 758 INDKX. Will, unlawful beqnesta, what are, p. 532, § 406. validity and interpretation of, what law applies, p. 553, § 461. what corporations may take by, p. 509, S 371. what not to be considered as ademptions, p. 546, § 441. what passes by, p. 530, 531, § 404, 405; p. 539, 540, § 419-422. what property passes by, p. 508, § 370. what valid as, p. 517, § 380. when devise or bequest vests, p. 542, § 431, when may be admitted to probate on testimony of other than snb- * scribing witnesses, p. 39, § 18. when posthumous child takes under, p. 642, i 429. who may make, p. 506, § 367. who may take by, p. 509, § 371. witness who is a devisee, how affected, p. 517, § 379. witnesses'to, p. 514, 515, § 374, word "heirs," etc., not requisite to devise a fee, p. 539, § 419. words of donation and limitation, p. 541, § 425. words of, taken in ordinary sense, p. 538, § 414. words of, to receive operative construction, p. 539, § 415. words referring to death relate to what time, p. 541, § 426. written, how executed, p. 509-511, § 372. written, bow revoked, p. 520, 521, § 386. Witness, attesting, to will, p. 509, § 372; p. 514, § 374. commission to tak^. testimony of, p. 3, § 1. compelled to testify, etc., p. 8, § 1. refusal to testify, penalty, p. 8, § 1. subscribing to will, all must be examined, when, p. 39, § IS, subscribing to will, testimony of, p. 28, § 13. testimony, reduced to writing, p, 37, § 17; p. 40, § 19. to will, competency of, p. 515, § 376. to will, gift to, p. 515-517, § 378. what may be produced on application to sell ward's estate, p. 671, §551. Wordf in will to receive operative construction ii;i will, p. 539, § 415. Written acknowledgment of illegitimate child, effect, p. 566, § 466. bid of ten per cent advance on price bid may be made in oonrt when, p. 301, § 197. KF 765 A9'^ Author Alexsuider, Daniel E Vol. Title Copy Probate law, paactice and forms Date Borrower's Name